MCINTOSH et al. v. McKANY & CARMICHAEL MERCANTILE CO.

(Circuit Court of Appeals, Ninth Circuit. May 9, 1910.)

No. 1,795.

SALES (8 355*)-ACTION FOR PRICE EVIDENCE OF SALE AND DELIVERY OF GOODS.

An allegation in a complaint that plaintiff sold and delivered goods to defendants at their special instance and request is supported by evidence that defendants were the general contractors for building a line of railroad, and that on defendants' request, and on their promise to pay for the same, plaintiff furnished supplies to camps on the line of work on orders given by a firm of subcontractors, and charged the same to such firm, as directed by defendants.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1030, 1041: Dec. Dig. § 355.*]

In Error to the Circuit Court of the United States for the District of Montana.

Action by the McKany & Carmichael Mercantile Company against James A. McIntosh and others. Judgment for plaintiff, and defendants bring error. Affirmed.

George F. Shelton, Charles A. Ruggles, and H. H. Field, for plaintiffs in error.

Ike E. O. Pace and McBride & McBride, for defendant in error. Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS, Circuit Judge. We do not agree with counsel for the plaintiffs in error in their contention that there is only a scintilla of evidence to support the allegations of the defendant in error's complaint that they sold and delivered the goods in question to the plaintiffs in error at their special instance and request. On the contrary, there was substantial testimony introduced before the court and jury to sustain that contention, which satisfied both the court and jury. A part of that evidence is the testimony of the president of the plaintiff company, who testified, among other things, substantially as follows:

That in January, 1907, he took the train at Whitehall to go to Butte, Mont., to see McIntosh, and was introduced to him on the train by Jennings, who was McIntosh Bros.' superintendent of construction on the Milwaukee road; that during the conversation the witness told McIntosh that Perine and Robinson, who were subcontractors under Orman & Crook, were owing him a lot of money, which they had failed to pay; that McIntosh replied to the witness that any supplies that he furnished to Perine and Robinson he furnished at his own risk, and that he should have an order from Orman & Crook, who were subcontractors under McIntosh Bros. on the Milwaukee road; that the plaintiff company did not then have an account with Orman & Crook, and that the witness told McIntosh that he would just as soon have Perine and Robinson owing him as Orman & Crook, as he had examined into their financial condition and found that it was poor; that McIntosh then told the witness that Orman & Crook had filed a bond to protect "For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 179 F.-5

them against any liens or accounts against their contracts on the Milwaukee road, and that the witness should have an order from Orman & Crook to furnish supplies to any of the subcontractors; that, if the witness got an order from Orman & Crook to furnish supplies to Perine and Robinson, he would be responsible for it, and would pay the accounts, as McIntosh Bros. were the general contractors and the accounts came through their office; that the next day in Butte, at the Thornton Hotel, the witness told McIntosh that he had found that the bond that was furnished by Orman & Crook did not cover supplies furnished to the different camps along the line, and that McIntosh told the witness that that made no difference, and for him to go home and do as he had been told, which he did; that McIntosh told the witness to furnish Orman & Crook any supplies which they needed at their camps, or to any of their subcontractors, and that he would be responsible to them for their accounts, as it was his contract, and he was anxious to have the contract go on, and it was necessary to have these supplies to carry on the work; that at that time the plaintiff company had no account with Orman & Crook; that McIntosh told the witness to carry the account in the name of Orman & Crook, and to furnish any supplies that they needed for the construction of the work over there; that the witness then went home, and that the next morning Perine and Robinson had three four-horse teams there to get supplies, and the plaintiff's clerks were putting up the orders, but that the witness stopped them, and told the men in charge of the teams that he could not furnish any more supplies unless an order from Orman & Crook was obtained, whereupon they phoned to Orman & Crook's office, explaining the situation to them, and the latter called up the witness, and told him to go ahead and supply the goods, which the plaintiff did; that subsequently the witness saw McIntosh about once a month, and told him the amounts that were due the plaintiff, and conversed with him in a general way about the accounts up to April, 1907, about which time Orman & Crook had taken away from Perine and Robinson their contract; that in April, 1907, the witness and one George Franks came to Butte to see McIntosh, and met him at the Thornton Hotel, telling him that the accounts had not been paid, and that they needed the money-that is to say, the amount for the goods that plaintiff had delivered on the order of McIntosh; that McIntosh then told the witness and Franks to go ahead and furnish the camps with the supplies that were necessary to carry on the work; that he had taken part of the work away from Orman & Crook, and was likely to take more of it, as they were not doing the work satisfactory to him, but, whether he did or not, in any event they needed supplies, and for him to go home and rest easy, and he would be responsible for any supplies, and pay the plaintiff for any supplies furnished under the contract, and that the witness then went home and furnished all the supplies that were ordered from the plaintiff for those camps; that in December, 1907, the witness went to see McIntosh, and found him at the Thornton Hotel, in Butte, and told him that he had come to see about getting the money on the account, as he understood that Orman & Crook had failed; that McIntosh said that he would pay every dollar of the plaintiff's account when the proper time came, but that he was busy then, and

