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Central R. Co. v. MacCartney, 68 N. J. L. 165, 52 Atl. 575; Central of Georgia R. Co. v. Southern Ferro Concrete Co. 193 Ala. 108, 68 So. 981, Ann. Cas. 1916E, 376; New York, N. H. & H. R. Co. v. York & W. Co. 215 Mass. 36, 102 N. E. 366.

36, 102 N. E. 366; Pennsylvania R. Co. | mont R. Co. 170 Mass. 36, 49 N. E. 97; v. Titus, 216 N. Y. 17, L.R.A.1916E, 1127, 109 N. E. 857, Ann. Cas. 1917C, 862; Emerson v. Central of Georgia R. Co. 196 Ala. 280, L.R.A.1916F, 120, 72 So. 120; New York, N. H. & H. R. Co. v. Sampson, 222 Mass. 311, 110 N. E. 964; Boston & M. R. Co. v. Oceanic Steam Nav. Co. 226 Mass. 509, 116 N. E. 260; Boston & M. R. Co. v. Whitcher, 1 Allen, 497; Old Colony R. Co. v. Wilder, 137 Mass. 536; 10 C. J. 446.

The state court was correct in holding justified the finding that the railroad company was not estopped to collect the undercharges on the last five carloads of cantaloupes and on the pieplant and peaches, and that the York & Whitney Company could not recoup damages.

Pittsburgh, C. C. & St. L. R. Co. v. Fink, 250 U. S. 577, 582, 583, 63 L. ed. 1151, 1153, 1154, 40 Sup. Ct. Rep. 27; Texas & P. R. Co. v. Mugg, 202 U. S. 242, 50 L. ed. 1011, 26 Sup. Ct. Rep. 628; Pennsylvania R. Co. v. Titus, 216 N. Y. 17, L.R.A.1916E, 1127, 109 N. E. 857, Ann. Cas. 1917C, 862; Louisiana R. & Nav. Co. v. Holly, 127 La. 615, 53 So. 882; Central R. Co. v. Mauser, 241 Pa. 608, 49 L.R.A. (N.S.) 92, 88 Atl. 791; New York, N. H. & H. R. Co. v. York & W. Co. 215 Mass. 40, 102 N. E. 366; Illinois C. R. Co. v. Henderson Elevator Co. 226 U. S. 441, 57 L. ed. 290, 33 Sup. Ct. Rep. 176; Central R. Co. v. McCartney, 68 N. J. L. 165, 52 Atl. 575.

Mr. Amos L. Taylor argued the cause and filed a brief for the York & Whitney Company:

None of these bills of lading ever came to the possession of the York & Whitney Company, and it had no knowledge of their contents until after the delivery. It cannot be presumed to know the terms, although it may have known of the uniform bill of lading adopted, since special bills of lading may be issued for particular commodities, including perishable property.

Re Bills of Lading, 14 Inters. Com. Rep. 346.

The acceptance of the goods by the agent after the knowledge communicated to the carrier that it was acting as agent establishes no implied contract to pay the freight.

Boston & M. R. Co. v. Whitcher, 1 Allen, 498; Old Colony R. Co. v. Wilder, 137 Mass. 536; Blanchard v. Page, 8 Gray, 295; Tirrell v. Gage, 4 Allen, 253; 10 C. J. pp. 445, 446; 2 Hutchinson, Carr. 3d ed. § 807; Cox v. Central Ver

The custom of the trade is binding on the carrier.

South Deerfield Onion Storage Co. v. New York, N. H. & H. R. Co. 222 Mass. 535, 111 N. E. 367.

The only right the railroad company had against the York & Whitney Company was the right to hold the goods until its lien was discharged. The possible extent of the lien is the lawful tariff rates.

Gulf. C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. Rep. 802.

But the railroad company was not bound to enforce its lien. Under the bills of lading the carrier could collect the lawful charges from either the shipper or the consignee. Waiver of the lien as against the consignee does not relieve the shipper, and the terms of the bill of lading would be fully satisfied.

Wooster v. Tarr, 8 Allen, 270, 85 Am. Dec. 707.

