Alkire

This is an appeal from a judgment in favor of the plaintiff for the sum of $1,616.72 wliich was the amount of an “undercharge” or the difference between $8.50 and $10 per hour for transporting rock, sand and gravel. The written contract provided for the payment of: “the minimum rates established for such service by the California Public Utilities Commission, unless a different rate is agreed upon by the parties and is specified at the conclusion hereof.” (Par. 7.)

The minimum rate prescribed by the Public Utility Commission for the transportation involved here was $10 per hour. The contract also contained a provision as follows:

This contract was dated April 10, 1956.

On April 10, 1956, the shipper, the defendant, issued and served on plaintiff a notice of the shipper’s intention to ship under the rates prescribed by the California Public Utilities Commission.

Appellant, in its answer, concedes that the correct rate was $10 per hour, but alleges that the plaintiff was actually paid “in excess of $10.00 per hour.” (Answer, p. 2, line 9.)

As an additional defense, appellant alleged that “despite the contract plaintiff desired to be paid upon the basis of tons carried,” and “the…