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J. B. Baird. WDB.
cept the lead already contracted. Do not | the Ninth National Bank to the account of contract for any more. Advise quick num- "George R. Fitch, General Eastern Agent," ber of pounds contracted by you and say which was the style of the account opened by how it will be routed. Think we should re- Fitch as agent of the Northern Pacific Railceipt for lead subject to delay. road; and the account was never drawn 0/900. upon in favor of the Northern Steamship Company; but all through freights received were deposited to the credit of this account and remitted to the railroad company, or its receivers, and were divided and distributed by them under their contract with the steamship company.
Dodwell, Carlill, & Co., mentioned in the last telegram, represented the steamship
10. Thereupon the refusal to accept the shipment was withdrawn, and the shipment was made under the contract, and the lead, consisting of 200 tons, was, in accordance with the shipping instructions given in Fitch's letter of September 22, 1894, shipped at Newark, New Jersey, in September 27th, 1894, by the Balbeck Smelting & Refining Company for the account of the American Trading Company. This was the first shipment ever made by the American Trading Company over the line of the Northern Pacific Railroad Company and its connecting carriers. The shipment was made in bond, for exportation at Tacoma, and was secured upon the cars by government locks and customs seals. On the afternoon of September 27, 1894, the shipment left Newark, and started on its journey, and was transferred via the Anchor Line, a carrier operating between eastern points and points on the Lakes, to Duluth, and carried from Duluth via the receivers' railroad to Tacoma, which it reached in time for shipment by the steamship company's steamer, Tacoma, sailing October 30, 1894. On September 28th, a check for the freight upon the lead from Newark to Yokohama was handed by the trading company to Fitch, of which check, with its indorsements, the following is a copy:
11. On September 28, 1894, a shipping receipt for the shipment was issued to the Balbeck Smelting & Refining Company, of which shipping receipt a copy is hereto annexed marked exhibit "B," and was delivered by the Balbeck Smelting & Refining Company to the American Trading Company, and was forthwith surrendered by the trading company to Fitch.
A bill of lading in the usual printed form, a copy of which is herein annexed marked "C," was subsequently issued by Fitch to the American Trading Company. It was received by the clerk of the trading company without stated objection to its terms, but was not read or examined by him, or by any officer of the company, and was immediately hypothecated with the Hong Kong and Shanghai bank, as collateral security for moneys borrowed thereon by the trading company. The original of the bill of lading was negotiable and did not have stamped upon it the words "Not negotiable; shipper's copy," which appear on the shipper's copy hereto annexed, but was similar to the shipper's copy in all other respects.
of this bill of lading to Dodwell, Carlill, & On September 29th, 1894, Fitch sent a copy Co., with a letter (not disclosed to the American Trading Company) of which the following is a copy:
The previous letter of advice, referred to by Fitch in the foregoing letter, is lost, and no copy of it exists. It appears, however, from the following letter of acknowledgment to have borne date on September 27th:
Tacoma, Wn., October 2nd, 1894. George R. Fitch, Esq., G. E. A., N. P. R. R., 319 Broadway, New York. Dear Sir:
We beg to own receipt of and thank you for your favor of the 27th ultimo, and advising the engagement of 40 tons of condensed milk and 225 tons of pig lead for our steamer Tacoma, sailing hence the 30th instant. Please keep us frequently advised of freight engagements, as we have applications now for more space for flour than our steamers will carry, and we are shutting out considerable of the latter every voyage. Yours truly,
p. p. Dodwell, Carlill, & Co. A. T. Pritchard.
12. At Tacoma the lead was delivered by the receivers to the Northern Pacific Steam
ship Company, and was loaded upon the Tacoma, the vessel of the steamship company which was to sail on October 30th; but about 4 o'clock in the afternoon of that day the deputy collector of the United States at that port refused to clear the vessel while the lead was on board, upon the ground that it was contraband of war, and telegraphed to the collector at Port Townsend for instructions. On the following day, which was the 31st of October, the deputy collector at Tacoma received a telegram from the collector of the United States at Port Townsend, which was as follows:
"Department advises that, unless you have evidence tending to show that the pig lead at Tacoma, and referred to in your telegram of yesterday, is to be used in the war between China and Japan, no reason is perceived why shipment should not be permitted."
In the meantime, however, the master of the vessel unloaded the lead, which delayed the ship until 9 A. M. on the morning of October 31st, when he sailed without it.
The petitioner was not notified of the delay in the transhipment of the lead until November 5th, 1894.
and did not arrive in Yokohama until on or about January 4, 1895, instead of on or about November 18, 1894, when it would have arrived had it gone forward on the 30th of October, 1894.
14. In the meantime hostilities between China and Japan had ceased, the price of lead had fallen very considerably, and the purchaser of the shipment refused to accept it, and declared the contract null and void in consequence of the failure to deliver it promptly in accordance with the terms of the contract.
