LA CONNER TRADING & TRANSPORTATION CO. v. WIDMER.

(Circuit Court of Appeals, Ninth District. March 6, 1905.)

No. 1,108.

1. APPEAL-DISMISSAL-GROUNDS-DEFECTIVE BOND.

An objection to an appeal bond on the ground that it does not conform to the rules of court, and that its terms are such that it only binds appellant for the judgment of the Court of Appeals, is not ground for a dismissal of the appeal.

2 SHIPPING-CARRIAGE OF GOODS-DELAY-DAMAGES-ESTIMATION.

On a libel for damages for unreasonable delay in transporting horses to Alaska during the Klondike rush of 1898, the evidence showed that a horse was worth $20 a day during the period of delay. It further showed that the horses were put on board the vessel on February 22d, that the vessel did not sail until February 24th, that it stopped two days on the way, that it arrived at its destination on March 6th, that the horses were not discharged until March 9th, and that, owing to a further delay in unloading their equipment, they were not available for service until March 14th. This delay was caused by using a lighter which was used, notwithstanding the payment of wharfage by the shipper in advance in order that there should be no such delay. Held, that an estimate of damages on the basis of 10 days'. delay was reasonable, and an award of damages on such basis was not excessive.

3. DAMAGES-INTEREST-DISCRETION OF Court.

The allowance of interest on damages for delay in the transportation of horses depends upon circumstances, and rests in the discretion of the court.

Appeal from the District Court of the United States for the Northern Division of the District of Washington.

This is a libel in personam, brought by the appellee, J. M. Widmer, for himself, and as the assignee of others, to recover from the appellant, La Conner Trading & Transportation Company, for loss and damage sustained by the libelant and his assignors by reason of the unreasonable delay in transporting 19 horses from Seattle, Wash., to Skagway, Alaska, in the year 1898, on the bark Enoch Talbot, as a common carrier of merchandise and live stock upon contracts of shipment, transportation, and subsistence. The court below found that there was unreasonable delay in commencing the voyage, in prosecuting the voyage, and in discharging the cargo at the point of destination; that this unreasonable delay amounted in the aggregate to 10 days, for which damages were assessed by the court at the rate of $20 a day for each of the 19 horses, amounting to $3,800. To this amount was added interest at 6 per cent. per annum from the date of the filing of the libel, amounting to $779.

Ira Bronson and Ballinger, Ronald & Battle, for appellant.
James Kiefer, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge, after stating the facts, delivered the opinion of the court.

The appellee has interposed a motion to dismiss, on the ground that the bond on appeal does not conform to the rules of the court, and that its terms are such that it only binds the appellant for a judgment of this court, and, if this court should direct the court below to modify its decree, the sureties of appellant would not be liable for the payment of such decree. This objection to the appeal bond is no ground for dis

136 F.-12

missing the appeal. Hudgins v. Kemp, 18 How. 530, 535, 15 L. Ed. 511, 514; Beardsley v. Arkansas & L. Ry. Co., 158 U. S. 123-127, 15 Sup. Ct. 786, 39 L. Ed. 919. The motion to dismiss is therefore denied.

The claim of the appellant that it is not liable because it acted as agent of the bark Enoch Talbot, and not as the principal, is contradicted by the written contracts between the parties for the transportation of the horses, in which the appellant is named as the principal making the contract.

It is assigned as error that the decree awarding damages is excessive, and is not supported by the evidence. The appellant contends that the evidence does not show that the appellee or his assignors would have made any profits had there been no delay in the delivery of the horses at the point of destination. The evidence shows that the horses were shipped to Skagway for the purpose of being used for packing and hauling freight from Skagway to the lakes at the head of navigation on the Yukon river, and in and about Skagway. This business was connected with the transportation engaged in the great Klondike rush of 1898, and it is a matter of public notoriety that this transportation was in great demand, and there is evidence that it was remunerative to a majority of those engaged in it. It will serve no useful purpose to review the testimony upon this subject. It is sufficient to say that it appears from the record that the weight of evidence supported the findings of the court below that each horse was worth at least $20 a day in Skagway during the period they were delayed on the voyage, and at Skagway before they were discharged from the vessel. With respect to the number of days the transportation of the horses was delayed unreasonably, the libelant claimed that the delay amounted to 43 days, including a period commencing February 5, 1898, when the horses were. ready for shipment, and evidence was introduced to support that claim. But the court found a delay of only 10 days. This finding was based upon evidence showing that the horses were taken on board the vessel on February 22, 1898, but the vessel did not sail until February 24th. The vessel stopped two days at Nanaimo, and arrived at Skagway on March 6th. The horses were not discharged until March 9th, and the harness and pack saddles and other equipment were not finally discharged until March 13th, and the horses were not available for service until March 14th. The voyage was to be a continuous one, and wharfage at Skagway was paid by the shipper in advance, in order that there should be no delay at the port of discharge. Notwithstanding this arrangement, the cargo was discharged by lighter, causing the delay at Skagway. We think the estimated delay of 10 days was very reasonable, under all the circumstances, and as shown by the testimony.