Liability does not turn upon knowledge of established rates.

Central of Georgia R. Co. v. Southern Ferro Concrete Co. 193 Ala. 108, 68 So. 981, Ann. Cas. 1916E, 376; Central R. Co. v. MacCartney, 68 N. J. L. 165, 52 Atl. 575.

Even if the decision of the Massachusetts court to the effect that the York &

Whitney Company had impliedly contracted to pay the lawful freight rates can be sustained, the decision of that court to the effect that the railroad comaction on that contract cannot be suspany was not estopped to maintain an tained.

Deans v. Eldredge, 217 Mass. 588, 105 N. E. 449; Central R. Co. v. MacCartney, 68 N. J. L. 165, 52 Atl. 575; New York, N. H. & H. R. Co. v. York & W. Co. 215 Mass. 36, 102 N. E. 366; Utermehle v. Norment. 197 U. S. 40, 56, 49 L. ed. 655, 661, 25 Sup. Ct. Rep. 291, 3 Ann. Cas. 520; Ewart, Estoppel, p. 77; Pom. Eq. Jur. 3d ed. p. 1439; 1 Story, Eq. Jur. p. 207; Alabama & V. R. Co. v. Jones, 73 Miss. 122, 55 Am. St. Rep. 488, 19 So. 105; Drake v. Wild, 70 Vt. 52, 39 Atl. 248.

Even if the amount of the rate is fixed by law, the nature of the rate remains unchanged. It is still a question

of fact. A freight rate is ordinarily a matter of fact.

Freeman v. Kemendo, App., 148 S. W. 605.

Tex. Civ.

The reasons which make it possible to set up misrepresentation as working an estoppel support the claim of the York & Whitney Company for recoupment. Sears v. Wingate, 3 Allen, 103; Kilgore v. Bruce, 166 Mass. 136, 44 N. E. 108; Coleman v. Lewis, 183 Mass. 485, 68 L.R.A. 482, 97 Am. St. Rep. 450, 67 N. E. 603; Lufburrow v. Henderson, 30 Ga. 482; Cleveland, C. C. & St. L. R. Co. v. Rudy, 173 Ind. 181, 89 N. E. 951; Rogers v. Humphrey, 39 Me. 382; Birdsey v. Butterfield, 34 Wis. 52.

prompt settlements. The court below held that whether York & Whitney Company impliedly agreed to pay the rates imposed by law was a question of fact, to be determined upon consideration of all the circumstances. It accordingly approved a judgment, entered upon a verdict, favorable to that company as to charges upon one carload (No. 280), [408] and in behalf of the railroad for those claimed on account of eight carloads (No. 281).

We think the doctrine announced in Pittsburgh, C. C. & St. L. R. Co. v. Fink, 250 U. S. 577, 63 L. ed. 1151, 40 Sup. Ct. Rep. 27 (November 10, 1919), is controlling, and that the liability of York & Whitney Company was a question of

Mr. Justice McReynolds delivered the law. The transaction between the paropinion of the court:

Neither party was wholly successful in the courts below. 230 Mass. 206, 119 N. E. 855 (May 24, 1918). Each has [407] asked and obtained a writ of error and also a writ of certiorari. The latter properly brings the issues before us, and the former must be dismissed.

The railroad company, as terminal carrier, sued York & Whitney Company, a commission merchant, to recover the balance claimed for freight and refrigeration on nine carloads of melons, vegetables, and fruit consigned to the latter, subject to lawful charges, and delivered at Boston during the years 1911 and 1912. They were shipped in interstate commerce upon straight bills of lading, approved as to form by the Interstate Commerce Commission, but none of these came into the consignee's possession, and it had no knowledge of their issuance or terms.

When York & Whitney Company accepted the cars, it paid all charges claimed. The merchandise was sold at once and the net proceeds remitted to the shippers. Later, the railroad company discovered that it had collected less than lawful rates established under the Interstate Commerce Act, and thereupon demanded the balance alleged to be due by reason of such undercharges. Maintaining it had accepted the shipments upon the understanding that the charges were as reported, and had not agreed to pay more, York & Whitney Company refused the demand.

