CUTTINGI'. FLORIDA RY. &: NAV. CO.
CuTTING tI. FLORIDA Ry, & NAV. CO. MEYER V. SAME. BROWN 'l1. SAME. CENTRAL TRUST Co. V. SAME. GUARANTEE T. & S. D. CO. fl. SAME. DAVIS V. SAME, (MALLORYet al., Intervenors.)
(Oircuit Oourt, N. D ..Flortda. August, 1890.)
EQUITY PRA.OTICE-MASTER'S REPORT.
Where the exceptions to a master's report make no allusion to the evidence, and are not :supported by the master's statement, and such statement is sumcient to sustain his conclusions,the report should be confirmed.
FEDERAL REPORTER, ";01.
that it had assurances from the receiver of the Florida Railway & Navigation Company and his traffic manager that it was to be included therein. That the receiver relied and depended exclusively upon the petitioner .to maintain freight rates fixed by him in competition with the said Georgia companies and their steam-ship connections, or, on the other hand, to maintain the said pooling contract. . The petitioner has maintained the freight rates agreed upon by the said pooling contract in good faith, bethat it was it party thereto. Respondent admits the existence of the pooling contract, but denies that it included the petitioner's line of steamers; that it was limited in terms to South Atlantic ports; ancI that not only petitioner's steamers, but all ships carrylng between South Atlantic ports and the ports of Boston, New York, and all eastern points were excluded from participation in the distribution of the revenue arising therefrom. The respondent admits having received under said contract the gross amount of $14,210.97, of which $11,085.03 was received by the' carriage of cotton from the Chattahoochee valley to the port of Savannah for local delivery or foreign export. For these purposes the petitioner had no facilities whatever, but respondent denies that there has ever been any contract between the petitioner and the defendant company as to a division of percentages of freight moneys earned, but that this waea matter of special agreement,and not a general contract for 60 per cent. to be given to the petitioner. : Th:e master took a great volume of testimony, which is in part set out in his report. It appears from the testimony that the steam-ships of the petitioner and the defendant company and its predecessors had each honored the tickets and bills of lading of the other. The petitioner's line (which, for convenience, we will call the "Mallory Line") was the main connection coastwise for New York to respondent's railroad, although other lines existed, viz., the Charleston & Florida Steam-Ship Line, the New York & Charleston Line, and the Ocean Steam-Ship Company, via Live Oak, Callahan, and Savannah. The averments as to the competition forthe business of the Chattahoochee valley, and especially for the cotton shipped therefrom, was shown by the evidence. The effort to avoid a war of rates, in pursuance of which the traffic managers of the three railroads above mentioned met at different times through the spring and summer of 1886, was also shown. Their conferences resulted ina so-called "pooling contract," executed at Washington, D. C., on July 16, 1886, which contract was signed by the traffic managers of the railroads above named. The rates were fixed by agreement entered into at Savannah on July 21, 1886, when Virgil Powers, of Georgia, was agreed upon as thb party to whom statements should be made, and who should act as dearing-house agent. The practical effect of this arwas that no cotton was carried out of the Chattahoochee valley by the Florida Railway & Navigation Company during the season of 1886 and 1887. The net amount which accrued to that company arising out of the pooling contract was $14.210.97. Petitioner claims that, without its line as a through connection, the Florida Railway & mon CompaJ;ly wonldnot have beeu recognized in the pooling c<>otract
CUTTING V. FLORIDA RY. & NAV. CO.
