Vega Steamship Company v. Consolidated Elevator Company
| Decision Date | 20 January 1899 |
| Docket Number | 11,389 - (222) |
| Parties | VEGA STEAMSHIP COMPANY v. CONSOLIDATED ELEVATOR COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $869.64, the value of 1,062 bushels of wheat. The cause was tried before Moer, J., who directed the jury to return a verdict for defendant. From an order denying a motion for a new trial, plaintiff appealed. Reversed.
Bill of Lading -- Deficiency in Cargo of Wheat -- Subrogation.
The bill of lading for a cargo of wheat provided that any deficiency in the amount of the cargo (delivered by third party from its elevator) should be paid for by the carrier and any excess in the amount should be paid for by the shipper to the carrier. Held, when the carrier paid the shipper for such a deficiency, the former was subrogated to any rights which the latter had to recover for such deficiency from the keeper of the elevator.
Weighing Grain -- Certificate of Weight under G.S. 1894, § 7675.
Held the legislature, by G.S. 1894, § 7675, intended to make conclusive the action of the state weighmaster in weighing wheat at terminal elevators in certain cities, notwithstanding the provisions of section 7706.
Weighing Grain -- Weights not Conclusive -- Constitution.
But held, it is not constitutional for the legislature to make such weighing conclusive, but the same can be impeached only when the party complaining was himself free from fault or negligence, and when it is demonstrated by clear, strong and satisfactory evidence that there was, in fact, a substantial mistake in the weighing.
Searle & Spencer, for appellant.
A mutual mistake is a mistake reciprocal and common to both parties, where each alike labored under the same misconception of facts. Botsford v. McLean, 45 Barb. 478. Where parties contract under the impression that a certain state of facts exists, equity has power to relieve them from the effects of such a contract. Shafer v. Davis, 13 Ill. 395; Mays v. Dwight, 82 Pa. St. 462; Fleetwood v. Brown, 109 Ind. 567. Equity will grant relief on the ground of mistake, not only when it is expressly proved, but also when it may be inferred from the nature of the transaction. Geib v. Reynolds, 35 Minn. 331; City of Duluth v. McDonnell, 61 Minn. 288; Cobb v. Cole, 51 Minn. 48; Lane v. Holmes, 55 Minn. 379. If a mistake did occur as plaintiff contends, then defendant has 1,062 bushels of wheat that do not belong to it, and its refusal to deliver or make good after demand, constitutes a conversion for which this action will lie. G.S. 1894, § 7648; 2 Addison, Torts, 461; Adams v. Castle, 64 Minn. 505. The defendant was a bailee. G.S. 1894, § 7645; Weiland v. Krejnick, 63 Minn. 314; St. Paul & S.C.R. Co. v. Gardner, 19 Minn. 99 (132).
The plaintiff, having become surety for the shippers and made good the loss, became subrogated to the rights of the shippers in respect to the shortage, and is entitled to demand and recover from the defendant the balance of the grain or its value. Sawyer v. Cleveland Iron Min. Co., 69 F. 211; 1 Brandt, Sur. § 260; Swarthout v. Chicago, 49 Wis. 625; Heisler v. C. Aultman & Co., 56 Minn. 454. The right of subrogation is a creature of equity. Felton v. Bissel, 25 Minn. 15; Emmert v. Thompson, 49 Minn. 386; Travers v. Dorr, 60 Minn. 173; Memphis & Little Rock R. v. Dow, 120 U.S. 287. No formal assignment to plaintiff was necessary. The payment operated as an equitable assignment. Connecticut v. Erie, 73 N.Y. 399; Swarthout v. Chicago, supra; McArthur v. Martin, 23 Minn. 74; Emmert v. Thompson, supra.
