CARLAND, Circuit Judge
(after stating the facts as above). [1] The question arising upon the record is as follows: Was note 3 in the Western Classification of live poultry filed with the Interstate Commerce Commission, Defendant’s Exhibit 2, in full force and effect dur* ing the time mentioned in the petition of the plaintiff, and, if so, did it justify the defendant in its refusal to furnish the plaintiff special cars for the transportation of live poultry. The uncontradicted evidence [783]*783showed that the plaintiff always shipped his live poultry under the third-class rate, minimum weight 20,000 pounds, as provided in Plaintiff’s Rxhibit 2. In view of this fact, he claims that said exhibit controlled the classification aud rate of shipment, and, as there was no such language in said exhibit as is found in note 3 of Defendant’s Rxhibit 2, there was no declaration by the defendant on file in connection with the classification and rales provided-in Plaintiff’s Rxhibit 2, to the effect that the ratings provided did not obligate the defendant to furnish special poultry cars, aud therefore, as the defendant held himself out as a carrier of live poultry in poultry cars, he was bound to furnish such cars to the plaintiff when requested to do so. It appears from the record that Circular No. 17, in which Plaintiff’s Exhibit 2 is found, provided on the title page thereof as follows:
“Rules, regulations and exceptions shown herein will take precedence over the classification governing tariffs made subject hereto. (See rule 20.)”
Rule 20 of the Western P'reight Tariff Bureau found in Circular 17 reads as follows:
“The term Western Class if i cation. * * « Where Western Glassification or Current Western Classification is referred to herein, the same is intended to refer to Western Classification No. 55 (R. C. Fyfe’s I. C. C. No. 13, F. S. O. Mo. No. 4), supplements thereto and reissues thereof.”
This Western Classification No. 55 is a classification containing Defendant’s Rxhibit 2. It is therefore claimed that note 3 was superseded by Circular No. 17. We do not think that it necessarily follows that all of Defendant’s Exhibit 2 was superseded. The language taken from the title page of Circular No. 17, issued by the Western Freight Tariff Burean, refers to rules, regulations, and exceptions that will lake precedence over the “classification” governing tariffs subject ihereto. The ratings provided in Western Classification No. 55 are for—
“Poultry or pigeons, live.” “In copps or crates C. C. L. D. 1 (moaning double first-class rate).” “In coops or crates or in poultry cars, straight or mixed car load min. W. T. 18,000 lbs., subject to rule 6-B 2 (meaning second-class rate).”
Plaintiff’s Exhibit 2, being rule No. 1580 of Western Freight Tariff Bureau Circular No. 17, contains the following classification:
“Poultry, Hve, Carloads. Poultry (alive), C. L., in poultry cars or in stock cars (see note), actual weight, subject to minimum weight of 20,000 lbs.”
This classification carried a third-class rate, which was a cheaper rate than those provided for in Defendant’s Rxhibit 2 taken from Western Classification No. 55. The rale was not only cheaper but the minimum weight was larger. The defendant had said in its Exhibit 2 with a double first-class and a second-class rate and a less minimum weight, that it was not obligated to furnish special poultry cars, that the ratings did not include the rental charge for special poultry cars and that the rental charge for such cars would be found in carriers’ tariffs. It is now insisted that, because note 3 does not appear in Plaintiff’s Exhibit 2 that the defendant is obligated to pay the rental stated in the live poultry tariffs to the Rive Poultry Transit Company, the owner [784]*784of the cars, for that is what plaintiff’s contention amounts to, although it is carrying the poultry at a less rate than it did when it said that it would not furnish special poultry cars. As there is no express repeal of note 3 the express repeal, if it may be so called, being limited to ‘‘classification,” we think whether note 3 has been superseded is a question of intention to be decided on all the evidence. It appears from the record that. Western Classification No. 55 is the principal document filed by the defendant showing the classification and rates for live poultry. Circular No. 17 of the Western Freight Tariff Bureau is, as its name denotes, an exception to the regular classification. It does not seem reasonable to us that the defendant would intentionally abrogate note 3, and carry live poultry at a cheaper rate, while the cars still belonged to the Live Poultry Transit Company, and the rental charge for their use still was a part of defendant’s tariff. The evidence shows that in all cases this rental ’charge was charged in the expense bill against the shipper, or billed as an advance payment and paid by the consignee. Our conclusion therefore is, upon the whole matter, that note 3 was in force during the time mentioned in plaintiff’s petition when cars were requested. We think our conclusion is sustained by the following cases which relate to the construction of tariffs: Chicago Portland Cement Co. v. I. C. R. Co. et al., 45 Interst. Com. Com’n R. 477; Merrell-Soule Co. v. B. & O. R. Co.., 49 Interst. Com. Com’n R. 733; Ludowici-Celadon Co. v. E. J. & E. Ry. Co. et al., 39 Interst. Com. Com’n R. 407; Newman Lumber Co. v. M. C. R. R. Co., 26 Interst. Com. Com’n R. 97; Marx et al. v. I. C. R. Co., 36 Interst. Com. Com’n R. 519.
