the hour last named her lines ceased to hold, in a manner told as follows: some of your lines part "Q. When it was about half flood tide ed? A. They slid off. Q. Which lines slid off? A. They all slid off, except the one that was on the dock; she jumped off the spile. Q. Your lines did not break? A. Yes, sir. Q. They did break? A. Yes, sir. Q. Which line broke first? A. They went all of a sudden; they jumped, and all went at once." Having thus floated away from respondent's bulkhead, the tug took the lighter to another mooring place, where she arrived about 7 p. m., at which time she had still a list to port of "about an inch or an inch and a half." In this condition she remained, not leaking more than usual, so far as the evidence shows, and not listing more than above stated, until September 6th. During this interval of five days the master was much absent from his boat, owing to the sickness of his wife. No examination seems to have been made of the Dutch Boy until September 19th, when a survey was held and it was found that "there (was) no hole stove in her anywhere." Without adverting to testimony on behalf of respondent that the berth had long been used with safety by vessels drawing even more water than the Dutch Boy, that that lighter was laden so as to be topheavy, and that the lines parted because improperly fastened for so strong a tidal current as that prevailing at Ravenswood, we are of opinion that the testimony above outlined wholly failed to establish the cause of action propounded in the libel. After reading all the evidence, it remains unproven whether the Dutch Boy suffered any damage at respondent's bulkhead, and, if she did, of what such damage consisted or why it was received. The decree below is affirmed, with costs. SPONGE DIVERS' ASS'N, Inc., v. SMITH, KLINE & FRENCH CO. (Circuit Court of Appeals, Third Circuit. February 27, 1920.) No. 2488. ASSIGNMENTS 100-ASSIGNEE CANNnot recover on account for Goods PROPERLY REJECTED. An assignee of a book account for merchandise sold held to acquire no right of action on the account against the purchaser, where the goods de livered were not of the kind ordered and the purchaser, in accordance with the usages of the trade, refused to receive them, and there was consequently no valid account to be assigned. In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Action at law by the Sponge Divers' Association, Incorporated, to the use of the Commercial Credit Company, against the Smith, Kline & French Company. Judgment for defendant, and plaintiff brings error. Affirmed. See, also, 257 Fed. 328. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (263 F.) Julius C. Levi, Alvin L. Levi, and David Mandel, Jr., all of Philadelphia, Pa., for plaintiff in error. James Collins Jones, of Philadelphia, Pa., for defendant in error. Before BUFFINGTON and WOOLLEY, Circuit Judges, and MORRIS, District Judge. BUFFINGTON, Circuit Judge. In this case, the Sponge Divers' Association, a corporation of Florida, brought suit to the use of the Commercial Credit Company, a corporation of Delaware, against Smith, Kline & French Company, a corporation of Pennsylvania, to recover $4,498.65, being a book account for sponges sold by plaintiff to defendant and which book account was assigned by the plaintiff to the use party. The defendant alleged in defense that sponges delivered to it by the plaintiff were not of the kind or quality ordered and that with the exception of a small quantity (which defendant had, by the custom of the sponge trade, retained, on opening up and examining the consignment, and for which it was willing to pay) the sponges were all returned to the plaintiff. This issue of whether the sponges were up to order requirement, and whether the defendant exercised its right of examination and of returning the sponges in due time to the plaintiff, was submitted to the jury, and the verdict, which was for the defendant, establishes that such was the case. We may add that, after the return of the sponges, the Sponge Divers' Association went into bankruptcy, and either it or its receiver, retained the same. It is therefore clear that as between the plaintiff, the Sponge Divers' Association, and the defendant, the measure of their relative rights was properly submitted to, and determined by, the jury's verdict, and no error was committed by the court in its charge submitting that branch of the case to the jury, for in point of fact no basis for a suit on a settled book account between those parties existed. For while the sponges were invoiced and delivered on the basis of creating an account, yet in point of fact, the sponges were not the sponges ordered, they were rejected and returned, and consequently no collectible book account existed. From the judgment entered on the verdict, the Commercial Credit Company, the use party, has