and 6205) we must hold that an amended plea [ the foregoing plea, knows the contents thereto the jurisdiction is not within the mischief of, and that said plea is true in substance and intended to be remedied by section 6205, and in fact. C. J. Davis. "Sworn to and subscribed before me this therefore not within its prohibition. ChanJuly 3, 1920. cellor Gibson says no reason occurs why such [Seal.] E. G. Clark." a plea should be disfavored. ..It is argued that the plea is double, in that it presents (1) as a negative issue a de "Surely a court does not want to exercise an unlawful jurisdiction, and all a plea in abate-nial that the funds garnished and attached ment undertakes to do is to show the court that it has no lawful jurisdiction in the case; and this showing the defendant had the right to make, and when made the court should impartially consider it." Gibson's Suits in Chancery, § 254, note 39. Chancellor Gibson also expresses the opinion that the statutes allowing amendments apply to pleas in abatement with as much force as to any other pleas. Id. [2] But it is said that the amended plea. if properly filed, was insufficient in form and substance, and the chancellor erred in holding to the contrary. This contention makes it necessary to set out said amended plea. "Amended Plea in Abatement. "Comes defendant Ft. Valley Cotton Mills by leave of court first had and received, and amends the plea in abatement heretofore filed herein, so that said plea in abatement shall read as follows: "Comes the defendant Ft. Valley Cotton Mills for the sole and only purpose of questioning this court's jurisdiction in the above-styled cause by plea in abatement to the attachment sued out and levied herein. were the property of defendant, and (2) the independent affirmative allegation that the fund impounded in the Hamilton National Bank was at the time of the garnishment, and ever since has been, the property of the Citizens' Bank of Ft. Valley, Ga. This criticism is not well made. The point of the plea-the proposition asserted-was that the defendant had parted with the property; that the property no longer belonged to defendant, but to another, at the time of the attachment. This is a single proposition, and all the averments of the plea are connected with and are a part of this proposition. "No matters, however multifarious, will operate to make a pleading double that together constitute but one connected proposition or entire point. * ** 201 This qualification of the rule against duplicity applies not only to pleadings in confession and avoidance, but to traverses also; so that a man may deny as well as affirm in pleading any number of circumstances that together form but a single point or proposition." Stephen on Pleading, star pp. 262, 263. See, to the same effect, Waggoner v. White, "1. By garnishment upon the Signal Knit-11 Heisk. 741; Pilcher v. Hart, 1 Humph. ting Mills. As to this garnishment defendant 524. says that at the time of said garnishment and never since said time has the said Signal Knitting Mills owed this defendant any sum of money or any property whatsoever. "2. And for plea in abatement to the attachment sued out and levied in this cause upon a fund in the hands of the Hamilton National Bank says that the property upon which the attachment was levied, the fund impounded by attachment in the hands of the Hamilton National Bank, which fund is the proceeds of a draft, was not, at the time of the said levy and impounding, and has never since been, the property of this defendant. "And defendant says that it transferred and sold the bill of lading and account of the Signal Knitting Mills to the defendant Citizens' Bank of Ft. Valley, in due course of trade and for full value before maturity, without collusion or fraud, and that the funds arising from such sale were, at the time of the garnishment of the Hamilton National Bank, and ever since have been, the property of said Citizens' Bank of Ft. Valley, and not of this defendant. "Wherefore defendant prays that said attachment be abated and quashed. "Ft. Valley Cotton Mills, "By C. J. Davis. "Sam'l B. Smith, Solicitor. "State of Georgia, County of Houston. "Comes C. J. Davis, who, being first duly sworn, makes oath and says that he is secretary of the Ft. Valley Cotton Mills, and duly authorized in the premises; that he has read [3] It is further maintained that the amended plea was insufficient in substance because it did not deny that the pleader had other property in this jurisdiction subject to attachment when suit was begun, nor that it had received from the Signal Knitting Mills, the garnishee, any property, money, or effects in the meantime. We think such averments consideration of this plea to the jurisdiction were not necessary. It was not material in whether the defendant had other property in this state, so long as such property was not attached, nor was it material whether it had received from the Signal