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it was averred in the petition that the dam- | can be identified," it was observed (p. 321, age complained of had been inflicted by the L. ed. p. 731, Sup. Ct. Rep. p. 384): Comanche and Kiowa tribes of Indians, who "But the 5th section provides for judgment were in amity with the United States. Aft- in favor of claimant, and against the Uniter hearing, the court of claims, finding ited States, in any event where the property to be established by the proof that the loss of a citizen has been destroyed under the complained of had been occasioned by In- circumstances provided in the statute, but dians in amity with the United States, but only against the tribe of Indians committhat the proof did not show that the Com-ting the wrong 'when such can be identianche and Kiowa tribes were the wrongdo- fied;' and of course it follows that, if they ers, nevertheless, without any amendment cannot be identified, no judgment can go of the petition, rendered a judgment solely against them. The United States would against the United States. The action of then be left as alone responsible for the the court of claims was sustained by this property destroyed, provided the proofs were court in United States v. Gorham, 165 U. S. of the character mentioned in the 1st sec316, 41 L. ed. 729, 17 Sup. Ct. Rep. 382. tion of the act; that is, the claimant would be bound to prove that he was a citizen of the United States at the time of the taking or destruction of his property; that it had been taken by Indians belonging to some band or tribe or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge; and that it had not been returned or paid for."

In considering the power conferred by the statute it was said (p. 320, L. ed. p. 731, Sup. Ct. Rep. p. 384):

To my mind this decision clearly establishes that, under the act of Congress, the Indian tribe by whom the depredation was committed was not an essential party to give the court jurisdiction over the claim. This conclusion, it seems to me, is inevitable from the ruling that, although it was alleged in the petition that a particular tribe was the wrongdoer, it was competent for the court to conform to the proof, and render a judg

"In conferring jurisdiction in this class of cases upon the court of claims, it will be seen that Congress conferred it in regard to all claims for property of citizens of the United States, taken or destroyed by Indians belonging to any band, tribe, or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge. So long as the depredations were committed upon the property of citizens of the United States, and by Indians in amity with the government, without just cause, etc., jurisdiction and authority to inquire into and finally adjudicate upon such claims was granted to the court. This broad ground of jurisdiction would, unless circumscribed by the sub-ment against the United States, in a case sequent provision of the act, permit an adjudication against the United States alone. There is nothing in any other portion of the act which provides, in terms, for joining, as codefendants with the United States, the tribes or bands of Indians by whom the alleged illegal acts were committed. The 3d section of the act merely provides for the contents of the petition; and by such section it is made the duty of the petitioner to state in his petition 'the persons, classes of persons, tribe or tribes or band of Indians by whom the alleged illegal acts were committed, as near as may be,' etc. This is for the obvious purpose of giving some notice to the government of the alleged facts upon which the claim is based, so that the proper defense, if any exist, may be made to the claim."

Again, after pointing out that the statute made it "the duty of the court to determine in each case, if possible, the tribe of Indians or other persons by whom the wrong was committed, and to render judgment in favor of the claimant or claimants against the United States, and against the tribe of Indians committing the wrong when such

where the proof did not establish the truth of the averment as to the tribe committing the injury, if only it was shown that the wrong complained of must have been committed by some Indian tribe which was in amity with the United States. Now, the question on this record is simply whether a petitioner who has alleged that the wrong was committed by a particular tribe can, after the three years' limitation, amend by stating another and different tribe as the wrongdoer. It is decided that such amendment cannot be allowed, because to allow it would amount to a fatal departure; that is, the substitution of a new and wholly different cause of action.

Consistently with the ruling previously made, my mind cannot assent to this conclusion. To adopt it without specifically overruling the Gorham Case, it seems to me, is to declare, on the one hand, that it is not essential to prove the allegation that the wrong was committed by a particular tribe, and, on the other hand, to say that the allegation as to the tribe committing the wrong was essential to the cause of action. That is to declare that a particular allegation is, at the same time, both essential

and nonessential,-essential to be alleged, but not essential to be proved.

As it is considered by me that the Gorham Case is conclusive of this, and as the opinion now announced does not purport to overrule that case, it is not necessary for me to enter into a statement of my reasons for believing that, even if that case did not exist, the construction now given to the statute is not only repugnant to its text, but conflicts both with the rights of individual claimants and those of the United States, as shown by the purpose and spirit of the act.

I therefore dissent.

(195 U. S. 439)

NORTHERN PACIFIC RAILWAY COM-
PANY, Appt.,

v.

AMERICAN TRADING COMPANY.

Carriers-contract to forward by designated vessel of connecting carrier power of railway receivers - authority of general agent -excuse for nonperformance.

