HQUSTON & T. C. Ry. CO.
and others v.
HOUSTON &T. C. Ry. Co. and BAUGH'& Co., Intervenors.)
(Otrcuit Oourt, 1!J. D. Texas.
November 19, 1887.)
'CARRIERS-REDUCED RATES-LIMITATION OF TIME.
On .Tanuary 28, 1887, petitioner entered into a contract with the agent of a receiver of a railroad for shipment of goods from New York to Texas at cut freight rates. The steamer at New York refused to receive the goods, and February)2, 1887, the receiver guarantied the contract, and the goods were shipped March 1st. On March 4th the petitioner was informed thaf the time was had expired, and the former rates restored. Petitioner testified the agent of the receiver said to him as to limitation of time of was under the impres8ion he had mentioned it. Held, that the direct' testi mony of the petitioner and the conduct of the parties showed that no im· medIate shipment was contemplated.
On Exceptions to Master's Report. W. H. & Co. were allowed to intervene in this case, to
claim an amount paid by them for freight in excess of amount contracted for with the agent of the receivers, and the matter was referred to a special master, who reported as follows: I find that on the twenty-eighth of January, 1887, H. D. Patrick, local agent for the defendant receivers in the city of Austin, offered to W. H. Firebaugh & Co., the petitioners, who then were, and for some years 1100 been, merchants in said city, a special or "cut" rate of fifty cents per one hundred pounds upon freight from New York city to Austin if shipped in quantity of not less than twenty thousand pounds in one Shipment, and such offer was for freight for immediate shipment by "the Morgan" line: of steamers from New York. That immediately thereafter petitioners sent an order to their correspondents in New York, C. M. Biddle & Co., to ship to tllemat Austin, via the "Morgan" line of steamers, a quantity of freight consisting of tin, iron, and white lead. weighing more than twenty pounds" and in said order stated the special rate aforesaid. That un the tenth of the following month the said Biddle & Co. notified petitioners that the said Morgan line refused to receive the freight at the special rate named; that immediately, on .said tenth of February, petitioners consulted the said agent, Patrick, and stated to him the refusal of the Morgan line to receive the freight at the "cut" rate; that thereupon the said agent communicated the facts to the general freight agent of the defendants, who replied, guarantying topetitioners the special rate offered on the twenty-eighth of January, whereupon petitioners directed their New York correspondent by telegraph as follows: "Ship the goods as soon as possible; we have guaranty j" that on the first of March the said Biddle & Co. delivered the goods ordered on the twenty-eighth ,')f January, and referred to in the above quoted telegram, to the said MOl'gan line in New York city, consigned to petitioners at Austin, and received therefor eight bills of lading, the aggregate weight of the freights so delivered being twenty-six thousand and sixty-nine pounds. I find that the amount of freight charges for transportation of said freight from New York to Austin, at the rate of 50 cents pE'r hundred pounds, would be $130.35, and 95 cents insurance-$131.30j that, upon the arrival of the freight at Austin, about the twenty-first of March, the said agent of the receivers at that station demanded and received of petitioners as freight money on said shipment,
by Joseph P. Hornor, Esq., of the New Orleans
$298.51. It is for the difference between the amount so paid and the aforeto-wit, $.167.21; sue, claiming that such said S\l111 contract of JanUliory 28th, and the guarexcess was an overcharge anty of February 12th. The defendants contend that, under the contract of jfanuary 28th, goods have been made in one shipment, and under one bill of lading: and that the delay of the shipment until March 1st was not such "immediate" shipment as was contemplated by the parties under the January contract; and the subsequent arrangement of February 12th. I find that the steam-ships of the Morgan line, over the route by which the freight was mutually contemplated should be shipped during the month of Februa±y; saHed. j;rom the port of New York on Tuesday, Thursday, and Saturdayof.eadi',\yeek, and that under these appointments six steam-ships presumably.saUe4from sll-id port route after the twelfth of February,. and before the fir!'