Commission merchants often receive from strangers shipments of perishable articles for sale at market prices. Under a trade custom such things are promptly disposed of and the net proceeds remitted to the consignors. Successful conduct of the business requires

ties amounted to an assumption by the consignee to pay the only lawful rate it had the right to pay, or the carrier the right to charge. The consignee could not escape the liability imposed by law through any contract with the carrier.

The judgment of the court below, so far as challenged, in No. 280, must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. The judgment so far as challenged in No. 281 is affirmed.

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1. A railway company which has such

Note. As to proper district for suit -see note to Roberts v. Lewis, 36 L. ed. U. S. 579.

On immunity of United States from suit-see note to Beers v. Arkansas, 15 L. ed. U. S. 991.

On suit against Federal officers or agents as suit against United Statessee notes to Louisiana v. Garfield, 53 L. ed. U. S. 92, and Wells v. Roper, 62 L. ed. U. S. 756.

On repeal of statute by implication, generally-see notes to State v. Massey, 4 L.R.A. 309, and United States v. Henderson, 20 L. ed. U. S. 235.

On remedy to enforce orders of public service commissions-see note to State ex rel. Caster v. Southwestern Bell Teleph. Co. L.R.A.1918E, 313.

arrangements with another railway company running through a given Federal district as are equivalent in practice to a lease of the latter company's road for the former's transportation purposes, and which deals with the public and with the Interstate Commerce Commission with respect

to traffic as if it owned or had leased the

tracks, is within the venue provision of the Interstate Commerce Act permitting an action upon a reparation order of the Interstate Commerce Commission to be commenced in any district through which the

road of the carrier runs. [For other cases, see Courts, V. c, 7, in Digest Sup. Ct. 1908.]

Writ and process - return siveness.

conclu

2. The return of a marshal that he executed a writ by handing the same to a person described as freight agent of the defendant railway company should be accepted as conclusive that he was agent of such company, as against the objection that the Federal government was, at the time the petition was filed, in control of the railway company's line, where there is no evidence that the person served was not such agent, and the suit is one upon a reparation order of the Interstate Commerce Commission, the shipments for which reparation was allowed having been made prior to the taking over of the railroads by the government.

[For other cases, see Writ and Process, IV. in Digest Sup. Ct. 1908.] United States

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immunity from suit Federal instrumentality or agency railroad under government control.

3. The objection of government control of the railroads cannot defeat jurisdiction of a suit upon a reparation order of the Interstate Commerce Commission where the shipments for which reparation was allowed moved prior to the taking over of the railroads by the government, since, under the provision of § 10 of the Federal Railroad Control Act, "Actions at law or suits in equity may be brought by and against such carriers, and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal government." [For other cases, see United States, IV. b, in Digest Sup. Ct. 1908.]

Courts

- venue

reparation suit implied repeal of statute. 4. The venue provision of the Interstate Commerce Act, permitting suits on reparation orders of the Interstate Commerce Commission to be commenced in any district through which the road of the carrier runs, was not impliedly repealed by the Act of October 22, 1913, abolishing the commerce court, which, in restoring to the Federal district courts the jurisdiction which had been vested exclusively in the commerce court, provided that the venue of any suit thereafter brought to enforce, suspend, or set aside any order of the Inter

state Commerce Commission, should be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made. [For other cases, see Courts, V. c, 7; Statutes, III. b, in Digest Sup. Ct. 1908.] Appeal review of facts exceptions. 5. In the absence of special findings of fact by the court below, its general finding has, under U. S. Rev. Stat. § 649, the effect of a verdict of a jury, and is conclusive upon all matters of fact, and there being no exceptions to rulings of law in the progress of the trial, the review in the Federal Supreme Court is, under § 700, limited to the question of the sufficiency of the complaint.