1. A special agreement by a carrier to transport a through shipment by the vessel of a connecting carrier sailing on a designated date results from the acceptance of a through rate for a shipment "to be forwarded" via such steamer, which rate was quoted with notice that it was of vital importance that the shipment should be transported promptly, and should go forward by the earliest possible steamer without delay, in order to enable the shipper to fulfil a proposed agreement which It was about to make for the sale of the goods at the final destination, and which would require delivery there at a fixed date.

ers of the Northern Pacific Railroad Company, who were ordered to continue its business, has the general powers of such an officer when acting for the railroad company itself, which includes the authority to make a special agreement to forward a through shipment by the steamer of a connecting carrier sailing on a designated day.

5. A special agreement in behalf of railway receivers to forward a through shipment by the steamer of a connecting carrier sailing on a designated day is not modified by the mere receipt, without objection, and the subsequent hypothecation, of the bill of lading containing, as a part of numerous conditions printed in small type, the statements 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 vessel, where the bill was not examined or read, and was accepted after the goods had passed from the control of the shipper, by a clerk who had no knowledge of these conditions, and no authority to consent to a modification of the contract already made.

6. Nonperformance of a special agreement of a carrier to forward a through shipment by the steamer of a connecting carrier sailing on a designated day is not excused by the refusal of the deputy collector of the port to grant a clearance while the freight was on board because it was contraband of war, where the contract was not unlawful when made, and was not rendered unlawful by any subsequent legislation, and was made with knowledge that difficulties might arise in the course of transportation because of the character of the freight.

7.

The mistaken refusal of the deputy collector of a port to grant a clearance while certain freight was on board because it was contraband of war does not constitute a "restraint of princes, rulers, or people," within the meaning of a clause in the bill of lading, so as to excuse nonperformance of the agreement to forward the shipment by that vessel.

[No. 24.]

2. The general agent of the receivers of a railway company is acting as agent for such receivers, and not as the agent of a connecting steamship company, in agreeing to forward a through shipment by a steamer sailing on a specified day, where his only authority as Argued October 26, 27, 1904. Decided Deagent of the steamship company was created by a contract between the railway and steamship companies, under which the railway company to appoint agents, who should

cember 5, 1904.

PPEAL from the United States Circuit

cot for the steamship company to quote A Court of Appeals for the Second Cir

through rates and issue through bills of 'lading, and the application for a rate for such shipment was made to him as agent for the receivers, and the rate was quoted by him as such agent, and as such he signed a letter confirming the rate, and so described himself when informing the steamship company's agents at the connecting point that he had made a contract guaranteeing delivery by the designated steamer.

3. The making of a special agreement to forward a through shipment by the steamer of a connecting carrier sailing on a designated day is within the authority of the receivers appointed, in a suit to foreclose a railway mortgage, to continue to carry on the railway business.

4.

cuit to review a decree which reversed a decree of the United States Circuit Court for the Southern District of New York dismissing a petition in intervention in a suit to foreclose a railway mortgage, which seeks to require the receivers to pay damages for their failure to perform a special contract for the transportation of goods. Affirmed.

See same case below, 57 C. C. A. 533, 120 Fed. 873.

Statement by Mr. Justice Peckham: The Northern Pacific Railroad Company made a certain mortgage which was fore

The "general eastern agent" of the receiv- closed, and the Northern Pacific Railway

admission by the railroad company, or the receivers, or their counsel, that there were any relations between the receivers and the steamship company other than those growing out of the facts herein agreed upon.

For convenience in transacting their freight business in the eastern part of the United States, the receivers maintained an office in the city of New York, which was, in September, 1894, in charge of one George R. Fitch, who was their general eastern agent, and made arrangements for the trans

Company purchased the property of the for- | This stipulation is not to be accepted as an mer company under the mortgage at the foreclosure sale, and, by the order of the court, the purchaser was required to pay all obligations or liabilities contracted or incurred by the court's receivers, who had been appointed in the foreclosure suit. The American Trading Company, the appellee herein, intervened in that suit, and, by its petition, asked that, by virtue of the decree in foreclosure, the purchaser, the Northern Pacific Railway Company, be required to pay damages for the failure of the receivers to perform a special contract for the trans-portation of freight over the receivers' line portation of goods from Newark, New Jersey, to Yokohama, in Japan. The case was tried before the United States circuit court, in New York city, which dismissed the petition. This decision was reversed by the circuit court of appeals for the second circuit, and the railroad company was directed to pay the damages therein stated to the American Trading Company, the intervening petitioner. The railroad company has appealed from such decree or order to this court. The case was tried upon the agreed statement of facts which follows:

1. In September, 1894, Thomas F. Oakes, Henry C. Payne, and Henry C. Rouse were receivers of the Northern Pacific Railroad Company, under an order made in a suit bearing the same title as the present suit, in the United States circuit court for the eastern district of Wisconsin, to which this suit is ancillary. Under that order the receivers were authorized to continue, and were continuing, to carry on the business of the railroad in their charge.

of railway and connections, including transportation to China and Japan.

