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it was averred in the petition that the dam- can be identified,” it was observed (p. 321, age complained of had been inflicted by the L. ed. p. 731, Sup. Ct. Rep. p. 384): Comanche and Kiowa tribes of Indians, who “But the 5th section provides for judgment were in amity with the United States. Aft- in favor of claimant, and against the Uniter hearing, the court of claims, finding it ed States, in any event where the property to be established by the proof that the loss of a citizen has been destroyed under the complained of had been occasioned by In- circumstances provided in the statute, but dians in amity with the United States, but only against the tribe of Indians committhat the proof did not show that the Com- ting the wrong 'when such can be identianche and Kiowa tribes were the wrongdo-fied;' and of course it follows that, if they ers, nevertheless, without any amendment cannot be identified, no judgment can go of the petition, rendered a judgment solely against them. The United States would against the United States. The action of then be left as alone responsible for the the court of claims was sustained by this property destroyed, provided the proofs were court in United States v. Gorham, 165 U. S. of the character mentioned in the 1st sec316, 41 L. ed. 729, 17 Sup. Ct. Rep. 382. tion of the act; that is, the claimant would

In considering the power conferred by the be bound to prove that he was a citizen of statute it was said (p. 320, L. ed. p. 731, the United States at the time of the taking Sup. Ct. Rep. p. 384):

or destruction of his property; that it had “In conferring jurisdiction in this class been taken by Indians belonging to some of cases upon the court of claims, it will be band or tribe or nation in amity with the seen that Congress conferred it in regard to United States, without just cause or provall claims for property of citizens of the ocation on the part of the owner or agent United States, taken or destroyed by In- in charge; and that it had not been returned dians belonging to any band, tribe, or na- or paid for." tion in amity with the United States, with- To my mind this decision clearly estabout just cause or provocation on the part lishes that, under the act of Congress, the of the owner or agent in charge. So long Indian tribe by whom the depredation was as the depredations were committed upon committed was not an essential party to give the property of citizens of the United States, the court jurisdiction over the claim. This and by Indians in amity with the govern conclusion, it seems to me, is inevitable from ment, without just cause, etc., jurisdiction the ruling that, although it was alleged in and authority to inquire into and finally the petition that a particular tribe was the adjudicate upon such claims was granted to wrongdoer, it was competent for the court to the court. This broad ground of jurisdic- conform to the proof, and render a judg. tion would, unless circumscribed by the sub-ment against the United States, in a case sequent provision of the act, permit an ad where the proof did not establish the truth judication against the United States alone. of the averment as to the tribe committing There is nothing in any other portion of the the injury, if only it was shown that the act which provides, in terms, for joining, as wrong complained of must have been comcodefendants with the United States, the mitted by some Indian tribe which was in tribes or bands of Indians by whom the al- amity with the United States. Now, the leged illegal acts were committed. The 3d question on this record is simply whether section of the act merely provides for the a petitioner who has alleged that the wrong contents of the petition; and by such sec

was committed by a particular tribe can, tion it is made the duty of the petitioner to after the three years' limitation, amend bý state in his petition 'the persons, classes of stating another and different tribe as the persons, tribe or tribes or band of Indians wrongdoer. It is decided that such amend

ment cannot be allowed, because to allow by whom the alleged illegal acts were com- it would amount to a fatal departure; that mitted, as near as may be, etc. This is is, the substitution of a new and wholly for the obvious purpose of giving some no different cause of action. tice to the government of the alleged facts

Consistently with the ruling previously upon which the claim is based, so that the made, my mind cannot assent to this conproper defense, if any exist, may be made clusion. To adopt it without specifically to the claim.”

overruling the Gorham Case, it seems to me, Again, after pointing out that the stat- is to declare, on the one hand, that it is ute made it "the duty of the court to deter- not essential to prove the allegation that mine in each case, if possible, the tribe of the wrong was committed by a particular Indians or other persons by whom the wrong tribe, and, on the other hand, to say that was committed, and to render judgment in the allegation as to the tribe committing favor of the claimant or claimants against the wrong was essential to the cause of acthe United States, and against the tribe oftion. That is to declare that a particular Indians committing the wrong when such'allegation is, at the same time, both essential and nonessential,-essential to be alleged, ers of the Northern Pacific Railroad Company, but not essential to be proved.

