[78] [79] use of the invention by others for more than two years prior to his application. Upon the question of infringement, the agreed statement of facts shows the following: That the defendants have bad in use on their farm for the past seven or eight years one or more driven wells, which wells were put down for the defendants by an ordinary well driver in the following manner: a tube, of which the lower portion was perforated with small holes and the lower end provided with a point, was driven into the ground until it projected into the water, without removing the earth upwards, as in boring. The water then entered the tube through the perforations and was pumped up through the tube by an ordinary pump. That the defendants have never driven wells for themselves, except as above described, or for other purposes; never have sold or offered for sale driven wells, or the materials for driving them, but have simply used their own wells for their personal use on their farms." It is now contended, on the part of the appellant, that the claim of the patent is for the process of driving the well, and not for the use of the well after it has been driven, and that consequently the appellant is not shown to have infringed; but, as has been shown in the case of Eames v. Andrews, the patent covers the process of drawing water from the earth by means of a well driven in the manner described in the patent. The use of a well so constructed is, therefore, a continuing infringement, as every time water is drawn from it the patented process is necessarily used. As was said by Mr. Justice Blatchford in Andrews v. Cross, 19 Blatchf. 294, 305: "Under this construction the defendant has infringed by using the pump in a driven well, constructed in a house hired by him, to obtain a supply of water for the use of his family, although he may not have paid for driving the well, or have procured it to be driven. Such use of the well was a use of the patented process." The decree of the Circuit Court is accordingly affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court U. 8. Dissenting: Mr. Justice Bradley, Mr. Justice Field and Mr. Justice Gray. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Plf. in Err., BENJAMIN B. KNIGHT ET AL. (See S. C. Reporter's ed. 79-97.) Common carriers-bill of lading is both a receipt and a contract-carrier only required to deliver goods actually received-deficiency in quality-liability as warehouseman-delivery of cotton to be compressed-liability to broker -control-when liability as common carrier begins-instructions-pleading-local statute. 1. A common carrier is not responsible for a difference in the quality of goods carried as compared with that described in the bill of lading if he safely delivers the very goods received by him for transportation. 2. A bill of lading is at once a receipt and a con. tract. It is an acknowledgment of the receipt of the property and a contract to carry safely and de liver. 3. In an action to charge the defendant as a common carrier with damages for a failure to deliver cotton of the quality called for by certain bills of lading, issued by its agent, it is held: that the defendant is not liable as a common carrier by reason of anything occurring after the transportation actually commenced; that the plaintiffs cannot recover on the ground of a liability on the part of the defendant as a warehouseman, the action being on the bills of lading alone, and its liability, if any, as a warehouseman being to the broker, who de livered the cotton to the defendant to compress it before shipment, and not to the plaintiffs; that its liability as a common carrier did not commence said broker or his agents for immediate transportauntil the cotton was designated and set apart by tion, all of the cotton delivered to the defendant by said broker being (until so designated and set marking was concerned, to his control; that cerapart) subject, so far as grading, classifying and tain instructions, set out in the opinion of the court, are erroneous; and that the defenses made by the defendants were open to it under the pleadings, a Statute of Illinois requiring a plea to be verified by affidavit under certain circumstances, not being applicable to the circumstances of the case. [No. 283.] Argued and submitted May 3, 1887. Decided May 23, 1887. IN ERROR to the Circuit Court of the United States for the Northern District of Illinois. Reversed. The history and facts of the case appear in the opinion of the court. Mr. John F. Dillon, for plaintiff in error: The agent of the Railway Company had no authority to issue bills of lading for cotton not actually received by him for transportation; and bills so issued can impose no liability upon the Railway Company to deliver the goods therein described; but it may be shown, even as against an innocent indorsee for value, that such goods were never received for carriage. Lickbarrow v. Mason, 2 T. R. 63; Grant v. Norway,2 Eng. L. & Eq.337; Hubbersty v. Ward, 18 Eng. L.