[2] It remains to consider what effect note 3 had upon the duty of the defendant to furnish cars for the shipment of live poultry. So far as the allegations of plaintiff’s complaint and reply touching the question of waiver of note 3 by the defendant’s acts and declarations are concerned, the question is not argued in the brief of counsel for plaintiff. The decisions of the court are such that the omission is well justified. Plaintiff could not waive the declaration contained in note 3, as it referred to the instrumentalities and facilities for carriage that would be furnished by the defendant. These under the law it was necessary to mention in the tariffs, and each shipper was bound to. take notice of the same, and each shipper was entitled to the same treatment as all other shippers by the defendant. The allegations in plaintiff’s amended reply that the defendant furnished these special poultry cars to other shippers at Lincoln, Table Rock, Eairbury, and Fremont, Neb., and at St. Joseph and Kansas City, Mo., if true, simply show that the defendant was guilty of discrimination, if the circumstances and conditions were the same. The following authorities are decisive of the question as to. whether the defendant could disregard note 3 as filed as a part of its tariff for the carriage of live poultry: Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501; Davis v. Southern Pac. Co. (D. C.) 235 Fed. 731; Hamlen & Sons Co. v. Illinois Cent. R. Co. (D. C.) 212 Fed. 324; Zoller Hop. Co. v. Southern Pac. Co., 72 Or. 262, 143 Pac. 931.
[3] The only remaining question is as to the duty of the defendant [785]
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CARLAND, Circuit Judge
(after stating the facts as above). [1] The question arising upon the record is as follows: Was note 3 in the Western Classification of live poultry filed with the Interstate Commerce Commission, Defendant’s Exhibit 2, in full force and effect dur* ing the time mentioned in the petition of the plaintiff, and, if so, did it justify the defendant in its refusal to furnish the plaintiff special cars for the transportation of live poultry. The uncontradicted evidence [783]*783showed that the plaintiff always shipped his live poultry under the third-class rate, minimum weight 20,000 pounds, as provided in Plaintiff’s Rxhibit 2. In view of this fact, he claims that said exhibit controlled the classification aud rate of shipment, and, as there was no such language in said exhibit as is found in note 3 of Defendant’s Rxhibit 2, there was no declaration by the defendant on file in connection with the classification and rales provided-in Plaintiff’s Rxhibit 2, to the effect that the ratings provided did not obligate the defendant to furnish special poultry cars, aud therefore, as the defendant held himself out as a carrier of live poultry in poultry cars, he was bound to furnish such cars to the plaintiff when requested to do so. It appears from the record that Circular No. 17, in which Plaintiff’s Exhibit 2 is found, provided on the title page thereof as follows:
“Rules, regulations and exceptions shown herein will take precedence over the classification governing tariffs made subject hereto. (See rule 20.)”
Rule 20 of the Western P'reight Tariff Bureau found in Circular 17 reads as follows:
“The term Western Class if i cation. * * « Where Western Glassification or Current Western Classification is referred to herein, the same is intended to refer to Western Classification No. 55 (R. C. Fyfe’s I. C. C. No. 13, F. S. O. Mo. No. 4), supplements thereto and reissues thereof.”
This Western Classification No. 55 is a classification containing Defendant’s Rxhibit 2. It is therefore claimed that note 3 was superseded by Circular No. 17. We do not think that it necessarily follows that all of Defendant’s Exhibit 2 was superseded. The language taken from the title page of Circular No. 17, issued by the Western Freight Tariff Burean, refers to rules, regulations, and exceptions that will lake precedence over the “classification” governing tariffs subject ihereto. The ratings provided in Western Classification No. 55 are for—
“Poultry or pigeons, live.” “In copps or crates C. C. L. D. 1 (moaning double first-class rate).” “In coops or crates or in poultry cars, straight or mixed car load min. W. T. 18,000 lbs., subject to rule 6-B 2 (meaning second-class rate).”
Plaintiff’s Exhibit 2, being rule No. 1580 of Western Freight Tariff Bureau Circular No. 17, contains the following classification:
“Poultry, Hve, Carloads. Poultry (alive), C. L., in poultry cars or in stock cars (see note), actual weight, subject to minimum weight of 20,000 lbs.”