who were ordered to continue its business, has As it is considered by me that the Gor

the general powers of such an officer when act. ham Case is conclusive of this, and as the

ing for the railroad company itself, which in.

cludes the authority to make a special agreeopinion now announced does not purport to ment to forward a through shipment by the overrule that case, it is not necessary for me steamer of a connecting carrier sailing on a to enter into a statement of my reasons for

designated day. believing that, even if that case did not ex- 5. A special agreement in behalf of railway ist, the construction now given to the stat

receivers to forward a through shipment by ute is not only repugnant to its text, but

the steamer of a connecting carrier sailing on

a designated day is not modified by the mere conflicts both with the rights of individual

receipt, without objection, and the subsequent claimants and those of the United States,

hypothecation, of the bill of lading containas shown by the purpose and spirit of the ing, as a part of numerous conditions printed act.

in small type, the statements that the carrier I therefore dissent.

is not to be liable for any loss not occurring on its own road, and that the contract as executed is accomplished, and all liability there

under terminates, upon the delivery of the (195 U. S. 439)

property to the vessel, where the bill was not NORTHERN PACIFIC RAILWAY COM

examined or read, and was accepted after the PANY, Appt.,

goods had passed from the control of the

shipper, by a clerk who had no knowledge V.

of these conditions, and no authority to conAMERICAN TRADING COMPANY. sent to a modification of the contract already

made. Carriers-contract to forward by designated 6. Nonperformance of a special agreement of a

vessel of connecting carrier power of carrier to forward a through shipment by the railway receivers authority of general

steamer of a connecting carrier sailing on a

designated day is not excused by the refusal agent - excuse for nonperformance.

of the deputy collector of the port to grant

a clearance while the freight was on board 1. A special agreement by a carrier to trans

because it was contraband of war, where the port a through shipment by the vessel of a

contract was not unlawful when made, and connecting carrier sailing on a designated

was not rendered unlawful by any subsequent date results from the acceptance of a through

legislation, and was made with knowledge rate for a shipment “to be forwarded” via

that difficulties might arise in the course of such steamer, which rate was quoted with transportation because of the character of notice that it was of vital importance that

the freight. the shipment should be transported promptly, and should go forward by the earliest possible

7. The mistaken refusal of the deputy collector steamer without delay, in order to enable the

of a port to grant a clearance while certain shipper to fulfil a proposed agreement which

freight was on board because it was contraIt was about to make for the sale of the goods

band of war does not constitute a "restraint at the final destination, and which would re

of princes, rulers, or people," within the quire delivery there at a fixed date.

meaning of a clause in the bill of lading, so

as to excuse nonperformance of the agree2. The general agent of the receivers of a rail

ment to forward the shipment by that vessel. way company is acting as agent for such receivers, and not as the agent of a connecting steamship company, in agreeing to forward a

[No. 24.] through shipment by a steamer sailing on a specified day, where his only authority as Argued October 26, 27, 1904. Decided Deagent of the steamship company was created

cember 5, 1904. by a contract between the railway and steamship companies, under which the railway company was to appoint agents, who should PPEAL from the United States Circuit act for the steamship company to quote


Court of Appeals for the Second Cirthrough rates and issue through bills of 'lad

cuit to review a decree which reversed a ing, and the application for a rate for such shipment was made to him as agent for the decree of the United States Circuit Court receivers, and the rate was quoted by him as for the Southern District of New York dissuch agent, and as such he signed a letter missing a petition in intervention in a suit confirming the rate, and so described himself to foreclose a railway mortgage, which seeks when informing the steamship company's agents at the connecting point that he had to require the receivers to pay damages for made a contract guaranteeing delivery by the their failure to perform a special contract designated steamer.

for the transportation of goods. Affirmed. 3. The making of a special agreement to for- See same case below, 57 C. C. A. 533, 120

ward a through shipment by the steamer of Fed. 873.
a connecting carrier sailing on a designated
day is within the authority of the receivers
appointed, in a suit to foreclose a railway

Statement by Mr. Justice Peckham: mortgage, to continue to carry on the railway

The Northern Pacific Railroad Company business.

