to

the same may be set off against the plain- | added that the plaintiffs, on December 11, tiffs' demand.

1903, and, again, on the 23d day of March, The second joint plea of the same de- 1904, without the knowledge or consent of fendants (so numbered in the record) set the defendant, entered into other agreeup in substance the same agreement as the ments with Monaghan and McGuire to sell first, except that agreement was alleged to to them, at different prices and terms of have been made September 11, 1903, and the sale, the merchandise purchased from plainbond was conditioned for the payment by tiffs by them, and that since December 11, the principals for all merchandise to be fur. 1903, the plaintiffs have refused to sell nished by the plaintiffs on four months' merchandise to Monaghan and McGuire at credit. The plea also omitted the agree the prices named in the agreement, though ment that the principals (Monaghan and requested to do so, whereby the defendant McGuire) would not be required to pay the was discharged from his liability. plaintiffs until they (the principals in the The third separate plea (numbered 3 in bond) could make collections from their cus- the record) alleged that the merchandise tomers. The plea also alleged that the mentioned in the declaration as having been plaintiffs, shortly after the execution of the sold was purchased by the defendants Mon. bond in suit, wrongfully refused to sell to aghan and McGuire under an agreement not the principals therein merchandise on credit under seal, entered into before and since to the amouné of $10,000 at and for the the 11th day of September, 1903, between prices stated in the agreement, and wholly them and the plaintiffs, and not according neglected and refused to perform the agree to the terms of the bond mentioned in the ment between them and the principals in declaration, wherefore the defendant prayed the bond, whereby Monaghan and McGuire judgment if he ought to be charged with were forced to abandon their said business the said debt by virtue of said bond. and lose all the money and time expended by Subsequently the same defendant filed them in and about the same, and amounting three additional pleas. By the first addito not less than $10,000, and were, and each tional plea (which is numbered 4 in the of them was, injured and damaged in the record) he alleges that prior to signing the sum of $10,000, for which sum the said bond plaintiffs agreed with the principals J. Charles McGuire claimed judgment against therein to sell the merchandise referred to the plaintiffs, and the defendants were will in the bond at and for certain prices speciing that the same should be set off against fied in a letter dated August 25, 1903, sent the claim of plaintiffs.

by the plaintiffs to the principals in the Thereafter the defendant William Mc- bond. The plaintiffs represented to the deGuire filed three separate pleas. The first fendant that the agreement was applicable separate plea (numbered 1 in the record) to all merchandise to be purchased under

) alleged an indebtedness of the plaintiffs to the bond, and plaintiffs thereby intended to William McGuire in the sum of $5,000, for induce defendant to sign the bond, which that, on the 11th day of September, 1903, he did in reliance upon that statement. and in consideration of plaintiffs agreeing Thereafter the principals purchased from the to sell merchandise to Monaghan and Mc- plaintiffs merchandise amounting to $14,Guire at and for certain prices named in 477.16 and no more, and the sum of $10,the agreement, and to give them a continu- 617.55 was for merchandise purchased at ous credit of $10,000 for merchandise sold the prices agreed upon, and the balance, to them by plaintiffs, the defendants did $3,859.61, was for merchandise purchased at agree to and did sign the bond mentioned greatly enhanced prices, made under an in the declaration, but the plaintiffs wrong. agreement entered into on or about the 11th fully refused to perform the agreement, or day of December, 1903, without the knowlto sell to Monaghan and McGuire merchan-edge or consent of defendant; that the dise at the prices named in the agreement, principals paid plaintiffs on account of said or to allow them the continuous credit men- sum of $10,617.55 the sum of $9,100.48, leavtioned therein, whereby they were prevented ing due to the plaintiffs under the bond from paying for the merchandise purchased $1,517.07 and no more. and mentioned in the declaration, and the By the second additional plea (numbered defendant thereby incurred great liability, 5 in the record) the defendant set up suband was injured and damaged in the sum stantially the same agreement as to signing of $5,000, and claimed judgment therefor, the bond and the consideration therefor, and was willing that the same might be set and then made the additional averment that off against the demand of plaintiffs. the agreement was that the plaintiffs would