!t of March. ldnd that the delivery of the freight by Biddle & Co. to the Morgan line tin New York in one day was one shipment uuder the terms of the January agreement between petitioners and defendants' agent; and the fact that the Morgan line issued, and said Biddle & Co. accepted, more than one bill of lading, did not alter that feature of the transaction.I find that the "immediatEl1'shipment, contemplateQ in the propositipn of January 28th, meant thatthe freights should be shipped within a rea"" sQnable time after .Tanuary 28th, and that this limitation was carried into the arrangement of February 12th,and that the shipment of the freight by plaintiffs' New York agents, Biddle & Co., on thedrst of March, was not, under the'facts and circumstances of the ca,se, a shipment within a reasonable time after February 12th, and that such delay relieved the defendants of any liability under their guarltnty of February 12th to protect the cut or special rate off'eredon the of January. , 'I find, it nQt otherwise appearing,.that the freight money paid by plaintiffs, as aforesaid, was in conformity With. the regUlar tariff rates charged on the fiI'lit of March'for transportation of freight of the character of plaintiffs' from New· York to Austin over the Morgan line, and that the defendants had the right to collect the llame from the plaintiffs. 'The preniilles<Witsidered, I am of the opinion, and so find, that petitioners dore not entitled'iflOl¥ecover in this actiOn, and I recommend that a decree be .. .R. G. . . J. H. Davenport, Jr., for receivers,
:J. . The issue in the case is whetherthe contract between the intervenors and the receivers' for a out rate from New York to Austin was to shipments.' . ,Th'E) W. H. FirebaQgh, who nlade thfil contract with is tb,at at the time of making of the there was nothing said about a limit of time. "There was no limit then as to d certain: ti,me of shipment." M:r; Patrick testifies: "My instructions were for immediate shipment. M;t;ithp.re8$ion lil; I 80 stated it to Mr: Firebaugn at the time, that they fo'r inlm'ediate It waEla cut in rates,and I did not know it would;1ast.";FourteE3ndaysafterthE;lcontract, on Fepruary 12th, olHherefusal of the Morgan line beingcommunicated,t1-tereceiversguaranHedthe contract,andMr; Patrick is not positive that then he said anything about immediate shipment. The shipment was made on March 1st, and on March '4th, as Mr. Firebaugh testifies, Mr. PatriCk
, ,DENNY V. DODSON.
notified him It that the timl'l,hadexpired, lI.O,d,th/1.t :r:atesh,ad been restored," and in this testimony Mr. Firebaugh is not contradicted; by either the impression recollection of .. This ,is ,practically the evid,:mce, on thl;l point of limitfLiion as to time ofshipment under the contract. The defendants, set. up the limitation, and they fail to establish it by direct evidence; tpei'rnpressions of their agent cannot overcome the positive testimony of the intervenors. The conduct of the parties io,:relation to the shipment shows that neither intended or looked to what is now claimed as to immediate ment. This appears'by the fact that 14 days elapsed before the anty was given, and 16 more before the shipment wasmade"and by the significant fact that March 4th, three days after the shipment, the de. fendants' agents notified intervenors that the time had tlxpired, and thlj.t the usual had been restored. The. exceptions to the master's report should be sustained, and the intervenors should have a decree for the return to them ,by the,defendants of the sum of $167.21, and for costs of intervention.
DENNY '11. DODSON.
(Oircuit OO'Urt. D. Oregon. November 28, 1887.)
PUllLIO LANDs-RAILROAD GRANT-NORTHERN PACIFIC-EFFEOT OJ'.
The congressional grant of the odd-numbered sections of the public land on the line of the Northern Pacific Railway to that corporation is a present'one. and passes the legal title to the grantee; but the corporation is not authorized to dispose of or incumber the land withouttb.e consent of congress, excepl the earried portions lying opposite to any 2/i-mile section of the road, aftel the construction thereof, and the acceptance of the same by the United States.
2. SAME. No entry could be made of any land in an odd-numbered section within the limits of the grant, under the town-site, homestead, or pre-emption act August 13, 1870, when the railway company filed its map of general route with the secretary of the interior, in the.office of tJie. commissioner of the generalland-ofiice. S. SAME. The location of the line of the road in a state or territory determines the width of the grant,-whether of 10 or 20 alternate sections,-without ref,erence to the fact of whether the grant includeslands within the limits of a statoll or not. 4. SAME. The condition -attached to the grant to the railwaycompallY, that the roap shall be completed by a day named, is a condition subseSJ,uent, for a breach of which no one but the government, the grantor, can claIm a forfeiture; and the title of the company, though defeasible in the mean time, is still the legal one, on which it may maintain ejectment against any intruder or trespasser.
Action to Recover Possession of Real Property. This is an action of ejectment to recover pOSSession ofc;lertain lots. iJ;l the town of Gilliam county, Oregon, being portions of. section