by the other parties, and that, pending the negotiations for that contract, the petitioner had assurances by letters and telegrams from F. B. Papy, then traffic manager of the Florida Railway & Navigation Company, that. the Mallory Line should be beneficiaries in the contract to be made. These letters, or. the substance of them, are set out in the master's report. The correspondence is lengthy, but it may be summed up in the following letter from F. B. Papy, traffic manager, to R. W. Southwick, Esq., the representative of the petitioner: "When this question was open for discussion and agreement the proposi.tion was to include all the lines running through to New York. Boston. and Philadelphia: and upon that theory I Ilresented figures to C. H. Mallory & Co., which would yield the lines an interest between and seventy-five thousand dollars per annum. 'fhe discussion of this matter took several months. However. the Georgia Central and the S. F. & W.R. R. finally determined that the pool should not extend beyond South Atlantic ports·, and a division of tlie business must be upon the basis of rates to these South Atlantic ports, and not beyond. 'rhey also insisted that the business from Savannah proper to Chattahoochee Landing should not be included. I understood that it should. 'rh.e matter was then taken out of the hands of the agents, and was settled by Mr. Haynes and Mr. Duval, which made the pool apply only to South Atlantic ports, and to exclude Savannah from it as well as the sHeral steam-ship The agreement on that basis went into effect, I think, in August. 1886, after the agreement was concluded; and. as evidence that the several steam-ship lines were not included. I wrote C. H. Mallory & Co., sllggpsting there was nothing in the contract which forLade them from taking freight.f' The witness F. B. Papy, whose letter has been quoted, was at the time of making the pooling contract the traffic manager for the Florida Railway & Navigation Company, who is the respondent here. It is uridonbtedly true from all of the correspondence that it was originally his purpose to have included the steam-ship line represented by the petitionElr; but it is equally true that this line was not taken into the POolii)g contract, and that no contract between the Mallory Line and the Florida Railway & Navigation Company as to percentages on freight had been made. The testimony of Mr. Duval, the receiver, is exceedingly important in this connection. He states that, had it been the intention to include the Mallory Line in the pooling contract, a much larger percentage ,,:ould have been claimed by the Florida Railway & Navigatbn Company; that the Mallory Line was interested in keeping up the rates, especially as it was interested in another pool, and was compelled to abide by the rates established by the Southern Railway & Steam-Ship Association; that, had there been a war of rates and a cutting made in the through business, the entire cutting on the rate would have come out of the Florida Railway & Navigation Company connection, the Mallory Line claiming their full portion of the rates as established by said association. He further testifies that 80 per cent. of the Chattahoochee valley cotton would have gone over the line of the railroad companies to Savannah, as in former years, via Live Oak, Callahan, and as most of his business is Savannah business properly; that there was no consideration that entitled the Mallory Line to compenila,tion out of the pooling contract; that he, as receiver, did not rely upon
. FEDERAl, REPORTER,
the Mallory Company, hut put off Chattahoochee busin to the SavanSs nah, Florida Western RailroadCpmpany and the Georgia Central. " The concludes from all of;theevidence that it was the original i,ntentioQ of the tra:$c IUanager of the Florida Railway & Navigation in the pool which :was to be formed. ,Company to include the Mallory In this we agree with We are convinced that this intention was in consequenge of the position changed, as .we have already of the Georgia Central Railroad and the Savannah, Florida&Western Railroad Companx as to extending the pool beyond the South Atlantic ports. The small amount realized by the Florida Railway & Navigation Company as its share of the l'ool, viz" $4,291, confirms the theory that the pooling contract did not extend beyond the South Atlantic ports. H clearly did not, but F. B.Papy, traffic manager for the receiver, nQtified C. H. Mallory & Co.,' on Al,lgust 11, 1886, that the pooling contract Was so officially, considered by him.' This contract appears to have been entered into by the parties to avoid a war of rates. Its practical' operation was to give