BAXTER V. BARTFORDFIRE INS. CO.
nual report of the mint was takel).;80s the value of the pound sterling, ($4.8448,) arose under the act of 1857 (11 St. 163) .and was deoided prior to the passage of the act of 1873. The demurrer is overrured. :,
(Czrcuit Court,1). Indiana,. June
A commission ,merchant engaged in business of buying a,qd selling graiD" , and in .connection with .such b,Ulliness owning and operating an eleyator in ,the usual way, has such an interest in ,the grain deposited in his elevator by others as to authorize him to insure it for its full value; and this is so, although the contrltet between him and the depositors of thergrain sf.ipulates ,that the grain in store is subject to his charges, and that firelsat the owner's risk.
David Turpie, for plaintiffs. IIarri3 IX Cdlkins, for defEmdants. GRESHAM, D. J. This is a suit on afirepoIicyissued by the defendant to the, "plaintiffs! OIl gra.in, seeds; and sacks, their own,' t>1" held by them in trust 'or on or sold but not delivered,' contained in their elevator at'.Rochester, IndiJina. The elevator and its contents were destroyed by fire'." !:s to 2,238 bushels of wheat in the elevator at the time of the fire, it is averred in the third paragraph of the answer that this was delivered to the plaintiffs by farmers after the insuraI1ce was taken, every one of whom, at the time of such delivery, receIved and accepted from the plaintiffs 80 written instrument or contract, specifying anddescribirig the amount and character of wheat by him delivered, and concluding as follows: "Wheat in store subject to' our charges. " Fire at owner's risk." It is also averred that it was not the intention of those depositing the wheat, or the plaintiffs,' that. it should be covered by the policy sued on, and that at the time ofthe fire the 'plaintiffs had in the elevator wheat of their own. These facts are plead.ed p,gainst a recovery for more than the plaintiff's lien for charges on the 2,238 bushels of wheat. The plaintiffs demur to the third paragraph of the answer·
· Reported by Charles H. McCarer, Asst. U. S. Atty.
,Ifis urged by the defendant's 'coullsel,that the wheat described,inl! the paragraph demurred to w,as heidi on deposit, under an agreement\ between the depositors and the'plaihtiffs that it was not to be insured, and that therefore the plaintiffs, who were bailees, had no authority to put it under their policy and charge the depositors for insurance. merchants, engaged in buying and The plaintiffs were selling grain, and in connection with their business they owned and operated an elevator in the usu,al way. Those who deposited wheat in this elevator tObk 113&eipts 'fot the s'a'me, knoWitlg that it could never be distinguished from the mass with which it was mingled, and that the plaintiffs could and wouid sell and it as their own in the course of their ,business. !tis not claimed that this 2,238 elliof wheat was to be kept separMe from' other wbeat in the elevator of the same' "The title,to ,this ana in the elevator as, it depositors, or it passed tq the plaintiffs. The contract' between the plaintiffs and the depositors was;notthat the; latter 'should <tildemarid receive the identical wheat stored in the elevator, but that the piaintifJssllOuld deliver wheat for value. equal in amount and grade to that ,d,eposited, Being ,authorized to sell the ,wpeat on their own account as fast as it deposited in the f the plaintiffs bad such an int,hem to insure it f9,r its full value. They' terest in it were under no Obligation to return the, iq.entical wheat stored in their them t9 do so. Carlisle v. Wallace, 12 elevator, andno one IDd. 252; Johnson v. Brown, 36 Iowa, 2'00. " .' (, ; . , But, on the theorytllat the title the in the paragraph demurred to the depositors, ,and that they took thei,: contract with the plaintiffs, still the risk of loss by fire; the latter were liable for its vllrlue if fire should result from carelessness on the part of their, employes, and they had a right to protect by insuring the wheat for its full value; themselves from this and, further, if this,wheat re'main.e4. the property of the depositors, ashailors, there was nothjng in,their contract with the plaintiffs which prohibited them. as bBtiIees, 'from. insuring it for its full value. The defendant was not, a party to these agreements. It is true, there is an averment 'in the paragraph demurred to, that it was not the intention of the 'depositors or the plaintiffs that the wheat should be covered py the ,policy sued on; is only the pleader's, construction of the instruments or contracts '\v:hich the depositors received from the plaintiffs. Demurrer sustained.
UNITlilD STA.TES ,1.'. 'THE .HENRIETTA. ESCH·
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UNITED STATES V. THE,lIENRIETTa ,ESCH.
(Circuit Court, 8. D. Alabama.
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Where, in an action against a vessel for an attempt to smuggle foreign goods liable to ,(lustomsduties, 'there is an irreconcil1\ble' eciilfiict in the evidence given on the one side by the govemment ofiicers, and on:theother by the offlcers and part of the crew of the susPectlld vessel, and the case out, by the govern: ment witness shows-First, concealment on the part'of the captain and mate of the fact that the suspected vessel had come in through the pass; where, on an island said pass, the smuggled goods were found, instead of coming in by the main channel; 86C1Jnd, prevarications and misrepresentations excusing the fact that she had no boarding ofiicer aboard; third, absence of the yawl and all of the crew on the night of the seizure of the goods, together with,ftnding on the yawl mud and grass similar to that where the goodll were ,found; fourth, a splice?- oar produced in court, and found at. the place of the goods which a Witness identities as the same as that he saw the day previous on boaru and belonging to the vessel's yawl; fifth, finding on board the vessel, after seizure, goods of the same brand in small quantity in t,he possession -of the capto warrant the judgment of contain, with other circumstances, are demnation by the district court,and such judgment will be afiirmed.
On Appeal. George M. Duskin, U. S. Atty., fot the United States. Anderson Bond, for appellants. PARDEE, C. J. The oigars and cigarettes foUnd under a tarpaulin on the end of Pinto's island were undoubtedly foreign articles, brought there from some vessel to be smuggled intothtl United States. When found they evidently had not been there any great length of time. It seems clear, also, that they must have been brought, to the port of Mobile by the Zachary Taylor, the Henrietta Esch, or the Myra A. Pratt, for these were all the foreign vessels arriving from April 2 to April 14, 1879, the day when the cigars were seized.' The Zachary Taylor arrived on the twelfth of April, reported at the regular boardi!1S station at Fort Morgan, took on an inspector,and went directly to town. She wasearefuHy examined, and there is no suspicion in the record as to any illicit conduct on her part. The saIDe may be said, in substance, of the Myra A. Pratt, which arrived on the 14th, with the additional exculpating fact that she arrived after the time fixed by the witness Isadore Tranier of his discovery of the suspicious goods..The Henrietta Esch arrived early in the morning of the 13th. took on no boarding officer, having passed westwardly from Pensacola light-by Sand island-a.nd Mobile ba.r along the shore to