[For other cases, see Appeal, VI. b; VIII. 1, 3, in Digest Sup. Ct. 1908.] Pleading

suit.

complaint

reparation

6. Allegations in the petition in a suit upon a reparation order of the Interstate Commerce Commission, that the shipper filed its petition with the Commission, claiming that it had been charged an unreasonable rate, that, upon hearing, the Commission entered an order for the payment of money as reparation on account of unreasonable rates exacted for the transportation of its freight, that the order required payment to be made by a date named, that the carriers had refused payment when demanded, and that the suit was instituted under the Interstate Commerce Act and its amendments, to which petition copies of the report and order of the Commission were attached, are amply sufficient to meet the statutory requirement that the petition in such a case shall set forth briefly the causes for which damages are claimed, and the order of the Commission in the premises. [For other cases, see Pleading, II. d, in Digest Sup. Ct. 1903.]

Interstate Commerce Commission reparation proceeding

suspension.

7. An amendment to the carrier's tariff so as to correct the unreasonable rate which was complained of, under § 3 of the Interstate Commerce Act, in a petition to the Interstate Commerce Commission, removed any occasion for further suspension of action by the Commission by reason of an undisposed-of application for relief by the carrier, under § 4, as amended by the Act of June 18, 1910, which provides that no rates or charges lawfully existing at the time of the passage of the amendatory act shall be required to be changed in any case where such an application shall have been filed until a determination of such application by the Commission.

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[For other cases, see Interstate Commerce Commission, in Digest Sup. Ct. 1908.] Appeal review of facts exceptions. 8. The facts found by the Interstate Commerce Commission in a reparation proceeding were not so adopted by the district court in a suit upon the reparation order as to become special findings of fact by the court, which may be reviewed by the Federal Supreme Court without exception taken,

merely because the court found that the report and order of the Commission constituted prima facie evidence of the facts therein stated, and entered judgment in favor of plaintiff for the amount of the order, with interest and attorneys' fees. [For other cases, see Appeal, VI. b, VIII. 1, 3,

in Digest Sup. Ct. 1908.]

[No. 270.]

trol, was not good service upon the corporation.

Southern Cotton Oil Co. v. Atlantic Coast Line R. Co. 257 Fed. 138; Mardis v. Hinds, 258 Fed. 945; Westbrook v. Director General, supra; Wood v. Clyde S. S. Co. 257 Fed. 879; Northern P. R. Co. v. North Dakota, 250 U. S. 135, 63 L. ed. 897, P.U.R.1919D, 705, 39 Sup.

Argued March 24, 1921. Decided May 16, Ct. Rep. 502; Castle v. Southern R. Co.

1921.

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The facts are stated in the opinion. Mr. Samuel W. Moore argued the cause, and, with Messrs. J. Blanc Monroe and Frank H. Moore, filed a brief for plaintiffs in error:

Where Congress takes up an entire subject-matter and covers it by appropriate legislation, this operates as a repeal of prior provisions upon the same subject.

Tracy v. Tuffly, 134 U. S. 206, 33 L. ed. 879, 10 Sup. Ct. Rep. 527; The Habana, 175 U. S. 677, 44 L. ed. 320, 20 Sup. Ct. Rep. 290; United States v. Rider, 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. 983; District of Columbia v. Hutton, 143 U. S. 18, 36 L. ed. 60, 12 Sup. Ct. Rep. 369; King v. Cornell, 106 U. S. 395, 27 L. ed. 60, 1 Sup. Ct. Rep: 313; Fisk v. Henaire, 142 U. S. 459, 35 L. ed. 1079, 12 Sup. Ct. Rep. 207; St. Louis Southwestern R. Co. v. S. Samuels & Co. 128 C. C. A. 188, 211 Fed. 588; McLean Lumber Co. v. United States, 237 Fed. 460; Illinois C. R. Co. v. Public Utilities Commission, 245 U. S. 493, 62 L. ed. 425, P.U.R.1918C, 1279, 38 Sup. Ct. Rep. 170; Skinner & E. Corp. v. United States, 249 U. S. 557, 63 L. ed. 772, 39 Sup. Ct. Rep. 375.

The road of the Vicksburg, Shreveport, & Pacific Railroad does not run through the southern district of Mississippi.

Westbrook v. Director General, 263

Fed. 211.

