It is admitted by the defendant's counsel that the defendant does not desire to be subject to suit before the state and Federal courts of every state and district where it has correspondents, and that it has endeavored to arrange and conduct its business so as to avoid such contingency.

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 "correspondents" are designated as offices of the defendant, and are contained upon regular printed forms prepared by the company. The cost or rental of these wires was paid to the telegraph company by the defendant. Over these wires the defendant caused to be transmitted continuous market quotations of the New York stock exchange to persons standing in relation of Babb and Battle & Dickes, who are called "correspondents," and who posted these quotations upon blackboards in their respective offices.

The relations of the correspondent with the elevator company are in each case fixed by formal contract, to the effect that the parties shall deal as principals, and that the relations of principal and agent shall neither exist or be held to exist. There is no evidence that the correspondents Babb and Battle & Dickes have claimed or represented themselves to be agents of the defendants.

Customers resorting to the correspondents' offices, and desiring to trade in any one of the sixty different stocks whose quotations are posted, give a verbal or written order to 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 defendant at 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 remits to the defendant, through its local bank, whatever amounts are shown to be due from him to the defendant for margins, wire service, etc. When the trader wishes to close a trade thus opened, the correspondent, in like manner, receives and transmits the order over his wire to the Ham

In this connection it was found by the master that "there can be no question that towards the customer the correspondent bears the relation of agent to his principal. The customer knows that the correspondent is not selling the stocks to him, or buying stocks from him, but is merely taking his orders for transmission. Hence, the corre

ceived by him are sent to it through the bank by the correspondent. All its statements are rendered to the correspondent. All its charges are made against, and all its credits entered in favor of, the correspondent. Indeed, so far as the evidence shows, there is no ground for claiming that the defendant knows that the correspondent has any customers, or that he is not dealing solely on his own account."

spondent'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 whom he is to sell, as the latter is at liberty to purchase from or sell to the defendant, or elsewhere, as he chooses. In point of fact, perhaps, because of the facilities offered by the private wire, he almost invariably does purchase from or sell to the defendant." The defendant has undoubtedly taken great pains to foreclose the idea that its correspondents are agents in any such sense as to render it liable for their acts, or to validate the service of process upon them as such agents. Each day the defendant enters upon his statement which he that day sends to the correspondent each trade it has that day accepted from such correspondent. If the statement shows a debit balance, the correspondent deposits an approximate amount in a bank in his city to the credit of the defendant, which thus maintains an active bank account in each of such banks. If the statement results in a balance to the credit of the correspondent, a check of the defendant payable to the correspondent, and usually drawn upon the same local bank, where the deposits are made to defendant's credit, accompanies the statement. As a general thing, the balance due on each day's transactions, as between the defendant and the correspondent, is approximately settled the next day. The defendant looks only to the correspondent in all trades. In case of a loss, if the correspondent has failed to secure sufficient margin from the customer, and is unable to collect the amount from him, the correspondent must stand the loss. The defendant charges up and retains the amount of its charge for wire services, in any event, as well as all losses of the correspondent on trades. The daily statements by defendant are made upon printed blanks, which contain the statement: "We have no agents." And upon the back is a printed statement to the effect that, upon consideration of the defendant consenting to deal and contract with him as principal in buying and selling commodities, he agrees:

"First. In all cases where I shall purchase from, or contract to purchase from, or shall sell to, or contract to sell to, said Hammond Elevator Company any commodity, I will receive and pay for the commodity purchased, or contracted to be purchased, from it, and will deliver the commodity sold, or contracted to be sold, to it."

"Seventh. That I am not, and will not represent myself as being, agent for said Hammond Elevator Company, but will represent that I have no authority to act for it. It is not responsible for anything that may he done by me."