At the time of the transactions referred to in this statement of facts, the said Fitch had not received, nor did he receive, any direct or independent appointment or authority from the Northern Pacific Steamship Company, to act as agent of that company. His only authority as agent of the steamship company was that created by, or arising from, the contract, exhibit A. Fitch knew that an arrangement had been concluded by the receivers and the steamship company, by which contracts for through shipment to Yokohama might be made by the agents of the receivers, and through bills of lading issued, and he had been instructed by the receivers to solicit freight for through transportation upon bills of lading, of which exhibit C, hereto annexed, is a copy; but Fitch did not know the terms of the contract between the steamship company and the receivers, and the trading company did not know what company operated the steamships between Tacoma 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.

2. The line of railroad in the possession of the receivers extended from Duluth, Minnesota, to Tacoma, Washington. The receivers had contracts with various carriers reaching points on their line, by which through bills of lading were issued from It is further stipulated that Fitch had and to points not upon the line of the re- no express general authority to make conceivers' railroad, where the freight passed tracts for through transportation, except as over some part of that line in transit. provided by the said bills of lading, and no Among the carriers with whom the receivers authority to make the contract in question, had such arrangements was the Northern unless such express authority be found in Pacific Steamship Company. This was an This was an the telegrams, of which copies are hereinEnglish company, operating a line of steam-after set forth; that the American Trading ers between Tacoma and points in Japan and China, including Yokohama. The contract between the steamship company and the receivers was the contract originally made on March 30, 1892, between the Northern Pacific Railroad Company and the Northern Pacific Steamship Company, and ratified and adopted by the receivers, under the authority of an order of the circuit court of the United States, made on September 13, 1893. The receivers held no stock in the steamship company, and had no other express contract relation with the steamship company.

Company did not know the terms of his express authority, and that this stipulation is not to be taken as an admission by the railroad company, or the receivers, or their counsel, that his implied authority was greater than his express authority.

4. The American Trading Company is, and was in September, 1894, a corporation organized under the laws of the state of Connecticut, having its principal office in the city of New York, and carried on a general commercial business with Asiatic ports.

5. In September, 1894, the trading com

pany applied to Fitch for a rate upon a proposed shipment of pig lead from New York to Yokohama, Japan, and informed him that it was of vital importance that the lead should be transported promptly, and go forward by the earliest possible steamer, without delay, in order to enable the trading company to fulfil a proposed agreement, which it was about to make for the sale of the lead in Japan, and which would require its delivery there at a fixed date. Fitch thereupon named a rate, and undertook to forward the lead from New York on or before September 29th, and via the Northern Pacific steamer Tacoma, sailing from Tacoma October 30, 1894.

6. Thereupon the trading company cabled to its agents at Yokohama, naming a price, and a date at which the lead could be delivered there; and thereupon its agents in Yokohama made a contract for the sale of the lead, which contract provided that it should be delivered in Yokohama by overland route, and the most direct connection at San Francisco, Tacoma, or Vancouver, and that, in case of unusual or extraordinary delay in transit, the contract should be null and void. Neither Fitch nor the receivers knew, until September 24th, that any contract for the sale of lead in Japan had been concluded by the trading company, and, except as hereinbefore and hereinafter stated, they never received any information

in regard to its terms, as made or proposed. Upon the conclusion of its Japanese contract, the trading company purchased 200 tons of pig lead in bond, from the Balbeck Smelting & Refining Company.

7. On September 19, 1894, Fitch, in confirmation of his previous statement, wrote and sent to the trading company the following letter:

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In reply to your esteemed favor, Sept. 19th, we beg to accept the rate quoted to us in your letter of Sept. 19th, namely, on 200 tons of pig lead, N. Y. to Yokomaha, Japan, $15,00 per ton of 2,000 lbs., shipment not to consist of less than 400,000 lbs., to be forwarded from N. Y. on or before September 29th, in accordance with shipping instructions to be given by you, and to be forwarded from from Tacoma, Washington, via Northern Pacific steamer sailing from that port Oct. 30th. Kindly let us know as soon as possible the shipping instructions, so that we can forward them to our supplier, and oblige, with best respects,

(Signed)

Very truly yours,

The American Trading Co. Frank P. Ball.

On September 22, 1894, Fitch wrote and letter, giving shipping instructions: sent to the trading company the following

Northern Pacific Railroad Company. Thomas F. Oakes, Henry C. Payne, Henry C. Rouse, Receivers.