The attempted service upon the Vicksburg, Shreveport, & Pacific Railway Company by delivering a copy of the summons to the freight agent at Vicksburg, Mississippi, during Federal con

112 S. C. 407, 8 A.L.R. 959, 99 S. E. 846. Plaintiff's petition does not state a cause of action.

Baer Bros. Mercantile Co. v. Denver & R. G. R. Co. 200 Fed. 614; Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 2 L.R.A. 289, 2 Inters. Com. Rep. 351, 37 Fed. 613; Slacum v. Pomeroy, 6 Cranch, 221, 3 L. ed. 205; Griggs v. Madeau, 137 C. C. A. 189, 221 Fed. 381.

The Commission's findings of fact were, on their face, insufficient to sustain its order of reparation and the judgment based thereon.

C. A. 290, 256 Fed. 18; Appalachia Michigan C. R. Co. v. Elliott, 167 C. Lumber Co. v. Louisville & N. R. Co. 25 Inters. Com. Rep. 197; Baer Bros. Mercantile Co. v. Denver & R. G. R. Co.

233 U. S. 479, 58 L. ed. 1055, 34 Sup. Ct. Rep. 644; Southern P. Co. v. Interstate Commerce Commission, 219 U. S. 433, 55 L. ed. 283, 31 Sup. Ct. Rep. 288; Meeker v. Lehigh Valley R. Co. 236 U. S. 412, 59 L. ed. 644, P.U.R.1915D, 1072, 35 Sup. Ct. Rep. 334, Ann. Cas. 1916B, Missouri, K. & T. R. Co. 12 Inters. Com. 691; Missouri & K. Shippers' Asso. v. Rep. 483; Re Export Rates, 27 Inters. Com. Rep. 246; Lehigh Valley R. Co. Atchison, T. & S. F. R. Co. 44 Inters. v. Rainey, 112 Fed. 487; Cameron v. Com. Rep. 286; Oklahoma Traffic Asso. V. Abilene & S. R. Co. 36 Inters. Com. R. Co. 48 Inters. Com. Rep. 499; Rep. 329; Mosby v. Yazoo & M. Valley F. R. Co. 17 Inters. Com. Rep. 139; Sligo Iron Co. v. Atchison, T. & S. S. F. R. Co. 18 Inters. Com. Rep. Consumers' Ice Co. v. Atchison, T. & 277; Brush Creek Min. & Mfg. Co.

v. Louisville & N. R. Co. 39 Inters. Com.

449; Re Rice Rates, 31 Inters. Com. Rep. 614; Re Midcontinent Oil Rates, 36 Inters. Com. Rep. 115; Northern Pine Mfrs. Asso. v. Chicago & N. W. R. Co. 33 Inters. Com. Rep. 360; Knight Woolen Mills v. Chicago & N. W. R. Co. 32 Inters. Com. Rep. 490; Railroad Comrs. v. Denver & R. G. R. Co. 27 Inters. Com. Rep. 522; Victor Mfg. Co. v. Southern R. Co. 27 Inters. Com. Rep. 661; Iowa State Bd. v. Arizona

Eastern R. Co. 28 Inters. Com. Rep. 193;
Orange Rice Mill Co. v. Texas & N. O.
R. Co. 49 Inters. Com. Rep. 250; New
York Harbor Case, 47 Inters. Com. Rep.
643; Interstate Commerce Commission v.
Nashville, C. & St. L. R. Co. 57 C. C. A.
224, 120 Fed. 934; Interstate Commerce
Commission v. Louisville & N. R. Co. 73
Fed. 409.

The sufficiency of the facts found by the Commission, and adopted by the lower court, to support the judgment, may be examined in an appellate court without the necessity of any exceptions.