This classification carried a third-class rate, which was a cheaper rate than those provided for in Defendant’s Rxhibit 2 taken from Western Classification No. 55. The rale was not only cheaper but the minimum weight was larger. The defendant had said in its Exhibit 2 with a double first-class and a second-class rate and a less minimum weight, that it was not obligated to furnish special poultry cars, that the ratings did not include the rental charge for special poultry cars and that the rental charge for such cars would be found in carriers’ tariffs. It is now insisted that, because note 3 does not appear in Plaintiff’s Exhibit 2 that the defendant is obligated to pay the rental stated in the live poultry tariffs to the Rive Poultry Transit Company, the owner [784]*784of the cars, for that is what plaintiff’s contention amounts to, although it is carrying the poultry at a less rate than it did when it said that it would not furnish special poultry cars. As there is no express repeal of note 3 the express repeal, if it may be so called, being limited to ‘‘classification,” we think whether note 3 has been superseded is a question of intention to be decided on all the evidence. It appears from the record that. Western Classification No. 55 is the principal document filed by the defendant showing the classification and rates for live poultry. Circular No. 17 of the Western Freight Tariff Bureau is, as its name denotes, an exception to the regular classification. It does not seem reasonable to us that the defendant would intentionally abrogate note 3, and carry live poultry at a cheaper rate, while the cars still belonged to the Live Poultry Transit Company, and the rental charge for their use still was a part of defendant’s tariff. The evidence shows that in all cases this rental ’charge was charged in the expense bill against the shipper, or billed as an advance payment and paid by the consignee. Our conclusion therefore is, upon the whole matter, that note 3 was in force during the time mentioned in plaintiff’s petition when cars were requested. We think our conclusion is sustained by the following cases which relate to the construction of tariffs: Chicago Portland Cement Co. v. I. C. R. Co. et al., 45 Interst. Com. Com’n R. 477; Merrell-Soule Co. v. B. & O. R. Co.., 49 Interst. Com. Com’n R. 733; Ludowici-Celadon Co. v. E. J. & E. Ry. Co. et al., 39 Interst. Com. Com’n R. 407; Newman Lumber Co. v. M. C. R. R. Co., 26 Interst. Com. Com’n R. 97; Marx et al. v. I. C. R. Co., 36 Interst. Com. Com’n R. 519.
[2] It remains to consider what effect note 3 had upon the duty of the defendant to furnish cars for the shipment of live poultry. So far as the allegations of plaintiff’s complaint and reply touching the question of waiver of note 3 by the defendant’s acts and declarations are concerned, the question is not argued in the brief of counsel for plaintiff. The decisions of the court are such that the omission is well justified. Plaintiff could not waive the declaration contained in note 3, as it referred to the instrumentalities and facilities for carriage that would be furnished by the defendant. These under the law it was necessary to mention in the tariffs, and each shipper was bound to. take notice of the same, and each shipper was entitled to the same treatment as all other shippers by the defendant. The allegations in plaintiff’s amended reply that the defendant furnished these special poultry cars to other shippers at Lincoln, Table Rock, Eairbury, and Fremont, Neb., and at St. Joseph and Kansas City, Mo., if true, simply show that the defendant was guilty of discrimination, if the circumstances and conditions were the same. The following authorities are decisive of the question as to. whether the defendant could disregard note 3 as filed as a part of its tariff for the carriage of live poultry: Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501; Davis v. Southern Pac. Co. (D. C.) 235 Fed. 731; Hamlen & Sons Co. v. Illinois Cent. R. Co. (D. C.) 212 Fed. 324; Zoller Hop. Co. v. Southern Pac. Co., 72 Or. 262, 143 Pac. 931.
[3] The only remaining question is as to the duty of the defendant [785]*785to furnish special poultry cars to the plaintiff with note 3 on file with the Interstate Commerce Commission and published in its tariffs for the carriage of live poultry. An examination of the Interstate Commerce Raw and the several amendments thereof satisfies us that the law at the time the plaintiff’s alleged cause of action arose did not declare that it was the duty of the carrier to furnish or provide special types of equipment and that the law as announced in U. S. v. Pennsylvania Ry. Co., 242 U. S. 208, 37 Sup. Ct. 95, 61 L. Ed. 251, rules this case. The following paragraphs from the syllabus in that case fairly state what the court decided:
“The powers conferred on the Interstate Commerce Commission by the Act to Kegnlate Commerce, as amended (Act Feb. 4, 1887, 24 Stat. 379; Act March 2, 1889, 25 Stat. 855; Act -Tune 29, 1906, 31 Stat. 584; and Act June 18, 1910, SO Stat. 539), do not include the power to require carriers to provide and furnish oil tank cars — no question of discrimination being- involved.”
“When a carrier in its published tariffs denies any obligation to furnish tank cars, the fact that it publishes rales for commodities so carried may not be construed as an offer, constituting a duty, to furnish such cars; and a finding by the Commission to the contrary is reviewable as a conclusion of law.”
vSee, also, Matter of Private Cars, 50 Interst. Com. Com’n R. 652; Chicago R. I. Ry. Co. v. Lawton Refining Co., 253 Fed. 705, 165 C. C. A. 299, Eighth Circuit. We are of the opinion that the trial court did not err in directing a verdict for defendant.
Affirmed.