all cotton from the Chattahoochee valley to the Georgia railroads, and it is exceedingly doubtful whether the steamships of the petition:er had anything to db with fixing the terms of the pooljtig contract of July 16, 1886, between the three railroads above :,mentioned·..The conClusions of the master seem, from the evidence, to be irresistible, and he recommends that the prayer of the petitioner be denied. The exceptions .filed to tl:!isreport are as follows:· First. That the master eued in not finding that there was a valid contract between the petitioner and B.R. Duval, receiver" established, underwhi9h thepl'ltitioner was entitled to ita share of the pool moneys received by the said H. R" DuvaJ, receiver, as alleged in the petition and i as t1,lerein prayed for. . Second. The master erred in finding that pooling contract finally entered into between the Georgia Gentral Railroad Company and the SaCompany, and the said H. R. vannah, Florida & Duval, receiver, was not substantially the same contract which was being negotiated between the said parties at the time the said receiver, t4rpugh his traffic manager·.]'. B. Papy, assured the petitioner that it should have a share, to-wit, 60 per cent., of the pool moneys which were .realized from the said pooling contract by the said H. R. Duval, receiver. Third. The master erred in finding that when the said. H., R. Duval, receiver, by his. said traffic manager,F. B. Papy, assured the petitioner that it. and ,thE' said receiver would realize jointly from the proposed sum of over $27 ,000, the said Papy referred to and pooling w.as considering a different pooling contract than the one .that was finally consummated as $hown by.the evidence. Fourth. The master erred, in p.nding that the petitioner is not entitled to any portion of the pool moneYS for which it sued in the said. petition, and in recommending that the said petition be dil,mJissed.. ,Fifth:. The master erred in divers other respects, both tlpon the law
CUTTING v; FLORIDA RY. &: NAV. CO.
and facts in the case, to be pointed out ore tenus at the hearing of these exceptions. They do not comply with the rule in equity with reference to exceptions of this character. Exceptions to the master's report are regarded so far only as they are supported by the statement of the master, or by to which the attention of the court is called by reference to thft particular testimony. Jaffrey v. Brown, 29 Fed. Rep. 476, and caseS there cited; Taylor .'Ifanuf'9 Co. v. Hatcher Manuf'9 00.,39 Fed. Rep. 440. The exceptions make no allusion to the evidence, whereas they should have set out that portion of the evidence upon which the exceptor relied. This, however, involves no testimony, and the only reference to it by the. master, unsupported, was probably not deemed advisable by the flolicitor for the petitioner. We are, as a consequence, limited in our consideration of the case exclusively to the master's report; anrl,since all the presumptions are in 1avor of the finding of the master, and since they appear to be satisfactory, and indeed conclusive, it is ordered and adjudged that the master's report recommending that the prayer of petitioner be denied shall stand confirmed, at the costs of petitioner, and that a decree be framed accordinjl;lv.
CtrrmrG II. FLORIDA
et al., Intervenors.)
COircUtt Court, W. D. FWrlda. AUKUSt, 1890.)
C.ummRS-:-DTR01tIMINATJON IN CHARGES-RECETVER.
The receiver of a railroad in Florida, where discrimination in freight rates Is a criminal oft'ense, (Act FIll. Jan. 6, 1855, c. 15tl4,> has no right to make such discrimination. Following Missouri Pac. By. Co. v. Te:taB &: P. By. Co., 81 Fed. Rep.1l62;
H. BiJJbee, for intervenors. John A. Henderwn, for respondent.
Petition in intervention.
SPEER, J. This case arises on a charge of the petitioners, who own and operate a line of steam-ships between New York and Fernandina, that the respondent, who is the receiver of this court in charge of' the property of the Florida Railway & Navigation Company, which is a line of road extending west and south to various parts.of Florida, unjustly discriminated in the carriage of freights and passengers over its lines against the .petitioners, and in favor of another and rival line of stellm- \ ships, to-wit, the Clyde Line, between the same ports of New York and Fernandina. The are that the· respondent (1) n1akes. through bills of at special rates with the Clyde Line,and rftfuses to makesarnewithpetitioners' line, an,d carries out these contracts tothe . injury of the petitioners; (2) that respondent charges over his road, on alJ freigl1tS: a:nd passengers carried by petitioners' steamers. 1'u1110cal tariff·