Notwithstanding these protestations and excessive precautions used to prevent the correspondent being held held as agent, the method of business shows that the party really interested in the transaction is the defendant, and that the correspondents are compensated as if they were agents, and not principals. The correspondent charges his customers a commission of one-eighth of a cent a bushel on grain. The defendant keeps a regular book account with its correspondents, and, in addition to charging up the margin against him, it makes an arbitrary charge on each deal, which is called on the statement of the correspondent "wire service," meaning a charge for the use of the private wire. This charge for wire service is a regular fixed percentage of the commission charged by the correspondent, which indicates that it is a commission under the guise of wire service, and such a charge upon any transaction of magnitude would be an exorbitant charge for use of the wire. An ordinary charge for wire service would depend upon the length of the message and distance transmitted, wholly irrespective of the amount of the transaction. But in this case, when a charge is made on a transaction involving a hundred shares, the charge is ten times greater than for a trade involving ten shares. This indicates something more than a charge made for the actual use of the wire, the amount of the service being the same in each case. The significance of this wire service is the more marked by the fact of the defendant company paying a fixed sum of $50 per month for the use of the wire.

The findings, moreover, show that while the correspondent takes the orders from his customers, he transmits them directly to the defendant, and no trade is effected until the return message is received by the correspondent. While the identity of the customer is not disclosed to the elevator company, it is preserved by a number appropriate to each order; and there can be no doubt that any legal liability of the trader arising out of the transaction could be enforced by the defendant against the customer as soon as his identity was discovered. It is apparent from these transactions that the real trading

It results that the decree dismissing the bill as to the Hammond Elevator Company must be reversed, and the case be remanded for further proceedings.

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 the elevator company is the other one, and that the profits appropriate to the transaction belong to the elevator company, and not to the correspondent, who is paid a commission for his services. If the correspondent be not the principal in this transaction, he must be the agent of one party or the other, and as his office is continuously open for the transaction of business, where he receives and executes orders, collects margins, and 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

would seem that he was rather the agent of the elevator company than of the customer, -a conclusion which is fortified by the fact that the correspondent is compensated by a percentage of the amount charged the customer under the name of commission for the privilege of trading.

The CHIEF JUSTICE, Mr. Justice Harlan, and Mr. Justice Day dissented upon the first point.

(198 U. S. 483) LOUISVILLE & NASHVILLE RAILROAD COMPANY, Petitioner,

v.

PANY.

Wharves-right of public use.

A wharf in the harbor of a city, at the foot of a public street, built by a railway company under authority from the city, in addition to adequate terminal facilities, for the purpose of more conveniently procuring the transportation of freight beyond its own line by such carriers as it might select, is not a public wharf, whose use can be demanded by a shipper on payment of reasonable hire, for the purpose of employing vessels of his own selection for the further carriage of his goods.

The real transaction in this case is undoubtedly artfully disguised, but notwithstanding the fact that the order is made and accepted at Hammond, and the margin is charged up at Hammond against the correspondent, and the profits or losses made there, we are of the opinion that in receiving, 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 incident to each transaction, the correspond

ent is really “doing business" as the agent of the elevator company in Illinois, and may be properly treated as its agent for the service of process. It is evident that if these correspondents be not regarded as agents in these transactions, it is possible for the defendant to establish similar correspondents in a dozen cities in at least a dozen states of the Union, and an enormous business be built up, in which the defendant company is the real principal, with no possibility of being sued except in the states of Indiana and Delaware.

If these correspondents were admitted to be agents of the elevator company it is not perceived how their methods of doing business would be materially changed. They would maintain an office in their own cities; would receive and transmit to their principals offers for trades made to them, and report their acceptance or refusal, as is frequently done with respect to policies by agents of insurance companies; would receive and deposit the margins and attend to the settlement of differences. In fact, their position is analogous to that of an ordinary

[No. 225.]

1905.

ON WRIT of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit to review a judgment which affirmed a judgment of the Circuit Court for the Northern District of Florida in favor of plaintiff in an action to recover damages from the railway company for its refusal to permit a shipper to use its wharf for the further carriage of his goods. Reversed and remanded to the Circuit Court for further proceedings.

See same case below, 62 C. C. A. 681, 128 Fed. 1020.

Statement by Mr. Justice Peckham: Certiorari to the circuit court of appeals for the fifth circuit to review a judgment of that court affirming one in favor of the West Coast Naval Stores Company (hereinafter called the plaintiff), against the railroad company (hereinafter called the defendant), for damages for refusing to permit the plaintiff to use the wharf of defendant at Pensacola for the transportation of plaintiff's property, as stated in the declaration.

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.