The second separate plea (numbered 2 in not at any time exceed the sum of $10,000 the record) set forth the same agreement in their sales to the principals, but the and bond and consideration therefor that is plaintiffs failed to perform the conditions, mentioned in the first separate plea, and Tor any of them, and refused to sell at the agreed prices, and also permitted the 1904. The condition of the boud meant that indebtedness of the principals to continue the defendants should not be called upon from December 10, 1903, to January 21, to pay until after the expiration of four 1904, to be greatly in excess of $10,000, by months from the date of each of the respecall of which defendant was discharged. tive purchases. The defendants had, as the

By the third additional plea (numbered 6 pleadings show, paid for all the merchandise in the record) the defendant alleged the purchased, except the balance therein statpartnership agreement between the princi-ed, and four months had in fact elapsed pals in the bond, but did not allege that since the last sale. The defendants have, there had been any time ever agreed upon therefore, obtained four months after the for the continuance of such partnership, and purchase before they were called upon to further alleged that during the year 1903 ! pay. We think the declaration was suffithe principals in the bond had established, cient. a good business, and the bond was executed We are also of opinion that the two joint and delivered to the plaintiffs for the pur- pleas of J. Charles McGuire and William pose of establishing and maintaining the McGuire, and the first separate plea of the credit of the principals with the plaintiffs; latter, which, it is contended, set up offsets but that, on or about January 12, 1904, the to the plaintiffs' claim, did not allege facts plaintiffs, for the purpose of securing the with sufficient distinctness to constitute a customers which the principals in the bond defense to the action. Neither of these had obtained for themselves, and for the pleas is sufficiently distinct to constitute a purpose of selling directly to those custom- good pleading. What the special agreement ers, wrongfully induced Monaghan to with was that is alleged to have been made bedraw from the partnership and enter the tween the principals in the bond and the employ of plaintiffs, which Monaghan did, plaintiffs, in consideration of which the bond and that thereby the business of the prin- was signed by the surety, is not stated with cipals was wholly destroyed, and by reason any degree of particularity. It simply thereof they were unable to pay for the states that the agreement in this respect merchandise referred to in the bond and was that the merchandise should be sold to declaration, all of which was without the the principals in the bond at and for cerknowledge or consent of the defendant, by tain prices specified in the agreement, but reason whereof defendant was discharged the pleas do not set them forth, nor do they from all liability under the bond.

state for how long a time such agreement

was to remain in existence, nor how the deMr. Lorenzo A. Bailey for plaintiffs in fendants suffered damage to the extent error.

named in the pleas, or to any extent. It is Messrs. Eugene A. Jones, Simon Wolf, and impossible for a court to see how these Myer Cohen for defendants in error. damages would necessarily or probably flow

from a violation of said agreement, or that Mr. Justice Peckham, after making the they could form a basis for any legal deforegoing statement, delivered the opinion mand flowing from not longer fulfilling the of the court:

terms of the alleged contract. The damThe declaration in this case is attacked ages alleged in the pleas are most remote, by the defendants under the rule that the vague, and shadowy in their nature, such as court will go back to the first substantial could not have been contemplated by any defect appearing in the pleadings before the party to the alleged agreement, as the probfiling of the demurrer. The criticism made able result of its violation. While rules of by the defendants upon the declaration is pleading have become more liberal in modern that it does not sufficiently show a violation days, yet, in order to found a cause of acof the terms of the bond. The defendants tion on the alleged shortcomings of another, say the bond limits the liability of the sure they must at least be so far plainly set up ties to pay for such merchandise only as as to show actual damage and the wrongful was sold on a four months' credit, and that act of the other party as the proximate and the declaration does not show that the terms natural cause. The particulars of the alof the sale of the merchandise were those leged resulting damages should be so far which were set forth in the bond. The set forth that the court may be able to see declaration shows a failure to pay for cer- therefrom that such alleged damages are tain merchandise alleged to have been sold neither obscure, vague, nor shadowy, but to the defendants, amounting to a stated might, and probably would, naturally result sum on the date set forth in the particu- from the acts complained of. Within such lars of demand, which demand was annexed limitations, which have always existed, the to and forms a part of the declaration. This three pleas are insufficient. demand showed that the last item of sale The next succeeding plea is marked in the was made July 27 prior to December 11, I record the second separate plea of the de

