The cross-obligations in Lindell represented by the conflicting judgments both appear to be unconditionally payable on demand, while in the instant case it was contemplated that Northeast would discharge its obligation over a period of 36 months, during which time Sperry had the option of accepting transportation services and off-setting the value thereof. Northeast's reliance on Fullerton Lumber Co. v. Chicago, M., St. P. P.R.R. Co., 282 U.S. 520, 51 S.Ct. 227, 75 L.Ed. 502 (1931), which held that payment by check satisfied the requirement that transportation charges be paid in cash, is misplaced, since payment by check cannot on any rational basis be equated with payment in miscellaneous mechanical parts and devices, which, in essence, constituted the real quid pro quo for Northeast's transportation services to Sperry. The Board correctly points out that although at the time Northeast made its arrangements with Sperry, Northeast's obligations for merchandise supplied by Sperry were undisputedly overdue debts, the effect of the arrangement between petitioner and Sperry was to convert Northeast's obligation from a liquidated overdue debt to a liquidated instalment obligation payable over the next 36 months, i.e., the parties by this contract converted a matured and overdue debt into a debt which would become due in instalments over a period of three years.

Yet acceptance of a proper check as payment for a freight charge is an acknowledged commercial practice in the railroad industry. See Fullerton Lumber Co. v. Chicago, M., St. P. P. R. Co., 282 U.S. 520, 522 (1931); see also 49 C.F.R. § 1320.13 (1981). It therefore is at least possible that SP's insistence on payment by check before releasing the second and third cars constituted compliance with the regulations, which require only that the railroad take "precautions deemed by it to be sufficient to assure payment of the tariff charges."

This case must be reversed both as to liability and damages because the case was re-opened. Y. M.V.R.R. Co. v. Levy, 147 Miss. 831, 112 So. 876; Minneapolis, St. Paul Sault Ry. Co. v. Moquin, 282 U.S. 520, 75 L.Ed. 1243. Appellant contends that the failure of the court below to allow it to break the effect of the testimony of the appellee relative to her earning power before she was married, by showing that the appellee's husband was amply able to provide for her, as was his duty under the law, was likewise fatal error, on account of which a remittitur cannot be entered, since it is impossible for any one to know how the jury was influenced by the ruling of the court on this question and, therefore, the case must be reversed.

A contrary result would distend public policy beyond reasonable limits and create an undue preference for the rights of a carrier. Since even constitutional rights may be lost through the application of the doctrine of estoppel in a private transaction (cf. Shepherd v. Mount Vernon Trust Co., 269 N.Y. 234), we see no cogent consideration hindering the use of estoppel in appropriate circumstances against a party claiming the benefit of a statute and public policy in a private transaction (cf. Lumber Co. v. Chicago, Milwaukee, Saint Paul Pacific R.R. Co., 282 U.S. 520; see, also, note, 45 Yale L.J. 142: "Right of Interstate Carrier to Collect Undercharges"). The order of the Appellate Term should be affirmed, with costs.

The courts early disapproved of barters for transportation services, holding that payment for such services must be in money, not in property or services. ( Louisville N.R.R. Co. v. Mottley, 219 U.S. 467 [31 S.Ct. 265, 55 L.Ed. 297, 34 L.R.A.N.S. 671]; Fullerton Lumber Co. v. Chicago, M., St.P. P.R.R. Co., 282 U.S. 520 [51 S.Ct. 227, 75 L.Ed. 502]; Annotation, 75 L.Ed. 502.) The courts reasoned that hidden rate discriminations were possible if the parties assigned inflated values to property or services and then exchanged them for transportation services at specified tariff rates.

The form of the shipping contract used provided space for the entry of a stipulation requiring the shipper to collect before delivery to the Consignee, but this section was not used. The Supreme Court held that under those circumstances the defendant-consignor was liable but very definitely indicated that a different contract actually proved by the parties would be enforced by the Court. In the case of Fullerton Lumber Company v. Chicago, Milwaukee, St. Paul Railroad Company, 282 U.S. 520, the carrier had accepted a check in payment of charges and then delayed for an unjustifiable length of time in presenting it. The bank failed and the defendant-consignee suffered a loss and was called upon to pay again. The lower court ruled that since the Interstate Commerce Commission rules required payment in cash that the consignee was liable to pay again.