
    ST. LOUIS SOUTHWESTERN RY. CO. v. WHITE, JACKSON & CO.
    (No. 8050.)
    (Court of Civil Appeals of Texas. Dallas.
    March 22, 1919.)
    1. Commerce @=>34r-FoREiGN Shipment — Interstate Commerce Commission.
    Shipment from Texas to France, being a foreign shipment, is subject to tariff, regulations, and rules of Interstate Commerce Commission.
    2. Commerce <§=>34 — Foreign Shipment — Freight Refund — Order of Railroad Commission.
    Where shipment was to France, carrier was not required to refund shipper amount paid for freight from point of origin to point of concentration, under order of Railroad Commission, though goods had not been sold at time of concentration, since such shipment, being foreign, is subject to tariff, regulations, and rates of Interstate Commerce Commission.
    3. Payment @=584(1) — Recovery—Mistake of Law.
    Money paid under misapprehension of liability, with full knowledge of all the facts upon which demand for payment is based and on which the right to resist depends, cannot be recovered.
    4. Payment @=>89(6) — Recovery—Mistake— Finding.
    Finding that payment was voluntarily made does not support conclusion of law that money was paid under mistake of law, since voluntary payment might have been induced by either mistake of law or of fact.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Action by the St. Louis Southwestern Railway Company against White, Jackson & Co. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    E. B. Perkins and W. B. Hamilton, both of Dallas, and Scott & Ross, of Waco, for appellant.
    J. J. Averitte and Wear & Frazier, all of Hillsboro, for appellees.
   RASBURY, J.

At a former day of' this •term we affirmed the judgment in this case. Appellant has filed motion for rehearing, and upon further consideration we withdraw our opinion and herewith restate and reconsider the appeal as a whole on appellant’s motion for rehearing.

Appellant sued appellees to recover $455.-50. Upon trial before the court the following uncontroverted facts were proven; Appellant is a railroad corporation and common carrier; appellees buy cotton in bales and sell same in the open market to all persons who desire to purchase it, sometimes selling it to persons in Texas, Louisiana, and New York, and sometimes to persons in foreign countries. During the year 1910 appellees in the course of their business purchased several thousand bales of cotton at local stations on the line of the International & Great Northern Railway Company in Hill county, Tex., which were delivered to and transported by said railway company to the compress in Hillsboro for concentration and compression. At the time the cotton was being concentrated at Hillsboro from the several points of origin, appellees had not sold it, and did not know when nor to whom it would be sold, nor where it would be shipped. After the cotton arrived at Hillsboro, some of it was sold by appellees to buyers there, some to buyers in Houston, and some to buyers in Galveston, all Texas points. Seven hundred and fifty of the bales were sold and shipped to persons in Havre, France. Upon the shipment tp Havre, France, appellant paid or refunded to ap-pellees $455.50. The payment was under authority of the orders of the Railroad Commission of Texas, which permit buyers, when cotton is purchased in a given or designated zone, to transport same to a designated point in the zone where a compress is situated, and after compression, and when the cotton is rebilled to its final destination, authorize carriers to refund the shipper the amount of freight from the various points of origin to the point of concentration, which in the case at bar was Hillsboro. The money paid ap-pellees represented the freight on the cotton from the points of origin to Hillsboro, the point of concentration.

The privilege of concentrating and compressing cotton and having refunded the freight just detailed is not authorized by the Interstate Commerce Commission of the United States. Upon the facts related the court awarded appellees judgment, from which this appeal is taken.

Appellant contends that the entry of judgment for appellees was erroneous, for the reason that the shipment was foreign commerce, and hence not subject to the regulating power of the state. The trial court’s findings of fact do disclose that the shipment was a foreign one. In such cases the tariff, regulations, and rules of the Interstate Commerce Commission apply. Railway Co. v. Sabine Tram Co., 227 U. S. 111, 33 Sup. Ct. 229, 57 L. Ed. 442. The findings also disclose that the Interstate Commerce Commission did not authorize the refund of freight in cases of concentration and compression of cotton, and as a consequence ap-pellees were not entitled to the refund.

We regard as unimportant, in determining the character of the shipment, the fact that when the cotton was concentrated by appellees in Hillsboro it had not been sold, and that they had no fixed purpose concerning its final destination, for the reason that the trial court found that the refund was authorized by the state R&ilroad Commission when the cotton was rebilled to its final destination. The rebilling, in our opinion,, is necessarily and as matter of law determinative of the right to the refund, since until final destination is disclosed it cannot be ascertained whether the commodity is intrastate or interstate commerce, and subject to state or national dominion. We therefore conclude that the court did err in its conclusion that the recovery was authorized under the rules of the state railway commission.

Appellant also challenges the court’s conclusion of law that appellant paid the money .under a mistake of law and may not for that reason recover same. Money paid under misapprehension of liability, and with full knowledge of all the facts on which the demand for payment is based, and on which the right to resist depends, cannot be recovered. Gilliam v. Alford, 69 Tex. 267, 6 S. W. 757. The finding of the court on that issue is that appellant voluntarily paid ap-pellees the amount sued for under authority of the state Railroad Commission’s order. The fact that the money was paid voluntarily is not a finding that it was or was not paid under mistake of law, since the payment could have been voluntary, and yet have been induced by either mistake of law or fact. It -follows, therefore, that the court’s conclusion of law that the money was paid under mistake of law is not supported by his findings of fact.

The record being as it is, the case will be reversed and remanded for another trial.

Reversed and remanded. 
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