from Hammond to certain offices in different mond Company, giving to the telegram the cities in Illinois, including Peoria and Au- number of the order already given to the rora, where the parties served with process trade. The order is executed at Hammond lived. In the lease of these wires, signed by the same way as the opening order. defendant, the offices of these "correspond- It is admitted by the defendant's counsel ents” are designated as offices of the defend that the defendant does not desire to be subant, and are contained upon regular printed ject to suit before the state and Federal forms prepared by the company. The cost courts of every state and district where it or rental of these wires was paid to the has correspondents, and that it has endeavtelegraph company by the defendant. Over ored to arrange and conduct its business so these wires the defendant caused to be trans- as to avoid such contingency. mitted continuous market quotations of the The relations of the correspondent with New York stock exchange to persons stand- the elevator company are in each case fixed ing in relation of Babb and Battle & Dickes, by formal contract, to the effect that the who are called “correspondents,” and who parties shall deal as principals, and that posted these quotations upon blackboards in the relations of principal and agent shall their respective offices.

neither exist or be held to exist. There is Customers resorting to the correspondents' no evidence that the correspondents Babb offices, and desiring to trade in any one of and Battle & Dickes have claimed or reprethe sixty different stocks whose quotations sented themselves to be agents of the deare posted, give a verbal or written order to fendants. buy or sell certain grain or stocks, which is The fact, however, that the relations betransmitted by the correspondent in his own tween the defendant and its correspondents name over the private wire of the corre-are, as between themselves, expressly disspondent running into his office from the of- claimed to be those of principal and agent, fice of the defendantat Hammond, as an offer is not decisive of their relations so far as by the correspondent to buy from or sell to third parties dealing with them upon the the defendant. Sometimes the price is men- basis of their being agents are concerned. tioned by the customer, and sometimes not. Connecticut Mut. L. Ins. Co. v. Spratley, In the latter case it is understood that the 172 U. S. 602, 43 L. ed. 569, 19 Sup. Ct. Rep. trade is to be at whatever the market is. 308. As was said in this case, of the agents When the order is given the correspondent whose authority to receive service of process exacts from the customer such margin as he was denied by the defendants (p. 615, L. ed. sees fit, unless the customer already has p. 573, Sup. Ct. Rep. p. 313): "In such case money on deposit with the correspondent, it is not material that the officers of the coror is of known financial responsibility. De- poration deny that the agent was expressly fendant accepts these orders when the state given such power, or assert that it was withof the market justifies, by return message held from him. The question turns upon the over the same wire, the contents of which character of the agent, whether he is such are communicated by the correspondent to that the law will imply the power and impute the customer. The individuality of each the authority to him, and if he be that kind trade is preserved throughout by a number of an agent, the implication will be made, given to it by the correspondent's operator notwithstanding a denial of authority on at the outset. The correspondent, upon re- the part of the other officers of the corporaceipt of this return message, gives the trader tion.

In the absence of any express a memorandum showing the trade and the authority the question, depends upon a reprice to which his margin carries it, and ex. view of the surrounding facts and upon the cept in case of a losing trade, where he has inferences which the court might properly failed to protect himself by securing from draw from them.” See also Italian-Swiss the customer a sufficient margin, the cor- Agri. Colony v. Pease, 194 Ill. 98, 62 N. E. respondent neither participates in the loss 317; Commercial Ins. Co. v. Ives, 56 Ill. nor the profit incurred in the trade. He de-402; Union Ins. Co. v. Chipp, 93 Ill. 96; rives as his compensation a fixed sum, Indiana Ins. Co. v. Hartwell, 123 Ind. 177, whether the trade results in a profit to the 24 N. E. 100; Planters' Ins. Co. v. Myers, defendant or to the customer. Through 55 Miss. 479, 30 Am. Rep. 521; Sprague v. daily statements and daily settlements of Holland Purchase Ins. Co. 69 N. Y. 128. the balance shown thereby, the correspondent In this connection it was found by the remits to the defendant, through its local master that “there can be no question that bank, whatever amounts are shown to be towards the customer the correspondent due from him to the defendant for margins, bears the relation of agent to his principal. wire service, etc. When the trader wishes The customer knows that the correspondent to close a trade thus opened, the corre- is not selling the stocks to him, or buying spondent, in like manner, receives and trans- stocks from him, but is merely taking his nits the order over his wire to the Ham-' orders for transmission. Hence, the correspondent's charge to the customer for his “But the defendant knows nothing of the services is properly called a commission. customer. All its orders come from the corThe customer does not direct the correspond respondent in his own name. All funds reent from whom he is to purchase, or to ceived by him are sent to it through the whom he is to sell, as the latter is at liberty bank by the correspondent. All its stateto purchase from or sell to the defendant, ments are rendered to the correspondent. or elsewhere, as he chooses. In point of All its charges are made against, and all its fact, perhaps, because of the facilities offered credits entered in favor of, the correspondby the private wire, he almost invariably ent. Indeed, so far as the evidence shows, does purchase from or sell to the defendant.” | there is no ground for claiming that the de