The court below allowed interest on the damages, caused by the delay, from the date of the filing of the libel to the date of the entering of the decree. The allowance of interest on damages depends upon circumstances, and rests in the discretion of the court. The Scotland, 118 U. S. 507, 518, 6 Sup. Ct. 1174, 30 L. Ed. 153. Finding no error in the record, the decree of the District Court is affirmed.

W. K. NIVER COAL CO. v. PIEDMONT & GEORGES CREEK COAL CO. (Circuit Court of Appeals, Fourth Circuit. February 21, 1905.)

No. 523.

1. CONTRACTS-EXECUTION-UNDISCLOSED PRINCIPAL.

Where the N. Coal Company was a general coal dealer, and not the selling agent of defendant, but bought coal from defendant and others, which was sold to whomsoever it pleased, defendant was not liable as an undisclosed principal for the N. Company's breach of a contract for the sale of coal to plaintiff.

2. SAME-EVIDENCE-DECLARATIONS OF Agent.

In a suit by a third person, directly against an alleged undisclosed principal, for breach of a contract made by the alleged agent, declarations of such agent as to the character of his authority are incompetent.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Agent, §§ 416-419.]

3. SAME DECLARATIONS AGAINST INTEREST.

Declarations against interest, made by such an agent, as to the character of the business relations existing between him and the alleged principal, are competent in such action, when the alleged agent is offered as plaintiff's witness.

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

John E. Semmes and James Piper, for plaintiff in error.

Robert H. Gordon and J. Walter Lord, for defendant in error. Before GOFF and PRITCHARD, Circuit Judges, and BRAWLEY, District Judge.

GOFF, Circuit Judge. The plaintiff in error brought an action at law in the court below against the defendant in error, alleging a breach of contract concerning the sale of coal. The contract relied on was made by the National Coal Company with the W. K. Niver Coal Company, by which the former agreed to furnish the latter 25,000 tons of Big Vein Georges Creek Coal, during the 12 months beginning April 1, 1902, at $1.25 per ton of 2,240 pounds, f. o. b. at mines; conditioned upon car supply, strikes, accidents, and other causes beyond control. In the declaration filed by the plaintiff below, it is alleged that this contract was in fact made on behalf and by the authority of the defendant below, and that said company, the Piedmont & Georges Creek Coal Company, subsequently ratified and confirmed it. The declaration. charges that only a small portion of said coal was furnished, and that the plaintiff below had been greatly damaged. The case was tried to a jury, which, by the direction of the court, found for the defendant. The assignments of error relate to the action of the court in refusing the prayers requested by the plaintiff, and in directing a verdict for the defendant.

If the court below was right in directing a verdict for defendant, it will follow that the prayers asked for by the plaintiff should have been refused, as they, in effect, directed a verdict for the plaintiff, leaving the jury to find the damages. The evidence offered by the plaintiff below was at least inconclusive, and the explanation of counsel for the plain

