Jd'LAUGHLIN V. ALBANY & BENSELAER IRON AND STEEL CO.
RENSSELAER InONANJ> STEEL CO.
(Di8trict Oourt, S. D. Net/) York.
1. BILL OF LADING CoNSTRUED-ELECTION.
Under the following clause in a bill of lading, " in case consignees discharge cargo, 'or any part thereof, they are to be charged not 10 cents per ton, and to have four full working daYIil, after notice of arrival at dook of consignees .ofsaid boat, in which to discharge cargo," and providing for payment ofdemurrage; in case oflonger detention, s.'consigIleeJ,!.as an option to unload the cargo or not. .'
SAME-NoTIFICATION 'OF AN ELECTION.
Upon arrival of the boat,a notification that the cops:ignee would not u,J;lload it except in its. regular turn, and in that. cas.e 1"ould, pay no demurrage, is a ' . rejection of its right to unload under the bill of lading.
S:S.wE-UNLoADING IN TURN.
The final unloading of the boat by the consignee in its turn cannot bll' con,.strued as done uUder such right of election.
4. DEltWltRAGE. A captain is not entitled to demurrage for time lost in waiting to avail himself of a consignee's special facilities for !1nloading.·
.In Admiralty. J. A. Hyland, for libellant. Wm. C. Holbrook t for respondent. BROWN t D. J. All the claims in this case are agreed upon, except as ito claim for demurrage. This claim arises upon follow4tg in the bill of lading:
, "In case consignees discharge cargo, or any part thereof, theY,are to. be charged not to exceed 10 cents per ton, and to have four full working days, after notice of arrival at dock of consignee of said boat, in which to discharge cargo; and to pay master, for any time (exclusive of Sunday) boat is detained for discharging after the expiration of the said four days, five dollars perday, and at the same rate for portions of days."
The decision of this court in Tuttle v. Albany et Rensselaer Iron ana Steel Co., upon a bill of lading substantially identical with this t (see opinion by Choate t D. J.,May 23, 1879,) is, I think, controlling in this case. It was then held that upon such a bill of lading as this the defendant had an election, upon arrival of the boat, whether it would itself unload the coal or require the master to unload, as it was otherwise his duty to do. On arrival the captain was in this case notified that the defendant would not unload the boat except in its regular turn, and in that case would pay no demurrage, and a berth was offered the captain where he could himself unload if he did not accept that offer. The captain declined this
offer unless he could have such additional facilities for unloading as defendant had at its own dock, or unless defendant would agree to pay the increase of cost over 10 cents per ton. These things the captain had no legal right to ask for. He seems to have supposed that he had a right to be unloaded at 10 cents per ton. The case above cited holds that it was primarily the captain's duty under this bill of lading to unload the cargo; and in offering him a berth, though without special facilities for speedy and economical unloading, the defendant discharged all its legal duty upon the arrival of the boat. This offer of a berth is sworn to by the defendant's witnesses, and the captain of the boat distinctly admits such offer, and his refusal to unload except upon the terms stated. After this refusal the defendant was not required to make any further tender of a berth. The defendant's notice to him was a rejection of its right of election to unload under the bill of lading; and the subsequent delay was by the captain's own choice, and for his own convenience and economy. Rather than incur the increased expense of unloading without machinery or power, the captain chose to await his turn and enjoy the advantages of defendant's specialfacilitiesfor unloading. After the notice given him he had no right to wait and take advantage of defendant's facilities at their expense, nor avail himself of their facilities, except upon the terms expressly stated to him, viz., that no demurrage should be paid. His claim that he would charge for demurrage, which the defendant told him would not be paid, could not impose upon the defendant any liability which they were not already under. The final unloading of the boat by the ·defendant in its turn cannot be construed as done under the election contained in the bill of lading, but as a subsequent favor to the captain independent of the bill of lading, and imposing no liability under it. The libellant should have judgment for the amount tendered, and deposited in court, with costs prior to the tender to the libellant, and with costs since the tender to the respondent. .
B.UNTINGTON V. PALMER.
PALMER and another.
(Circuit Court, D. California. 1881.)
1. EQUlTULJIl llfunt:.
He who comes into equity must do .0 with clean hands.
2. SAME-ApPLICATION of-RAILROAD8-8'rOCKllOLDER8-STATE TAX IN PART
Where a stockholder, on hehalf of himself and all others who should come in and contribute to the expense of the suit, brought a bill in equity against the corporation, and the tax collector of a particular county, to enjoin the collection of a state ll,nd county tax as being illegal and unconstitutional, and, as 'such, utterly void, it was held, that, as the bill did not allege payment of 80 much of the taxes I'S must be conceded ought be assessoo and paid, it was demurrable. An averment in the bill of a readiness to make such payment is not enough.
SAWYER, C. J..rThis is a bill in equity brought by a stockholder of the Central Pacific Railroad Company, on behalf of himself and all other stockholders who shall come in and contribute to tbe expense of the suit against the corporation and the taJ collector of Alameda county, to enjoin the collection of a state and county tax, as being illegal and unconstitutional on various grounds, and as such utterly and in toto void. The defendant Palmer demurs to the hill for want of equity. The bill contains. the usual allegations of sucr bills brought by stockholders, but it fails to allege the payment· bi even the tender of any part of the tax, and for the want of this allegation alone, without reference to any other point involved, the said defendant insists that the bill is without equity and must be dismissed. He relies upon the State Railroad Tax Gases, 92 U. S. 575, and subsequent decisions, to sustain the position. There were three of the state railroad tax cases, neither of them brought by the corporation itself. In the first, the trustees and mortgagees holding the road for the security of the bondholders were complainants; in the last two, the complainants were stockholders, precisely as in this case. So far, then, as the parties are concerned, the last two cases, at least, were like this, and governed by the same principles. There was a willingness to pay so much of the taxes as might have been legally assessed alleged in the bills. It was also alleged that the assessments were wholly void. Page 589. It is true, the court in cases held that the objections made to the tax were not well founded; but another point, as to want of an allegation of payment, was fairly presented by the bill, and as distinctly'decided. It having been fairly presented by the record, argued; considered, and decided, it cannot, as is claimed by complainant, be considered a mere dictum, v.8/no.7-29