The defendant has undoubtedly taken fendant knows that the correspondent has great pains to foreclose the idea that its any customers, or that he is not dealing correspondents are agents in any such sense solely on his own account.” as to render it liable for their acts, or to Notwithstanding these protestations and validate the service of process upon them excessive precautions used to prevent the as such agents. Each day the defendant en correspondent being held

held as agent, the ters upon his statement which he that day method of business shows that the party sends to the correspondent each trade it really interested in the transaction is the has that day accepted from such correspond- defendant, and that the correspondents are ent. If the statement shows a debit balance, compensated as if they were agents, and the correspondent 'deposits an approximate not principals. The correspondent charges amount in a bank in his city to the credit of his customers a commission of one-eighth of the defendant, which thus maintains an ac- a cent a bushel on grain. The defendant tive bank account in each of such banks. If keeps a regular book account with its corthe statement results in a balance to the respondents, and, in addition to charging up credit of the correspondent, a check of the the margin against him, it makes an arbidefendant payable to the correspondent, and trary charge on each deal, which is called usually drawn upon the same local bank, on the statement of the correspondent "wire where the deposits are made to defendant's service,” - meaning a charge for the use of credit, accompanies the statement. As a the private wire. This charge for wire servgeneral thing, the balance due on each day's ice is a regular fixed percentage of the comtransactions, as between the defendant and mission charged by the correspondent, which the correspondent, is approximately settled indicates that it is a commission under the the next day. The defendant looks only to guise of wire service, and such a charge upon the correspondent in all trades. In case of any transaction of magnitude would be an a loss, if the correspondent has failed to se-exorbitant charge for use of the wire. An cure sufficient margin from the customer, ordinary charge for wire service would deand is unable to collect the amount from pend upon the length of the message and him, the correspondent must stand the loss. distance transmitted, wholly irrespective of The defendant charges up and retains the the amount of the transaction. But in this amount of its charge for wire services, in case, when a charge is made on a transaction any event, as well as all losses of the corre involving a hundred shares, the charge is ten spondent on trades. The daily statements by times greater than for a trade involving ten defendant are made upon printed blanks, shares. This indicates something more than which contain the statement: "We have no a charge made for the actual use of the wire, agents.” And upon the back is a printed the amount of the service being the same in statement to the effect that, upon considera- each case. The significance of this wire servtion of the defendant consenting to deal and ice is the more marked by the fact of the decontract with him as principal in buying fendant company paying a fixed sum of $50 and selling commodities, he agrees :

per month for the use of the wire. “First. In all cases where I shall pur- The findings, moreover, show that while chase from, or contract to purchase from, or the correspondent takes the orders from his shall sell to, or contract to sell to, said customers, he transmits them directly to the Hammond Elevator Company any commod- defendant, and no trade is effected until the ity, I will receive and pay for the commod- return message is received by the correity purchased, or contracted to be purchased, spondent. While the identity of the customfrom it, and will deliver the commodity er is not disclosed to the elevator company, sold, or contracted to be sold, to it.” it is preserved by a number appropriate to

“Seventh. That I am not, and will not each order; and there can be no doubt that represent myself as being, agent for said any legal liability of the trader arising out Hammond Elevator Company, but will rep- of the transaction could be enforced by the resent that I have no authority to act for it. defendant against the customer as soon as It is not responsible for anything that may his identity was discovered. It is apparent he done by me."