Knitting Mills any money, provided this money was not in payment of an indebtedness due it from the Signal Knitting Mills. [4] The next assignment of error goes to the issues of fact made upon the amended plea in abatement, likewise raised by the answers of the other defendants. The proof does show that the Signal Knitting Mills and Ft. Valley Cotton Mills had certain existing contracts when this litigation was begun, whereby the former was to purchase from the latter large quantities of yarn. This yarn was to be shipped upon straight bill of lading with a discount off for cash. At the time garnishment was served on the Signal Knitting Mills it owed the Ft. (248 S.W.) Valley Cotton Mills nothing, but in the or- Valley Cotton Mills would not ship on the dinary course of business would have become old terms, and the Signal Knitting Mills had indebted to the Ft. Valley Cotton Mills for a right to make another arrangement. The yarns thereafter to be shipped to it. Learn- Signal Knitting Mills never became indebted. ing of the garnishment the Ft. Valley Cotton to the Ft. Valley Cotton Mills after the bill Mills declined to make any further shipments herein was filed. The knitting mills thereon the previous terms. The Signal Knitting after had to pay for all goods before it reMills desired the yarn, and required it in its ceived them, and there was not at any time business, so that it agreed, apparently, to a any debt due subject to complainant's dechange in the terms of its contracts. For mands. one shipment thereafter made the Ft. Valley Cotton Mills required the Signal Knitting Mills to pay in advance. Other shipments appear to have been made through the Citizens' Bank of Ft. Valley, Ga., the cotton mills discounting a draft, with bill of lading attached, to the bank, and the shipment being made to the order of the bank at Chattanooga, with directions to notify Signal Knitting Mills. The attachment and injunction issued herein prevented the Signal Knitting Mills from paying over "any debt due or to become due to defendant Ft. Valley Cotton Mills, and to retain in its possession all property of said Ft. Valley Cotton Mills." We think no blame can attach to the Signal Knitting Mills for its conduct in this matter. It was under no obligation to discommode itself or file a bill for specific performance of its contracts with the Ft. Valley Cotton Mills in order that it might incur an indebtedness to the Ft. Valley Cotton Mills for the benefit of the complainant. The Ft. We think the proof shows a bona fide transaction between the Ft. Valley Cotton Mills and the Citizens' Bank of Ft. Valley, whereby the bank purchased for value in good faith the draft with bill of lading attached, the proceeds of which were levied upon herein. The testimony taken goes to show that the bank bought the draft outright, and that there was no agreement to charge it back to the Ft. Valley Cotton Mills if it had not been paid. Implement Co. v. Bank, 128 Tenn. 320, 160 S. W. 848, is therefore not in point. We see no error in the refusal of the chancellor to permit another amended bill after final decree. It is useless to discuss the animadversions upon the course of the Ft. Valley Cotton Mills. Since we have no jurisdiction of this corporation, and are helpless in the premises, it would not avail to appraise the merit of complainant's strictures upon this Georgia concern. The decree of the chancellor is affirmed. 2. Principal and agent 60-Agent liable for negligence in handling principal's business. Where the negligence of an agent in his principal's business causes loss to the principal, he is liable therefor. 3. Principal and agent toes acting as buyer's agent in making out importing papers held liable for loss through violation of instructions. Where plaintiff, a firm located in Canada, Appeal from Circuit Court, Buchanan County; Hon. L. A. Vories, Judge. "Not to be officially published." Action by Oppenheimer Bros., Limited, against the J. L. Price Brokerage Company, with counterclaim by defendant. From a judgment on an instructed verdict, defendant appeals. Reversed and remanded on defendant's counterclaim, and affirmed for plaintiff on its cause of action. W. K. Amick, of St. Joseph, for appellant. Strop & Mayer and Eugene Silverman, all of St. Joseph, for respondent. BLAND, J. This is an action on an open account for services rendered and material furnished in the storing, packing, loading, and shipping of potatoes. Defendant's answer 60-Shipper of pota-five counts. The counterclaim is based upon was a general denial and a counterclaim in damages alleged to have been suffered by the defendant arising out of the shipment of five cars of potatoes from Vancouver, B sold potatoes to defendant in Missouri and was C., to St. Joseph, Mo. At the close of the instructed by defendant in making shipments testimony the court instructed the jury to to take the bills of lading to a named employee | find for