fendant William McGuire. The court be- chased under the bond, would require parol low treated this plea, together with the evidence, as there is no pretense that these third separate plea of the defendant, and representations were made in writing, or his fifth (in truth, the second) additional that the letter referred to them in any way. plea, as together resting upon common The same consideration existing in regard ground. We think they may be properly so to the pleas last mentioned would operate regarded. It is seen from the whole record here and render the plea insufficient. that the principals in the bond sued on were The third additional plea (marked 6 in expecting to have business transactions with the record) attempts to set up a cause of tne plaintiffs, by purchasing from them li-action against the plaintiffs because, as alquors, which they expected to sell to others leged, they induced the defendant Monaat profit, but the plaintiffs did not care to ghan to dissolve the partnership between sell the goods to these principals without him and McGuire and to enter the plaintiffs' some security for payment of the goods sold employ, for the purpose, on plaintiffs' part, when cash payment was not exacted. The of increasing the plaintiffs' profits and with bond in suit was thereupon agreed to be intent to wrongfully destroy the business of given as security for the payment of the the defendants Monaghan and McGuire. As merchandise to be sold by the plaintiffs to the court below well says, there is in this plea the principals, and which the principals were no allegation as to how long the partnerbound to pay for in four months after the ship was to continue, and no action would date of each respective purchase. This is lie for terminating or inducing the terminaa clear and separate contract between the tion of a partnership at will. Karrick v. plaintiffs and the signers of the bond, and Hannaman, 168 U. S. 328, 333, 42 L. ed. 484, there is nothing in the declaration or bond 488, 18 Sup. Ct. Rep. 135. We do not see which shows the existence of any other how any legal damage to the sureties under agreement than that mentioned therein, or such circumstances can be said to be the that an alteration in the prices of the goods proximate, natural, or probable result of sold to the principals by the plaintiffs could, such action on the part of the plaintiffs. or would, have any effect upon the liability After the dissolution of the partnership of of the sureties. The bond being complete course no sales could thereafter be made, in itself on its face, it cannot be seen that and in relation to sales already made with any future alteration of the prices for the credit according to the terms of the bond, sale of the merchandise, arrived at between it is impossible to see how it could be said the plaintiffs and the principals in the bond, that the ruin of the business of the prinwould be material to or alter the liability of cipals of the bond, and hence the damage to the sureties for the payment of the mer- the sureties, could be regarded as the probchandise sold and delivered at the prices able consequence of the act of the plaintiffs agreed upon, after four months from the in procuring Monaghan to dissolve the partdate of purchase. There is no allegation in nership and enter their employ. Whether these pleas that any separate agreement treated as an offset or recoupment, or simwas in writing, and the bond itself does not ply as an independent cause of action, the show the existence of any other agreement plea does not set up facts sufficient to conor the sale of the property upon any other stitute a valid set-off, recoupment, or cause conditions than those mentioned in the bond of action. itself. Under such circumstances evidence The judgment of the Court of Appeals by parol going to show any other agreement was right and is affirmed. between the principals of the bond and the plaintiffs would not be admissible. Seitz v. Brewers' Refrigerating Mach. Co. 141 U. S. JOHN W. CLARK, Plff. in Err., 510, 35 L. ed. 837, 12 Sup. Ct. Rep. 46; Domestic Sewing Mach. Co. v. Webster, 47 LOUIS GERSTLEY and William Gerstley, Iowa, 357. In holding these pleas insuffi- Surviving Partners of the Firm Trading cient we think the court below was right. as Rosskam, Gerstley, & Company.

This leaves the fourth (the first additional) and the sixth (the third additional) McGuire v. Gerstley, ante, p. 332.

