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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. J. B. Baird. WDB.

upon in favor of the Northern Steamship

Company; but all through freights received Dodwell, Carlill, & Co., mentioned in the were deposited to the credit of this account last telegram, represented the steamship and remitted to the railroad company, or its company.

receivers, and were divided and distributed 10. Thereupon the refusal to accept the by them under their contract with the steamshipment was withdrawn, and the shipment ship company. was made under the contract, and the lead, 11. On September 28, 1894, a shipping reconsisting of 200 tons, was, in accordance ceipt for the shipment was issued to the with the shipping instructions given in Balbeck Smelting & Refining Company, of Fitch's letter of September 22, 1894, ship- which shipping receipt a copy is hereto anped at Newark, New Jersey, in September nexed marked exhibit "B,” and was deliv27th, 1894, by the Balbeck Smelting & Refin-ered by the Balbeck Smelting & Refining ing Company for the account of the Ameri-Company to the American Trading Comcan Trading Company. This was the first pany, and was forthwith surrendered by the shipment ever made by the American Trad-trading company to Fitch. ing Company over the line of the Northern

A bill of lading in the usual printed form, Pacific Railroad Company and its connect- a copy of which is herein annexed marked ing carriers. The shipment was made in “C," was subsequently issued by Fitch to bond, for exportation at. Tacoma, and was the American Trading Company. It was secured upon the cars by government locks received by the clerk of the trading company and customs seals. On the afternoon of without stated objection to its terms, but September 27, 1894, the shipment left New- was not read or examined by him, or by any ark, and started on its journey, and was officer of the company, and was immediately transferred via the Anchor Line, a car. hypothecated with the Hong Kong and rier operating between eastern points and Shanghai bank, as collateral security for points on the Lakes, to Duluth, and carried moneys borrowed thereon by the trading from Duluth via the receivers' railroad to

company. The original of the bill of lading Tacoma, which it reached in time for ship was negotiable and did not have stamped ment by the steamship company's steamer, upon it the words “Not negotiable; shipper's Tacoma, sailing October 30, 1894. On Sep- copy,” which appear on the shipper's copy tember 28th, a check for the freight upon hereto annexed, but was similar to the shipthe lead from Newark to Yokohama was

per's copy in all other respects. handed by the trading company to Fitch, of which check, with its indorsements, the of this bill of lading to Dodwell, Carlill, &

On September 29th, 1894, Fitch sent a copy following is a copy:

Co., with a letter (not disclosed to the AmerCheck.

ican Trading Company) of which the follow

ing is a copy: New York, Sept. 28", 1894. No. 6096. The National Bank of North America.

Northern Pacific Railroad Company. Pay to the order of the Northern Pacific Thomas F. Oakes, Henry C. Payne, Henry C. R. R. $3,360.05. Thirty-three hundred

Rouse, Receivers. and sixty & 05/100 dollars.

George R. Fitch, General Eastern Agent, 319
The American Trading Co.

Wm. H. Stevens, Treas'r.

Traffic Department.
A. Proctor, Jr.,

New York City, Sept. 29, 1894.

Dodwell, Carlill, & Co., Tacoma, Wash.

Gentlemen :
For deposit in

I hand you herewith my B/L 1507 coverNinth National Bank

ing shipment of pig lead for export to Amer. to Cr. of Geo. R. Fitch,

Trading Co. Yokohama, Japan. As I have Gen. East'n Agʻt.

previously advised you, I have made contract Ninth Nat'l Bank,

guaranteeing delivery of this supplement at Indorsement,

Yokohama by our S. S. Tacoma sailing Oct. guaranteed

30th. Will you kindly see that this connec of the City of N. Y.

tion is made without fail.

Yours truly, The amount of the check was credited at (S'g'd)

Geo. R. Fitch, G. E. A.

The American Trading Co.

The previous letter of advice, referred to and did not arrive in Yokohama until on or by Fitch in the foregoing letter, is lost, and about January 4, 1895, instead of on or no copy of it exists. It appears, however, about November 18, 1894, when it would from the following letter of acknowledgment have arrived had it gone forward on the to have borne date on September 27th: 30th of October, 1894.