If G.S. 1894, § 7675, is in force to the exclusion of sections 7705, 7706, and makes the action and certificates of the weighmaster conclusive, then the act is unconstitutional. See Cooley, Const. Lim. (6th Ed.) 452; Groesbeck v. Seeley, 13 Mich. 329; White v. Flynn, 23 Ind. 46; Abbott v. Lindenbower, 42 Mo. 162; McCready v. Sexton, 29 Iowa 356; Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U.S. 418.
Davis, Kellogg & Severance, for respondent.
Every person having grain weighed at terminal elevators of this state makes the law of this state a part of his contract. The right of parties so to contract as to make a certain person the sole and exclusive judge of any matter which may be submitted to him as to amounts or weights is well settled. Shaw v. First Baptist Church, 44 Minn. 22; Langdon v. Northfield, 42 Minn. 464; St. Paul & N.P. Ry. Co. v. Bradbury, 42 Minn. 222; Leighton v. Grant, 20 Minn. 298 (345).
Plaintiff is a common carrier of freight on the Great Lakes, between Duluth and Buffalo. Defendant owns and operates a public elevator at the dock in Duluth, in which the wheat of different parties is stored, commingled in a common mass.
On October 20, 1896, Spencer, Moore & Co. proceeded to ship from Duluth to Buffalo, on plaintiff's steamship, the Vega, 97,587 bushels of wheat. This wheat was stored in said elevator, and, while being delivered from the elevator to the ship, was weighed out by the assistant state weighmaster, under the laws of Minnesota. The cargo of wheat was delivered at Buffalo, but it is claimed that it fell short in weight, and that, by reason of mutual mistake in weighing the wheat at Duluth, 1,062 bushels less than the required amount were delivered on board the ship. The bills of lading delivered by plaintiff to Spencer, Moore & Co. contain the following provisions:
"All the deficiency in cargo to be paid by the carrier, and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee."
When the wheat was delivered at Buffalo to Spencer, Moore & Co., the consignees, they deducted from the freight the sum of $869.64, the market value of the 1,062 bushels; and plaintiff brought this action to recover this amount from defendant.
On the trial the court ordered a verdict for defendant, and, from an order denying a new trial, plaintiff appeals.
1. We are of the opinion that, by reason of said clause in the bill of lading, plaintiff was an insurer that the amount of wheat called for had been delivered to it, and would be redelivered at the end of the route; and, when plaintiff paid the consignee for the deficiency, any cause of action held by the consignee therefor against defendant passed, by subrogation, to plaintiff.
2. Defendant claimed it had delivered the amount called for by the bills of lading. Elevator receipts for that amount were surrendered at the time.
On the trial, plaintiff offered to prove that there were in fact delivered from the elevator to the ship, at Duluth, 1,062 bushels less wheat than the bills of lading called for. Defendant objected to the offer, and the court sustained the objection. This is assigned as error. G.S. 1894, § 7675, provides:
"Said state weighmaster and assistants shall, at the places of St. Paul, Minneapolis, Duluth and St. Cloud, supervise and have exclusive control of the weighing of grain and other property which may be subject to inspection, except when otherwise ordered or directed by the party shipping the same, and the inspection of scales; and the action and certificates of such weighmaster and his assistants in the discharge of their aforesaid duties shall be conclusive upon all parties, either in interest or otherwise, as to the matters contained in said certificates."
It seems that the trial court held that, under this section, the result arrived at by the state weighmaster in weighing this wheat at Duluth is conclusive, and cannot be questioned in this action. In answer to this, appellant cites section 7706, which is a part of the same act, and reads as follows:
These two sections are in pari materia, and must be construed together. They are in some respects in direct conflict with each other, but that conflict must be reconciled if it is reasonably possible to do so.
Section 7675 does not attempt to make anything conclusive but the weight ascertained and the certificate of that fact, and does not provide for certifying to other facts. Section 7706 provides for certifying to a number of other facts, such as the number of cars, the initials of the car or cars, the contents of the car or cars, and the place where weighed. When these additional facts are certified to, the certificate itself is only prima facie evidence of any fact...
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