& Eq. 551; Brown v. The Powell D.S. Coal Co., L. R. 10 C. P. 562; The Freeman v. Buckingham, 59 U. S. 18 How. 182 (15:341); The Loon, 7 Blatchf. 244; Robinson v. Memphis, etc. R. R. Co. 9 Fed. Rep. 129; S. C. 16 Fed. Rep. 57; Pollard v. Vinton, 105 U. S. 7 (26: 998); Sears v. Wingate, 8 Allen, 103; Baltimore & O. R. R. Co. v. Wilkens, 44 Md. 11; Hunt v. Miss. Cent. R. Co. 29 La. Ann. 446; Louisiana Nat. Bank v. Laveille, 52 Mo. 380. See Chandler v. Sprague, 38 Am. Dec. 407, note; Cox v. Bruce, L. R. 18 Q. B. Div. 147. By the insertion of the words "contents unknown," in the bill of lading, the Railway Company expressly exonerated itself from all liability in regard to the quality of the cotton which it received and carried under these bills, and in the absence of evidence to the contrary the cotton sued for, upon a warranty that the cannot be held responsible for nondelivery of cotton carried should be of the quality indicated in the bills, and by the marks upon the bales themselves. Haddow v. Parry, 3 Taunt. 303; Jessel v. Bath, L. R. 2 Exch. 267; Clark v. Barnwell 53 U. S. 12 How. 272 (13: 985); The Columbo, 3 Blatchf. 521; Bissel v. Price, 16 Ill. 408; Barrett v. Rogers, 7 Mass. 297; Shepherd v. Naylor, 5 Gray, 591; Miller v. Hannibal & St. J. R. R. Co. 90 N. Y. 480. As to all cotton in the compress warehouse, and until its actual delivery upon the loading platform for shipment, the Railway Company [81] can at most be deemed only a warehouseman, and its liability as such cannot be inquired into in this action. It was not in issue. Hutchinson, Carriers, § 82; Michigan, etc. R. R. Co. v. Shurtz, 7 Mich. 515; Platt v. Hibbard, 7 Cow. 497; St. Louis, etc. R. R. Co. v. Montgomery, 39 l. 835; Roskell v. Waterhouse, 2 Stark. 461; O'Neill v. N. Y. C. & H. R. R. R. Co. 60 N. Y. 138; Barron v. Eldredge, 100 Mass. 455; Angell, Carriers, § 134, and note. The court below erred in charging the jury that the Railway Company was liable in case of connivance by its agent at the substitution of an inferior quality of cotton in the place of that called for by the bills of lading, both be cause there was no such issue, and no evidence to warrant such a charge, and the charge misconceived the actual case in hand. Messrs. Julius Rosenthal and Abram M. Pence, for defendants in error: Under the pleadings the defendant is not entitled to raise any question as to the validity of the bills of lading, and is estopped from claiming that the cotton described in the bills was not on hand at time same were issued. Defendant's plea not being verified by affidavit, it is precluded from controverting the execution of the bills of lading. Stevenson v. Farnsworth, 2 Gilm. 715; Gaddy v. McCleave, 59 Ill. 182; Templeton v. Hayward, 65 Ill. 178; Dwight v. Newell, 15 Ill. 335; Walker v. Krebaum, 67 Ill. 252. The bills of lading in this case were issued by an agent of defendant. Confidence had been reposed in such agent, and apparent authority had been conferred upon him by the defendant Company to receipt for property and issue such bills of lading; and hence such principal, as against an innocent purchaser for value, must suffer from an actual exercise of authority not exceeding the appearance of that which is granted to such agent. The defendant Company is estopped by the acts and declarations of its agent, upon which plaintiff relied and parted with his money, from denying that it had received the cotton in question, as stated in its bill of lading. St. Louis & Iron Mt. R. R. Co. v. Larned, 103 Ill. 293; Armour v. Mich. Cent. R. R. Co. 65 N. Y. 111. The evidence shows that at the time these bills of lading were signed there was a large amount of cotton of this grade and of these marks in the hands of the Railway Company; and also that in December 5,000 bales of cotton were in its possession and that over 5,000 bales of cotton, with same marks as this, were sent to parties other than plaintiffs. If other persons had rights superior to plaintiffs to this cotton, it should have been shown by defendant. The burden was upon them to show it. And upon our proving that cotton of the quality and description of ours came into the hands of defendant, although after the bills of lading were given, yet, when it came into such possession, it became the property of the holders of the bills. The Idaho, 93 U. S. 575 (23: 978); Rowley v. Bigelow, 12 Pick. 307; Robinson v. Memphis R. R. Co. 16 Fed. Rep. 60. Mr. Justice Matthews delivered the opinion of the court: This is an action of assumpsit brought