Cleveland Railroad Company, to the ends aforesaid, cause the said contract to be entered into as aforesaid, and became parties thereto, and did also, upon its organization, cause the said Ohio Transit Company to become a party to said contract by assignment, and to enter into said conspiracy and confederation for the purposes aforesaid, and made use of said corporation the Ohio Transit Company, through their control of the same as its officers, to accomplish the purposes aforesaid." The shipments made by the plaintiff, and the amount collected of him as freight, between January 1, 1884, and February, 1885, are then set forth, with an averment that the amount paid was excessive; that half of it was not freight, but was collected by the company for the defendants, and received by them in pursuance of the contract, of which the plaintiff at the time was ignorant. The defendants in their answer, among other things, set up that the Ohio Transit Company was a corporation duly organized under the laws of Ohio, and that they could not be charged with moneys received by it on the ground set forth in the petition. But the court charged the jury that, "if you find by the greater weight of the evidence that the assignment of the contract was a mere form; that the intention of the defendants in organizing this corporation was to make it a mere agency to receive this money to be distributed to them, under the contract, and according to their right in it, as if their had been no assignment, the mere agent, I say, to hold the money for their benefit,--why, then, a payment to the corporation, under those circumstances, is a payment to them, and the plaintiff would have a right to recover as if it had been put in their hands." The agreement between the company and the assignors of the defendants was as follows: "Article of agreement made and entered into this eleventh day of October, A.D. 1883, by and between the Cleveland & Marietta Railroad Company, party of the first part, and W. J. Brundred, of Oil City, Venango county, Penn., and T. D. Dale, of Marietta, Washington county, and state of Ohio, party of the second part, witnesseth that, whereas the said first party is the owner of a line of railroad running through the oil fields of Ohio, and known as the 'Cleveland & Marietta Railroad,' and is desirous of securing for said railroad the transportation of the crude petroleum oil now produced, or which may hereafter be produced, along the line of said railroad, or which may hereafter be produced at such points in the state of Ohio as would be accessible to said road by pipe lines; and whereas, said first party does not desire to incur the cost and expenses of constructing and furnishing the necessary system of pipe lines, pump, pump ing stations, receiving and storage tanks, etc., necessary for conducting the business, and the further cost and expense of maintaining the necessary labor organization for collecting and handling said oil, and the further cost and expense attending the purchase of oil at the wells in said oil-fields: Now, therefore, be it known that for and in consideration of the valuable considerations to be kept and performed by the parties hereto the said parties hereto do hereby mutually agree with each other exclusively for the term of twenty years from the date hereof, as follows to wit: First. Said second parties, or their assigns, agree to build and construct a system of pipe line, pump, pumping-stations, storage and receiving-tanks, loading-racks, telegraph-lines, etc., for the collection of the oil production of said oil-fields of Ohio, and the delivery of the same into cars on the line exclusively of said Cleveland & Marietta Railroad, free of any cost and expense to said first party; it being understood that the second party shall not be held responsible to the first party for failure to obtain the control of any of the product of said oil territory by reason of competition beyond the control of said second party. Second. Said first party hereby agrees to build the necessary side tracks, as needed from time to time, free of any cost or expense to said second parties, and on which said second parties are to load into cars the oil collected through said system of pipe lines. Third. In consideration of said second parties building and constructing said system of pipe lines as per first section of this agreement, and delivering oil into cars on the line of said Cleveland & Marietta Railroad free of any charge or expense to said first party, said first party hereby agrees to divide with the second party-in the proportion of fifty (50) per centage to said second and fifty (50) per centage to the said first party-the open all-rail rate charged by said Cleveland & Marietta Railroad on all oil transported to Marietta or intermediate points from said oil-fields of Ohio, and further agrees to divide with said second party (in the proportion of twenty-five per centage to said second party, and seventy-five per centage to said first party) the all-rail rate charged by said Cleveland & Marietta Railroad and its connections on all oil transported in a northerly direction from said oil-fields to the points named in article fourth, or their equivalent. Fourth. It is further mutually agreed and understood by and between the parties hereto that the open all-rail rate from said oil-fields to Marietta and intermediate points shall be thirty (30) cents per barrel of fortyfive gallons, and to Cleveland, Columbus, Toledo, and such other points as require the oil to be transported by said Cleveland & Marietta Railway in a northerly direction from 54 A. & E. R Cas.