FEDERALREPQBTER".:vol. '62. the defendant the Kentucky company to register the trallsfer' which' Nelson and Williamson are required to ·execute.! i The bill,. as against that company, will be dismissed. As against Nelson. and Williamson, however" the decreewilLbe as already stated, and forcosts. , . I'
i'
WUNSCH,et a1. v. NORTBERN PAC. R. CO. (Circuit Court, N. D; tJaltfornia. May 14;1894.)
No. '10.,985. way company, without knowledge as toitlfcontents; from a traveling salesman . I:ll\v.ng: a tlplfet over 'llDd was checked, as baggage tQ.. hisdestqlation a,nd placed iJ:l a car. The train was derailed, the car took':tli'e, and the trunk and Part of Us 'contents Were destroyed or lost. The salesman delivered the jewelry saved· to the conductor of the train, telling 'the conditotorrwbere he ws'H;QllJ,g.After his II.rrival tb.ere he presented,hts ,cb.eck to the company's anCi.demanded his baggag,e, I19te:x:plainil;l,g, tbat it had beep def>troyed, Ilor asking for the goods, sa'Vel;i;'atidasubsequeJ1t tender by the company of sucb. goods on identifishould be without prejudice cation :\Vas'refused,unless their to a clad\ll, against theeompany for damlliges, .Held ,that, as ,the, original delivery .tiO COInWLtIY was l\. ,upon it, .and tlJ,e t:ru,nk .and its contents. dil;i. J:!.ot bec(jlIie. tMrelit, thel:e was. ho 'converSion of the rescuedl\rtlcles l;iY' tlleii; nond.eU"'erY Qll the demand 'made; the only duty· impoSed on 'thecoIllpany with respect to:thembeingtokeep them safely and (}eijvflt tbem On <ielllllllld and to their· owneI" OF PASSENGER'S EFEECTS .,.,..MEROHANDISE CARltum BY TRAVELING SALESMAN., . ... ' : . ' , A trunk containing a stock of jewelry Wll.S received by an.agent of a rail-
actltlIi;bY M;iWunacb.&Cornpany itgainsfthe Northfor; the,]oss of certain gdods delivered todefen4ltnqor traIlsp6rtation. . . . . . E. . Joseph D. ReddiIlg and Horace for defendilnt. I .. I.
Circuit Judge {oraJly).'1'he facts. of this case are as follows:9neEisenbach, a traveling M. Wunsch & Co., passage at Spokane for Mont., he having a ticket over defendant's road. He checked his trunk for that towIl' paying fOf; extra weight, p,nd received llreceipt for the latter, . ordinary baggage c1).eck for the trunk. The trunk wasrecltiyeq.·by the,iagent of the company, and pntin the baggage' Car. 1t,containedabont $20,000 worth..of jewelry 9f:various kinds, the property of There is, AO that the agent of thecqw-pq.ny)mewits contents. .QiDthe morniIlg,of. the next day the train, Wa.s.' derailf.p,near a p .." . . f:- 1l.lJ,EJ!l ."N0iKon," a.nd. the bagg .. .age ear took we. Mr.$isenbach testj1iil:ld that he got the trunk out, but the hellt .drove hiJP, away, fire got to. tpe trunk, and it Partlof them. only were putJIl a p'ox .obtained .froID the newsto' Noxon"a,n-<l:'jhere to a.' train a· ,pwce' called i from, . transported to Missoula, and, by direction of the then superintendent, turned over' I I
i
WlJ'NSCH
v.
NORTHERN PAC. R. CO.