Geo. R. Fitch, General Eastern Agent, 319 Broadway.

Traffic Department.

New York City, Sept. 22, 1894. American Trading Co., No. 182 Front St., City.

Northern Pacific Railroad Company.
Thomas F. Oakes, Henry C. Payne, Henry C. Dear Sir:-
Rouse, Receivers.

I hereby confirm routing given you over

Geo. R. Fitch, General Eastern Agent, 319 the telephone yesterday on your shipment

Broadway.

Traffic Department. New York City, Sept. 19, 1894. American Trading Co. 182 Front St., City. Gentlemen:

I hereby confirm rate quoted you this day, and accepted by you on shipment of pig lead for export to Japan, as follows:

Pig lead, New York to Yokohama, Japan, $15.00 per ton of 2000 lbs., shipment not to consist of less than 400,000 lbs., and to be forwarded from New York on or before Sept. 29th, in accordance with shipping instructions given you by me, and to be forwarded from Tacoma, Wash., via Northern Pacific steamer sailing from thence October 30th. Kindly forward your acceptance of

of pig lead for export to Yokohama, Japan, as follows: To be shipped from Newark, N. J., via Penn. R. R., marked Anchor Line rail and Lake, care Northern Pacific, care A. O. Canfield, agent N. P. R. R., Tacoma, Wash. Please advise me, as soon as possible, who the shippers will be, that I may order the cars, and also see that same are rushed through without delay to connect with our steamer at Tacoma.

Yours truly,

Geo. R. Fitch, G. E. Agent. A. H. P.

8. Before naming a rate for the transportation of the lead, Fitch had expressed some doubt as to whether it might not be excluded

from transportation as contraband, in view of the war then existing between China and Japan. In fact the shipment of pig lead was not prohibited by the Treasury Department at Washington during the war between China and Japan, and on September 25th, 1894, the trading company made another shipment of pig lead via Pacific Mail steamer sailing from San Francisco, which was, without trouble or delay, transported and

delivered in Yokohama.

9. In September, 1894, J. B. Baird was the second assistant general freight agent of the receivers and J. M. Hannaford was the general freight agent of the receivers; and telegrams of which the following are copies, relating to proposed shipments of pig lead, including the shipment in question, passed between the said Fitch and Baird and Hannaford, but were not disclosed to the American Trading Company:

New York, September 14, 1894. J. B. Baird, second A. G. F. A.:— Please wire quick lowest rate one hundred ton lots pig lead from Chicago and Duluth

to Yokohama.

George R. Fitch.

September 14, 1894. Geo. R. Fitch, 319 Broadway, New York, N. Y.:

You may quote as low as sixty cents from Duluth and seventy cents from Chicago to Yokohama on pig lead in one hundred ton lots. Get more if possible.

J. B. Baird.

New York, September 17, 1894. J. B. Baird, 2d A. G. F. A.:—

Your wire fourteenth. Shall I accept fifty cents on pig lead Duluth to Yokohama? Also name lowest rate on two hundred tons St. Louis to Yokohama.

Geo. R. Fitch.

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September 24th, 1894.

Geo. R. Fitch, Esq., General Eastern Agent N. P. R. R., No. 319 Broadway, City. Dear Sir:

Respecting your notice just received by us through your Mr. Post, that your company now decline to ship for us, via Tacoma, the 200 tons of pig lead specified in your contract with us, under date Sept. 19th, and confirmed by us under date Sept. 20th, we beg to advise that we shall hold your company responsible for any loss or damage we may suffer from the nonfulfilment of this contract with you.

We remain, dear sirs,
Very truly yours,

(Signed)

The American Trading Co.
Wm. H., Stevens, Treas.

Thereupon, telegrams, of which the following are copies, were sent and received as indicated, in relation to the shipment in question, but were not disclosed to the trading company:

New York, Sept. 24, 1894. J. B. Baird, N. P. R'y, St. Paul, Minn.:Shipment, lead to Yokohama, is now being made; shippers refuse to accept withdrawal; we have given shippers written contract.

September 18th, 1894. Geo. R. Fitch, 319 Broadway, New York:Cannot accept less than sixty cents on pig lead Duluth to Yokohama. Will quote from J. St. Louis later. 0.900.

J. B. Baird. WDB.

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Have notified American Trading Co. that shipment will be refused. They state they will hold us to contract. They are shipping hundred tons from Denver to Yokohama by

steamer City of Rio from San Francisco, Oct. fourth, and expect to forward this shipment same way; will charge us difference in rate. Advise quick.

Geo. R. Fitch. Sept. 25, 1894. G. R. Fitch, 319 Broadway, New York:Your wire this date to Mr. Hannaford: Dodwell, Carlill, & Co. have consented to ac

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