During the years 1906 and 1907 the Southern Ferro Concrete Company bought of Kirkpatrick Sand & Cement Company and Alabama Sand & Supply Company a large quantity of sand, including the sand mentioned in the complaint, at a fixed price delivered at its works on the Birmingham Terminal Station, at Birmingham, Ala. The defendant, appellee here, had no voice in the selection of the points from which the sand was to be shipped, and no interest in the freight rate to be charged for the transportation of the sand from the initial shipping point to Birmingham Terminal Station. The sand was shipped from Bull Creek, in the state of Georgia, by the said company and was brought to appellee by the appellant, Central of Georgia Railway Company, as a common carrier engaged in interstate commerce. The freight that was prepaid by the defendant was at the request and for the convenience of the shipper, and the defendant was under no contract that would render it liable to plaintiff for these freights.
Defendant’s plea alleges the above facts; also that, when the claim sued on was made against it for the claimed mistake in the amount of freights, plaintiff was informed of the true contract between the defendant and the owners and shippers of the sand, “who were obligated to pay” the freights, and “who were and are
Appellant insists that, under the ruling of the Interstate Commerce Commission, appellant was required to collect the undercharges from the consignees. Prom Conference Rulings of the Interstate Commerce Coin-mission, bulletin No-. 6, ruling No. 3, made on November 4, 1907, we quote: ' 3. Collection of Undercharges. —The Commission adheres to its previous ruling that carriers must exhaust their legal remedies to collect undercharge from consignees.”
Prom the same bulletin,' conference ruling No. 187, made on June 8, 1909, we take the following: “187. Interpretation of Conference Ruling No. 3. — The case upon which this ruling was made was one where freight charges were collectible from the consignee To give it general application, the words 'from consignee’ are now stricken from the rule, so that it will read: 'Collection of Undercharges. — The Commission adheres to its previous ruling that carriers must exhaust their legal remedies to collect undercharges.”
Conference ruling No. 314 (same bulletin) of the Commission reads as follows: “314. Collection of Undercharges. — The law requires the carrier to- collect and the party legally responsible to pay the lawfully established rates without deviation therefrom. It follows that it is the duty of carriers to exhaust their legal remedies in order to collect undercharges from the party or
The'suit in this case, for the claimed freight undercharges on interstate shipments of sand, was filed on the 18th day of July, 1911. This was soon after the conference ruling of May 1, 1911, which we have quoted above. Clearly, the last ruling, before shipment, of the Interstate Commerce Commission, must govern the common carrier in its efforts to collect freight undercharges. The rule properly leaves it to the courts having jurisdiction to declare, in each case, whether the consignor or consignee is legally liable for the undercharge.
Under the undisputed evidence in this case the title -did not pass till the sand was delivered to appellee according to the contract of purchase. — Ala. Nat. Bank v. Parker & Co., 146 Ala. 513, 40 South. 987; Brown v. Adair et al., 104 Ala. 652, 16 South. 439; Ala. Nat. Bank v. Parker & Co., 153 Ala. 598, 45 South. 161. Appellee was therefore under neither express nor implied liability for any carriage charges.
The judgment of the city court is affirmed.
Affirmed.