'(Circuit OOU'I't, 8. D. New York. February 27, 1883.)
NEGLIGENT DELIVERY.Oll' OARG07 DELIP111Y BySl'EOrAL REQUEST-BURDEN Oll' l'ROOF OF REQUE8T.
The libelant :tiled a iibel agaiJ;lst the defendant to recover damages for the, . non-pprformance of a contract for the delivery of merchandise in good order. The defense admits the improper delivery, but seeks t.o justify on the ground that the delivery :was made at .the request of the libelant, who was anxious for an immediate deIiveJ,:y, and to'assume the risk. Held, that the burden of proof is with the defendants to estabIishs8tisfactorily such exculpatory theory;
Benedict, Taft if Benedict, for appellants. Butler, Stillmitn if Hubbard, for appellees. WALLACE, J. The libel in this cause was filed to recover damages for the non-performance of a con,tract for the delivery, in good order, of 1,000 barrels of Portland cement, shipped on the steam-ship Staincliffe, for New York. The district court dismissed the libel. The following facts are found:
On or about September 10, 1877, J. B. White & Bros. shipped in good order and condition, on board the steamer Staincliffe, then lying at London and bound for New York, 1,000 barrels of cement, to be carried to New York and there delivered to the libelan1, in like good order, for certain freight to be paid. The steam-ship arrived in New York October 2d, and October 3d the libelant paid the freight. October 3d the steam-ship commenced discharging her cargo, and put off 52 barrels of the cement, which was accepted by the libelant. On the fourth day of October showers fell in the forenoon, and the indications for more rain were threatening. On that day the steam-ship discharged upon the dock 621 barrels, and delivered to the lighter Comet 327 barrels, making her entire cargo of cement. The libelant, on the third and fourth dayS of Odober, had given orders to lightermen, including the Oomet and others, for 933 barrels. October 4th the steam-ship was taking in outwardbound cargo, as well as discharging cargo, and the dock was so crowded that access to the cement was not practicable. Late in the afternoon it rained hard, and the cement, though requiring protection from the rain, was not protected; 16 barrels, however, of that discharged upon the dock was taken away by a truckman, to whom the libelant had given an order. The remaining 605 barrels of that put off upon the dock remained unprotected dUring the night of the fourth, and was taken away in a more or less wet and damaged condition. by the libelant's directions, on the fifth and sixth of October. The fourth day of October was an unsuitable day to put off the cement, OWing to the state of the weather, unless it was protected from danger. The injury to the cement was caused by its being wet on the afternoon and evening of October 4th. The libelant did not consent to accept the delivery of the cement put off Upall the dock on the fourth day of October.
, ;The fconclusion is' reached ,that. ,the 'libelant ,for the' followingzeasona: It isnotmsputed .that iii ,coll.sideraQIl:Lpart of the cement 'which the :in,good ardbr wa.s injul'.edin consequence, ofbeing discharged iI).unsu,itable weltihtlr\'rtthQut any protection from the.elementll;· nOr is it. disputed that auchardischarge ia The claitnants, however, seek to iUp,on the theoty th'at,although the cement was'put off, in utlsuitab1<bfeather·,.this was done at iJa,e requesJt;()f the libelant, ·who;was.anxio:us for' an, ..delivery artd assented to assume the n-sk.:The burdea of proo:f ,is 'With the claimants to establishsatisfaetorily this. exculpatory the\>ry,,),Wbey · have to sustain it,-Nunns, the steamer's.,discharging .elettk, and Johuson,her cooper,__..who in the aftern()(:)n !1-thlthelibelatttJrequested ·thttt all the cement on boa.rd1 the stelliDier shQu1d,be put off,: 8.8116 .expected a lighterthEll;etMtafternooD.. to take it away. Nnnnedurthertestifies'that to discharging on ,aceotUlt of the weather, and told the'libelant. he' would not' do' i:t:.ul1lesB ,the trWfiterW()"tlld' the' resp0'11sibillty: of watching and .protecting it; 't'hIl'Nhe lrneliuit>iRssentedto' thia,.'11intl ithereupon he· directed .the foreman of the stevedores to go on and discharge the 'Ehfllibelant denies that any such conversation took place. If it should be conceded that libelant expeeted all the cement to be taken away fur which he had given delivery orders, there would still have remained 67 barrels for which he had made no provision, and which he would have been obliged to truck away and store. But it does not appeal' that he had any reason to expect that 106 more barrels, for which he had only that day given delivery orders, would be wanted that day; and, indeed, it is doubtful whether he expected any to be taken away that day other than 500 barrels which the lighter Comet was to take. It is, therefore, improbable that he should have made such a statement as is imputed to him by Nunns and Johnson. It is also improbable that he should have gone away and remained away the rest of the day, and taken no interest in protecting his merchandise, if he expected it to be put off. proofs also indicate quite cogently that at the time when this alleged interview must have taken place, there had already been put off upon the dock the greater part of the 605 barrels that \yere injured. The lighter Comet was expected to take away 500 barrels. Some time after the libelant left the dock, the slip was cleared, and the Comet drew along-side the steamer, and for the convenience of
