road companies whose tracks oc- | rface. There are some four or companies, and their cars are prorepower and not by steam. They agat convenience to the citizens, have become almost a public necessity. ot believed that a foot of all these all these streets exists otherwise e of an Act of Congress directing and minutely where this shall be And no power exists in one of these to lay a track, however short, anyroad Company now asserting this cars from the east side of the city stance of two miles or more, sely populated part of the city, the boation of every foot of which ed with minuteness by Acts of ConA principal passenger depot, loelbred yards from the main line gh the city, makes this deflece solely by virtue of an exOngress, passed to enable the To do so. District to some point or terminus within the The third section of this Act, after describ- This provision of the original Act, under which the Baltimore and Potomac Railroad enters this city, has never been repealed or modified, as far as we are aware, and it fully asserts the purpose of Congress to retain in its own hands the right to the use of the streets of the city in regard to this Company and its road, as it has in regard to all others. these well-known facts before us the care with which Congress has re- By another Act, passed March 18, 1869, 16 Stat. sed the power of granting, re- at L., 1, entitled as supplementary to the one ating the use of the streets of above cited, it was declared "that said Company for railroads, that we approach might enter the City of Washington with their of the statute or statutes which railroad, and construct the same within the limd to grant the enlarged power its of said city on or by whichever one of the the Baltimore and Potomac Com-two routes herein designated the said Company may elect and determine; that is to say: most important of these is the that it is represented that the "First. Beginning at the intersection of Boundary street and North Carolina avenue; thence along said North Carolina avenue to South D street, westwardly, to Virginia avenue; thence along Virginia avenue, northwestwardly, to the intersection of South C street and West Ninth street; or, "Second. Beginning at some point on the northern shore of the Eastern Branch of the Potomac River, between South L and South M streets; thence westwardly between said streets to the intersection of Virginia avenue with South L and East Twelfth streets; thence along said Virginia avenue, northwestwardly, to South K street; thence along said South K street, westwardly, to South Fourth street; thence, by a line curving to the right, to the north bank of the canal; and thence along the said bank of the canal, northwestwardly, to Virginia avenue; thence along Virginia avenue, northwestwardly, to the intersection of South Cand West Ninth streets." Whether this was in accordance with a map or maps furnished by the Company we are not informed; probably it was. But this was wholly immaterial, as this supplemental statute was clearly made to allow the use of these streets as provided in section three of the original Act. By another Act, approved March 25, 1870, Congress authorized the Company to make some changes in the line of its road between Esta Fourth street and the terminus at the junction of C street south and Ninth street west, which change, however, is described with the same particularity as the routes above described, and by the same Act the time for the completion of the road was extended. The next Act of Congress, approved June 21, 1870, 16 Stat. at L., 161, also entitled as [459] amendatory of the Act of July 5, 1867, author- It is by virtue alone of the words of this stat- The Company, having its road well under way, needed a passenger depot for its business— a need much more important than its present need of an additional freight depot. It did not, however, attempt to establish one under its general powers, but made application to Congress, which authorized its construction, and in doing so described its location with great precision, and the streets along which the track must go, in departing from the right of way already granted. land to see if the powers thus conferred, which are said to be adopted by the Act of C gress, give this extraordinary power. It is sufficient to say that we do not find the Maryland charter of that Company power to use the streets of a city as an incid of its right to run to or from such city. 1 no such right is granted may be fairly infe from the fact that the track of this road for two miles under the City of Baltimore tunnel built for that purpose, which must b delayed the completion of the road two three years, and cost a large sum of mo The Company certainly would not have this expensive underground roadway if thing in its charter authorized it to use the face streets of the city. And if the construction which counsel p upon that charter is sound, it is very cel that Congress did not intend extending power of the Company into the District of lumbia, and part with its own control of streets and highways of Washington City such a power is in conflict with the ex language of the Act, and with the con practice under it. We are referred by counsel to the Re Statutes of the District of Columbia, ch 18, concerning Corporations. Clause 7 of chapter provides for the voluntary ass tion of individuals into corporations for b ing railroads in the District. It grants corporations, when formed in compliance the rules there prescribed, all the usual po of such companies organized under State utes, and all that are necessary to the oper of a railroad, and the powers thus conferred in the main, very liberal. There are two reasons, however, why provisions can give no aid to the Baltimor Potomac Company. This Act of March 3, 1871, required the assent of the municipal authorities of the City of Washington for the erection of the depot, and that assent was given by a joint resolution of the board of aldermen and common council on March 9, 1871. And so necessary did the Com- 1. That Corporation is organized und pany deem the consent of Congress to