14. In the meantime hostilities between Tacoma, Wn., October 2nd, 1894. China and Japan had ceased, the price of George R. Fitch, Esq., G. E. A., N. P. R. R., lead had fallen very considerably, and the 319 Broadway, New York.

purchaser of the shipment refused to accept Dear Sir:

it, and declared the contract null and void We beg to own receipt of and thank you in consequence of the failure to deliver it for your favor of the 27th ultimo, and advis- promptly in accordance with the terms of the ing the engagement of 40 tons of condensed contract. milk and 225 tons of pig lead for our steamer 15. The price of the lead under the conTacoma, sailing hence the 30th instant.tract would have been $38,610.17. The lead Please keep us frequently advised of freight was delivered to the trading company in Yoengagements, as we have applications now kohama upon the surrender of the bill of for more space for flour than our steamers lading, and, in consequence of the failure of will carry, and we are shutting out consid- its vendee to accept the lead, the trading erable of the latter every voyage.

company sold it for $11,331.60, which was Yours truly,

the best price obtainable therefor at the (Sig.) p. p. Dodwell, Carlill, & Co. time of the sale. The sale was made as soon A. T. Pritchard.

as a purchaser could be found. The value of

the lead on January 4, 1895, in Japan, was 12. At Tacoma the lead was delivered by $11,906.16. the receivers to the Northern Pacific Steam- 16. Upon the case arising on the foregoing ship Company, and was loaded upon the Ta- facts, the American Trading Company has coma, the vessel of the steamship company duly presented to the receivers, and to the which was to sail on October 30th; but about Northern Pacific Railway Company, its 4 o'clock in the afternoon of that day the claim, amounting to the sum of 26,704.02, deputy collector of the United States at that with interest thereon from the 4th day of port refused to clear the vessel while the lead January, 1895, and has demanded payment was on board, upon the ground that it was thereof; but payment has been refused, and contraband of war, and telegraphed to the no part thereof has been paid. collector at Port Townsend for instructions. On the following day, which was the 31st of

Mr. C. W. Bunn for appellant. October, the deputy collector at Tacoma re- Messrs. F. B. Jennings and Howard ceived a telegram from the collector of the Van Sinderen for appellee. United States at Port Townsend, which was as follows:

Mr. Justice Peckham, after making the “Department advises that, unless you have foregoing statement of facts, delivered the evidence tending to show that the pig lead opinion of the court: at Tacoma, and referred to in your tele- The objections to the recovery, herein gram of yesterday, is to be used in the war made on the argument, were between China and Japan, no reason is per- (1) That no contract was shown, on the ceived why shipment should not be permit- part of the receivers, to assume any responted."

sibility for the transportation of the lead In the meantime, however, the master of beyond the line of the railway in their the vessel unloaded the lead, which delayed charge. the ship until 9 A. M. on the morning of Oc- (2) That there was no proof that the tober 31st, when he sailed without it.

court had authorized the receivers to assume The petitioner was not notified of the delay any such responsibility, and they could not in the transhipment of the lead until Novem- do so without any such authority. ber 5th, 1894.

(3) That if Fitch, the agent, made such The next vessel on the line was the Sikh, agreement, it was not within his authority, which did not belong to the steamship com- real or apparent. pany, but was a chartered ship. Her cap- (4) That the bill of lading is the control. tain declined to take the lead on the ground ling contract, and by its terms the receivers that it was contraband. The Northern Pa- were not liable beyond their own line. cific Steamship Company cabled to the own- (5) That the damages were caused solely ers of the vessel in London, and they ad by the act of the collector, representing the hered to the position taken by the captain. authority of the United States; and the re

13. The lead went forward on the next ceivers are not liable for damages so caused. vessel, the Victoria, on December 11, 1894, In regard to the first objection, we think 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 tl. S. 258, 24 L. ed. 693; Myrick v. Michithereupon named a rate, and undertook to gan O. 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 Appellant urges, however, that, as Fitch through its agents at Yokohama. Although was also agent for the steamship company, Fitch, the agent, was not thereafter specially his contract, if there was one, to forward by informed of the fact that the proposed agree the steamship sailing October 30, was in bement had been made, yet he was informed half of the steamship company. Fitch had that the company intended to make it if a never received any direct or independent aprate could be agreed upon for the transpor-pointment or authority from the Northern tation of the lead. It is clear that his fur- Pacific Steamship Company to act as its nishing of the rate was with reference to the agent. His only authority as agent of that proposed agreement, and that he understood company was created by the contract made that, if his terms were accepted, he was en- between the two companies. By that agreetering into an agreement to transport to Ja- ment the railroad company was to have the pan the lead in question over the Northern exclusive right (with certain exceptions) to Pacific railroad to Tacoma, and by the appoint agents in the United States, etc.; steamship which would leave Tacoma on the and the steamship company thereby author30th of October, 1894. His letter of Septem-ized the railroad company and its appointed ber 19, 1894, to the trading company, con- agents to act as agents for the steamship firming the rate, is a plain agreement, not company, and to issue bills of lading and pasalone to deliver the lead in time for the sail. senger tickets, and to make and name rates ing of the steamer, October 30, but an agree on all traffic for Asiatic points, etc. The ment that the lead should be forwarded from trading company did not know what com. Tacoma, Washington, via the Northern Paci- pany operated the steamships between Tacofic steamer sailing on that day. Fitch in ma and Yokohama, or that the steamship that letter asking the trading company to company was a separate and independent forward their acceptance of this proposed company, or that there was any contract beagreement as early as possible. On the next tween the receivers and the steamship comday, September 20, the trading company, by pany.

