The opinion of the Court was delivered by

1 As I see it, the undisputed evidence shows that plaintiff’s machinery and furniture were not shipped as one carload lot. That follows as matter of law from the issuance and acceptance of two bills of lading—one for the machinery, and another for the furniture. That plaintiff wanted both machinery and furniture shipped in the same car, and that defendant’s agent agreed to so ship it is no doubt true; but that is a different matter, and could not have the effect of making the whole a carload lot of either machinery or furniture, or of both, and the parties had no right to agree, and could not make a valid agreement that it should be considered and treated as a carload lot of either or both, because the allowance by the Court of such agreements would completely. annul the statute prohibiting carriers, under heavy penalty, from making discriminations. Every commodity must be shipped according to its true classification as made by the carrier or the railroad commission and at the rate fixed by the commission, or by the carrier and approved by the commission. The statute requires carriers to keep posted the classifications and rates. If shipper and carrier are allowed by agreement to vary classifications and call a commodity what it is not, the door is thrown wide open to all sorts of discriminations which are prohibited by the statutes. Therefore a carrier cannot be allowed to put junk in a car and some machinery and call it all junk; if so, the shipper who could get his machinery shipped at junk rates could always undersell one who had to pay the established rate on machinery. Nor can furniture be shipped as machinery.

*6 2 *5 According to the rule established by the railroad commission, that “the charge for a less than carload shipment must *6 not exceed the minimum charge for a minimum carload of the same freight at the same rating,” plaintiff was entitled to the minimum carload rate on the machinery, which was $62.40; but he owes the railroad company the charge for hauling his furniture at less than carload rates, to wit, $27.80, and the company’s counterclaim for that amount should have been sustained.

3 I do not agree that the allowance that defendant’s counterclaim would have defeated plaintiff’s right to recover the penalty for failure of defendant to pay his claim of $42 for damage to his furniture, because he did recover, and, according to the testimony, he was entitled to recover the full amount of the claim that he had filed, and that is all that the statute requires to entitle him to recover the penalty. If he had failed to recover damage to the extent of $42, he would not have been entitled to recover the penalty; but, having proved damage to that amount, the reduction of the amount by a valid counterclaim is not in contemplation of law a failure to recover the full amount of his claim.

The judgment below should be reversed, unless plaintiff will remit $27.80 thereof, and, upon his doing so, it should be affirmed.

dissenting. I cannot concur in so much of the opinion of the majority as holds that the plaintiff recovered for the full amount of his claim. The intention of the statute is to provide a penalty for failure to pay a righteous claim. Where there is a valid counterclaim established, the recovery is for the difference. If the amount of unpaid freight here had equaled the damage, then the defendant would be required to pay a penalty for failure to pay the plaintiff’s demand, although he did not owe him, and the *7 plaintiff could not get judgment for a dollar. The defendant’s counterclaim was fixed by law. The plaintiff’s claim depended on a matter of fact.

- If the statute had used the word “establish,” then it might be that the penalty would follow, but the word used is “recover,’.’ and, I think, refers to the judgment. Hence I must dissent as to the penalty. I concur as to the amount of freight charges.