made a certain mortgage which was foreThe “general eastern agent” of the receiv-' closed, and the Northern Pacific Railway Company purchased the property of the for- | This stipulation is not to be accepted as an mer company under the mortgage at the admission by the railroad company, or the foreclosure sale, and, by the order of the receivers, or their counsel, that there were court, the purchaser was required to pay any relations between the receivers and the all obligations or liabilities contracted or steamship company other than those growincurred by the court's receivers, who had ing out of the facts herein agreed upon. been appointed in the foreclosure suit. The For convenience in transacting their American Trading Company, the appellee freight business in the eastern part of the herein, intervened in that suit, and, by its United States, the receivers maintained an petition, asked that, by virtue of the decree office in the city of New York, which was, in foreclosure, the purchaser, the Northern in September, 1894, in charge of one George Pacific Railway Company, be required to R. Fitch, who was their general eastern pay damages for the failure of the receivers agent, and made arrangements for the transto perform a special contract for the trans- portation of freight over the receivers' line portation of goods from Newark, New Jer- of railway and connections, including transsey, to Yokohama, in Japan. The case was portation to China and Japan. tried before the United States circuit court, At the time of the transactions referred in New York city, which dismissed the peti- to in this statement of facts, the said Fitch tion. This decision was reversed by the cir- had not received, nor did he receive, any dicuit court of appeals for the second circuit, rect or independent appointment or authorand the railroad company was directed to ity from the Northern Pacific Steamship pay the damages therein stated to the Amer Company, to act as agent of that company. ican Trading Company, the intervening pe His only authority as agent of the steamtitioner. The railroad company has ap- ship company was that created by, or arispealed from such decree or order to this ing from, the contract, exhibit A. Fitch court. The case was tried upon the agreed knew that an arrangement had been concludstatement of facts which follows:

ed by the receivers and the steamship com1. In September, 1894, Thomas F. Oakes, pany, by which contracts for through shipHenry C. Payne, and Henry C. Rouse were ment to Yokohama might be made by the receivers of the Northern Pacific Railroad agents of the receivers, and through bills Company, under an order made in a suit of lading issued, and he had been instructed bearing the same title as the present suit, by the receivers to solicit freight for in the United States circuit court for the through transportation upon bills of lading, eastern district of Wisconsin, to which this of which exhibit C, hereto annexed, is a suit is ancillary. Under that order the re-copy; but Fitch did not know the terms of ceivers were authorized to continue, and the contract between the steamship comwere continuing, to carry on the business of pany and the receivers, and the trading comthe railroad in their charge.

pany did not know what company operated 2. The line of railroad in the possession the steamships between Tacoma and Yokoof the receivers extended from Duluth, hama, or that the steamship company was a Minnesota, to Tacoma, Washington. The re- separate and independent company or that ceivers had contracts with various carriers there was any contract between the receivreaching points on their line, by which ers and the steamship company. through bills of lading were issued from It is further stipulated that Fitch had and to points not upon the line of the re- no express general authority to make con. ceivers’ railroad, where the freight passed tracts for through transportation, except as over some part of that line in transit. provided by the said bills of lading, and no Among the carriers with whom the receivers authority to make the contract in question, had such arrangements was the Northern unless such express authority be found in Pacific Steamship Company. This was an the telegrams, of which copies are hereinEnglish company, operating a line of steam after set forth; that the American Trading ers between Tacoma and points in Japan and Company did not know the terms of his exChina, including Yokohama. The contract press authority, and that this stipulation is between the steamship company and the re- not to be taken as an admission by the railceivers was the contract originally made on road company, or the receivers, or their March 30, 1892, between the Northern Pacounsel, that his implied authority was cific Railroad Company and the Northern greater than his express authority. Pacific Steamship Company, and ratified and 4. The American Trading Company is, and adopted by the receivers, under the author- was in September, 1894, a corporation ority of an order of the circuit court of the ganized under the laws of the state of United States, made on September 13, 1893. Connecticut, having its principal office in

The receivers held no stock in the steam- the city of New York, and carried on a genship company, and had no other express con- eral commercial business with Asiatic ports. tract relation with the steamship company. 5. In September, 1894, the trading company applied to Fitch for a rate upon a the above as early as possible. Thanking proposed shipment of pig lead from New you for the favor, I remain, York to Yokohama, Japan, and informed