This case is governed by the decision in pleas. The fourth plea alleges that the merchandise referred to in the bond was to be

[No. 169.] sold at and for certain prices specified in a letter dated August 25, 1903, and sent by | Argued January 17, 18, 1907. Decided

February 25, 1907. plaintiffs to Monaghan and McGuire. What those Prices weren is not stated in the plea; IERBOR to the Court of Appeals of while the representations

the District of Columbia to a to have been made, that the agreement was judgment which affirmed a judgment of the applicable to all merchandise to be pur- I Supreme Court of the District in favor of

V.

plaintiffs in an action on a bond given to ing a carrier from liability for loss by fire secure sales of merchandis on credit. Af- is valid although the regular freight rates firmed.

were charged and no option was given to the See same case below, 26 App. D. C. 205. shipper to receive any other form of bill of The facts are stated in the opinion.

lading. * Mr. Lorenzo A. Bailey for plaintiff in er

Carriers-delivery to-negligence of agent.

2. A carrier which issues bills of lading ror. Messrs. Eugene A. Jones, Simon Wolf, and to a shipper in return for receipts given by

a compress company for cotton in the lai. Myer Cohen for defendants in error.

ter's custody is liable for loss by fire due to

the negligence of the servants of the comMr. Justice Peckham delivered the opin- press company in caring for the cotton ion of the court:

while awaiting the compression and loading The defendants in error, plaintiffs below, which the railway company had ordered obtained judgment against the plaintiff in done for its own convenience and at its own error for $5,000 and interest in April, 1905, cost, where such company, if it did not rein the supreme court of the District of Co- tender of the cotton, or if it were not a val

gard the presentation of the receipts as a lumbia, which judgment was affirmed by the id tender, could, notwithstanding the rules court of appeals (26 App. D. C. 205), and of the Texas state railroad commission as the plaintiff in error has brought the case well as its own rules, have refused to sign here for review.

the bills of lading. It is the same action as the foregoing case, just decided, but the plaintiff in er

[No. 176.] ror, who was one of the sureties in the bond, separately filed special pleas to the declara- Argued January 24, 1907. Decided Febru.

ary 25, 1907. tion, which were separately demurred to, and the supreme court sustained the demurrer. On appeal to the court of appeals IN ERROR to the United States Circuit

Court of Appeals for the Eighth Cirthe demurrer was not disposed of at the cuit to review a judgment which affirmed a same time as the demurrers to the other judgment of the Circuit Court for the Westpleas in the case, but was postponed to a ern District of Arkansas, Texarkana Divi. subsequent time,-April 7, 1905. On that

sion, entered on a directed verdict in favor datc the demurrer was sustained and the of defendant in an action to charge a carjudgment previously entered affirmed against rier with liability for a loss by fire. Judg. this plaintiff in error, who then brought the ments of both courts reversed and the cause case here on a separate writ of error. remanded for a new trial. The special pleas filed by the plaintiff in

See same case below, 139 Fed. 127. error were seven in number, the first six being the same as filed by the other plain

Statement by Mr. Justice Peckham: tiffs in error in the case. The seventh set

The plaintiffs in error, who were plainup the failure of the plaintiffs to give notice tiffs below, filed their complaint against the to the sureties that the principals in the railway company in the circuit court of the bond had not paid for the goods at the ex- United States for the western district of piration of the term of credit allowed them, Arkansas, Texarkana division. The case and also that the time had been extended by a rose under the laws of the United States, the plaintiffs in which the principals in the as the defendant was incorporated under an bond might pay for the goods sold to them. act of Congress passed March 3, 1871 [16 No definite term of extension was stated. Stat. at L. 573, chap. 122], which act was What has already been said in regard to amended by one passed May 2, 1872 [17 the other six pleas in the case determines Stat. at L. 59, chap. 132], among other the decision in regard to the same pleas things changing the name of the corporahereinabove set forth. In regard to the tion to that under which it was sued in seventh plea the plaintiff in error says in this case. Upon the trial the court dihis brief in this court that he makes no rected a verdict for the defendant, which point concerning the same.

was affirmed by the circuit court of appeals Judgment affirmed.

(139 Fed. 127), and the plaintiffs have come here by writ of error.

