1. Tbe - allegations of tbe complaint could be made a little more definite as to- tbe exact place where tbe tender of tbe lumber was made, but in tbeir present form we tbink they state a cause of action wbicb, if established, would entitle plaintiffs to recover something.
It is manifest from an examination of section 2631 of tbe Revisal, under wbicb this action is broug’ht, that tbe exact place of tender is very material in determining tbe liability of tbe carrier. Under tbe language of tbe statute tbe carrier is required to receive at "a regular station" only “all articles of tbe nature and kind received by such company for transportation.” Tbe carrier is not required to receive them when tendered elsewhere, except in tbe case of loaded cars (loaded by tbe shipper), which may be tendered “at a sidetrack or any warehouse connected-with tbe railroad by a siding.”
Of course, tbe plaintiffs cannot recover, on this complaint, for a failure to- furnish cars under section 2634 of tbe Revisal, as they do not set out any allegations of fact coming within tbe terms of fhat section, or base tbeir claim upon it.
Tbe gravamen of tbeir complaint and tbe cause of action, as stated, is that they tendered to defendant at "Wade, N. O., a certain quantity of loose lumber for shipment to Henderson-Jarrett Company, Norfolk, Ya., wbicb tbe defendant wrongfully and unlawfully refused to receive and issue a bill of lading for. We infer from this that Wade, N. 0., is a regular station of tbe defendant and that loose lumber (not loaded'by tbe shipper in cars) is an article of the nature and kind usually received by railroads for transportation. But these facts can be best determined upon tbe trial.
2. Tbe question of tbe measure of damage cannot be considered upon demurrer. If tbe allegations of tbe complaint be sustained tbe plaintiffs will be entitled to recover some damage, if only nominal. Tbe true measure of damage can best be determined when all tbe facts are before tbe court.
3. Whether this transaction conies within the purview of tbe interstate commerce law, so as to relieve tbe defendant from a penalty for refusal to- receive tbe lumber for shipment to Norfolk, Ya., need not be discussed. In any event, tbe -plaintiffs would be entitled to recover tbeir actual damages, whether they could recover tbe penalty or not. But tbe writer regards tbe question as settled by this Court in tbe recent case of Lumber Co. v. R. R., 151 N. C., 23.
*281We notice in the judgment tbat tbe demurrer is overruled and the defendant taxed with, all the costs. There being no contention that the demurrer is> frivolous, the judgment should have been that the defendant answer over.
As modified, the judgment is
Affirmed.