Statement of the Case. line to Seney as trustee. The mortgage to Seney did not purport to convey to him any of the income or earnings of the road. By way of further assurance, the Clarinda and St. Louis Company executed to the same trustee a guaranty mortgage conveying all its right, title, and interest in the road subject only to the lease. Upon the execution of this lease and these mortgages, which formed a single transaction, the St. Louis, Kansas City and Northern Railway took possession of the demised premises, and with the proceeds of the bonds constructed and subsequently operated the Clarinda branch until November 10, 1879, when it was consolidated with the Wabash Company and subsequently became a part of the Wabash, St. Louis and Pacific Company. This branch passed into the hands of the receivers and became subject to the orders of May 27, June 28, 1884, and April 16, 1885, referred to in the previous case. Seney, the trustee, did not attempt possession of the premises until March 22, 1886, when he filed his petition in the Wabash case, reciting the defaults that had occurred in the payment of interest upon the bonds secured by his mortgage, and praying for the surrender of the road to a receiver to be appointed by another court in a suit brought to foreclose his mortgage. On April 6, 1886, the court ordered the surrender made. While the Clarinda branch was in possession of the receivers, they expended in necessary maintenance, operation, and taxes a large sum in excess of the gross earnings therefrom. The master to whom the case was referred was of the opinion that, under the order of June 28, 1884, the receivers were only bound to pay the interest on the Clarinda bonds after meeting such other obligations as they had been directed to pay by the former orders of the court; found that the petitioner had not brought himself within the terms of that order; and recommended that the petition be dismissed, which was subsequently done. 34 Fed. Rep. 259; 38 Fed. Rep. 63. From this decree Seney appealed to this court. The case was argued with Nos. 51 and 57, ante, 287. Syllabus. Mr. Edward W. Sheldon and Mr. Theodore Sheldon for appellant. Mr. F. W. Lehmann for appellee. Mr. Wells H. Blodgett and Mr. Thomas H. Hubbard filed briefs for the same. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. This case differs from the preceding one in the facts that rental to the amount of $7920 was paid to August 1, 1884, instead of October 1, and possession of the road was ordered to be surrendered to Seney as trustee on April 6, 1886. No complaint was made of unnecessary delay in giving up possession after application was made therefor. The case is not distinguishable in principle from the other, and the decree of the court below dismissing the petition is, therefore, Affirmed. STURM. BOKER. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. No. 14. Argued October 13, 1893. — Decided November 20, 1893. In 1867 B. and S. entered into a contract which was evidenced by the following writings, signed by them respectively. (1) B. to S., dated September 18: "Enclosed please find our bill of sundry arms, etc., amounting to $39,887.60, for which amount please give us credit on consignment account. As mutually agreed, we consign these arms to your care, to be shipped to Mexico and to be sold there by you to the best advantage. Should these arms not be disposed of at the whole amount charged, we have to bear the loss. Should there be any profit realized over the above amount of bill, such profit shall be equally divided between yourself and us. Also, it is understood that all these goods are shipped by you free of any expenses to us, and that in case all or any of them should not be sold, they shall be returned to us free of all charges. As you have insured these goods, as well as other merchandise, we should be pleased to have the amount of $40,000 transferred to us. Please Syllabus. acknowledge the receipt of this, expressing your acquiescence in above, and oblige." Accompanying this was an invoice headed "S. in joint account with B." To this S. replied the same month: "I have the honor to acknowledge the receipt of your letter of the 18th inst., in which you enclose bill of sundry arms, amounting to $39,887.60, consigned to me upon certain conditions contained in said letter. In reply I have to say that I accept the terms of said conditions of consignment, and as soon as I obtain the policies of insurance upon said goods will transfer them to you." In October B. wrote S.: "Enclosed we beg to hand you our bill for muskets, amounting to $10,175, for which please give us credit on consignment account. As mutually agreed, we consign these arms to your care, to be shipped to Mexico, and to be sold there by you to the best advantage. Should these arms not be disposed of at the amount charged, we have to stand the loss. Should there be any profit realized over the amount, such profit shall be equally divided between yourself and us. It is also understood that these goods shall be shipped by you free of any expenses to us, and that in case they should not find a ready sale, they shall be returned to us free of all charges. Please attend to the insurance of this lot and have the amount transferred