879
to W. H. Low, the general baggage agent, and taken to St. Paul. The conductor further testified that there was no check on the original trunk (presumably it had been burned off), and that he had no means of knowing to whom it belonged, and that, when it was turned over to the general baggage agent, there was nothing to indicate to whom it belonged. Mr. Eisenbach testified that, at the time he handed the saved goods over to the conductor, he told him that he (Eisenbach) was going to Missoula. The conductor, however, testifies, to quote him, "that he paid no attention to it at all at that time; that he had other business to attend to,-had to see that the injnred got back to the sleepers." The train arrived at Missoula at night. On the next day Eisenbach made a demand on Mr. Case, the baggage master, for his baggage, presenting his receipt and check; and he repeated the demand on the next day and Qther days afterwards. His demand, however, was for his baggage, meaning, as he said, the trunk as originally delivered at Spokane. He testifies that he would not have received the said box of jewelry. To this demand the baggage master replied that the trunk was not there, and Eisenbach says that he did not explain that it had been destroyed. On the 21st and 22d of April the plaintiffs sent to defendant the following claim and letters: "San l"rancisco, Cal., April 22, 1890. "Northern Pacific Railroad Co. (Claim Department), St. Paul, Minn.-Gentlemen: You will please find inclosed a claim and demand of M. Wunsch & Co., of this city, for $21,674, for value of contents of commercial traveler's trunk committed to your care on March 24th,1890, and for $200, value of the trunk, which said trunk and contents were lost and converted by you. The contents of the trunk were insured by the Anglo-Nevada Assurance Corporation and the California. Insurance Company in the sum of $20,000. The in;ventory attached to the claim is that of the contents of the trunk as it was ehecked at Spokane Falls, all previous sales having been deducted from the Qriginal contents at San Francisco. The matter Is one which merits your prompt and serious attention, and I shall expect to hear from you at a very early day. Please address your reply to me. "Yours truly, E. W. McGraw, "Attorney for M. Wunsch & Co. and for Anglo-Nevada Assurance Corporation and California Insurance Company." "San Francisco, CaL, April 21, 1890. "Northern Pacific Railroad Company (Claim Department), St. Paul, Mlnn.Gentlemen:On the twenty-fourth day of March, 1890, our traveling salesman, Mr. I. P. Eisenbach, took the midnight passenger train of the Northern Paciflc Railroad at Spokane Falls, Washington, bound for Missoula, Montana. Previous to the departure of the train at midnight of above date, he had his commercial traveler's trunk checked at Spokane Falls for Missoula. The trnnk was weighed, and a charge was made by the forwarding agent at Spokane Falls for excess baggage, which charge was paid by Mr. Eisenbach, who thereupon received a paper excess-baggage check, the face of which reads as follows: .. 'Northern Paclflc Railroad Company. Local Excess-Baggage Check. "'Spokane Falls, W. Station, 3-24, 1890. .. 'This check calls for the following described baggage, viz.: 1 T, bearing local excess-baggage strap check No. 0251, on which excess charges have been collected.. Missoula station. No. of tickets held by passenger: One. Prepaid trunk No. - . Form No. - . Issued by - - R. R. E. J. Bunce, Forwarding Agent. B. 8856.'
880
FEDERAL REPORTER,
vol. 62.
, "Mr. Eisenbach, upon bis ,arrival at 1\1issoula, presented the paper check above copied and the strap check 025l to the baggage master of the Northern Pacific Railroad, and demanded the trunk to which they entitled him. The demand was not complied with, nor th'e trunk delivered. The trunk which was checked was a commercial trunk, easily recognizable as such by its sill'e, shape, and construction. "It, with its contents, was our property. We are informed by Mr. Eisenbach tha,t the trunk was destroyed by fire while in PQs!lession of the N. P. R. R. Co. on the morning of March 25th, between the l'itatIons Heron and Noxon; that such of the contents as could be recovered were packed In another trunk, and taken possession of by E. C. Crandall, conductor of the train on wh\ch the fire occurred. Mr. Eisenbach saw the last-mentioned trunk on the railroad platform at Noxon as he passed through that place on his, way to Missoula, on the evening of March 25th. Mr. Eisenbach was Informed by the baggage master at Missoula that said last-named trunk had been forwarded to the general baggage agent of the N. P. R. R. Co. at St. Paul. Such forwarding was without the knowledge or consent of Mr. Eisenbach. Notwithstanding his demand for the trunk and his exhibition of the checks therefor, he has received no further Information from the company concerning the same than is above detailed. The contents of the trunk checked were of the value of twenty-one thousand six hundred and seventy-four fifty-siX cellts ($21,674.56), which sum we hereby demand of the Northern Pacific Railroad Company. A detailed inventory of the contents' of said trunk, and the value thereof, is hereto appended. The trunk checked, with its leather and other telescopes and watch and jewelry trays and rolls and other fittings, cost us over $200. The trunk was about six months old. We also demand of the N. P. R. R. Co. the sum of $200, the value of that trunk. M. Wunsch & Co." "Yours truly,
Plaintiff'sent this claim to the company, specifying Eisenbach's trunk, and claiming the value of trnnk and jewelry to be $21,674.56. To these the defendant replied on the 28th of April, denying liability, and stating ff"Any portion of your client's property was saved and placed for safe-keeping in the custody of our general baggage agent, by communicating with him, and proving ownership, the ,same will, of course, be returned to its rightful owner."