plaintiff upon its demand if it found of the coast commissioner, who would make out the entire importing papers, including consular invoices and certificates of soundness, plaintiff making a charge to defendant for such services, but plaintiff violated its instructions by making out the importing papers through its own agent, who placed a lower value on the shipment than the true value, whereby de-ance with the court's instruction. Defendant fendant on making a customs entry in Missouri has appealed. was misled in placing an undervaluation on the potatoes, thereby incurring a penalty on appraisal by the customs officers, held, that plaintiff's negligence in undervaluing the shipment was the proximate cause of the loss, for which it was liable. 4. Customs duties 75-Actual value, and not cost price, of imports, governs amount of tariff to be assessed. certain facts to exist, but that under the pleadings and evidence their verdict must be for plaintiff upon each count of defendant's counterclaim. The jury returned a verdict in the sum of $246.30 in favor of plaintiff and against the defendant in accord Defendant assigns no error in relation to the matter of plaintiff's recovery, but urges that the court erred in peremptorily instructing the jury to find for plaintiff on defendant's counterclaim. The facts show that plaintiff is a resident of Vancouver, B. C., and defendant of St. Joseph, Mo.; that in November, 1916, the president of defendant company was in Vancouver and purchased of plaintiff 25 cars of potatoes. Plaintiff in connection with its business operated a warehouse. Defendant employed plaintiff to store, care for, handle, load, and ship the 25 cars of potatoes, includDefendant Under U. S. Comp. St. §§ 5591, 5592, relating to customs appraisals of imports, it is the actual value, and not the cost price, in the foreign country at the time of shipment, that governs the amount of the tariff to be assessed. 5. Principal and agent 79 (7)—Whether pur-ing those covered by the 5 cars. chaser of potatoes was guilty of contributory negligence in failing to use available information in making customs entry held for jury. Where a seller of potatoes in Canada, who after the sale undertook to care for and ship them, violated shipping instructions by making out its own consular invoice, placing an undervaluation thereon, which resulted in a penalty imposed on a customs reappraisal in Missouri, whether the purchaser had in its possession the information necessary to make a proper customs declaration, and whether it was guilty of contributory negligence in failingly to Miss Lawson, an employee of Abbott, to use such information, held for the jury; it and that she would handle it and make out appearing that the purchaser had relied upon the entire importing papers, including conthe valuation placed in the invoice by the seller. sular invoices, certificates of soundness, and instructed plaintiff in regard to the method of making shipment and to accept loading instruction for the cars of potatoes, which were to be shipped to St. Joseph, Mo., from R. C. Abbott, coast commissioner at Vancouver, who would advise plaintiff as to the lot numbers which defendant desired loaded from time to time, and that Abbott would look after the shipping of each car; that when a car was loaded plaintiff should take the bill of lading of the shipment immediate For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) such other papers as were necessary. For voice, and said agent was deceived by the this work plaintiff made a charge to defend-statements contained in said consular's inant. voice and did not know that the value as stated in said consular's invoice was less than the real value of said potatoes, and said agent of defendant did pay said tariff duty on said basis not knowing said valuation to be incorrect and less than the real value." All but 5 of the 25 cars were shipped according to instructions, but as to the 5 cars now involved in this suit plaintiff did not follow the instructions, but made out the importing papers itself through its agent. It stated in the consular invoice that the value of the potatoes was 45 cents a bushel, The laws of the United States governing whereas defendant had actually paid plaintiff the importation of goods of the character 78 cents per bushel for the potatoes, which covered by the potatoes involved in this case was the correct value. When the cars ar- are covered by sections 5520-5527, inclusive, rived at St. Joseph, it became necessary for U. S. Comp. Stat. The law provides that on defendant to make a customs entry at St. entry the original invoice shall be produced Joseph. The president of the defendant as declared before the American Consul, company being confined to his home by ill-located where the merchandise was manuness and unable to attend to business, the factured, or purchased, contracted to be treasurer of the defendant looked after mak- delivered from