by the defendants in error against the St. Louis, Iron Mountain and Southern Railway Company in the Superior Court of Cook County, Illinois, and removed into the Circuit Court of the United States for the Northern District of Illinois by the defendant below, the parties being citizens of different States. The declaration set out several similar causes of action in different counts against the Railway Company as a common carrier, in one of which it was alleged that the defendant, having received from one G. T. Potter a large number of bales of cotton, described in a certain bill of lading acknowledging receipt thereof, thereby agreed safely to carry the same from Texarkana, in the State of Arkansas, to St. Louis, in the State of Missouri, and thence to Woonsocket, in the State of Rhode Island; and avers that, in violation of its promise and duty, and by reason of its negligence, the said goods became and were wholly lost. The plaintiffs below sued as purchasers of the cotton from Potter and assignees of the bills of lading. The bills of lading sued upon were similar in their tenor, except as to the description of the articles named therein, and commenced as follows: "Received from G. T. Potter the following packages, contents unknown, in apparent good order, marked and numbered as per margin, to be transported from Texarkana, Ark., to St. Louis, and delivered to the consignee or a connecting common carrier." A specimen of what was contained on the margin is as follows: "Marked. List of articles. Weight. "[P. P.]...Seventy-four bales cot"Order shipper notifyton, adv. ch'g's $111.00...85,964 "B. B. & R. KNIGHT, Providence, R. I. "Deliver cotton Woonsocket, R. I.” Some of the bills of lading specified that the goods were to be transported from Texarkana to Providence, R. I., to be forwarded from St. Louis to destination. The whole number of bales in controversy is 525. To the declaration the defendant filed a plea of the general issue, which was not verified. The ground of the complaint on the part of the plaintiffs was, not that they did not receive the whole number of bales called for by the bills of lading, but that, as to the 525 bales in controversy, they were not of the grade and quality designated by the marks contained in the bills of lading. By reason of this difference in quality, on the arrival of the cotton at destination, the plaintiffs refused to receive the same, and, after notice to the defendant, caused the same to be sold for its account. The amount claimed was the loss thereby incurred. The cause was tried by a jury, and a verdict and judgment rendered for the plaintiffs for $11,808.51. A bill of exceptions, duly taken, sets out the entire evidence given on the trial, and the charge of the court to the jury, with the exceptions taken by the plaintiff in error. The court below in its charge to the jury gave in outline a statement of the main features of the case sufficient for present purposes, as follows: "The proof tends to show that Potter was a cotton broker at Texarkana, Arkansas, in the [82] [83] [84] fall of 1879 and winter following; that he "The testimony tends to show the course of "There is also testimony in the case, given 79-97 to show that when it was ready for shipment it was turned out on to what was known as the loading platform, and was there shipped to such consignees as Potter directed; that is, bills of lading having been given to various persons, Potter directed to whom he would have each lot, as it was turned out ready for shipment, sent or forwarded. regard to 525 bales of cotton covered by the "The controversy in this case is wholly in eight bills of lading offered in evidence in this case. member, covered a large amount of other cotton These bills of lading, as you will rewhich it is conceded was received in due course of business, and answered to the marks of claimed on the part of the plaintiffs that 525 quality which were upon the bales; but it is bales of the whole number of bales covered by the bills of lading were not of the quality called for by these bills of lading, and this suit is wholly in regard to those. 