both vessels the latter discharged the cement directly from her hold to the lighter. When 327 barrels were thus discharged, the captain of the lighter refused to receive any more, because the'rain was so heavy as to endanger the cement. The foreman of the stevedores tried to induce the lighter to take her full cargo; and when the latter refused, discharged some 50 barrels, all that then remained in the hold, upon the dock. During all. this time the steamer was taking in cargo, the dock was crowded with discharged cargo, and access to it was difficult if not impracticable. The conclusion cannot be resisted' that those in charge oftha. steamer were so solicitous to diseharge her cargo that they neglected protect the libelant's cement. The libelant was justified in assuming that the Comet would be af. forded facilities for taking away the cement already upon the dock · when he was there, and that the steamer would do her duty and: protect it if the weather should require that to be done. In view of. the circumstances, the probabilities, and the testimony of the libel&"nt·, the olaimants have not satisfactorily maintained the issue of which they have the affirmative. A decree is ordered for the libelant, with oosts of this appeal and in the COurt below. There will be .. referenoe to a JJlaster t.o ascertain the damages.
BISSIT V. KENTUCKY RIVER NAVIGATION CO.
BISSIT V. KENTUOXY
Co. and others.-
(Oircuil Court, D. Kenlucky. June, 1882.)
1. UORPORATIONS-CREDrrOR'S BILL TO BUBJECT UNPAID BUBSQRIPTIONB.
A creditor who has obtained a judgment against a corporation,and is unable to realize thereon upon execution, may file a bill in equity against stockholders to subject the unpaid balance due on their subscriptions to the stock of the cor· poration; but where the complainant is also a stockholder, he must contribute 'pari passu with the defendant stockholders towards the liquidation of his demand against the corporation.
2. SUBSCRIPTION TO STOCK 011' RENTUC:K.T RIVER NAVIGATION COMPANY BY CERTAIN KENTUCKY CoUNTIES- VALIDITY DECISIONS. RATIFICATION EsTOPPEL STATB
In a suit brought in the circuit court by 8 creditor of the Kentucky River Navigation Company, to subject subscriptions made to its stock by EstillOWsley, and Jessamine counties, Kentucky, unCler the act of March 1,1861. passed by the Kentuckylegislature, incorporating said company, wWch authorized the county courts of the sever.al counties bordering upon or interested in the navigation of said river to subscribe on behalf of their respective countiea to the capital stock of said company, and levy and collect a tax to pay the same,held, that the decision of the court of appeals of Kentucky in the cases of Mercer and Garrard. Countics v. Ky. Hit!. Nat!. 00.8 Bush, 800, was an affirmance of the constitutionality of said act, and that said decision and the construction of said act by said court, (being the highest court of said state,) wherein it was held that sl).bscriptions could only be made under the act through orders of the county courts, made and entered of by the courts when sitting in their organized capacity, which, in themselves, amounted to completed contracts of SUbscriptions, and that subscriptions made by commissioners, appointed by said county courts for the purpose, under an order,-in one case declaring "that $25,000 be directed to be subscribed," and in the other "that $100,000 shall be subscribed,"-were not valid, are binding on the circuit court; and hcld,!urthcr, that the subscriptions of Estill and Owsley counties come within said rule, and are therefore invalid; but as to Jessamine county, held, that whether the original subscriptions were binding or not, the conduct of the parties was such a ratification of and acquiescence in the sub, scriptions as to estop said county to deny the validity thereof.
CORPORATIONS- STOCKHOLDER'S LIABILITY - COLLUSIVE AND FRAUDULENT JUDGMENT AGAINST CORPORATION NOT CONCLUSIVE AS TO STOCKHOLDERS.
In a suit by a judgment creditor of a corporation (who was also a stock, holder) to subject unpaid subscriptions made by other stockholders, it appeared that, for some time prior to the rendition of complainant's judgment, the de. fendants and the other stockholders of the corporation, except the complainant, had denied the validity of their subscriptions, and refused to participate in the management of the corporation, and thereafter the complainant, by virtue of the stock he held, had assumed the.exclusive management and control of the corporation and its affairs, and elected its board of directors; that the action he brought against the corporation, in which his judgment was rendered, W8lil
"'Ilenorted by J. C. Harper, Esq, octile Cincinnati bar.