from these transactions that the real trading

V.

is done between the customer and the ele- | insurance agent, with power to receive applivator company, and that the functions of the cations and premiums, deliver policies, and correspondents are really those of agents, settle losses, and whose acts are binding on and not of principals. There must be two the principal, notwithstanding a provision in principals, and only two, in every such the application for the policy declaring such transaction. Obviously the customer is one party shall be the agent of the insured. of them. We think it equally obvious that It results that the decree dismissing the the elevator company is the other one, and bill as to the Hammond Elevator Company that the profits appropriate to the transac- must be reversed, and the case be remanded tion belong to the elevator company, and not for further proceedings. to the correspondent, who is paid a commission for his services. If the correspondent be

The CIIIEF JUSTICE, Mr. Justice Harlan, not the principal in this transaction, he and Mr. Justice Day dissented upon the first must be the agent of one party or the other, point. and as his office is continuously open for the

(198 U. S. 483) transaction of business, where he receives LOUISVILLE & NASHVILLE RAILROAD and executes orders, collects margins, and

COMPANY, Petitioner, deposits them to the credit of the defendant in a local bank, and apparently his transactions are entirely with the defendant, it WEST COAST NAVAL STORES COM

PANY. would seem that he was rather the agent of the elevator company than of the customer,

Wharves-right of public use. -a conclusion which is fortified by the fact that the correspondent is compensated by a

A wharf in the harbor of a city, at the foot of

a public street, built by a railway company percentage of the amount charged the cus

under authority from the city, in addition to tomer under the name of commission for the adequate terminal facilities, for the purpose privilege of trading.

of more conveniently procuring the transThe real transaction in this case is un

portation of freight beyond its own line by doubtedly artfully disguised, but notwith

such carriers as it might select, is not a

public wharf, whose use can be demanded by standing the fact that the order is made and

a shipper on payment of reasonable hire, for accepted at Hammond, and the margin is the purpose of employing vessels of his own charged up at Hammond against the corre- selection for the further carriage of his spondent, and the profits or losses made goods. there, we are of the opinion that in receiv

No. 225.] ing, transmitting, and reporting orders to the customers, receiving their margins, and Submitted April 25, 1905. Decided May 29, settling with them for the profits or losses

1905. incident to each transaction, the correspondent is really “doing business” as the agent ONS WRIT of Certiorari to the United

States Circuit Court of Appeals for the of the elevator company in Illinois, and may Fifth Circuit to review a judgment which be properly treated as its agent for the serv. affirmed a judgment of the Circuit Court ice of process. It is evident that if these for the Northern District of Florida in correspondents be not regarded as agents in favor of plaintiff in an action to recover these transactions, it is possible for the de- damages from the railway company for its fendant to establish similar correspondents refusal to permit a shipper to use its wharf in a dozen cities in at least a dozen states of for the further carriage of his goods. Rethe Union, and an enormous business be versed and remanded to the Circuit Court built up, in which the defendant company is for further proceedings. the real principal, with no possibility of be

See same case below, 62 C. C. A. 681, 128 ing sued except in the states of Indiana and Fed. 1020. Delaware.

If these correspondents were admitted to Statement by Mr. Justice Peckham: be agents of the elevator company it is not Certiorari to the circuit court of appeals perceived how their methods of doing busi- for the fifth circuit to review a judgment ness would be materially changed. They of that court affirming one in favor of the would maintain an office in their own cities; West Coast Naval Stores Company (herewould receive and transmit to their prin- inafter called the plaintiff), against the cipals offers for trades made to them, and re- railroad company (hereinafter called the port their acceptance or refusal, as is fre- defendant), for damages for refusing to perquently done with respect to policies by mit the plaintiff to use the wharf of defendagents of insurance companies; would re- ant at Pensacola for the transportation of ceive and deposit the margins and attend to plaintiff's property, as stated in the declarathe settlement of differences. In fact, their tion. position is analogous to that of an ordinary The action was brought in the circuit

(

court of the United States for the northern it to construct or maintain the wharf mendistrict of Florida.