When the trading company, thereletter, did accept the rate “for a shipment fore, applied to Fitch for a rate, they apof pig lead, to consist of not less than 400,000 plied to him as the agent of the receivers of pounds, to be forwarded from New York to the railroad company. The letter of Fitch Tacoma, and from Tacoma via the Northern of the 19th of September, confirming the rate Pacific steamer sailing from that port Octo-already given orally that day, is written on ber 30.” There is no doubtful expression in the paper used by the receivers of the rail. these letters. They form a clear and specific road company, which paper is headed by the contract. It is entirely different from names of the receivers under the words Myrick v. Michigan O. R. Co. 107 U. S. 102, “Northern Pacific Railroad Co.;” and in it 27 L. ed. 325, 1 Sup. Ct. Rep. 425. The re- Fitch describes himself as "general eastern ceipt in that case was plainly not one which agent,” and his department as the “Traffic established a contract for transportation on Department in New York city," and he signs the part of the railroad company (defend his name, and adds the words "G. E. Agent.”

In his letter of September 29, 1894, to the one of that class which we regard as so in. steamship agent at Tacoma, Washington, he cluded. writes on the same kind of paper, with the (3) We are also of opinion that Fitch had same heading, and describes himself as "gen- the right to make the agreement in question, eral eastern agent;” and in the letter he and, if there could be any doubt on that says: “As I have previously advised you, I point, nevertheless the agreement was in fact have made contract guaranteeing delivery of thereafter ratified by the officers representthis shipment at Yokohama by our S. S. Ta- ing the receivers, who had power so to do. coma, sailing October 30. Will you kindly Goodrich v. Thompson, 44 N. Y. 324. see that this connection is made, without A railroad company has the power, as we fail.” He signs his name, and adds the let- have seen, to make such a contract of carters G. E. A., meaning, of course, thereby riage beyond its lines. A general agent would "general eastern agent.” It is contended be presumed to have such power. If the comthat, by the statement of facts, it appears pany have the power, some individual must that Fitch was acting for two principals, and exercise it. It would not be supposed that that the plaintiff must establish that Fitch the board of directors would be consulted, made the alleged guaranty on behalf of the and authority given by it every time such a receivers. We do not think he was acting in contract was to be made. Who is a more behalf of two principals. From all the facts, proper or fit person to make the contract we think it plain that he was acting for the than the general agent of the company? He receivers of the railroad company. He was must necessarily have large powers in order their general eastern agent; he was applied to conduct the business of his office, and, to, and he made his rates, as such, and as prima facie, such power is within the scope such he signed the letter confirming those of such agency. When the railroad company rates, and containing the agreement to for- passes into the hands of a receiver, appointward the lead on the steamship as already ed by the court in a foreclosure suit, and the stated. Subsequently, and on the 29th of receiver is directed to conduct and continue September, while acting and signing himself the business of the company, the power to as the general eastern agent of the receivers, appoint general agents necessarily goes with he writes to the steamship agents at Tacoma the order to conduct the business of the comthe letter in which he says he has guaranteed pany; and when the general agent is apdelivery at Yokohama, by "our steamer" pointed by a receiver, he will be presumed to sailing October 30. All this shows the fact have the general powers of such an officer that he was acting as agent for the receivers. when acting for the railroad itself. The

We have no difficulty in determining the words "general eastern agent” for a Western capacity in which Fitch acted, nor that he railroad company only limit the exercise of made the special agreement, as contended by the agency to the place so described. the trading company.

(4) It is urged that the bill of lading con(2) Neither do we doubt that the court stitutes the sole contract. But there was had authorized the receivers to make such a plain, valid contract existing between the a contract.

parties before the lead was shipped, and beUnder the modern methods of foreclosing fore any bill of lading was issued. That railroad mortgages, it has been the custom to special contract was to forward the lead by appoint receivers to take charge and conduct the steamship leaving Tacoma on the 30th the business of the railroad mortgagor dur- of October. The next day after the lead was ing the pendency of the suit. The possession shipped at Newark, a bill of lading was deof such receivers frequently lasts for years. livered to one of the clerks of the trading It would be in the highest degree disadvan- company, and that bill of lading contains the tageous to all interested in the railroad com- absolutely inconsistent statement that the pany, as well as to the public having occasion carrier is not to be liable for any loss not to do business with it, if the same power occurring on its own road, and that the conwhich the company possessed to make special tract, as executed, is accomplished, and all contracts for transportation should not be liability thereunder terminates, upon the degiven to and exercised by the receivers of the livery of the property to the steamship. company in continuing to run the road in It is said that the trading company, by resubstance as a going concern, so far as these ceiving this bill of lading and obtaining kinds of contracts are concerned. Such con- money on it as the representative of the proptracts are not of the character spoken of byerty therein described, has acquiesced in the Mr. Justice Jackson in Chicago Deposit total abolition of the special contract the Vault Co. v. McNulta, 153 U. S. 554, 38 L. company made with Fitch, and has agreed ed. 819, 14 Sup. Ct. Rep. 915, as so extra- that the railroad company shall be under no ordinary or unusual as not to be included in liability after the delivery of the lead to the the authority to carry on the business of the steamship. company. On the contrary, this contract is We regard it as entirely clear that no such