9th of April, 1880, there still remained un"The plaintiffs claim that, on or about the shipped from Texarkana and in the compress warehouse 525bales of this cotton, for which they held bills of lading; that, on or about the 9th of April, there remained in the compress house about 800 bales of cotton of an inferior grade to that indicated by the marks on the cotton called for by these bills of lading; and that certain employés of Potter, as plaintiffs insist, with the knowledge of O'Connor, the defendant's freight agent, re-marked this cotton with marks indicating the grade or quality called for by the bills of lading; and the defendant forwarded this inferior cotton to the plaintiffs, instead of the actual quality called for by these bills of lading. when this inferior cotton arrived at its destina"The plaintiff's proof also tends to show that tion, Providence, Rhode Island, plaintiffs declined to accept it, caused it to be put into an auction house, and sold for the benefit of whom it might concern, notified the defendant of what they had done before this sale took place, givtake the cotton if it saw fit,and dispose of it iting the defendant opportunity to reclaim and self; and this suit is now brought to recover the difference between the proceeds of this inferior cotton, as the plaintiffs claim, and the drafts and freight they have paid.", delivered to the plaintiffs below the whole numIt is not denied that the Railroad Company ber of bales of cotton mentioned in the bills of "It is conceded that the defendant, and it is in for, and that no change was made in the cotton lading, with external marks thereon as called fact provided in the bills of lading that the de- or in the marking thereof after it was loaded fendant, the Railroad Company, should com- on the cars for transportation to Texarkana, press this cotton before shipping to the North or and that no damage or loss was occasioned by East, and that the expense of compressing was reason of any want of care or diligence in the paid by the defendant out of its charges for transportation. The bill of lading contains no transportation; that some elapsed between the arrival of the cotton in the any particular quality; on the contrary, it extime necessarily warranty that the goods described shall answer compress warehouse and the time when it was pressly specifies that the contents of the packcompressed and made ready for shipment. ages are unknown. That a bill of lading in Especially was this so in the fall and early part such cases does not operate as such a guaranty of the winter, when there was a large rush on appears from the case of Clark v. Barnwell, 53 cotton, and it was impossible to compress and U. S. 12 How. 272 [13:985], where Mr. Justice handle the cotton as fast as it came in. The Nelson, delivering the opinion of the court, p. cotton therefore accumulated in large quanti-283 [989], said: "It is obvious, therefore, that ties in the compress house, awaiting compression and getting ready for shipment. "And there is also proof in the case tending 122 U. S. the acknowledgment of the master as to the [85] [86] [87] cases, excluding any implication as to the quan- On ceipt of the goods lies at the foundation of the has to do." "1. This compress warehouse must be deemed the warehouse of the defendant. If you find from the proof that it was used by the defendant as the place for storing the cotton while the defendant was compressing the same that is, if while the defendant was getting the cotton ready for shipment North it used the compress warehouse for the purpose of storage, then the compress warehouse must be deemed the defendant's warehouse for that purpose. actual transportation. While it remained in the After charging the jury, in the same connec- It follows, therefore, that if any liability at- common carrier no collusive agreement or con- [88] [89] [90] substantially as it was made between Potter the defendant's agents knew or were informed at the time they shipped this cotton to the plaintiffs or accepted it for shipment that it was of a quality inferior to that called for by the bills of lading which the defendant had issued for it, and knew that the marks on those bales or packages had been changed from marks indicating a lower grade or quality of cotton to marks indicating the grade called for by the "This rule may, however, be subjected to a bills of lading, then the defendant is liable in qualification or limitation under the facts in this this action for the difference in value between case as you may find them to be. The proof the cotton of the quality called for by the bills tends to show that Potter marked quite a large of lading and the value of the cotton actually number of bales with the same grade and lot shipped-that is to say, if the proof satisfies marks as those described in these bills of lad- you that the agent of the defendant connived ing; and there is proof tending to show that no at the substitution of a lower and inferior qualspecific bales of cotton were set apart or con-ity of cotton in place of that called for by the sidered as forming the particular bales to be bills of lading, although the marks may have shipped on these bills of lading; but it was un- been such as called for by the bills of lading, derstood between Potter and the defendant that then the defendant is liable. While, if from the out of the lot or quantity of