Mitsubishi Shoji Kaisha v. Davis, 272.

• Decision Date: 07 May 1923
• Docket Number: 272.
• Citation: 291 F. 57
• Parties: MITSUBISHI SHOJI KAISHA, Ltd., v. DAVIS, Director General of Railroads. [1]
• Court: U.S. Court of Appeals — Second Circuit

291 F. 57

MITSUBISHI SHOJI KAISHA, Ltd., v. DAVIS, Director General of Railroads. ^[1]

No. 272.

United States Court of Appeals, Second Circuit.

May 7, 1923

Murray Corrington, of New York City, for plaintiff in error.

Stetson Jennings & Russell, of New York City (William C. Cannon Theodore Kiendl, and George M. Skinner, all of New York City of counsel), for defendant in error.

Writ of error to a judgment of the District Court for the Southern District of New York in favor of plaintiff for $3,937.86. The cause was tried before the court without a jury, and a motion was made for judgment on the pleadings, with a stipulation admitting the answer. The facts, as admitted, follow:

'(7) That shortly prior to the delivery of said steel bars to said Canadian Pacific Railway Company for carriage to Japan, plaintiff contracted to sell the same to a responsible customer or purchaser at Yokohama for $4,266, including prepaid inland and ocean freight to Yokohama, which was the fair market value of said bars at Yokohama at that time, and which sum of $4,266 plaintiff would have received for said bars on or about December 15, 1918, the date when said bars would have reached Yokohama in due course of shipment, but for their conversion by said defendant.

'(8) That prior to the issuance of said through bill of lading by the Canadian Pacific Railway Company to the plaintiff said railway company was advised and urged by the plaintiff that it should provide necessary facilities and move said steel bars forward promptly, so that they could be landed in Yokohama at the earliest practicable time, in order to satisfy plaintiff's Japanese customers for or purchasers of said steel bars.'

Plaintiff is a Japanese corporation, and Northern Pacific Railway Company is a Wisconsin corporation. Davis, Director General of Railroads, as Agent operating Northern Pacific, became defendant under section 206 of the Transportation Act of 1920 (41 Stat. 456). In September 1918, plaintiff by agreement in New York City with Canadian Pacific Railway Company shipped certain steel bars under a through order-- notify bill of lading issued to plaintiff by Canadian Pacific at New York on September 30, 1918, from Sault Ste. Marie, Canada, via Seattle, to Yokohama. Before the steel bars reached Seattle, Canadian Pacific duly delivered them to defendant, who was then operating Northern Pacific. Defendant was acting as intermediate and connecting carrier, and transported the steel bars to Seattle under the through bill of lading, supra. On or about November 27, 1918, defendant at Seattle delivered the steel bars contrary to the terms of the bill of lading to the wrong steamship, and to parties not the consignees, nor their indorsees or assignees, and defendant thereby converted the steel bars. Plaintiff paid Canadian Pacific a total of $1,641.40, a proper share of which defendant received for its services as an intermediate and connecting carrier.

It is then alleged in the complaint:

Defendant's answer admitted the allegations of the complaint, and set up three partial defenses, based on three theories; i.e., that plaintiff's recovery should be limited (1) to invoice value of the shipment at time and place of shipment; (2) the market value at time and place of conversion-- i.e., Seattle; or (3) the market value at the time and place the shipment should have been delivered at destination, or, in other words, on December 15, 1922, at Yokohama. The amount, in each case, was the same-- that is, $3,153.61-- and as the facts alleged in the answer were admitted by virtue of the stipulation, there is no dispute as to figures.

The judgment entered by the District Court was the sum of this $3,153.61, plus interest from December 15, 1922, and costs. Defendant did not take a writ of error in respect of the allowance of interest.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MAYER Circuit Judge (after stating the facts as above).

It is unimportant in this case whether the place of conversion be regarded as Seattle or Yokohama. The value of the converted goods was the same at both places. Plaintiff insists that it was entitled to recover $4,266, the resale price at Yokohama, and there is controversy as to the meaning of paragraphs 7 and 8, quoted supra.

We think that there is no difficulty in construing these paragraphs. There is not the slightest suggestion that the Canadian Pacific was notified nor had any knowledge of the existence of a contract of sale for $4,266 between plaintiff and a customer in Japan. All the notice or information conveyed by plaintiff to...