this, or special statute of the State of Maryland, a any other occupation of the streets or public a corporation of that State. The Act of property of the city, that it procured the pas-gress of February 5, 1867, merely autho sage of the Act of May 21, 1872, ratifying the action of the city authorities in the matter, and setting out with greater detail the direction of the lateral track to the passenger depot, and the streets over which it should go. that Maryland Corporation to extend its ro to the District of Columbia, and in definir powers which the Company should exerc the District, it referred to and adopted, main, the Act of the State of Maryland g ing the charter. This was three years before the gener corporation law was enacted by Congress the Company has never organized under law, or professed to be governed by it, serted itself to be a corporation of the D of Columbia. Whether it could do this it is unnecessary to decide, but it is very that the power conferred by that Act w signed only for corporations organized it, and is not conferred on corporations c by States of the Union, governed by the of those States. The title to the streets of Washington is in the United States, and not in the city, or in the owners of the adjacent lots. Potomac S. B. Co. v. Upper Potomac Co., 109 U. S., 672 [Bk. 27, L. ed. 1070]. It is, therefore, eminently proper that the right to use them for any other than he ordinary use of streets should proceed from Congress; and when we consider the express reservation of the power to Congress to allow this use in the original grant to the Company, found in the third section of that Act, and the detail and precision with which every foot of the track or tracks of the road has been prescribed by Congress, and every change which 2. But if this were not so, and if this expediency required has been previously au-pany could exercise all the powers whic thorized by Congress, we can see no place for the assertion of any right in the Company to make other tracks, or changes in location of those now existing without an Act giving the consent of that body. In the face of these statutes it is hardly necessary to look into the language of the charter of the Company by the Legislature of Mary statute grants to corporations organized it, the statute itself shows, as all the legis by Congress has shown, both before and that that body never intended to part wi right to designate the route of a railroad th the city, and on what streets its track be located, and which streets it shoul This is plain from one of the closing s " harter of the Revised Statutes on that | Ne raroad shall be built under this chapter until the route of such road have been approved eran of the general law for the vol zation of corporations for buildab in the District of Columbia, exeze idea and the same purpose three of the Act authorizing the : Potomac Company to enter the Lamely: to retain in the hands of solute control of the use of the the city by any railroad company nion that, when this Company in any direction from the line rack as prescribed for it by Acts & must obtain permission to do so And that Congress, and not the Company, is the judge of the To the necessity of such change, acher in which the public good be made and the safeguards which the Supreme Court of the Dis18 reversed, and the case rearm firections to dismiss the bill. M.Kenney, Clerk, Sup. Court, U.S. - NATIONAL BANK OF BOSTON, Pf. in Err., GEORGE MIXTER. Henry Mixter was named as the plaintiff in- James H. McKenney, Clerk, Sup. Court, U. S. ATLANTIC PHOSPHATE COMPANY, v. JOHN C. GRAFFLIN. (See S. C., Reporter's ed., 492-501.) Contracts-party making advances for purchase of goods for another, held to be the owner. A contract was made by A., of Charleston, with D., of Baltimore, for the sale and delivery, at Charleston, of 2,500 tons of kainit, to be shipped from August to October, 1880, at a fixed price, cash on delivery of each cargo. The kainit was to come from R., at Hamburg. D. procured G., for a commission paid him by D., to send to R. a credit, on London, for the amount of 2,500 tons of kainit in five cargoes, under which R. obtained the money. G. paid drafts, against the credit, to the amount of the cargoes. The declarations and invoices by R., presented before the consul at Hamburg, named G. as the consignee at Charleston; and the bills of landing made the cargoes deliverable, at Charleston, to G. or his assigns. These papers were sent to A., before any of the cargoes arrived, with an invoice for each cargo, in the shape of a bill, made out thus: A. bought of G., a cargo of kainit, shipped by such a vessel, such a quantity, such a price; and a power of attorney, under which A.'s agent, as attorney for G., entered the cargoes at the custom-house at Charleston, in February and March, 1881, as imported by G., and made oath that G. was the owner. A. received and accepted the cargoes. Held, (1) G. was the owner of the cargoes, and sold and 5. C. Reporter's ed., 463–464.) name. red in cases by or against inA when brought to this court Comptroller of the Currency. shows that the Comptroller rur, a mistake in name is no (No. 1124.] 2. 13, 1885. Decided Apr. 20, 1885. to the Circuit Court of the Unit r the District of Massachusetts. **ently stated by the court. ▲ A. Ranney, for plaintiff in error, Java Waite delivered the opin [No. 256.] Argued Apr. 16, 17, 1885. Decided May 4, 1885. IN ERROR to the Circuit Court of the United States for the District of South Carolinia. The history and facts of the case appear in the opinion of the court. Messrs. S. Lord and James Conner, for Messrs. Charles Nephew West and Mr. Justice Blatchford delivered the opin- This is an action at law, brought in the Cir- **! This is such a case. stake in one of the papers Head notes by Mr. Justice BLATCHFORD. (492) [493] sels, quantities and prices. The total amount is $15,450.42; and there is added a cause of action for that sum, with interest, as money advanced, laid out and expended, by the plaintiff for the use of the defendant, at its special instance and request. The cargoes are stated