bales marked in proof you are satisfied that when the agents of the manner designated in these bills of lading the defendant actually shipped the cotton they a sufficient number to make up what are called had no knowledge of the difference in quality for by those bills of lading should be shipped. between the cotton so shipped and that called If you so find, then the defendant was bound for by the bills of lading, and had no knowlto ship the number of bales called for by these edge that the cotton was, in fact, inferior to bills of lading out of the larger quantity bear- that called for by the bills of lading, and that ing the same common marks; and this would the grade marks on the bales had been changed be the contract, if you find from the proof that from marks indicating a lower grade to marks the cotton in question was to be drawn from a called for by the bills of lading, then the delarger lot bearing the same common marks. fendant is not liable. "The testimony on the part of the defendant tends to show that the defendant's agents did not know at the time of the issuing of these bills of lading that the marks on these bales indicated the quality or the grade of the cotton; that, so far as Mr. O'Connor and the other agents of the defendant who had the responsible charge of the defendant's business at Texarkana were concerned, the marks only indicated a means of identification, and the quality of the cotton was not considered by them; that a bale of cotton to them was only a bale of cotton, without regard to quality; that in shipping the cotton in fulfillment of these bills of lading they only referred to the marks as a means of identifying or determining what cotton they were to ship under each bill of lading. "You are to determine, then, as a question of fact, from the testimony: "First. Whether it was in the course of [91] business in the handling of this cotton in the warehouse to set apart and keep separate the cotton covered by each bill of lading from the time such bill of lading was issued, or whether the defendant's agent, O'Connor, only satisfied himself, through the agency of Martin or his employés, that there was enough cotton, as stated in the bills of lading, to fill such bill as part of a common lot answering to the same description. As, for illustration, there might be in a railroad warehouse in this city 10,000 barrels of flour of one brand, and ten bills of lading might be issued, each to a different person, calling each for 1,000 barrels of this lot of "As has been stated, the plaintiffs' proof flour. No one barrel would be specifically tends to show that on or about the 9th of April set apart as belonging to any one of these the employés of Potter, with the knowledge bills of lading; but any one of the 10,000 barof the defendant's agent, marked a lot of 800 rels would be liable to be shipped on any of these bales of inferior cotton, then in the compress bills of lading-that is, it would be assumed warehouse, with grade marks corresponding to that the entire lot was uniform and alike in those called for by these bills of lading, and quality, and it would, therefore, make no difthat the defendant shipped this inferior cotton | ference to the person to whom it was shipped to the plaintiffs in fulfillment of its contract which particular barrel of flour he got. If under those bills of lading; while the defend- such was the mode of doing business in this ant's proof tends to show that the defendant's compress warehouse, and Potter understood it, agents had no knowledge of the fact that this then the defendant was not obliged to keep cotton was of a quality inferior to that called separate cotton called for by each bill of ladfor by these bills of lading, and had no knowl-ing, but could fill the bill of lading out of the edge of the fact that the grade marks on the bales so shipped had been changed from marks indicating a lower grade to those indicating the grade called for by the bills of lading, but that, on the contrary, they accepted the cotton with the belief that it was the cotton called for by the bills of lading, and which had been delayed in the warehouse up to that time for the purpose of compressing and getting it ready for shipment. 4. If the proof in the case satisfies you that common lot bearing the same marks. "Second. Did the agents of the defendant in charge of the issue of these bills of lading and the shipment of this cotton know the grade marks of this cotton called for by the bills of lading; and did they know that this 525 bales in question was of an inferior grade to that called for by the bills of lading; and did they knowingly accept this inferior quality of cotton in place of that called for by the bills of lading, and ship the same to plaintiffs? |