tioned in the declaration, but that it conThe plaintiff's declaration contains two structed the same at an expense to it of counts, which are substantially the same, tens of thousands of dollars, for the purpose and it is therein averred that the plaintiff is of providing facilities for the transaction a citizen of Florida and the defendant is a of its business with such vessels as it might citizen of Kentucky, and that the latter is permit to come to and lie at said wharf to a common carrier, and carries goods into take cargo. That no business has ever been Pensacola over its railroad, and, among done at said wharf except the transportathem, the goods of the plaintiff. The course tion by the defendant, in cars on its railof business between the two companies has road over said wharf, to and from vessels been for the plaintiff to obtain transporta lying at the said wharf, of goods brought, tion of its turpentine and rosin from its or to be transported, by said vessels, and yard near Pensacola, and its warehouse in the loading and unloading thereat of such that city, by means of a switch, built for vessels. That, in accordance with such purthat purpose by the defendant, to defend- pose, it made and promulgated, upon the ant's main line, and thence to the wharf of construction of said wharf, and more than defendant (which plaintiff alleged was a five years prior to the bringing of this suit, public wharf), by means of the cars and rules and regulations, by which it limited upon the railroad of the defendant. The the use of its wharves, including the wharf wharf extended into the bay of Pensacola, mentioned in the declaration, 'to traffic and was used by defendant (and by persons handled by vessels in regular lines running bringing goods over the defendant's railway in connection with the Louisville & Nashto and into Pensacola) for the purpose of ville Railroad, and vessels belonging to, or shipping such goods from the wharf to ves consigned to, Gulf Transit Company' (an sels destined for other ports. After defend agency of defendant), and making the use ant had transported the goods of the plain- of said wharves ‘for traffic in connection tiff to the wharf of defendant, the plaintiff with vessels other than herein referred to,' had been accustomed to ship to other ports 'subject to special arrangement. The said by vessels, with the managers of which rules and regulations were in operation and plaintiff had contracts of carriage; that in enforced by defendant from the time of their the midst of the prosecution of such busi- promulgation, as aforesaid, up to, and at ness defendant had notified plaintiff that it the time of, the refusal of the defendant to would thereafter refuse, and it did there- permit the naval stores of the plaintiff to after refuse, to allow plaintiff to transport be loaded from its wharf into the 'certain its goods to the wharf for the purpose of vessels' mentioned in the declaration, and there loading them on such vessels as above still are in force and operation. That the mentioned, and refused to permit the wharf said 'certain vessels' were not regular lines and railway of defendant to be used in the running in connection with the Louisville prosecution of plaintiff's business, in so far & Nashville Railroad, nor were they belongas the prosecution would involve the use of ing to, or consigned to, Gulf Transit Comthe vessels chosen by the plaintiff for the pany, nor had they made any special arshipment of the goods from Pensacola, to rangements with the defendant for the use the damage of the plaintiff, as set forth in of the said wharf; but that said vessels conthe declaration.

stituted an independent line between New The defendant filed several pleas to this York and Pensacola, and New York and Modeclaration, and the plaintiff demurred to bile, Alabama, carrying merchandise bethem, which demurrer was overruled by the tween the said points, and would have come circuit court. Upon writ of error the cir- in competition with a line of steamers with cuit court of appeals reversed that judg. which the defendant was then negotiating ment (57 C. C. A. 671, 121 Fed. 645), and for regular service in the transportation of when the case came down the defendant merchandise to and from New York and withdrew all former pleas and filed in the Pensacola, in connection, and under traffic circuit court another plea, as follows: arrangements, with defendant, and such

“The defendant, withdrawing all former service has since been established, and a pleas, pleads to the first and second counts line of steamers is now regularly transportof the declaration as follows:

ing merchandise between said points, in “1. That the defendant has adequate such connection, and under such traffic ardepots and yards in the city of Pensacola rangements; and was also in competition for the receipt and delivery of all merchan- with the defendant itself, which was, at dise committed to it for transportation to, said time, and had been for a long time and delivery at, Pensacola. That neither prior thereto, engaged in a like business beits charter nor any statutory law has com-tween said points, carrying goods by its line pelled or required, or compels or requires, 'of railroad from Pensacola and Mobile to River Junction, Florida, Cincinnati, Ohio, The defendant then sued out a writ of and Montgomery, Alabama, and there deliv- error to the circuit court of appeals for the ering the same to a connecting carrier and fifth circuit, which court, adhering to the other carriers connecting therewith, trans- views expressed by it on the former appeal, porting goods to the city of New York, and affirmed the judgment (62 C. C. A. 681, 128 receiving from said connecting carriers at Fed. 1020), and the defendant thereupon apthe points aforesaid, and transporting to plied to this court for a writ of certiorari, Pensacola and Mobile, goods shipped from which was granted, and the case is now here. New York to Pensacola and Mobile.

