Sawyer v. Cleveland Iron Mining Co.

• Decision Date: 28 May 1895
• Citation: Sawyer v. Cleveland Iron Mining Co., 69 F. 211 (2nd Cir. 1895)
• Parties: SAWYER v. CLEVELAND IRON MIN. CO.
• Court: U.S. Court of Appeals — Second Circuit

69 F. 211

SAWYER v. CLEVELAND IRON MIN. CO.

United States Court of Appeals, Second Circuit.

May 28, 1895

Benj.H. Williams, for plaintiff in error.

Franklin D. Locke, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

The firm of A. J. Sawyer & Co., of Duluth, Minn., in April, 1890 were the owners of a large quantity of wheat lying in the Great Northern elevator at West Superior, a port close to Duluth.On the 28th of that month, the propeller Frontenac belonging to the defendant, was chartered by said firm to transport a cargo of wheat from Duluth to Buffalo, N.Y., at a freight of 3 1/4 cents per bushel of 60 pounds.On the same date, agreeably to instructions, the Frontenac presented herself at the elevator to receive her cargo.The grain was weighed, as it was loaded, under the superintendence of a weighmaster for the elevator, of the assistant state weighmaster of the state of Minnesota, and of a tally keeper on behalf of the vessel.According to their account, 81,000 bushels were weighed into the vessel, and, believing such count to be correct, A. J Sawyer & Co., surrendered to the elevator certificates for that quantity of wheat; and the defendant, by its agents, signed three bills of lading, for 40,000, 40,000, and 1,000 bushels, respectively.The bill for 1,000 bushels was to 'order A. J. Sawyer & Co., care F. J. Sawyer, Buffalo. ' The other two were to like order, with an addition, in one case, 'Notify H. O. Armour & Co., New York,' and, in the other, 'Notify Wm. H. Wallace & Co., New York. ' Upon arrival at Buffalo the cargo of the Frontenac was delivered into Elevator Niagara A, and was found to contain only 79,498 bushels.The referee finds as a fact, and upon sufficient evidence, that the difference-- 1,502 bushels-- was not in fact put on board at West Superior, the weighers there having made a mistake in tallying 81,000 bushels, when there was in fact only 79,498 on board.On a delivery of the cargo to the elevator at Buffalo, the captain of the Frontenac took out warehouse receipts for the 79,498 bushels, and delivered to F. J. Swayer receipts for 77,773 bushels.The balance-- 1,725 bushels-- was retained and sold to pay an unpaid balance due on account of the freight.The amount so sold overpaid such freight, and was for the surplus that the circuit court gave plaintiff judgment for $67.03.As no argument has been made upon any assignment of error touching this part of the case, it need not be considered.The only question is as to plaintiff's right to recover for the shortage of 1,502 bushels.On lot, of 40,000 bushels, was to be reshipped at Buffalo by F. J. Sawyer to H. O. Armour & Co., at New York, and was eventually delivered to them.The other lot, of 40,000 bushels, was to be reshipped by F. J. Sawyer to William H. Wallace & Co. at New York, but only 32,000 were delivered to that firm; the matter being adjusted through the medium of a sale by that firm of 8,000 bushels to F. J. Sawyer, acting for and on behalf of A. J. Sawyer & Co.The lot of 1,000 bushels was shipped by A. J. Sawyer & Co. to the plaintiff on consignment to sell the same on their account.Before commencement of the action, plaintiff secured assignments from all three firms, but we concur in the conclusion of the referee that plaintiff thereby acquired no better right to recovery than A. J. Sawyer & Co. had when the shortage was discovered.The wheat was at that time still theirs, and neither of the New York firms had, so far as the evidence shows, advanced anything on the faith of the bills of lading.

The following is the form of bill of lading issued by defendant, the names of consignees and the quantities being as stated above.

'Duluth, Minn., April 28, 1890.

'Shipped in good order and condition by A. J. Sawyer & Co., as agents and forwarders for account and at the risk of whom it may concern, on board the propeller Frontenac, whereof -- is master, now in the part of West Superior, Wisconsin, and bound for Buffalo, New York, the following property, as here described, to be delivered in like good order and condition as consigned in the margin (the dangers of navigation only excepted), subject to freight and charges as below.All the deficiency in cargo to be paid by the carrier (except when grain is heated, or heats in transit), and deducted from the freight, and any excess in cargo to be paid for to the carrier by the consignee.In witness whereof, the master, owner, or agent of the said propeller Frontenac hath affirmed to one bill of lading and copies thereof, the original bill of lading being alone negotiable, and the said copies being marked on their face as follows: 'Copy not negotiable.'(Then follow the name of consignee, the statement of the number of bushels, and of the rate of freight, and the signature of defendant's agent.)'

Variances between the amount stated in the bill of lading and the amount actually delivered are not uncommon when the cargo is grain in bulk.The evidence shows that in the 32 instances testified to the shortages ranged from one bushel to 255 bushels, and in still another case the shortage was 827 bushels.In 11 other cases the excess ranged from 2 to 82 bushels.

The only clause in this document which is to be construed is the following:

'All the deficiency in cargo to be paid by the carrier (except when grain is heated, or heats in transit), and deducted from the freight, and any excess in cargo to be paid for to the carrier by the consignee.'

Does this mean that deficiency in cargo, however caused, shall be paid by the carrier?Or that such deficiency, be it small or great, shall not be paid by the carrier when it arises from the circumstance that, by mistake in weighing when put on board, the total quantity is stated in the bills of lading as greater than the total quantity actually laden?An ordinary bill of lading is not conclusive between the parties as to quantity shipped.It is open to explanation, like any other receipt.A carrier may, however, agree that he will be bound by the quantity specified, or that the bill of lading shall furnish the only evidence of the quantity.The bill of lading in this case is not in the ordinary form.Probably because of the usual and ordinary variations in quantity, which experience has shown are most frequently to be expected with cargoes of this character between these ports, a clause is added which plainly provides for an adjustment of such deficiency or excess without going back of the face of the bill.Save for the excepted case of grain which is heated or heats in transit, there is nothing in the language used which limits the deficiency or excess so to be adjusted, by the specification of any particular cause.Whether some of it be lost in transit, or whether a change of atmospheric condition increases or diminishes the size of the individual grains, or whether the shape of the...