Yours truly, him that it was of vital importance that

Geo. R. Fitch, the lead should be transported promptly,

G. E. Agent. and go forward by the earliest possible steamer, without delay, in order to enable

The trading company wrote and sent in the trading company to fulfil a proposed reply (accepting the proposition) the folagreement, which it was about to make for lowing letter: the sale of the lead in Japan, and which

Sept. 20th, 1894. would require its delivery there at a fixed The Northern Pacific R. R. Co., New York date. Fitch thereupon named a rate, and

City. undertook to forward the lead from New Dear Sirs:York on or before September 29th, and

In reply to your esteemed favor, Sept. via the Northern Pacific steamer Tacoma, 19th, we beg to accept the rate quoted to sailing from Tacoma October 30, 1894.

us in your letter of Sept. 19th, namely, on 6. Thereupon the trading company cabled 200 tons of pig lead, N. Y. to Yokomaha, Jato its agents at Yokohama, naming a price, pan, $15,00 per ton of 2,000 lbs., shipment and a date at which the lead could be de not to consist of less than 400,000 lbs., to be livered there; and thereupon its agents in forwarded from N. Y. on or before SeptemYokohama made a contract for the sale of ber 29th, in accordance with shipping inthe lead, which contract provided that it structions to be given by you, and to be forshould be delivered in Yokohama by over

warded from Tacoma, Washington, via land route, and the most direct connection Northern Pacific steamer sailing from that at San Francisco, Tacoma, or Vancouver, port Oct. 30th. Kindly let us know as soon and that, in case of unusual or extraordi- as possible the shipping instructions, so that nary delay in transit, the contract should we can forward them to our supplier, and be null and void. Neither Fitch nor the oblige, with best respects, receivers knew, until September 24th, that

Very truly yours, any contract for the sale of lead in Japan

The American Trading Co. had been concluded by the trading company,

(Signed) Frank P. Ball. and, except as hereinbefore and hereinafter stated, they never received any information

On September 22, 1894, Fitch wrote and in regard to its terms, as made or proposed. sent to the trading company the following Upon the conclusion of its Japanese con

letter, giving shipping instructions: tract, the trading company purchased 200 Northern Pacific Railroad Company. tons of pig lead in bond, from the Balbeck Thomas F. Oakes, Henry C. Payne, Henry Smelting & Refining Company.

C. Rouse, Receivers. 7. On September 19, 1894, Fitch, in con- Geo. R. Fitch, General Eastern Agent, 319 firmation of his previous statement, wrote

Broadway. and sent to the trading company the fol

Traffic Department. lowing letter:

New York City, Sept. 22, 1894.

American Trading Co., No. 182 Front St., Northern Pacific Railroad Company.

City. Thomas F. Oakes, Henry C. Payne, Henry C. Dear Sir:Rouse, Receivers.

I hereby confirm routing given you over Geo. R. Fitch, General Eastern Agent, 319 the telephone yesterday on your shipment Broadway.

of pig lead for export to Yokohama, Japan, Traffic Department. as follows: To, be shipped from Newark, N. New York City, Sept. 19, 1894. J., via Penn. R. R., marked Anchor Line rail American Trading Co. 182 Front St., City. and Lake, care Northern Pacific, care A. O. Gentlemen :

Canfield, agent N. P. R. R., Tacoma, Wash. I hereby confirm rate quoted you this Please advise 'me, as soon as possible, who day, and accepted by you on shipment of the shippers will be, that I may order the pig lead for export to Japan, as follows: cars, and also see that same are rushed

Pig lead, New York to Yokohama, Japan, through without delay to connect with our $15.00 per ton of 2000 lbs., shipment not steamer at Tacoma. to consist of less than 400,000 lbs., and to

Yours truly, be forwarded from New York on or before

Geo. R. Fitch, G. E. Agent. Sept. 29th, in accordance with shipping in

A. H. P. structions given you by me, and to be forwarded from Tacoma, Wash., via Northern 8. Before naming a rate for the transporPacific steamer sailing from thence October tation of the lead, Fitch had expressed some 30th. Kindly forward your acceptance of' doubt as to whether it might not be excluded from transportation as contraband, in view

September 22, 1894. of the war then existing between China and G. R. Fitch, 319 Broadway, New York:Japan. In fact the shipment of pig lead was N. P. Steamship Co. have now declined not prohibited by the Treasury Department to handle lead for Yokohama, Kobe, Hong at Washington during the war between Kong, or Shanghai. Please cancel your quoChina and Japan, and on September 25th, tation. 1894, the trading company made another 0.900.