could not attend to it at that time, and that there were two of the camps still running out there, and that he might as well furnish what little stuff they wanted until the United States Fidelity & Guaranty man would come, or McIntosh Bros. would take charge of the work and complete the contract; that the witness went back and kept on furnishing the supplies in the same way; that in January following the witness and Franks went to see McIntosh at the Thornton Hotel about their respective accounts, when McIntosh told them that they were arranging to pay off the time checks, that he was busy with that, that when he paid those off he would take up the matter of paying the plaintiff's and Franks' accounts, and that the plaintiff's account would be one of the first that would be paid, and that McIntosh would leave Butte with clean skirts and pay every dollar that they owed.

Jennings, McIntosh Bros.' superintendent, testified, among other things, that he introduced McKany and McIntosh on the train to Butte, and sat in the seat immediately in front of them, when this conversation occurred, as near as he could remember:

"Mr. McKany said, ‘Mr. McIntosh, I have been furnishing Perine and Robinson a lot of goods on the Milwaukee grade,' and Mr. McIntosh says, 'Who is Perine and Robinson? And Mr. McKany said, "They are subcontractors under Orman & Crook,' and he said, 'Don't know them at all.' He said, 'Any goods that you sell those people, or any of Orman & Crook's subs, we will not be responsible for, and you will have to take your own chances, unless you have an order from Orman & Crook.' I think I remember that Mr. McKany said he would just as lief have Perine and Robinson as Orman & Crook, and Mr. McIntosh said it didn't make any difference, that Orman & Crook were the head contractors, and they had furnished them the necessary bonds, and without their orders they would not be responsible for anything, and then he said, 'Orman & Crook's account will be good.' Mr. McKany said, 'How will I carry those accounts?' And Mr. McIntosh says, 'Carry them in the name of Orman & Crook, and we will pay the bill.''

Franks, a witness called on behalf of the plaintiff company, testified, among other things, that he was engaged in the butchering business, and was present at the Thornton Hotel in Butte about April, 1907, and heard the conversation between McIntosh and McKany; that the way he happened to be present was that he had been furnishing Orman & Crook with meat, and they had stopped paying him, and he came in to see McIntosh about the matter; that in that conversation McIntosh told McKany to go home and furnish merchandise, and for him (Franks) to furnish meat, and that he would pay the bill; that he was under a heavy bond to complete the work, and he did not want those camps broken up; that men were hard to get, and to go ahead and furnish the merchandise and the meat, and he would pay the bill; that he said that to McKany and himself, and he further said that the account should be carried in Orman & Crook's name; that he had already taken part of the work from Orman & Crook, and that he would have to have meat and provisions on his own work, and they would have to have the same if they continued theirs, and to go ahead and furnish them, and he would pay the bills; that he (Franks) was present with McKany and McIntosh at the same place, about January, 1908, when McKany and himself had gone to try and get their money for the provisions that the plaintiff company had furnished and for meat that he had furnished, at which conversation McIntosh said that he was very busy with the time

checks, and that it would take him ten days or two weeks to get that matter straightened out, and that he would pay the plaintiff's and his own bills at that time, and that he expected to pay every cent that was standing against McIntosh, and that he would go out of there with clean skirts.

This testimony certainly tended strongly to support the plaintiff's contention that they sold the goods to McIntosh Bros. at their special instance and request. If, as the plaintiff's testimony tended to show, and as the jury must have found, McIntosh Bros. authorized the plaintiff company to carry the account in the name of Orman & Crook, and to deliver the goods to them or on their order, it was none the less a sale and delivery to McIntosh Bros. The question of such a sale and delivery was the real issue in the case. It was submitted to the jury upon somewhat conflicting evidence, it is true, but in the light of instructions which were full, correct and clear, and we see no good reason to interfere with the result. The judgment is affirmed.

ANDERSON et al. v. J. J. MOORE & CO.

(Circuit Court of Appeals, Ninth Circuit. May 9, 1910.)