15. The price of the lead under the contract would have been $38,610.17. The lead was delivered to the trading company in Yokohama upon the surrender of the bill of lading, and, in consequence of the failure of its vendee to accept the lead, the trading company sold it for $11,331.60, which was the best price obtainable therefor at the time of the sale. The sale was made as soon as a purchaser could be found. The value of the lead on January 4, 1895, in Japan, was $11,906.16.
16. Upon the case arising on the foregoing facts, the American Trading Company has duly presented to the receivers, and to the Northern Pacific Railway Company, its claim, amounting to the sum of 26,704.02, with interest thereon from the 4th day of January, 1895, and has demanded payment thereof; but payment has been refused, and no part thereof has been paid.
Mr. C. W. Bunn for appellant.
Messrs. F. B. Jennings and Howard Van Sinderen for appellee.
Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court:
The objections to the recovery, herein made on the argument, were-
(1) That no contract was shown, on the part of the receivers, to assume any responsibility for the transportation of the lead beyond the line of the railway in their charge.
(2) That there was no proof that the court had authorized the receivers to assume any such responsibility, and they could not do so without any such authority.
(3) That if Fitch, the agent, made such agreement, it was not within his authority, real or apparent.
(4) That the bill of lading is the control
The next vessel on the line was the Sikh, which did not belong to the steamship company, but was a chartered ship. Her captain declined to take the lead on the groundling contract, and by its terms the receivers that it was contraband. The Northern Pacific Steamship Company cabled to the owners of the vessel in London, and they adhered to the position taken by the captain.
13. The lead went forward on the next vessel, the Victoria, on December 11, 1894,
were not liable beyond their own line.
(5) That the damages were caused solely by the act of the collector, representing the authority of the United States; and the receivers are not liable for damages so caused. In regard to the first objection, we think
Appellant urges, however, that, as Fitch was also agent for the steamship company, his contract, if there was one, to forward by the steamship sailing October 30, was in behalf of the steamship company. Fitch had never received any direct or independent ap
the fact agreed upon clearly show a special | ant) beyond its own line. This court held agreement for the transportation of the lead that while a company might, by a contract to Yokohama by the steamship of the North- to that effect, be held liable for the transern Pacific Steamship Company, which was portation and delivery of freight beyond its to leave Tacoma on the 30th of October, 1894. own line, yet the contract to do so must be The opening of the negotiation was made by clear; and that the mere stating of a the American Trading Company, which ap- through fare on the receipt of the freight plied to Fitch for a rate upon the proposed does not establish such contract or liability. shipment from New York to Yokohama, In the case at bar we hold that a special Japan. The trading company knew nothing agreement is set forth in the statement of of his steamship agency, and he was informed facts, to forward to Yokohama by the steamthat it was of vital importance that the leader leaving Tacoma on October 30, 1894. If it should be transported promptly, and go for- had been made by the proper officer of a railward by the earliest possible steamer with-road company in the general course of busiout delay, in order to enable the trading ness we have no doubt, under the authoricompany to fulfil a proposed agreement ties, of the validity of the contract. Ogdenswhich it was about to make for the sale of burg & L. & C. R. Co. v. Pratt, 22 Wall. 123, the lead in Japan, and which would require 22 L. ed. 827; Ohio & M. R. Co. v. McCarthy, its delivery there at a fixed date. Fitch 96 U. S. 258, 24 L. ed. 693; Myrick v. Michithereupon named a rate, and undertook to gan C. R. Co. 107 U. S. 102, 27 L. ed. 325, forward the lead from New York to Yoko-1 Sup. Ct. Rep. 425. Whether the fact that hama, on or before September 29, via the it was made by an agent of the receivers of Northern Pacific steamer sailing from Taco- a railroad company makes any difference ma October 30, 1894. The trading company will be discussed later. thereupon made its proposed agreement through its agents at Yokohama. Although Fitch, the agent, was not thereafter specially informed of the fact that the proposed agreement had been made, yet he was informed that the company intended to make it if a rate could be agreed upon for the transpor-pointment or authority from the Northern tation of the lead. It is clear that his furnishing of the rate was with reference to the proposed agreement, and that he understood that, if his terms were accepted, he was entering into an agreement to transport to Japan the lead in question over the Northern Pacific railroad to Tacoma, and by the steamship which would leave Tacoma on the 30th of October, 1894. His letter of September 19, 1894, to the trading company, confirming the rate, is a plain agreement, not alone to deliver the lead in time for the sail ing of the steamer, October 30, but an agreement that the lead should be forwarded from Tacoma, Washington, via the Northern Paci-pany operated the steamships between Tacofic steamer sailing on that day. Fitch in that letter asking the trading company to forward their acceptance of this proposed agreement as early as possible. On the next day, September 20, the trading company, by letter, did accept the rate "for a shipment of pig lead, to consist of not less than 400,000 pounds, to be forwarded from New York to Tacoma, and from Tacoma via the Northern Pacific steamer sailing from that port October 30." There is no doubtful expression in these letters. They form a clear and specific contract. It is entirely different from Myrick v. Michigan C. R. Co. 107 U. S. 102, 27 L. ed. 325, 1 Sup. Ct. Rep. 425. The receipt in that case was plainly not one which established a contract for transportation on the part of the railroad company (defend