Seeberger v. Schlesinger, 152 U. S. 581, 38 L. ed. 560, 14 Sup. Ct. Rep. 729; Hooven, O. & R. Co. v. John Featherstone's Sons, 49 C. C. A. 229, 111 Fed. 81; Philadelphia Casualty Co. v. Fechheimer, 136 C. C. A. 25, 220 Fed. 401, Ann. Cas. 1917D, 64; Mercantile Trust Co. v. Wood, 8 C. C. A. 658, 19 U. S. App. 567, 60 Fed. 346; Chicago, R. I. & P. R. Co. v. Barrett, 111 C. C. A. 158, 190 Fed. 123; Mutual L. Ins. Co. v. Kelly, 52 C. C. A. 154, 114 Fed. 271; Wayne County v. Kennicott, 103 U. S. 554, 26 L. ed. 486; Anderson v. Messinger, 7 L.R.A.(N.S.) 1094, 77 C. C. A. 179, 146 Fed. 929; Guaranty Trust Co. v. Koehler, 115 C. C. A. 475, 195 Fed. 669; Louisiana Mut. L. Ins. Co. v. Tweed, 7 Wall. 44, 19 L. ed. 65.

Steinhauser v. Order of St. Benedict, supra.

The question of whether or not, at the close of a trial; there has been substantial evidence to sustain a finding in favor of the party, is a question of law which arises in the trial. It is raised by a motion for a judgment or a request for a declaration of the law, or by any other action which presents this issue of law for the court to determine before the trial ends.

Sun Pub. Co. v. Lake Erie Asphalt Block Co. 84 C. C. A. 584, 157 Fed. 80; Paul v. Delaware, L. & W. R. Co. 130 Fed. 954.

Treating the declaration of the trial judge that the award of the Commission was prima facie evidence of all the facts stated therein as a finding of fact, it was a general finding, and cannot be reviewed in this court.

Chicago, G. W. R. Co. v. Minneapolis, St. P. & S. Ste. M. R. Co. 100 C. C. A. 41, 176 Fed. 242, 20 Ann. Cas. 1200; Schmid v. Dolan, 93 C. C. A. 194, 167 Fed. 804; Union County Nat. Bank v. Ozan Lumber Co. 103 C. C. A. 584, 179 Fed. 710; Dirst v. Morris, 14 Wall. 490, 21 L. ed. 723.

If there be any special findings of ultimate facts that are not agreed upon, there can be no review, under a general verdict, of the question whether the Mr. Harry B. Anderson argued the judgment is supported by the facts

cause and filed a brief for defendant in

error:

Where a case is tried without a jury, there is no right of review by the appellate court, when findings of fact are not made, except as to rulings of the court during the trial, excepted to at the time, and presented by the bill of exceptions; and a statement of the court in its opinion as to the facts and the evidence does not fall within rulings as contained in the statute.

Keeley v. Ophir Hill Consol. Min. Co. 95 C. C. A. 99, 169 Fed. 598; Mason v. Smith, 112 C. C. A. 146, 191 Fed. 502; Streeter v. Chicago Sanitary Dist. 66 C. C. A. 190, 133 Fed. 127; Bell v. Union P. R. Co. 114 C. C. A. 326, 194 Fed. 366; Steinhauser v. Order of St. Benedict, 194 Fed. 289.

found.

National Surety Co. v. Cincinnati, N. O. & T. P. R. Co. 76 C. C. A. 19, 145 Fed. 35.

Under the practice in Mississippi, defective pleading can be challenged only by demurrer, both under the state statute and by decisions of its supreme

court.

Marshal v. Hamilton, 41 Miss. 229; Whitaker v. Comfort, Walk. (Miss.)

421.

The through rate should not exceed the combination of the intermediate rates.

Sylvester v. Pennsylvania R. Co. 14 Inters. Com. Rep. 573; Ryan v. Great Northern R. Co. 18 Inters. Com. Rep. 226; Randolph Lumber Co. v. Seaboard Air Line R. Co. 14 Inters. Com. Rep. 339. To raise the question of the sufficiency The assignment that there is no evi- of the evidence before the Interstate dence to support the judgment raises a Commerce Commission to support its question of law, which cannot be re-order of reparation sued upon herein, viewed unless presented to and passed the defendants would have had to exon by the trial court by some appropriate action during the trial, unless the finding is entirely without evidence to support it.

cept to the findings at the time, and raise the question by a motion for judgment, or by a request for a declaration of law, or by some other action which

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