or to be shipped, before whom ing out of the entry. Relying upon the value a declaration shall be made as to the value of the potatoes as stated in the consular in- of the merchandise, the actual cost thereof, voice, a copy of which was sent by plaintiff and other details of the matter. The conto defendant, defendant's treasurer made an sul is required to officially certify the inaffidavit that the value of the shipment as voice. The statute further provides that stated in the invoice was in all respects true whenever merchandise is entered by invoice and correct. The preliminary tariff, based a declaration must be made at the time of the upon the invoice and declared value, was as- entry; that as a part of such declaration sessed on the customs entry and paid by the "there shall be either attached thereto or defendant, who immediately removed the po- included therein an accurate statement spectatoes. This was all done on the same day. ifying However, the collector of customs for the district considered the value too low and appealed the case for reappraisement by the United States General Appraiser. Upon reappraisement by the Board of General Appraisers, the value was raised, resulting in defendant's having to pay, in addition to the tariff that he would have paid had the value been properly declared, a duty of 1 per cent. of the value fixed by the board of appraisers for the excess value, and it is for this excess tariff that defendant was required to pay that it sues for in its counterclaim. The petition, after alleging the facts of the employment and the instructions given by defendant to plaintiff and the violation of instructions in reference to the five cars, alleges that plaintiff negligently and without authority caused to be executed the consular invoice and caused a copy of the same to be sent to the defendant at St. Joseph; that in the invoice the potatoes were valued at 45 cents instead of 78 cents per bushel, the real value; "that because of said undervaluation the tariff duty computed and determined from said consular invoice was less than the lawful tariff duty, and defendant was caused to pay and did pay a tariff duty less than the lawful duty," and was compelled to pay and did pay an additional tariff duty; "that at the time said tariff duty was paid by defendant's agent, the president of defendant was sick and absent from the office, and the agent of defendant who attended to the payment of the duty on said potatoes did not know that plaintiff had violated its instructions in the making out of said consular in * the kinds and quantities of all merchandise imported, and the value of. the total quantity of each kind of article." U. S. Comp. St. § 5523. The entryman may at the time he makes his entry "but not after either the invoice or the merchandise has come under the observation of the appraiser, make such addition in the entry to or such deductions from the cost or value given in the invoice which he shall pro The duce with his entry, as in his opinion may raise or lower the same to the actual mar. ket value * * at the time of exportation to the United States." Section 5527. collector is required to have the actual market value or wholesale price of the imported merchandise appraised. If the appraised value shall exceed the value declared in the entry, an additional duty, such as we have already described, is levied which is declared not to be penal. Under sections 5591 and 5592 the appraisers are required "to ascer tain, estimate, and appraise (any invoice or affidavit thereto or statement of costs, or of cost of production to the contrary notwithstanding) the actual market value and wholesale price of the merchandise at the time of exportation to the United States, in the principal markets of the country whence the same has been imported," and said sections provide how the appraisers shall obtain their information in certain cases. But it makes no mention of the declaration of the entryman as the place to obtain such information. Under these provisions of the federal law, plaintiff insists that the invoice in no way determines the value of the goods, and that the loss was caused by the failure of defend ant to properly declare the value of the proximate cause of the loss. From testimony goods, upon whose declaration it is claimed and letters in the record it is apparent that the import duties were assessed; that nei- plaintiff had some information as to the custher the importer nor the collector of custom laws of the United States and the importoms were bound in any respect by the valua- tance of properly making out the consular tion placed upon the merchandise in the invoice. Plaintiff could have well anticipatconsular invoice; and that it was the duty ed that unless defendant had the information of the importer to correctly declare the value upon which to value the goods, it would very in the entry, he having the right to either in likely use the