Pacific Steamship Company to act as its agent. His only authority as agent of that company was created by the contract made between the two companies. By that agreement the railroad company was to have the exclusive right (with certain exceptions) to appoint agents in the United States, etc.; and the steamship company thereby authorized the railroad company and its appointed agents to act as agents for the steamship company, and to issue bills of lading and passenger tickets, and to make and name rates on all traffic for Asiatic points, etc. The trading company did not know what com
ma and Yokohama, or that the steamship company was a separate and independent company, or that there was any contract between the receivers and the steamship company. When the trading company, therefore, applied to Fitch for a rate, they applied to him as the agent of the receivers of the railroad company. The letter of Fitch of the 19th of September, confirming the rate already given orally that day, is written on the paper used by the receivers of the railroad company, which paper is headed by the names of the receivers under the words "Northern Pacific Railroad Co.;" and in it Fitch describes himself as "general eastern agent," and his department as the "Traffic Department in New York city," and he signs his name, and adds the words "G. E. Agent."
In his letter of September 29, 1894, to the steamship agent at Tacoma, Washington, he writes on the same kind of paper, with the same heading, and describes himself as "general eastern agent;" and in the letter he says: "As I have previously advised you, I have made contract guaranteeing delivery of this shipment at Yokohama by our S. S. Tacoma, sailing October 30. Will you kindly see that this connection is made, without fail." He signs his name, and adds the letters G. E. A., meaning, of course, thereby "general eastern agent." It is contended that, by the statement of facts, it appears that Fitch was acting for two principals, and that the plaintiff must establish that Fitch made the alleged guaranty on behalf of the receivers. We do not think he was acting in behalf of two principals. From all the facts, we think it plain that he was acting for the receivers of the railroad company. He was their general eastern agent; he was applied to, and he made his rates, as such, and as such he signed the letter confirming those rates, and containing the agreement to forward the lead on the steamship as already stated. Subsequently, and on the 29th of September, while acting and signing himself as the general eastern agent of the receivers, he writes to the steamship agents at Tacoma the letter in which he says he has guaranteed delivery at Yokohama, by "our steamer" sailing October 30. All this shows the fact that he was acting as agent for the receivers. We have no difficulty in determining the capacity in which Fitch acted, nor that he made the special agreement, as contended by the trading company.
(2) Neither do we doubt that the court had authorized the receivers to make such
Under the modern methods of foreclosing railroad mortgages, it has been the custom to appoint receivers to take charge and conduct the business of the railroad mortgagor during the pendency of the suit. The possession of such receivers frequently lasts for years. It would be in the highest degree disadvantageous to all interested in the railroad company, as well as to the public having occasion to do business with it, if the same power which the company possessed to make special contracts for transportation should not be given to and exercised by the receivers of the company in continuing to run the road in substance as a going concern, so far as these kinds of contracts are concerned. Such contracts are not of the character spoken of by Mr. Justice Jackson in Chicago Deposit| Vault Co. v. McNulta, 153 U. S. 554, 38 L. ed. 819, 14 Sup. Ct. Rep. 915, as so extraordinary or unusual as not to be included in the authority to carry on the business of the company. On the contrary, this contract is
one of that class which we regard as so included.
(3) We are also of opinion that Fitch had the right to make the agreement in question, and, if there could be any doubt on that point, nevertheless the agreement was in fact thereafter ratified by the officers representing the receivers, who had power so to do. Goodrich v. Thompson, 44 N. Y. 324.
A railroad company has the power, as we have seen, to make such a contract of carriage beyond its lines. A general agent would be presumed to have such power. If the company have the power, some individual must exercise it. It would not be supposed that the board of directors would be consulted, and authority given by it every time such a contract was to be made. Who is a more proper or fit person to make the contract than the general agent of the company? He must necessarily have large powers in order to conduct the business of his office, and, prima facie, such power is within the scope of such agency. When the railroad company passes into the hands of a receiver, appointed by the court in a foreclosure suit, and the receiver is directed to conduct and continue the business of the company, the power to appoint general agents necessarily goes with the order to conduct the business of the company; and when the general agent is appointed by a receiver, he will be presumed to have the general powers of such an officer when acting for the railroad itself. The words "general eastern agent" for a Western railroad company only limit the exercise of the agency to the place so described.
