or not such direction should have been given. There was no evidence tending to prove that the defendant had authorized, either expressly or impliedly, said Stearns to utter the alleged slanders. There was no evidence showing that such utterance was within the scope of his employment. There was no evidence that the alleged slander was uttered by Stearns while actually employed in the business of his principal. His agency was conceded, but his authority and his duties as such agent were expressed and limited by his contract of employment, which was in evidence. The only duty of Stearns alleged in the complaint was "to check up the accounts" of the plaintiff. It is shown by the testimony that the defendant did not inform Stearns that the plaintiff had embezzled any of its money, and did not know that Stearns had made any such charge until so informed after the institution of this suit. It is quite clear that the words uttered by Stearns were beyond the scope of his employment, and that they were spoken under such circumstances as to render the agent alone responsible. In fact, it appears that the alleged slander was uttered after Stearns had checked up the account of the plaintiff below, after he had left. the presence of the plaintiff, and had gone to another locality, where he was not engaged in the performance of any duty under the terms of his employment as such agent. To hold a principal responsible for slanderous words spoken by his agent, it must appear that the latter acted within the scope of his employment, and also that the words were spoken whilst the agent was employed in the actual performance of the duties of his principal. The Supreme Court of the United States, in Washington Gas Light Company v. Lansden, 172 U. S. 534, 19 Sup. Ct. 296, 43 L. Ed. 543, has, in substance, so held. The following cases show the circumstances under which the principles referred to have been applied: United States v. Halberstadt, Fed. Cas. No. 15,276; Pressly v. Mobile & G. R. Co. (C. C.) 15 Fed. 199; Kirby v. Thames & Morsley Ins. Co., Limited (D. C.) 27 Fed. 221. A case quite similar to the one we now have under consideration is Redditt v. Singer Mfg. Co., 124 N. C. 100, 32 S. E. 392. That was an action brought to recover damages because of certain alleged slanderous words spoken by defendant's agents concerning the plaintiff. There was neither allegation nor proof that such words were spoken by the authority of, or with the consent of, the defendant, or that the latter had ever ratified them. The defendant after the close of the plaintiff's evidence moved to dismiss the action on the ground that it was not liable in damages for the alleged slanderous words of its agents. The motion was overruled, and the case on exceptions went to the Supreme Court of North Carolina, which held that there was error in the refusal of the motion to dismiss. See, also, the following cases: Wood v. Goodridge, 52 Am. Dec. 771; Thames Steamboat Co. v. Housatonic R. R. Co., 63 Am. Dec. 154; Andrus v. Howard, 84 Am. Dec. 680. An instructive and interesting case from the Supreme Court of North Carolina, in which the authorities are referred to and explained, is that of S. M. Daniel

v. Atlantic Coast Line Railroad Company (N. C.) 48 S. E. 816, from which we quote:

"It may, then, be gathered from the books as a general rule, which is clearly applicable to the facts of this case, that if the servant, instead of doing that which he is employed to do, does something else which he is not employed to do, the master cannot be said to do it by his servant, and therefore is not responsible for what he does. It is not sufficient that the act showed that he did it with the intent to benefit or to serve the master. It must be something done in attempting to do what the master has employed the servant to do."

See, also, case of Markley v. Snow, 207 Pa. 447, 56 Atl. 999, 64 L. R. A. 685.

We are of the opinion that the court below should have directed the jury to find for the defendant, as in no view of the case would it have been justified in returning a verdict for the plaintiff. Only one inference could have been fairly drawn from the evidence, as there was an utter failure on the part of the plaintiff to prove that the defendant was liable in damages for the slanderous words spoken by its agent. It is well settled that it is the duty of a court to direct a verdict for either the plaintiff or defendant, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of its judicial discretion, would be compelled to set aside a verdict if one should be returned in opposition to the one directed. That this question is a legal one for the court to decide is shown by the authorities. Phoenix Insurance Company v. Doster, 106 U. S. 30, 1 Sup. Ct. 18, 27 L. Ed. 65; Griggs v. Houston, 104 U. S. 553, 26 L. Ed. 840; Randall v. Baltimore & Ohio Railroad Company, 109 U. S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003; Anderson County Commissioners v. Beal, 113 U. S. 227, 5 Sup. Ct. 433, 28 L. Ed. 966; Schofield v. Chicago, Milwaukee & St. Paul Railway Company, 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Delaware, Lackawanna & Western Railroad Company v. Converse, 139 U. S. 469, 11 Sup. Ct 569, 35 L. Ed 213; Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758; Elliott v. Chicago, M. & St. Paul Railway Company, 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1068; Patton v. Texas & Pacific Railway Company, 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Marande v. Texas & Pacific Railway Company, 184 U. S. 173, 22 Sup. Ct. 340, 46 L. Ed. 487.