taken this writ. Without discussing the 19 assignments in error, we select the fourteenth, which fairly represents the contention of the use party, and the course which it alleges the court below erred in not following. The error assigned is the court's declining to affirm and read to the jury that point which was presented by the use party's counsel and which was: "Where there has been an absolute assignment in good faith and for a valuable consideration of the whole interest of the assignor in a chose in action, the assignor's control over it ceases immediately after the assignment and notice, and he can do nothing thereafter to prejudice or defeat the rights of the assignee." Now there was in this case an absolute assignment of the book account by the Sponge Company. to the Credit Company. It was made in good faith. It was for a valuable consideration, and it con veyed the Sponge Company's whole interest in the account and its control over it, and to that extent the point represented the facts. But, unless there was a valid account to be assigned, liability of the defendant was not created by the facts stated in the point; and that is just where, in the face of the proofs and the finding of the jury, the use party's alleged rights do not exist. Its right was to a book account, and if no sale was effected, if the goods ordered were never delivered, and those delivered were properly rejected, because they were not the goods of the contract of sale, then and in that event there was no sale, there was no enforceable book account in existence to assign, the Sponge Company had nothing to assign, and the assignee of what there was no power to assign acquired no rights against the defendant, because the goods of the sale had never been delivered to it and a sale consummated. Seeing, then, that the enforcement of any right of the use party in this case depended on the Sponge Company's consummation of a sale, and as that basic and essential prerequisite was found against the Sponge Company, its assignee of its alleged book account stands without right against the defendant in an action which is in affirmance of a sale. What injury, if any, was done the Credit Company by the defendant, if the latter returned to the Sponge Company the rejected sponges in face of notice from the Credit Company of its interest, is a matter not before us, and on which we therefore express no view. The judgment below will be affirmed. WABASH RY. CO. v. HOLT et al. (Circuit Court of Appeals, Second Circuit. January 14, 1920.) No. 88. CARRIERS 180 (1)—MEASURE OF LIABILITY FOR LOSS OF PROPERTY. Interstate Commerce Act, § 20, as changed by the Carmack and Cummins Amendments (Comp. St. § 8604a), making the initial carrier of property liable to the lawful holder of the bill of lading for the full actual loss, damage, or injury to the property caused by it, or by any connecting carrier under a through bill of lading, held also to govern the liability of such connecting carriers, and a provision of the bill of lading limiting liability to invoice value, which by the statute is made void as to the initial carrier, is also void as to the connecting carriers thereunder. In Error to the District Court of the United States for the Southern District of New York. Action by George C. Holt and Benjamin B. Odell, receivers of the Ætna Explosives Company, against the Wabash Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed. Plaintiffs below are the receivers of a corporation, which had a contract with another concern for the sale and delivery to it of sulphuric acid. The contract was to supply the requirements of the corporation represented by the receivers over a term of years and up to a given amount, but the price re For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (263 F.) mained the same during the life of the contract. Some years after the date of contract a shipment was made thereunder from a point in Illinois to one in Indiana, and so routed that the initial carrier was the New York Central Railroad, and a connecting carrier the defendant herein-the Wabash Railway. The goods were lost under circumstances admittedly creating liability on the part of the Wabash, and the question involved herein is whether the amount to be paid by the Wabash shall be the invoice value of the acid or the market value of the same. Owing to the rise in price at and during the war with Germany, the invoice value, or the amount under the contract aforesaid to be paid for the acid was but $467.98, whereas the market value at the time and place of shipment and of loss was $3,034. On stipulated facts the matter was submitted to the court below, which ordered judgment for the market value, whereupon defendant took this writ. Jay Noble Emley, of New York City, for plaintiff in error. Winthrop & Stimson, of New York City (George