effacement of the

the original contract was or changed by the receipt of a bill of lading, meant by the receipt of the bill of lading. after goods have passed from the control of The railroad company had no power alone the shipper, we think it is important, upon to alter that contract, and it could not alter the question of whether such original conit by simply issuing a bill of lading, unless tract has, in fact, been abrogated, to show the other party assented to its conditions, that the bill was never read in fact; that the and thereby made a new and different con- conditions abrogating the original contract tract.

were among a number of other conditions At the time when the bill of lading was is-printed in the bill in smaller type than the sued the lead had been shipped at Newark, rest of the bill, and that the alleged acand had departed for its destination. It was quiescence of the trading company in the impossible for the trading company to recall change of the contract, by virtue of these it. The particular conditions in the bill are conditions, is based upon the mere set out in subdivision 3 and subdivision 12 ception of the bill of lading by a clerk of the conditions printed in small type, and without any knowledge of the existence of they form part of numerous other printed these conditions, and without evidence of any conditions in regard to the freight received. authority in him to consent to a modification

Where the acceptance of the bill of lading, of the contract already made by his emunder these circumstances, is sought to be ployer. The fact, that, in such ignorance, made an equivalent to an assent to the that company hypothecated the bill of ladchange of contract, it is proper to look at ing, adds nothing to the alleged acquiescence. these facts in order to determine what weight What the contract meant as between the railshould be given to such acceptance. At the road company and the bank or other assignee time it was received the lead was out of the of the bill of lading is not important here; possession of the trading company, on its but, upon these facts, we are unable to see way West. That company needed the bill of that the receipt and holding of the bill of lading as evidence of title to the property lading changed the original contract. as described in it, upon the security of which claimed by the railroad company. See Bostit desired to raise money, which it could not wick v. Baltimore & 0. R. Co. 45 N. Y. 712, do without the possession of the bill. Under where it was held, under the circumstances these circumstances, we refuse to hold that of that case, the mere acceptance of a bill of the trading company, in accepting the bill of lading did not alter a previously made oral lading, thereby consented to the complete contract in relation to the shipment. alteration of its original contract, and with- (5) Even if the receivers of the railroad out any consideration whatever, agreed to company contracted to forward the lead by release the railroad company from all liabil.the steamer sailing from Tacoma October 30, ity on that contract, and to take in its stead it is still insisted that the action of the the reduced liability provided for in the bill deputy collector, at Tacoma, in refusing to of lading

grant a clearance to the steamship while the Of course the company expected a bill of lead was on board, made the performance of lading, for such an instrument is the usual the agreement not only impossible, but unaccompaniment in shipping merchandise. la ful; and, for that reason, the receivers The bill showed the amount of the lead, the were absolved from their agreement to formarks and numbers, etc., and so identified ward by that vessel. The contract was not the goods as to enable the shippers to show unlawful when made. It may be assumed their amount and general value, and to en- that the lead was contraband of war; but able them to negotiate the bill and obtain that fact did not render the contract of transmoney on its security.

portation illegal, nor absolve the carrier from It is agreed in the statement of facts that fulfilling it. It is legal to export articles this bill of lading was received by a clerk of which are contraband of war; but the artithe trading company without stated objec- cles, and the ship which carries them, are tion to its terms, but was not read or exam- subject to the risk of capture and forfeiture. ined by him, or by any officer of the company, The Santissima Trinidad, 7 Wheat. 283, 340, and was immediately hypothecated with a 5 L. ed. 454, 468. Neither any law of the bank as collateral security for the money United States, nor any provision of internaborrowed thereon by the trading company. tional law, was violated by the making of We do not state the fact that the this contract, nor by an attempt to export bill of lading

was not examined, for the lead pursuant to its provisions. The case the purpose of insisting that an exam- does not come within the principle of ination of such an instrument must al. | Brewster v. Kitchell, 1 Salk. 198, where it ways be shown before a contract can

can was said that, if one covenants to do a thing be predicated thereon. But where there is a which is lawful, and an act of parliament valid contract already in existence, and it is comes in and hinders him from doing it, urged that such contract has been abrogated' the covenant is repealed.

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