There was error in the rendition of the judgment complained. of, for which the same will be reversed, and the cause remanded to the court below, with directions to set aside said verdict and dismiss said cause.

Reversed.

MICHIGAN S. S. CO. v. THORNTON et al.

(Circuit Court of Appeals, Fifth Circuit. March 28, 1905.)

No. 1,437.

SHIPPING FREIGHT-LIEN-DELIVERY OF CARGO.

A charter party provided that freight should be payable in cash on delivery of each cargo, that the ship should have a lien on all cargo and subfreights for freight money due under the contracts though the cargoes might have been delivered. The consignee at first paid the freight to the steamship company, and remitted to the shipper for the value of the cargo, but thereafter insisted on paying the entire amount to the shipper, leaving the latter to settle for freight. Held that, the consignee baving remitted to the shippers for a cargo after delivery, including freight, which remittance was received by the shipper's receivers, the money so received was impressed with a trust in favor of the shipowner for freight.

Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

James Legendre, for appellant.

Henry P. Dart and Benj. W. Kernan, for appellees.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

MCCORMICK, Circuit Judge. On October 19, 1901, the appellant, the Michigan Steamship Company, entered into a contract with the Lone Star & Crescent Oil Company, whereby the steamship company agreed to transport oil cargoes for the oil company from Sabine Pass, Tex., or other equivalent Gulf port, to New York, or other equivalent Atlantic port, of which Marcus Hook, Pa., is agreed to have been an equivalent, for five years at the rate of 37 cents per barrel of 42 gallons each. On December 15, 1902, the steamship company, by its steamship Roma, carried a cargo of bulk oil from Sabine Pass to Marcus Hook, the oil being consigned to the steamship company, and the amount of the cargo being 21,09218/100 barrels of 42 gallons each. This cargo of oil, prior to its receipt by the steamship Roma, had been contracted to be sold to, and was to be delivered by the Lone Star & Crescent Oil Company to, the United Gas Improvement Company of Philadelphia, at the rate of 67% cents per barrel of 42 gallons each, f. o. b. Philadelphia : it being tacitly understood between the steamship company and the oil company that the amount of 675 cents per barrel was made up of the two sums of 30% cents, representing the value or price of the oil at Sabine Pass, loaded on the steamship, and 37 cents freight money for the transportation and delivery of the oil at its destination. From or soon after the date of the contract the steamship Roma had been engaged in like carriage between these points under the charter party before referred to, and in the beginning of operations thereunder settlements for freight charges were successively made by the gas company, by order of the oil company, directly with the steamship company, for several cargoes of oil as and when received; but the gas company finally ob

jected to this mode of settlement, and insisted upon paying the entire amount of the price of the cargo, including freight charges, namely, 675 cents, at one time, directly to the oil company, for each cargo, such settlement between the gas company and the oil company being made between the 1st and 10th days of each month by remittance of New York exchange, leaving it to the oil company to make settlement for freight charges directly with the steamship company. On January 6, 1903, the gas company, in payment of the contract price of the cargo of December 15, 1902, remitted to the oil company in New Orleans, La., the sum of $14,173.94 in New York exchange, payable to the order of the oil company, together with a voucher showing the amount of oil received and the price thereof. It was customary for the oil company, upon receiving a remittance from the gas company to forward to the steamship company by exchange the amount due it for freight money on each cargo out of the sum received from the gas company in payment of the price thereof, such remittance to the steamship company being usually made about the 10th day of each month. The New York exchange covering the cargo of oil of December 15, 1902, reached the office of the oil company in New Orleans on January 8, 1903. On the previous day the appellees Crandell and Lemle had been appointed receivers of the oil company (by the court in which this intervention is filed), and they, on January 10th, deposited the funds resulting therefrom in the Citizens' Bank of Louisiana to the receivers' account, where the same is now on deposit.

answer.