No. 1,808.

1. SHIPPING (§ 181*)-DEMURRAGE-CONSTRUCTION OF CHARTER PARTY-ARRIVAL OF SHIP-LAY DAYS-"READY TO DISCHARGE."

A charter party of a ship to carry a cargo of coal from New Castle, Australia, to San Francisco, there to be discharged "as customary, in such customary berth as consignees shall direct," lay days to commence when the vessel was "ready to discharge," on written notice by the master, gave the consignee the right to designate any customary place for discharging, and the ship did not reach her destination, and was not ready to discharge, so as to be entitled to give the notice, until she was in the berth assigned; and where the master was promptly notified on arrival in port that the cargo had been sold to a fuel company and was to be discharged at its bunkers, which were customary places for dischar ging coal, a delay of 42 working days while awaiting her turn to discharge at such bunkers, which was required by the custom of the port, was at her own risk, and did not entitle her to recover demurrage, the delay being without fault of the charterer, but caused by a congestion of coal vessels in the port at the particular time.

[Ed. Note. For other cases, see Shipping, Cent. Dig. §§ 589-592; Dec. Dig. § 181.*

For other definitions, see Words and Phrases, vol. 7, pp. 5935, 5936. Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]

2. SHIPPING (8 181*)-CONSTRUCTION OF CHARTER PARTY-REASONABLENESS OF PROVISIONS-LAY DAYS.

A deliberate contract, made by the parties in a charter party, giving the charterer the right to designate the place of discharge, and providing that lay days shall commence when the vessel is ready to discharge, cannot be varied or relaxed on the ground that its enforcement subjects the vessel to an unreasonable delay.

[Ed. Note. For other cases, see Shipping, Cent. Dig. §§ 589-592; Dec. Dig. § 181.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from the District Court of the United States for the Northern District of California.

Suit in admiralty by Andrew Anderson and others, as owners of the ship Columbia, against J. J. Moore & Co., a corporation. Decree for respondent (173 Fed. 539), and libelants appeal.` Affirmed.

H. W. Hutton, E. B. McClanahan, and S. H. Derby, for appellants. William Denman, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge. On June 26, 1907, the American ship Columbia, owned by the appellants, was chartered by the appellee for a round voyage via Newcastle, N. S. W., there to take on a cargo of coals, and thence proceed to San Francisco. The terms of the charter party material to this case are the following:

*

"And, being so loaded, shall proceed to San Francisco Harbor, Cal., to discharge at any safe wharf or place within the Golden Gate, and deliver the said full and complete cargo in the usual and customary manner at any safe wharf or place, or into craft alongside, as directed. Frosts or floods, fire, strikes, lockouts, or accidents at the colliery directed, or on railways, or any other hindrance of what nature soever beyond the charterer's or their agent's control, throughout this charter always excepted. To be discharged as customary, in such customary berth as consignees shall direct, ship being always afloat, and at the average rate of not less than 150 tons per weather working day (Sundays and holidays excepted), to commence when the ship is ready to discharge and notice thereof has been given by the captain in writing. If detained over and above the said laying days, demur, rage to be at 3d. per registered ton per day."

The vessel arrived in San Francisco Harbor on January 14, 1908, and on the following day notice was given the appellee that the ship"has arrived at this port, and entry effected at custom house. Vessel is awaiting your orders, and lay days will commence as per charter party."

On the same day the master called at the appellee's office and asked where he was to discharge. The answer was that the appellee did not know, and that there would "not be anything done for three or four weeks to come." There was testimony, however, and the trial court found the fact to be, that, two days after the ship's arrival, J. J. Moore, the president of the appellee, told Capt. Nelson, the managing owner of the vessel, that the cargo of coal had been sold to the Western Fuel Company, and that the ship would dock at their bunkers. On January 18th a second notice was sent by Capt. Nelson to the appellee, saying:

"You will please take notice that, as per notice served upon you January 15, 1908, ship Columbia has arrived at San Francisco and has been ready to discharge on and since said 15th day of January. Please procure and advise me of place of discharge. Demurrage will be charged as per charter party.”

There was further correspondence between the parties, not necessary here to be set forth. On March 16, 1908, the appellee gave notice that the vessel be docked at the Folsom Street bunkers of the Western Fuel Company at 11 a. m. of the following day, and she was finally discharged at 1 p. m., March 20, 1908. She was detained in San Francisco Harbor 67 days, and the appellants contend that she was detained more than 42 days beyond her lay days. The trial court held