The action was to recover damages against W. A. ARTHUR and John C. Ware, Part- the defendant for loss by fire of 50 bales

ners as W. A. Arthur & Co., Piffs. in of cotton, which were burned at Texarkana, Err.,

Texas, September 19, 1900, and which the TEXAS & PACIFIC RAILWAY COMPANY. the defendant at that place, under a through

plaintiffs allege had been duly delivered to Carriers-limiting liability-loss by fire. bill of lading for transportation to Utica,

1. A clause in a bill of lading exempt. 'New York. In the third clause of the con. *Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, $ 637.

ditions stated in the bill of lading was a ported to that place as a place of concentraprovision “that neither the Texas & Pacifiction, where it might be classified and subseRailway Company nor any connecting car-quently transported to the East and other rier handling said cotton shall be liable for parts of the country by the railroads. damages to or destruction of said cotton The Union Compress Company was an by fire.” In the fifth clause of the bill of independent corporation, doing business at lading it was provided that "each carrier Texarkana, as a compressor of cotton, which over whose road the cotton is to be carried it compressed for the various railroads havhereunder shall have the privilege, at its | ing tracks at that place. The compress own cost, to compress the same for greater company had a platform on its own land

a convenience in handling and forwarding, and of about 400 x 600 feet, upon which cotton shall not be responsible for deviation or un- was delivered from wagons and from railavoidable delays in procuring such com- road cars, and the receipt of the cotton was pression.'

acknowledged by the compress company. Although the cotton was destroyed by fire, From this platform cotton was loaded on the plaintiffs alleged that they were not con respective cars of the different railroads, cluded by the fire clause, which they al- the tracks of which surrounded the platlege was void “because (1) said bill of lad- form on three of its sides. This platform ing was executed by said plaintiffs under was within the state of Texas. Substanduress; (2) said provision is unreasonable; tially all the cotton received at Texarkana and (3) was without a consideration.” The was received at this platform. The local freight rates charged in the bill were the platform of the defendant company was not regular rates for the shipment of cotton over calculated to receive cotton for shipment all lines of railway between Texarkana and by the company, on account of its small size, Utica, New York, and no option was given to and the defendant's agent testified that he said plaintiffs, as they allege in their com- would not know what to do with cotton plaint, to receive any other form of bill of if offered at this platform, except to send lading than that exempting the defendant it to the platform of the compress company. from liability for loss of the cotton by fire, When cotton was placed on the platform of and plaintiffs allege they did not assent the compress company it did not then comthereto.

press it, but it remained there until further It was also alleged that the place where orders were given, as herein stated. After the cotton was stored after its delivery delivery on the platform, and after the shipto the railway company by the plaintiffs per had procured the written acknowledg. was not a safe place, being on the plat- ment of the receipt of the cotton by the form of the Union Compress Company; compress company, the practice was for the that the platform was not inclosed, and that shipper, when he was ready to have it there was no proper provision made to pre-shipped, to go to the railway company, and, vent the destruction of the cotton by fire, upon the surrender of the receipts of the and that the cotton was at such place ex-compress company to the agent of the railposed to the sparks of passing engines, and way company, the shipper would receive that the employees of the Union Compress from such agent a bill of lading for the Company, which was the agent of the de- cotton, which acknowledged its receipt by fendant, neglected to care for the cotton, the company and the place and person it which caught fire from sparks from a pass-was consigned to, and the shipper had nothing engine and was destroyed, September 19, ing further to do in regard to the cotton. 1900, whereby defendant became liable to He issued no orders for compressing it, and the plaintiffs in the sum of $2,605, the value was not allowed to route it by any particof the cotton. The defendant, by answer, ular route. He would identify the cotton put in issue all the allegations as to negli covered by the bill and give the destination gence by its own servants or by the serv- point of the cotton and the name of the ants or agents of the compress company, consignee, and there his right ended. The and also denied that the plaintiffs had ever railroad company, when it received from the delivered the cotton to the railway com- shipper the compress company's receipt, and pany; and alleged that at the time it was gave its bill of lading to the shipper, took destroyed it was in the possession and con- the receipts of the compress company and trol of the compress company, which was gave them up, and directed the company to not its agent, and over which it had no compress the cotton and obtain insurance control.

upon it covering the responsibility of the Upon the trial evidence was given tending | railroad company, and. load it into cars to to prove the following facts: The plaintiffs, be designated by the railroad company's with offices at Texarkana, were extensive agent. It was a general understanding bebuyers of cotton, which they purchased in tween the railroad company and the comthe surrounding country and had it trans- press company that when the former de.