to us in one policy; also please acknowledge the receipt of this, stating your acquiescence in above." Accompanying this was an invoice headed: "S. bought of B. in joint account." The goods were shipped for their destination in Mexico. S. took out policies of insurance on the September shipments in his own name "for account of whom it might concern," which policies were handed to B. by direction of S. The October shipments reached their destination. A large part of the September shipments was lost. B. collected the insurance on such of the policies as were in his hands. Held, (1) That the contract was not a contract of sale of the goods by B. to S., but a bailment upon the terms stated in the correspondence, and as it was clearly expressed in the writings between the parties, it could not be varied by the terms of the printed bill-head of the invoice; (2) That S., as bailee, was exempted by the common law from liability for loss of the consigned goods arising from inevitable accident; (3) That there was no undertaking in the contract on his part which took him out of the operation of the common law rule; (4) That the taking of the policies of insurance in his own name by S. did not tend, under the circumstances, to establish that he recognized his liability for the loss of the goods, as it was clear that, under a policy running to S. " for account of whom it might concern," B. could show and recover, in event of loss, his interest, which was a substantial one; (5) That certain statements made by S. did not amount to an estoppel, the rule being that a statement of opinion upon a question of law, where the facts are equally well known to both parties, does not work an estoppel. Statement of the Case. THE Court stated the case as follows: This suit, as originally instituted, was an action at law by the appellant in the Superior Court of Marion County, Indiana, against the defendants, to recover the sum of $238,000, with interest thereon, which sum, the plaintiff alleged, they were indebted to him. The defendants, being citizens of New York, removed the cause to the Circuit Court of the United States, and, as the claim involved various matters of account, running through a period of several years, the court, on motion of the defendants, transferred the cause to the equity docket, and required the plaintiff to reform his pleadings. In compliance with this order, the plaintiff filed his bill of complaint, setting forth various transactions involving matters of account between himself and the defendants, commencing in September, 1867, and continuing down to September, 1876. The answer of the defendants admitted many of the facts charged, and either denied others or set up new matter in avoidance thereof. The several items of account presented by the pleadings need not be specially mentioned or separately considered; nor is it deemed necessary, in the view we entertain of the case, to review the immense volume of testimony taken in the course of the litigation-covering about four thousand printed pages -involving irreconcilable conflicts, and including much that is wholly irrelevant. The material facts are clearly established by the written agreement of the parties, and by the admissions made in the pleadings; and the controlling question of law arising thereon, and upon which the correctness of the decree dismissing the bill must be determined, is whether the court below placed the proper construction upon the original contract entered into between the parties, under which the defendants consigned certain arms and munitions of war to the complainant, to be by him shipped to and sold in Mexico. That contract, after some previous verbal negotiations, was embraced in the following correspondence: Statement of the Case. "Office of Hermann Boker & Co., No. 50 Cliff Street. "General H. STURM, present. "DEAR SIR: Enclosed please find our bill of sundry arms, etc., amounting to $39,887.60, for which amount please give us credit on consignment account. "As mutually agreed, we consign these arms to your care, to be shipped to Mexico and to be sold there by you to the best advantage. Should these arms not be disposed of at the whole amount charged, we have to bear the loss. Should there be any profit realized over the above amount of bill, such profit shall be equally divided between yourself and us. "Also, it is understood that all these goods are shipped by you free of any expenses to us, and that in case all or any of them should not be sold, they shall be returned to us free of all charges. "As you have insured these goods, as well as other merchandise, we should be pleased to have the amount of $40,000 transferred to us. Please acknowledge the receipt of this, expressing your acquiescence in above, and oblige, "Yours truly, "HERMANN BOKER & Co." Accompanying this letter was an invoice, in form as follows: "No deduction allowed for errors or damages unless claim is made within five days after the goods are received. "Herman Funke. Folio "F. A. Boker. "F. Schumacher. 50 CLIFF STREET, NEW YORK, Sept. 18th, 1867. "Mr. H. Sturm in joint acc't with Hermann Boker & Co. "Forwarded for your account and risk, per "1 12-pounder battery, brass, complete.. $9,000 "1 3-rifled do. iron do. 8,000 $17,000 |