Considerable correspondence by telegraph ensued, in which the defendant' urged the plaintiffs to meet its agent in regard to the property 'in Montana, lind in which plaintiffs expressed a willingness to do so if without expense to th.em, and without waiving any rights. In the correspondence the liability for the trunk and contents as originally delivered was insisted' on by plaintiffs. Finally, Mr, :Wnnsch's expenses being paid by defendant, he, met its agent, Mr. Ford, at Helena. , There the agent ,told him, if he ,could identify saved at Noxon, he ,was ready to tender it to him. Wunsch replied: , "I am not disposed to receive the goodil until I communicate with my counsel and the insurance cOUj.pany."
He telegraphed to the insurance company, and received the following reply, which he showed.the agent Ford: "San Francisco, Cal, June 19th. 1890. ".l\:I"Wunsch, Helena, Mont.: Tell Ford you will take goods, and give him receipt as follows, and not otherwise: . 'Received from the Northern Pacific Co. the following goods, saved from fire near Noxon, occUl."l'ing March ,25th, [Here insert inventory.] We recei"'ed said goods without prejudice to any action or right of action against Northern Pacific Railroad Co.
WUNSOB fl. NORTBERNPAC. B. 00.
.881
We agree to sell said goods at auction in San Francisco, and credit the net proceeds on any jUdgment we may recover against said Railroad Co. It we recover no jUdgment, proceeds to be ours. We accept said goods only on condition that said acceptance shall not be pleaded or considered in any action now pending or which we may hereafter bring against Railroad Co.' To be signed by M. Wunsch & Co.; Railroad Co. to sign below as foUows: 'The Northern Pacific Railroad Company delivers the above-mentioned goods, and accepts the above conditions which they are received by M. Wunsch & Co.' To be signed: 'D. K. Ford, General Claim Agent, Northern Pacific Railroad Co" If Ford consents, give receipt as above, with his consent indorsed l!rs above in duplicate. "[Signed] Anglo-Nevada Assurance Corporation."
To this the agent answered that he could not recognize "any such document as that," and read to him or showed to him the kind of receipt he would sign, which was as follows: "Received of the Northern Pacific Railroad Company the following described watches and other articles of jewelry, picked up by different persons near Noxon, Montana, at a point wbere a train of the said Northern Pacific Railroad Company was wrecked on the 25th day of March, A. D. 1890; said watches and articles of jewelry being part of the contents of a certain trunk checked by 1. P. Eisenbach, an employe of the undersigned, on or about March 24, 1890, from Spokane Falls, Washington, to Missoula, Montana: said watches and articles of jewelry being the same described as follows in the inventory furnished by us to said Northern Pacific Railroad Company, in a claim made by us ror tne contents of said tnmk against said Northern Pacifto Company, to wit: · · ....
On the 20th, Wunsch sent Ford the following: "Helena, Mont., June 20th, 1890. "D. K. Ford, Esq., City-Dear Sir: My firm declines to accept goods except on terms ot receipt communicated to you yesterday. The Northern Pacific R. R.. Company has already converted the goods, and we decline to receive them in a damaged condition, except without prejudice to our claim against the company. I will, It you desire it, go over the inventory of such goods as you have. Insp«:>ct the goods, and check such as I can identify, provided I can have a copy of the Inventory. "Yours respcty., M. Wunsch."