consular invoice as the basis crease or decrease the value placed in the for making the customs entry. Plaintiff was consular invoice. located at the point of shipment and knew the value of the potatoes at that time. It is stated in 17 C. J. p. 613, that the right given by the statutes to make additions or deductions from the value stated in the invoice "goes upon the assumption that the invoice price in no way determines the value of the goods." However, the testimony of a government official shows that in actual practice the appraiser, while not precluded by the invoice or the entry value in making his appraisement, considers "the invoice price to be the market value unless we have evidence to the contrary." He further testified that the law provides that the appraisement may be less than the customs entry, but that the duty may not be assessed on less, and that the appraisement may be for a much lower amount than the invoice. All of which is covered in the statute. It would seem, then, that the appraisement is not necessarily based on either the consular invoice or the customs entry, but if upon either we do not think very material for the reason that there is no question that the statute intends that the consular invoice shall ordinarily play an important part in the valuation of the goods. The testimony of defendant's treasurer is to the effect that in making the customs entry he was under the impression that the value of the merchandise was governed by the consular invoice. He testified that he made the customs entry upon the information contained in the consular invoice which was sent to the defendant by plaintiff. From the papers appearing in the record in reference to the customs entry, it would appear that this is what was done. [1, 2] Plaintiff does not deny that it disobeyed instructions and negligently inserted an untrue value in the consular invoice, but states that this was not the proximate cause of the loss, but that the failure of defendant to make out a proper customs entry was the proximate cause. It is well settled that, when an agent disregards specific instructions he does so at his peril, and if as a result thereof a loss occurs to the principal the agent is liable even though he may not have been negligent. Butts v. Phelps, 79 Mo. 302; Rechtscherd v. Bank, 47 Mo. 181. Of course, the agent is likewise liable for his negligence in handling his principal's business. [3] We think there is no question but that there was some evidence that plaintiff's violation of its instructions and its negligence in undervaluing the shipment was the [4] It was the actual value and not the cost price of the potatoes in Vancouver at the time of shipment that governed the amount of the tariff to be assessed. While the law provides that the invoice shall statę the cost price of the merchandise, this does not govern the valuation made by the gov ernment upon which the duty is based, but it is upon the actual value, plus certain additions, that the tariff is paid. Sections 5591, 5592, U. S. Comp. St.; 17 C. J. pp. 625, 631. No doubt the cost is required to be inserted as a guide to the appraiser in fixing the valuation. The evidence shows that these potatoes were purchased several weeks before they were shipped. It must also be borne in mind that it is the value at the time of exportation that is to be ascertained. [5] Whether defendant had in its possession the information necessary to make a proper declaration, and whether it was guilty of contributory negligence in failing to use such information, we think, under the facts, or lack of facts, as disclosed in the record now before us, was a question for the jury. Defendant's treasurer, who made the customs entry, testified that he did not know what the president of the company paid for the potatoes. As before stated, he accepted the value stated in the consular invoice. While it is true that he testified that he had been in another part of Canada purchasing potatoes during or about the same time these shipments were made, the part of Canada that he was in was far removed from Vancouver, B. C. While it is likewise true that he testified that he was borrowing money to pay for potatoes bought in Canada, including the potatoes involved in this shipment, he further testified that he did not know what was paid for these particular potatoes nor their value, and there is no evidence that he was in possession of any information or records tending to show their value or that the president of the defendant, who purchased the potatoes, had any recollection as to the purchase price, and nothing from which the jury was compelled to say that it would have availed anything for the treasurer to have communicated with the president before making the customs entry. before stated, it was not necessarily the purchase price that governed, but the actual value at the time of exportation which could have been different if the market price As |