Appellant submitted to the circuit court fifteen propositions to be held as the law of the case. All were refused except the tenth. The only assignment of error open to consideration here is that which challenges the action of the court in refusing the propositions other than the tenth.
The first proposition submitted is in the following words:
“Under the facts, as shown by the evidence in this case, the defendant had the right to re-classify the goods upon the inspection thereof and charge the proper freight, and demand the same upon the arrival of the goods at Pana, and to hold the goods so shipped until the proper freight charges were paid.”
The facts in this case were disputed. In order to hold the proposition above set out, it was necessary not only that the court should adopt the appellant’s view of the law, but also agree with its contention in reference to the facts. The proposition is therefore a mixed proposition of law and fact and was properly refused for that reason. Several other of the refused propositions were in like manner objectionable.
The third and the fifth, however, which are substantially the same, are propositions of law. The fifth is in the language following:
“If the evidence shows that the plaintiff, in the name of Kendall, secured a car from the defendant to ship goods from Chicago to Pana, and the plaintiff and'Kendall loaded .the car in person; and if the plaintiff or Kendall, caused the goods to be billed as ‘emigrant movables’ and shipped as seventh-class freight, but in fact loaded the car with merchandise which under the rules and classifications and tariffs of the defendant should have been billed and charged for as merchandise, then the plaintiff becomes liable for the extra freight so charged and the judgment should be for the defendant.”
The law is that if the consignor falsely represents to the common carrier that the goods which he desires to ship are of a certain kind, and the carrier, without notice or lcnowl*355edge that they are of a different kind, accepts the goods and fixes and accepts the freight and delivers to the consignor a bill of lading on the basis that the goods are of the character stated by the consignor when in fact the goods are of an entirely different character, upon which the carrier would be lawfully entitled to charge a higher rate of freight, the carrier may, upon discovering this fact before the goods are delivered to the consignee at the place of destination, charge the excess of the freight against the goods and hold the shipment until the additional charges are paid. Smith v. Findley, 34 Kan. 316; Missouri) Kansas and Texas Railroad Co. v. Trinity County Lumber Co. 1 Tex. Civ. App. 553.
The evidence tended to show that appellant’s clerk, who first classified the goods as “emigrant movables,” had seen the goods as they were being loaded. If he had, then the company had notice of the character of the shipment. The proposition last above set out does not include, and is not based upon, the hypothesis that at the time the goods were classified, the appellant had no notice of their real character, or that it relied upon the description of the goods given by Kendall. For this reason the proposition was, as we think, inaccurate.
Appellant contends, however, that even if it knew the character of the goods, it could not lawfully have allowed them to be shipped at a lower rate than the usual rate, so that it became its duty, even after collecting the freight and accepting the goods, to re-classify them and charge the additional freight against them, for the reason that not to do so would have been an unlawful discrimination in favor of the consignor, under sections 125 and 126 of chapter 114, Hurd’s Revised Statutes of 1903.
Conceding, for the sake of the argument, that making a rate lower than the ordinary rate would be an unlawful discrimination as to the party favored within the purview of the statute referred to, we still think appellant’s, position untenable. If a common carrier makes an unlawful discrim*356ination in favor of a shipper by contracting to carry his goods at a lower rate than they should bear and accepts the goods and carries them at that rate, it cannot, after the goods have reached their destination, charge against them an addi-' tional amount of freight sufficient to bring the total charge up to the proper rate. To do so would permit the carrier to make a rate lower than it properly should make, to secure the business, and thereafter take advantage of its own wrong to increase the charge and sectire the usual compensation.
The only other question of law requiring consideration was submitted, in varying language, in several propositions, and is clearly stated in the eighth, which is as follows:
“The plaintiff, Seitz, being neither the consignor nor the consignee, and the bill of lading not having been assigned to him by Kendall, cannot maintain this action.”
It appears from the evidence of Kendall, the consignor, and Seitz, the appellee and owner of the goods, that they went together to the agent of appellant at Pana, presented the bill of lading, and sought to have the goods delivered to Seitz; that the agent was then advised by Kendall that the goods were the property of Seitz, and it further appears from their testimony that the only reason the goods were not so delivered at that time was because the additional freight charge was not paid. The agent did in fact permit Seitz to take the horse upon the latter agreeing to return- it upon the agent’s demand.
If appellant-placed its refusal solely on the ground that the additional freight was not paid, it would not now be permitted to better its hold and contend that Seitz was not entitled to the goods because the bill of lading was not assigned. It would be estopped so to do. (Ohio and Mississippi Railway Co. v. McCarthy, 96 U. S. 258.) Did the testimony of Seitz and Kendall, to which we have just referred, not appear in the record, the proposition under consideration would be the law of the case. With that evidence before the court *357the proposition ignored an element in the case, an alleged fact which the evidence tended to establish, and was therefore properly refused.
The judgment of the Appellate Court will be affirmed.