Afterwards Ford again tendered the goods, and Wunsch refused them, sayipg: "No; my letter is final." Wunsch was told that the goods would always be ready to be delivered to him whenever he made up his mind to accept them. The goods were put back in the trunk, and shipped again to St. Paul, and there kept until they were forwarded here. They were produced in court, and submitted to the order of the plaintiffs. There was also evidence of the value of the goods and the payment of the insurance on the entire lot of jewelry to plaintiffs. It is evident that under the decision of the supreme court of the United States in Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711, the plaintiff's trunk and contents did not become baggage by its delivery by Eisenbach to the company's agent at Spokane. This is conceded by plaintiffs, but it is contended that there was a conversion by the defendant of the rescued articles by their nondelivery at Missoula on the demand of Eisenbach. To sustain this con· tention, plaintiffs cite a number of cases. There are various illustrations of the doctrine stated, in one of them (Rider v. Edgar, 54 Cal 127) as follows: . v.62F.no.l0-56
an, actual forcible'41SposSeBsion of the plaintitlls not necessary. Any unlawful Inter. terence ''1\'ltb the property, or exercise of dominion over it, by which the owner is is sutficient to maintain either action."
""Tj)' matntaibtrover or trespass' derlbobis asportatis, r
In the case at bar there was no unlawful interference with plaintiffs' tpr<>perty or exercise of dominion over it. The original delivery of the jewelry to defendant was a deception upon it (Humphreys v. Perry,'supra), and gave no rights to the trunk and its contents as The first relations of defendant to them with which we are'c()Dcerned accrued at Noxon, at the time of the wreck. What duty did these relations impose on the defendant? We. may assume, to keep the goods safely, and to deliver them upon . demand and identification to their owner. A discharge of this duty was,tendered to plaintiffs, and refused by them. . But it is claimed by plaintiffs that the goods were delivered to the conductor of the train by Eisenbach, hethen saying that he was a d.uty to them at going to Missoula, and' that this Missoula. If they had been baggage, properly accompanying a passenger whose destination was Missoula., this might be true; but they Were ll()t.They weregoods'bl"ought to the attenti(Jtt and forced They of conupon tbe care of the ddeJ;ldji:rit .1;}y.an .siderable vallie, and the true relations of the company to ,them were demand them. at Missoula. not known. But Eisenbach They were on the same' as was; and arrived' 'at at the same time he did.' . .· 'If he had, immediately sought. and claimed question: Illighthave been preaented.. But them as, 'such, a lli$ demaIld next day. was not.foJ:them , but for the trunk and its ,contents asdeiivered at Spokane.· Indeed, it isevidenLthat, when turned them over to the condUctor, it was not for the purpose 'of claiming and receiving them 'again, for he testifies that he would haVe accepted them if they had' been offered. The testimony shows that to the first claim which identified. them the company :promptly responded, and subsequently tendered them,ahd that the plaintiffs refused to accept them except upon such terms as they right to exact. Judgment for defendant.
BERLIN IRON BRIDGE CO. v. CITY OF SAN ANTONIO.
(Circuit Court, W. D. Texas, San Antonio Division. May 19., 1894.) No. 522.
tion of a bridge-one-hlUf 011 delivery' of the material, and the remainder Qn completion and Of, ,the a debt, within the provisions of Const. Tex. art, ll,§§ 5, 7, that no city ,shall create any 'debt unless at· the saDle'time proVision be made by taxation for payment of interestanddreation ofa sinking fund, and is therefore invalid if no such provision is at .the time of its e;x:ecution, notwithstanding payment of the contract price is secured by the· proceeds, paid into the city treasury, of bonds issued for the purpose, in accordance with pro-
CORPORA'fIONS- CONSTITUTIONAL RESTRICTIONS ON CREATION OF DlllBTS-PROVISION FOR INTEREST AND SINKING FUND. . A contract whereby lL city agrees to pay a certain SUIll tor the erec-