-29 said oil-fields, shall be the same as the all-rail rate from the oil-fields of Pennsylvania to said same points. And, further, that no change of oil-rates shall be made by said first party during the term of the existence of this agreement without the knowledge and consent of said second party or its assigns. Fifth. It is further mutually agreed by the parties hereto that the freight charges on the oil transported as herein before provided shall be collected by said first party, and said first party shall render monthly statements to said second party of the shipments of oil, and shall pay to said second party, on or before the tenth day of each month, the amount due on said second party as per this contract for the month preceding. And, further, that the employés of said second party or its assigns, while engaged in conducting said business, shall be transported over said Cleveland & Marietta Railroad free of charge. And, further, that all telegraph messages relating to said business, and destined to points along the line of said railroad shall be transmitted free of charge over the wires of said Cleveland & Marietta Railroad so far as its existing contracts with the Western Union Telegraph Company will permit. Sixth. It is further mutually agreed that all materials used by said second parties or their assigns in constructing and operating said system of pipe lines herein referred to shall be transported by said first party over its railroad and branches at the rate of one cent per ton per mile. Seventh. It is further mutually agreed that said second party shall furnish the tank cars needed for the transportation of said oil, and that the said first party shall pay to the owner or owners of such cars the usual car service, and be responsible to said car owners for all damages to said cars while on its road except ordinary wear and tear. In witness whereof the said first party has caused to be attached the signatures of its general manager and its secretary, and said second parties have attached their hands and seals, the day and year above written. (Signed) THE CLEVELAND & MARIETTA R. R. By M. D. WOODFORD, General Manager. F. G. JEWETT. E. B. DEVOE. W. J. BRUNDRED. T. D. DALE. Witness: R. C. CLINE, Secretary. The judgment was affirmed by the circuit court. A. D. Follet, W. B. Loomis and E. B. Kinkead, for defendant in error. PER CURIAM.-1. That the contract between Brundred and his associates was against public policy, and void, will hardly admit of a question. As said by BAXTER, J., in Handy v. Railroad Co., 31 Fed. Rep. 689: "Railroads are constructed for * * Contract illegal the common and equal benefit of all persons wishing to avail themselves of the facilities which they afford. While the legal title thereof is in the corporation or individuals owning them, and to that extent private property, they are, by the law and consent of their owners, dedicated to the public use. * Except in the mode of using them, every citizen has the same right to demand the services of railroads, on equal terms, that they have to the use of a public highway, or the Government mails.' Whatever may have been the financial condition of the railroad company, it was not warranted in making a contract by which it bound itself to carry for one shipper at half the rate it agreed to charge all others for the same service, in consideration of his agreeing to establish a system of pipe lines to its road; at the same time and for the same consideration binding itself to charge all others double the amount as a fixed, open rate, and to pay to such favored shipper one half of it when collected. 2. It seems equally clear that where, in pursuance of such unlawful agreement, a railroad company has charged and collected certain sums as freight of a shipper, igno of money paid. rant of the agreement, and has paid them over to Recovery back the other party, the shipper may, on discovering the fraud, maintain an action against such party for money had and received to his use; for the action lies in every instance where one has come into possession of money which should in good conscience be refunded to another. Corporation for illegal purpose. 3. It is claimed that the interposition of the Ohio Transit Company, an incorporation under the laws of Ohio, organized for the purpose of transporting petroleum through tubing and pipes, precludes a recovery against the defendants. If it had, in good faith, been organized for such purpose, there is no doubt but that the receipt of the money by it under the agreement would constitute a defence to the action against the defendants. If, however, it was organized by the promoters, the defendants, simply for the purpose of consummating the illegal agreement and shielding themselves from the consequences of receiving the illegal exactions made under it, the act of incorporating can be of no avail to them as a defence. The court fairly submitted this question to the jury, and in finding their verdict for the plaintiffs must have found the facts to be as averred in the petition. It is a stern but just maxim of the law that fraud vitiates everything into which it enters. Deeds and records. made in the most solemn form are set aside and held for naught when shown to have been effectuated for the purpose of fraud, and there is nothing so sacred in a certificate of incorporation as to take it out of the reach of this maxim. Judgment affirmed. Carriers -Discrimination-Payment of Rebates. See Union Pac. R. Co. v. Goodridge, and note, ante, p.; Cowden v. Pacific Coast S. S. Co., ante, p.; Louisville, E. & St. L. C. R. Co. v. Wilson, post. LOUISVILLE, EVANSVILLE & ST. LOUIS CONSOLIDATED R. Co. v. WILSON, et al. (Indiana Supreme Court, Oct. 27, 1892.) Carriers-Rates-Overcharge-Voluntary Payment. The payment of an overcharge of freight to a railroad company engaged as a common carrier is not voluntary payment. Discrimination in Rates.-Common carriers can charge no more than a reasonable compensation for the services performed, and all persons are entitled to an equal and impartial participation in the use of the transportation facilities which they afford. Discrimination Based on Quantity Shipped.—A common carrier cannot discriminate in favor of a shipper who is able to furnish a large amount of freight against a shipper engaged in the same business who is unable to furnish the same quantity as that shipped by his rival. Favored Shipper Selling Goods to Carrier.-Whether a discrimination in rates for the shipment of ties is relieved of its objectionable features, and becomes a reasonable discrimination by reason of the favored shipper agreeing to furnish the railroad company such ties as it desires for its own use at a given price, is a question of fact for the jury. Right to Establish Rates to Keep Price Low for Carrier's Advantage.-A carrier cannot rightfully establish rates in order to keep on its line material for which it has use, or to keep the price low for its own advantage. Consideration for Unjust Discrimination.—If a contract between a railroad company and a particular shipper is of such a character as to destroy the business of a rival shipper by reason of discrimination in rates, and thus enable the favored shipper to acquire a monopoly of the business, the discrimination is unjust, without regard to the consideration on which it is based. APPEAL from Vanderburgh superior court. Gilchrist & De Bruler, for appellant. William Hamill and J. S. & C. Buchanan, for appellees. COFFEY, J.-This case is here for the second time. See 119 Ind. 353, 40 Am. & Eng. R. Cas. 85. Upon a return of the |