The appellant, by its intervention in the receivership suit, averred and claimed that the sum of $7,286.60 of the amount so received by the receivers and deposited to their credit belongs to it in full ownership, and is not an asset of the defendant company. The receivers duly answered this petition, but it is not necessary to recite the terms of their The matter was referred to a master, who reported the facts substantially as herein already recited, with his conclusion of law that by the delivery of the cargo of oil to the gas company by the ship, pursuant to the contract of charter-party, which, in terms, provide a lien upon the cargo for freight in the usual form of words, namely "Freight payable in cash upon delivery of the cargo," if nothing else is to be considered but the bare contracts of charter party, the right of lien for freight in favor of the ship was lost, and, being lost, cannot be revived by a court of equity. He concluded that under another agreement (which we have not thought it necessary to recite) the appellant was entitled to payment out of the fund to the extent of $2,109.16, and that the steamship company was entitled to recover an ordinary judgment or decree against the receivers for the balance due it of the charter money on the cargo. His report was duly excepted to, and the exceptions having been considered by him were elaborately discussed in a second report, which overruled the exceptions, and adhered to his first findings of fact and law. The case coming on for hearing before the court on the report of the master and the appellant's exceptions thereto, the exceptions were overruled, the master's report affirmed, and a decree passed that the steamship company have and recover judgment of the oil company in the sum of $7,286.60, and that the receivers, A. W.

Crandell and Gustave Lemle, pay the steamship company on account of that debt the sum of $2,108.18 out of the proceeds of the cargo of oil referred to in the master's report, now in the hands of the receivers; that as to the remainder of the debt, to wit, $5,177.42, the interveners be classified as ordinary creditors of the oil company, and the debt await the settlement of the estate in due course. In addition to the provision (substantially, but not exactly, quoted in the master's report), "Freight money payable in cash on delivery of each cargo," there is also this other provision in the contract of October 19, 1901: "That the steamship company shall have a lien upon all cargoes and all subfreights for freight money due under these contracts, although said cargoes may have been delivered to the oil company; and the oil company shall have a lien on the ship for all moneys paid in advance and unearned." In a second or supplementary contract, entered into on the 7th of April, 1902, between the parties to the contract of October 19, 1901, and providing for additional ocean tonnage, if required, it is stipulated: "Freight money, to which shall be added 5 cents for each barrel of 42 gallons as a bonus for furnishing tonnage additional to the Roma, payable in cash on the 15th day of each month," etc., in which supplementary contract the provision is retained "that steamship company shall have a lien upon all cargoes and subfreights for freight money due under these contracts, although said cargoes may have been delivered to oil company, and oil company shall have a lien upon the said tonnage for moneys paid in advance and unearned."

Even "courts of admiralty, when carrying into execution maritime contracts and liens, are not governed by the strict and technical rules of the common law, and deal with them upon equitable principles, and with reference to the usages and necessities of trade. And it often happens that the necessities and usages of trade require that the cargo shall pass into the hands of the consignee before he pays the freight. It is to the interest of the shipowner that his vessel should discharge her cargo as speedily as possible after her arrival at the port of delivery. And it would be a serious sacrifice of his interests if the ship was compelled, in order to preserve the lien, to remain day after day with her cargo on board, waiting until the consignee found it convenient to pay the freight, or until the lien could be enforced in a court of admiralty. The consignee, too, in many instances, might desire to see the cargo unladen before he paid the freight, in order to ascertain whether all of the goods mentioned in the bill of lading were on board, and not damaged by fault of the ship. It is his duty, and not that of the shipowner, to provide a suitable and safe place on shore in which they may be stored; and several days are often consumed in unloading and storing the cargo of a large merchant vessel. And if the cargo cannot be unladen and placed in the warehouse of the consignee without waiving the lien, it would seriously embarrass the ordinary operations and convenience of commerce, both as to the shipowner and the merchant. "It is true that such a delivery, without any condition or qualification annexed, would be a waiver of the lien; because, as we have already said, the lien is but an incident to the possession, with the right to retain. But in cases of the kind above mentioned it is frequently