Roberts and Edward E. Miller, both of New York City, of counsel), for defendants in error. Before WARD, HOUGH, and MANTON, Circuit Judges. HOUGH, Circuit Judge (after stating the facts as above). This case depends on the construction of section 20 of the "Act to Regulate Commerce," as changed by the so-called Carmack and Cummins Amendments. The statute as it stands respecting this litigation is section 8604a, U. S. Comp. Stat. 1916. The bill of lading in evidence, issued by the initial carrier, declares that: * "The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the * * bona fide invoice price to the consignee," viz. in this instance, $467.98. This bill having been issued by the New York Central, it is admitted that under the Carmack Amendment that railroad might have been successfully sued for the damage done by its connecting carrier, the Wabash; and further it is admitted that, if so sued, it would have been liable under the Cummins Amendment for the market value of the goods lost, anything in the bill of lading to the contrary notwithstanding. But it is said that section 20 as amended puts this last new burden upon the initial carrier only, in that it specifically requires "such carrier" (i. e., the one first receiving the goods) to answer for the miscarriage of a connecting railroad to an amount theretofore usually excluded by stipulations, such as the one above quoted. * * * Nowhere in the amended section are the burdens of the initial carrier expressly extended to or imposed upon connecting carriers, except as the company "issuing such bill of lading" is given the right to recover over from the connecting road inflicting the injury, any amount "it [the initial carrier] may be required to pay" to the holder of the bill of lading. The result of plaintiff in error's contention is that, in suits against other than the receiving carrier for lost or injured freight, the Cummins Amendment has no effect at all; and the freight owner must perhaps cross the continent to get a full recovery, although the carrier actually inflicting the injury is at his door. It is not deniable, that a good verbal argument can be and has been made in support of this result. The amended statute is something of a patchwork, and the plain intention of Congress not well expressed in detail. Yet we feel assured that the entire section has been so read by the Supreme Court as to relieve us of much labor. The contract for carriage over the lines of connecting carriers, however numerous, is evidenced by one bill of lading, issued as in this case by the receiving carrier. That bill "governs the entire transportation and fixes the obligations of all participating carriers to the extent that the terms of the bill of lading are applicable and valid” (Georgia, etc., Co. v. Blish, etc., Co., 241 U. S. at page 195, 36 Sup. Ct. at page 543, 60 L. Ed. 948), and each participating carrier is liable according to the "applicable valid terms of the original bill" (Missouri, etc., Co. v. Ward, 244 U. S. at page 387, 37 Sup. Ct. at page 619, 61 L. Ed. 1213). The test of validity is to ascertain what the statute permitted the initial carrier to do in respect of making the bill of lading contract. That carrier cannot, by such a clause as was first above quoted, limit its own liability. Therefore such clause was invalid in toto; it never existed in legal effect. Thus, and thus only, can uniformity of bill of lading operation over a long line of carriers be secured, and we think this method has been insisted on in the ruling cases cited. Every bill, the moment it is signed, stands purged of all matters forbidden by the statute, including language obnoxious to the Cummins Amendment. If such clause does not in legal effect exist when the bill is signed, it does not exist at all, and the bill is to be read without it. The judgment below is supported by this construction of the act, and is therefore affirmed, with costs. GOLDMAN v. SHREVE. (Circuit Court of Appeals, Third Circuit. February 17, 1920.) No. 2467. BANKRUPTCY 212-BAILOR, RECLAIMING PROPERTY FROM TRUSTEE, bequired TO REPAY AMOUNTS PAID BY BAILEE. Where the bailor of a printing press, which, it was contemplated, would be ultimately purchased by the bailee, shipped it on a bill of lading, requiring the bailee to pay $1,000 and the freight before it could obtain possession, and failed to include parts necessary to make a completely workable press, it would not be permitted to reclaim the press from the bailee's trustee in bankruptcy without repaying the amounts paid by the bailee. Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. Proceeding by M. D. Goldman against Lyman C. Shreve, trustee in bankruptcy of the Herald Lithographing Company. From a decree granting insufficient relief, the petitioner appeals. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |