Pacific Coast S.S. Co. v. Ferguson
| Decision Date | 06 October 1896 |
| Docket Number | 281. |
| Citation | 76 F. 993 |
| Parties | PACIFIC COAST S.S. CO. v. FERGUSON et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George W. Towle, Jr., for appellant.
E. B. & George H. Mastick, for appellees.
Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
The Pacific Coast Steamship Company, a corporation, filed its libel in personam against Moore, Ferguson & Co., the appellees herein, to recover the sum of $251.15, the balance alleged to be due on a maritime contract for the transportation of 2,448 sacks of barley from Moss Landing to San Diego, at the agreed rate of $4.35 per ton, upon which it was alleged that $339.38 only had been paid. The answer denied that the agreed rate was $4.35 per ton, but alleged that the same was $3.35 per ton, and pleaded the payment of $339.38, and a tender of the remainder of the contract price. Upon the trial it appeared that the libelant was engaged in the business of carrying freight and passengers by water between San Francisco and San Diego and other ports on the coast of California, and that it had a traffic contract with the Pajarro Valley Railroad Company, which was engaged in carrying freight by railroad from a point in the interior to Moss Landing, where the libelant kept and maintained a warehouse. Moore, Ferguson & Co., the appellees, were commission merchants in San Francisco. They had ascertained that the barley in question was in the warehouse at Moss Landing, where it could be purchased from Waterman & Co., the owners, and they desired to purchase it for the purpose of filling an order from the Howard Commercial Company of San Diego. They inquired of the steamship company concerning the freight rate that would be charged for transportation of the grain from Moss Landing to San Diego. They were informed that the rate would be $3.10 a ton. They then notified the steamship company that they had purchased the grain as it lay in the warehouse, and wished the company to transport the same to the Howard Commercial Company at San Diego, and to charge and collect from the consignee the sum of $2.50 per ton, which was the rate the consignee had been accustomed to pay on similar shipments from San Francisco, and that they (Moore, Ferguson & Co.) would pay the difference between that amount and $3.10, the agreed freight rate. During these negotiations between Moore, Ferguson & Co. and the steamship company, there was talk about possible back charges upon the grain at the warehouse. The appellant contends, and its officers testified on the trial, that the contract was that Moore, Ferguson & Co. were to pay the warehouse charges which were 25 cents a ton, and the railroad charges for transportation of the grain to Moss Landing, which were subsequently ascertained to be $1 per ton, as it was found that the grain had been carried by rail from Blanco. The appellees admitted that they undertook to pay the warehouse charges, as the same were stated, in the bill of lading which they obtained from the owners, at 25 cents a ton, but they denied that there was any conversation concerning the railroad charges. The matter in dispute between the parties therefore, is whether or not Moore, Ferguson & Co. were liable for the railroad back charges of $1 per ton upon the grain as it lay in the warehouse. The district court held that it had no jurisdiction to entertain the controversy, for the reason that it appeared that the contract, if made, was not a maritime contract, and was therefore not within the jurisdiction of the admiralty. 70 F. 870. On the appeal to this court the principal question for our determination is that of the jurisdiction.
It is contended upon the part of the appellant that the contract was entire and not separable; that the steamship company was to perform but one act, which was the act of transportation of freight from one port to another; and that, inasmuch as the promises of the consignors were all based upon a single consideration, it is immaterial in what manner or upon what accounts the money thus paid was to be applied. The whole question, as it appears to us, is determined by the answer that shall be given to the inquiry, what was the consideration of the consignors' promise, if there was a promise, to pay the railroad back charges? It must be apparent that the promise was not a part of the contract of transportation. The steamship company was in two lines of business. It...
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