Messrs. William A. Blount, and A. C. “That the defendant has not either noti- Blount, Jr., for petitioner. fied plaintiff that it would not carry plain

Mr. John C. Avery for respondent. tiff's naval stores, nor refused to transport plaintiff's naval stores, over its railway Mr. Justice Peckham, after making the mentioned in the declaration, to and on its foregoing statement, delivered the opinion wharf, also mentioned in the declaration; of the court: that it has at all times so transported them When this case was first before the cirwhen requested so to do by the plaintiff; cuit court of appeals, it was stated in the that the defendant has refused to permit opinion which was then delivered that the the certain vessels mentioned in the declara- case showed that the railroad company was tion to take goods and merchandise from its in possession of a large wharf, built at its said wharf, to be transported by them to own expense, "on the extension of a public the port of New York, as aforesaid, but that street in the city of Pensacola, into the deep such refusal was solely because the said waters of the harbor of the city.” On lookvessels were not of either of the classes pro- ing at the record before us, we find in the vided for by the rules aforesaid, nor had pleadings no averment that the wharf in made special arrangements with the defend- question was in fact built as such an extenant, and would have been, as aforesaid, in sion. The statement of facts preceding the competition with the lines of vessels con- opinion of the circuit court of appeals necting with the defendant, running to and shows, however, that there were replications from New York, and was, as aforesaid, in filed to the various pleas, one of which competition with the defendant itself in its replications contained the averment that the rail transportation aforesaid, to and from wharf was an extension of a street of the New York city; and that the defendant was city of Pensacola, into the bay of Pensacola, then, and at all times had been, ready and for a distance of more than 500 yards, all willing to give, and did give, to the plain- within the limits of the city of Pensacola, tiff the same facilities for shipping naval and maintained by the defendant by authorstores to New York, or any other port, overity of the city. Hence the statement in the defendant's said wharf, as it gave to any opinion was perfectly correct. Subsequently and all other shippers; that the unloading to the decision of the circuit court of apby the plaintiff of its said goods into said peals, and after the case was remanded to vessels necessarily involves the lying at, at- the circuit court, it appears by the record tachment to, and use of, the said wharf, one before us that the defendant withdrew all of the terminals of the defendant, by the its former pleas, and filed the single plea said vessels; that the said wharf was not, set forth in the foregoing statement of facts. at the time mentioned in the declaration, To this plea no replication was filed. Counand has never been, a public wharf, unless sel for the plaintiff admits that neither the the facts set forth hereinbefore in this plea declaration nor the plea contains any averconstituted it such.”

ment that the wharf in question was an exThis plea was in substance the same as tension of a public street. If we assume, the third plea which defendant had thereto- what is without doubt the fact, that the fore interposed, and which the circuit court wharf was built at the foot of a public of appeals had held bad. The plaintiff again street in the city of Pensacola, and was cardemurred. The circuit court sustained the ried out into the deep water of the bay demurrer, in accordance with the decision some hundreds of yards, we must also asof the circuit court of appeals, and gave sume the fact mentioned in the brief of the leave to the defendant to amend as it might defendant, and substantially set forth in be advised. The defendant refused to amend the former replication, that the building and Judgment was then entered against it by de- maintaining of the wharf were authorized fault, and direction given to proceed with by authority from the city of Pensacola, and the case for the purpose of having plaintiff's also from the state of Florida. These facts damages assessed. A trial by jury upon the will therefore be taken as admitted, in order question of damages was had, and the jury that the case may be discussed upon the found a verdict for the plaintiff for $1,000, facts as they really exist. upon which judgment was duly entered. Counsel for plaintiff now asserts, and we