to amount to 2,500 tons. The answer contains a general denial of all the causes of action. It also avers a purchase by the defendant, in May, 1880, through one Dunan, of Baltimore, representing himself as agent of one Radde, of Hamburg, of 2,500 tons of kainit, to be shipped between August 1, 1880, and October 31, 1880; further purchases by it, afterwards, from the same parties, of 1,550 tons, for future shipment, all by January 1, 1881; the receipt by it of, and payment for, 1,080 tons on the 2,500 tons' contract; its receipt of the five cargoes sued for; and its willingness to pay for the cargoes according to the contracts therefor, subject to its claims for [494] damages for the nonperformance, by the vendors, of the contract of May, 1880, in that the cargoes were not shipped within the time and in the manner specified in the contract, but arrived when the business of the year was over, and when the goods were much depreciated in value; which damages, amounting to $9,586.82, it claims to recoup. [495] The answer also avers, that the defendant purchased the cargoes mentioned in the complaint, at Hamburg, under the contract, and received the same under the circumstances above set forth, and was, from the time of the shipment of the kainit, the owner thereof; that the invoices for all of the cargoes shipped by Radde to the defendant were in the name of Dunan; that, on January 25, 1881, Dunan requested the defendant to return his invoices and substitute similar ones in the name of Grafflin, and it did so, but it never made any new contract, in regard to any of the cargoes, with Grafflin; that it never received any notice of the assignment of the contract or cargoes to Grafflin; that, if Grafflin advanced money on the cargoes, he did so subject to the rights of the defendant under the contract, and was conversant with those rights; and that Graffin was the real principal in the contract. To the counterclaim so set up the plaintiff replied, alleging that he, and not Radde, owned the kainit; that it was sold and delivered to, and accepted and received by, the defendant, as the property of the plaintiff, free from the claim made for recoupment; and that he and the defendant never occupied any other relations than those of seller and buyer of the kainit, set forth in the complaint, at the prices agreed to be paid. The case was tried before a jury, and resulted in a verdict for the plaintiff for the $15,450.42, with interest on the amount of each cargo from the date of its delivery; and there was a judgment accordingly, to review which the defendant brings this writ of error. The bill of exceptions embodies all the evidence, by a stipulation between the parties, made in this court. There was no dispute as to any material question of fact. The transactions originated in the following_letter, dated April 29, 1880, from Dunan, at Baltimore, to Pelzer, Rodgers & Co., at Charleston, they being the general agents there of the defendant: "Radde cables sell Atlantic 2,500 tons bes quality Eagle Mine genuine raw kainit, gua anteed to test not below 24 per cent sulphat of potash by the German chemist, Dr. Ulex to be shipped during the summer and fa months-say from August to October incl sive-for $7.50 per ton of 2,240 lbs. in takin Hamburg weights. The kainit to be delivere at your Atlantic Phosphate Company's whar Ashley river, Port of Charleston, S. C. TH price of $7.50 per ton includes cost, freight an insurance to your wharf. From the price, as th quantity is large, I will rebate 10 cents per tor Terms of payment, cash on delivery of eac cargo." Pelzer, Rodgers & Co. replied, b writing to Dunan, on May 10, 1880, as follow We will take 2,500 tons of best kainit, as d scribed by you, to test not less than 24 per ce sulphate of potash, to be delivered at our wha on Ashley river, at seven dollars per ton 2,240 lbs." To enable Radde to send the cargoes to t defendant, the plaintiff, who resided in Bal more, at the request of Dunan, and for a con pensation of 1 per cent commission, paid him by Dunan, sent to Radde, at Hamburg, credit with Brown, Shipley & Co., of Londo for the amount of five cargoes, under whi Radde drew on Brown, Shipley & Co., payin them their commission, and Brown, Shipley Co. drew on the plaintiff. They received t shipping documents from Radde and sent the to the plaintiff, and he paid their drafts. I directed them to ship the cargoes to Charlesto The shipping documents consisted of bills lading, charter party, consular invoices for e try at the custom-house, certificates of analy and weight in Hamburg, and memorandum voices. The declarations before the United Stat consul, at Hamburg, were made by Radde, owner, and they named the plaintiff as the co signee at Charleston; and they and the consu certificates named Charleston as the intend port of entry. The invoices referred to in, a annexed to, the consular certificates named t plaintiff as the consignee. The bills of lading forth that the kainit was to be delivered at t Port of Charleston, at the Atlantic Phospha Company's wharf, on Ashley River, "unto Mr C. Grafflin, or his assigns." The Hamburg d larations and invoices and consular certifica were presented by the plaintiff at the custo house at Baltimore, and he made oaths to tries, before a deputy collector at the custo house there that the goods were assigned to " C. Grafflin, Charleston," and the papers w verified by the collector of customs at Ba more, and were passed by the cashier of c toms at that custom-house. These papers a the bills of lading, in this condition, for all cargoes (the bills of lading probably indor in blank by the plaintiff, though this is clear), were put by the plaintiff into the har of Dunan, at Baltimore, and Dunan sent th all to Pelzer, Rodgers & Co., before Janua 25, 1881, with invoices made out in his (I nan's) name, for the five cargoes in questi On that day, Dunan wrote to the company follows: Atlantic Phosphate Co., Charl ton, S. C. Gentlemen, I wish to withdr all my invoices sent you with the docume for these cargoes, and substitute instead closed invoices from Mr. John C. Graff |