(4) It is urged that the bill of lading constitutes the sole contract. But there was a plain, valid contract existing between the parties before the lead was shipped, and before any bill of lading was issued. That special contract was to forward the lead by the steamship leaving Tacoma on the 30th of October. The next day after the lead was shipped at Newark, a bill of lading was delivered to one of the clerks of the trading company, and that bill of lading contains the absolutely inconsistent statement that the carrier is not to be liable for any loss not occurring on its own road, and that the contract, as executed, is accomplished, and all liability thereunder terminates, upon the delivery of the property to the steamship.
It is said that the trading company, by receiving this bill of lading and obtaining money on it as the representative of the property therein described, has acquiesced in the total abolition of the special contract the company made with Fitch, and has agreed that the railroad company shall be under no liability after the delivery of the lead to the steamship.
We regard it as entirely clear that no such
effacement of the original contract was or changed by the receipt of a bill of lading, meant by the receipt of the bill of lading. The railroad company had no power alone to alter that contract, and it could not alter it by simply issuing a bill of lading, unless the other party assented to its conditions, and thereby made a new and different con
At the time when the bill of lading was issued the lead had been shipped at Newark, and had departed for its destination. It was impossible for the trading company to recall it. The particular conditions in the bill are set out in subdivision 3 and subdivision 12 of the conditions printed in small type, and they form part of numerous other printed conditions in regard to the freight received. Where the acceptance of the bill of lading, under these circumstances, is sought to be made an equivalent to an assent to the change of contract, it is proper to look at these facts in order to determine what weight should be given to such acceptance. At the time it was received the lead was out of the possession of the trading company, on its way West. That company needed the bill of lading as evidence of title to the property described in it, upon the security of which it desired to raise money, which it could not do without the possession of the bill. Under these circumstances, we refuse to hold that the trading company, in accepting the bill of lading, thereby consented to the complete alteration of its original contract, and without any consideration whatever, agreed to release the railroad company from all liability on that contract, and to take in its stead the reduced liability provided for in the bill of lading.
Of course the company expected a bill of lading, for such an instrument is the usual accompaniment in shipping merchandise. The bill showed the amount of the lead, the marks and numbers, etc., and so identified the goods as to enable the shippers to show their amount and general value, and to enable them to negotiate the bill and obtain money on its security.
It is agreed in the statement of facts that this bill of lading was received by a clerk of the trading company without stated objection to its terms, but was not read or examined by him, or by any officer of the company, and was immediately hypothecated with a bank as collateral security for the money borrowed thereon by the trading company. We do not state the fact that the bill of lading was not examined, for the purpose of insisting that an examination of such an instrument must always be shown before a contract can be predicated thereon. But where there is a valid contract already in existence, and it is urged that such contract has been abrogated
after goods have passed from the control of the shipper, we think it is important, upon the question of whether such original contract has, in fact, been abrogated, to show that the bill was never read in fact; that the conditions abrogating the original contract were among a number of other conditions printed in the bill in smaller type than the rest of the bill, and that the alleged acquiescence of the trading company in the change of the contract, by virtue of these conditions, is based upon the mere ception of the bill of lading by a clerk without any knowledge of the existence of these conditions, and without evidence of any authority in him to consent to a modification of the contract already made by his employer. The fact, that, in such ignorance, that company hypothecated the bill of lading, adds nothing to the alleged acquiescence. What the contract meant as between the railroad company and the bank or other assignee of the bill of lading is not important here; but, upon these facts, we are unable to see that the receipt and holding of the bill of lading changed the original contract as claimed by the railroad company. See Bostwick v. Baltimore & O. R. Co. 45 N. Y. 712, where it was held, under the circumstances of that case, the mere acceptance of a bill of lading did not alter a previously made oral contract in relation to the shipment.
(5) Even if the receivers of the railroad company contracted to forward the lead by the steamer sailing from Tacoma October 30, it is still insisted that the action of the deputy collector, at Tacoma, in refusing to grant a clearance to the steamship while the lead was on board, made the performance of the agreement, not only impossible, but unlawful; and, for that reason, the receivers were absolved from their agreement to forward by that vessel. The contract was not unlawful when made. It may be assumed that the lead was contraband of war; but that fact did not render the contract of transportation illegal, nor absolve the carrier from fulfilling it. It is legal to export articles which are contraband of war; but the articles, and the ship which carries them, are subject to the risk of capture and forfeiture. The Santissima Trinidad, 7 Wheat. 283, 340, 5 L. ed. 454, 468. Neither any law of the United States, nor any provision of international law, was violated by the making of this contract, nor by an attempt to export the lead pursuant to its provisions. The case does not come within the within the principle of Brewster v. Kitchell, 1 Salk. 198, where it was said that, if one covenants to do a thing which is lawful, and an act of parliament comes in and hinders him from doing it, the covenant is repealed.