tiff in error that his client labored under the disadvantage of having the National Coal Company, "an irresponsible company" (but the party with which the contract had been made), attempt "by the testimony of its president to protect the defendant," was but a proper recognition of its unsatisfactory character. It appears from the record that the National Coal Company, as a general dealer, bought and sold coal from the mines of the defendant company, as well as from other mines, including those of the plaintiff in error. It is, we think, clearly disclosed by the testimony that the National Coal Company was not the selling agent of the defendant company, but that it made its own contracts for the purchase of coal from the defendant, and sold to whom it pleased. The contention of the plaintiff in error is that the defendant in error occupied to the National Coal Company the relation of undisclosed. principal. The evidence required to charge an undisclosed principal to a contract made by his agent is neither greater nor less, when suit is brought by a third person directly against such alleged principal, than it would be had a recovery been had against the agent by such third person, and such agent was seeking to recover damages from the principal. Declarations of the alleged agent as to the character of his authority are, in a suit of this kind, no more competent as evidence than they would be in a suit in which such agent was the plaintiff himself, and admissions against interest made by the alleged agent as to the character of the business relations existing between him and the alleged principal are as competent (when such agent is offered as plaintiff's witness) as they would be were he the plaintiff and testifying in his own behalf. In Central Trust Company v. Bridges, 57 Fed. 763, 6 C. C. A. 550, Judge Taft, speaking for the Circuit Court of Appeals, Sixth Circuit, says:

"One may be liable for the acts of another as his agent on one of two grounds: First, because by his conduct or statements he has held the other out as his agent; or, second, because he has actually conferred authority on the other to act as such. * An agency is created-authority is actually conferred-very much as a contract is made, i. e., by an agreement between the principal and agent that such relation shall exist. The minds of the parties must meet in establishing the agency. The principal must intend that the agent shall act for him, and the agent must intend to accept the authority and act on it, and the intention of the parties must find expression either in words or conduct between them."

If we apply this law, which is applicable to this case, to the facts as disclosed by the evidence before the jury, it is quite apparent that the court below was fully justified in giving the instruction complained of.

We are unable to find from the record that the defendant in error at any time, in any way, either by conduct or statements, held out the National Coal Company as its agent, and it is clearly shown that both parties to the alleged contract denied that it had ever been entered into. The burden of proving the existence of the agency was upon the plaintiff in error, and we concur with the court below in holding that the evidence offered was not sufficient to entitle said plaintiff to recover. The judgment complained of is without error.

Affirmed.

PETERS. HANGER.

(Circuit Court of Appeals, Fourth Circuit. March 8, 1905.)

No. 503.

CIRCUIT COURTS OF APPEALS-LEGAL CONSTITUTION SITTING OF DISTRICT JUDGES.

Under section 3 of the act of March 3, 1891, creating the Circuit Courts of Appeals (chapter 517, 26 Stat. 827 [U. S. Comp. St. 1901, p. 548]), in the absence of the Chief Justice or an Associate Justice of the Supreme Court or of a Circuit Judge, such court is legally constituted where made up by three District Judges of the circuit, regularly designated by particular assignments to attend as members for the term.

Pritchard, Circuit Judge, dissenting.

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

On Motion of Plaintiff in Error to Set Aside Judgment.

See 134 Fed. 586.

W. H. Singleton (H. M. Smith, Jr., and Charles E. Riordon, on the briefs), for plaintiff in error.

James Alston Cabell (Philip Mauro, on the briefs), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

GOFF, Circuit Judge. On the 23d day of May, 1904, this cause, a writ of error to the Circuit Court of the United States for the Eastern District of Virginia, was argued and submitted to District Judges. Brawley, Purnell, and McDowell, then regularly attending as members of this court, neither the Chief Justice nor a Circuit Judge being present. At that time the vacancy caused by the death of Circuit Judge Simonton had not been filled. The court so constituted, speaking through Judge McDowell, on the 15th day of November, 1904, filed an opinion disposing of the questions raised by the assignments of error, and affirming the judgment complained of. The plaintiff in error duly presented a petition for a rehearing, and also filed a motion to set aside the judgment of affirmance. The petition for a rehearing having been considered and denied, the motion to set aside said judgment remains to be now disposed of.

It is insisted by the plaintiff in error that the court which rendered the decision mentioned was not legally constituted; that is, that it did not have the proper personnel. The act of Congress approved March 3, 1891, c. 517, 26 Stat. 827 [U. S. Comp. St. 1901, p. 548], creating this court, in the third section thereof provides as follows:

"In case the Chief Justice or an Associate Justice of the Supreme Court should attend at any session of the Circuit Court of Appeals he shall preside, and the Circuit Judges in attendance upon the court in the absence of the Chief Justice or Associate Justice of the Supreme Court shall preside in the order of the seniority of their respective commissions.

"In case the full court at any time shall not be made up by the attendance of the Chief Justice or an Associate Justice of the Supreme Court and Cir