6 F.2d 947 (8th Cir. 1925), 6831, Chicago & N.W. Ry. Co. v. Bewsher

Docket Nº:6831.
Citation:6 F.2d 947
Party Name:CHICAGO & N.W. RY. CO. v. BEWSHER.
Case Date:July 28, 1925
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 947

6 F.2d 947 (8th Cir. 1925)

CHICAGO & N.W. RY. CO.

v.

BEWSHER.

No. 6831.

United States Court of Appeals, Eighth Circuit.

July 28, 1925

Wymer Dressler, Robert D. Neely, and Paul S. Topping, all of Omaha, Neb., for plaintiff in error.

R. B. Schuyler, of Omaha, Neb., for defendant in error.

Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge.

SCOTT, District Judge.

This is an action by Augustus H. Bewsher, doing business as the Bewsher Company, a grain dealer at Omaha, Neb., against the Chicago & Northwestern Railway Company, to recover $650.75

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damages alleged to be due on account of the issuance of an order bill of lading to one Albert Swick at Buffalo Gap, S.D., for 66,000 pounds of bulk wheat. Plaintiff in his petition alleges in substance that on or about the 27th day of December, 1920, Albert Swick loaded at Oral, S.D., defendant's car No. 118,720, with wheat; that said wheat was consigned to the plaintiff at Omaha, Neb., and the duly authorized agent of defendant at Buffalo Gap, S.D., issued a bill of lading covering said wheat, a copy of which bill of lading is exhibited on plaintiff's petition; that said bill of lading with draft attached was forwarded from the Oral State Bank, of Oral, S.D., to the Merchants' National Bank, of Omaha, Neb.; that said draft was drawn on the plaintiff for the amount of $1,900, which draft was honored and paid by the plaintiff on January 3, 1921; that at the time plaintiff honored said draft he was the holder in good faith of said order bill of lading and paid $1,900 to Merchants' National Bank, agent of Albert Swick, the shipper, relying upon the description set forth in said bill of lading, and at the time actually believed that there was 6,000 pounds of wheat shipped in said car; that as a matter of fact said car never contained 66,000 pounds of wheat; but only contained 45,590 pounds; that defendant company negligently failed to weight the wheat at the time of shipment, and failed to notify plaintiff of the fact that said wheat was not weighed.

Plaintiff further pleads that on or about the 3d day of February, 1921, having prior thereto taken an assignment of the claim of said Albert Swick, he filed a claim for the account of plaintiff with defendant, together with proof of loss thereon, said claim being covered by defendant's claim No. 201,977-- Desk 1; that said claim was filed with defendant in less than 90 days from the date of delivery of said wheat at destination; that on or about the 14th day of May, 1921, defendant refused to pay said claim, but did offer to compromise the same for the amount of $54.55. The bill of lading exhibited on plaintiff's petition recites the receipt at Buffalo Gap, S.D., from Albert Swick, C & N.W. car No. 118,720, and under the description of articles, recites: 'Bulk Wheat, 60 M car Ordered 80 M car furnished Co C &NW Weight (subject to correction) 66,000 Loaded at Oral SD.'

Defendant, answering, admits that on the date alleged Albert Swick loaded the car in question with bulk wheat at Oral, S.D., and consigned same to himself at Omaha, Neb., notifying the plaintiff company; admits that the bill of lading was issued as alleged; and concludes by denying all other allegations of plaintiff's petition. Defendant, further answering, pleads four separate defensive paragraphs, the order of which we transpose somewhat, to meet what we deem to be the logical order of their consideration. These defenses are:

(1) That section 2 of said bill of lading provides that no suit shall be maintained thereon unless commenced within two years and one day from the delivery of the goods therein, and defendant alleges that this suit was not commenced within said time, and is therefore barred by the terms of said bill of lading.

(2) That plaintiff made claim against defendant on the 4th day of February, 1921, for $577.76 for alleged loss of grain from said car during transportation, and among papers presented to the defendant in support of said claim was a copy of an assignment made by Albert Swick to plaintiff; and on March 8, 1921, defendant wrote a letter to plaintiff, declining to recognize said claim, and defendant alleges that this suit was not commenced within two years from March 8, 1921, and is therefore barred by operation of law.

(3) That plaintiff is estopped to maintain this suit for the reason that, after plaintiff had made said claim upon defendant and said claim was declined by defendant, plaintiff delivered to Albert Swick all supporting papers, including the assignment which plaintiff had presented to defendant in support of said claim, and thereafter the said Albert Swick again presented to the defendant said claim for alleged loss of grain in transit from said shipment, and Albert Swick and defendant entered into a compromise and settlement of said claim for the sum of $54.05, and the defendant on June 2, 1921, paid to Albert Swick the sum of $54.05 in full settlement of all claims on account of said shipment; that by reason of said conduct plaintiff is now estopped to claim that he had any interest in said shipment or in said claim, other than as the representative of Albert Swick, and defendant alleges that said claim has been fully compromised and settled.

(4) That the wheat mentioned in plaintiff's petition was loaded by the shipper on facilities furnished by the shipper, and was not loaded by the defendant, and same was received under the terms of said bill of lading,

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which provided that the weight of said shipment was subject to correction.

The case was tried upon the issues as stated. The facts were largely stipulated, and from such stipulation and the testimony of plaintiff Bewsher, the following facts appear without controversy:

That about the date alleged Albert Swick loaded the car of bulk wheat at Oral, S.D., That as of the same date defendant's agent at Buffalo Gap issued the bill of lading in question with the recitals as stated in plaintiff's petition. That the car was weighed on track scales at Chadron, and the weight of the grain, using the gross weight and then subtracting the stenciled weight on the car, resulted in a net weight of 48,300 pounds, and that the weight ascertained at Omaha, when the grain was unloaded and weighed by the grain exchange weighmaster, was 45,590 pounds. That there was no actual loss of grain from the car, and the car was in good condition, and the difference between the indicated weight on the bill of lading and the unloading weights was never actually put into the car. That on February 4, 1921, plaintiff presented a claim to defendant, having first taken an assignment from Albert Swick, for the sum of $577.76 for shortage in the shipment, supporting his claim by a copy of the bill of lading, weights, and the assignment of the claim from Swick. That on March 8, 1921, H. C. Howe, freight claim agent, claim department of defendant, wrote the Bewsher Company the following letter:

'Referring to your claim No. 746, our number as above, for $577.76, alleged loss of wheat shipped from Buffalo Gap, S.D., to Omaha, Neb., amount of wheat claimed to have been lost 20,780 pounds; From the investigation I have made of this matter, I find that this car was weighed at Chadron, a short distance from Buffalo Gap, with a net weight of 48,300 pounds. Deducting 800 pounds for the grain doors would leave a net weight of 47,500 pounds, and as your weight at Omaha was 45,590, it is quite clear to me that there was no loss beyond the 1,910...

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