J. B. Baird. WDB. shipment of pig lead via Pacific Mail steamer sailing from San Francisco, which was, the trading company that he declined to ship

On September 24, 1894, Fitch informed without trouble or delay, transported and the lead upon the ground that it might be delivered in Yokohama.

contraband of war, and thereupon on the 9. In September, 1894, J. B. Baird was the second assistant general freight agent letter stating that they would hold his com

same day, the trading company wrote him a of the receivers and J. M. Hannaford was the general freight agent of the receivers; 1 to fulfil the contract, which letter is as

pany responsible for any loss from failure and telegrams of which the following are

follows: copies, relating to proposed shipments of pig lead, including the shipment in question,

September 24th, 1894. passed between the said Fitch and Baird and Geo. R. Fitch, Esq., General Eastern Agent Hannaford, but were not disclosed to the

N. P. R. R., No. 319 Broadway, City. American Trading Company:

Dear Sir:

Respecting your notice just received by New York, September 14, 1894.

us through your Mr. Post, that your comJ. B. Baird, second A. G. F. A.:

pany now decline to ship for us, via Tacoma, Please wire quick lowest rate one hundred the 200 tons of pig lead specified in your ton lots pig lead from Chicago and Duluth contract with us, under date Sept. 19th, and to Yokohama

confirmed by us under date Sept. 20th, we George R. Fitch. beg to advise that we shall hold your com

pany responsible for any loss or damage we September 14, 1894. may suffer from the nonfulfilment of this Geo. R. Fitch, 319 Broadway, New York, contract with you. N. Y.:

We remain, dear sirs, You may quote as low as sixty cents from

Very truly yours, Duluth and seventy cents from Chicago to

The American Trading Co. Yokohama on pig lead in one hundred ton (Signed) Wm. H., Stevens, Treas. lots. Get more if possible.

Thereupon, telegrams, of which the followJ. B. Baird.

ing are copies, were sent and received as in

dicated, in relation to the shipment in quesNew York, September 17, 1894.

tion, but were not disclosed to the trading J. B. Baird, 2d A. G. F. A.:Your wire fourteenth. Shall I accept fifty

company: cents on pig lead Duluth to Yokohama?

New York, Sept. 24, 1894. Also name lowest rate on two hundred tons J. B. Baird, N. P. R’y, St. Paul, Minn.:St. Louis to Yokohama.

Shipment, lead to Yokohama, is now beGeo. R. Fitch. ing made; shippers refuse to accept with

drawal; we have given shippers written conSeptember 18th, 1894. tract. Geo. R. Fitch, 319 Broadway, New York:

Geo. R. Fitch. Cannot accept less than sixty cents on pig

New York, Sept. 24, 1894. lead Duluth to Yokohama. Will quote from J. M. Hannaford, N. P. R’y, St. Paul, St. Louis later.

Minn.:0.900. J. B. Baird. WDB.

Have notified American Trading Co. that

shipment will be refused. They state they September 19, 1894.

will hold us to contract. They are shipping G. R. Fitch, 319 Broadway, New York:

hundred tons from Denver to Yokohama by You may quote seventy cents on the pig steamer City of Rio from San Francisco, lead in one hundred ton lots St. Louis to Oct. fourth, and expect to forward this Yokohaman Advise if accepted.

shipment same way; will charge us dif0.900. J. B. Baird. WDB. ference in rate. Advise quick.

Geo. R. Fitch, New York, September 22, 1894. J. B. Baird, N. P. R’y, St. Paul, Minn.:

Sept. 25, 1894. Wire best rate two hundred fifty tons G. R. Fitch, 319 Broadway, New York: pig lead Duluth to Shanghai.

Your wire this date to Mr. Hannaford: Geo. R. Fitch. Dodwell, Carlill, & Co. have consented to ac

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