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lease or assignment, what appears in the record is only the following letter from a gentleman representing Otis, Wilcox & Co. to the New York Stock Exchange:
“Chicago, Aug. 25, 1900. "I am in receipt of your favor of the 23d, requesting my appearance before the committee on admissions on Thursday, the 30th, at twelve o'clock, to substantiate our claim against E. C. Hodges.
"With regard to this claim, we wish to say that we have made a settlement, and relinquish whatever claim we had against Mr. Hodges' membership. Kindly communicate the above to committee on admissions, and oblige, "Yours very truly,
J. E. Otis, Jr." Although not directly so stated, the letter makes it plain that the condition of the relinquishment of the exchange was that Otis, Wilcox & Co. understood that they had made a full settlement of the debt which E. C. Hodges & Co. owed them. Therefore, as there was merely this letter of advice, the law itself, without the aid of the equity courts, could, and, on Otis, Wilcox & Co. discovering their mistake and making their claim on the trustee, did, annul all their prior proceedings, and restore all the same rights as though such proceedings had not taken place. Therefore we have no occasion to discuss the proposition that no man is entitled to the aid of courts of equity when that aid becomes necessary through his own fault, because, in the first place, it is too broad in any view, in that it is among the highest prerogatives of those courts to accomplish justice sometimes in behalf even of one who has been imprudent, and because, in the present case, as we have said, the restoration of the rights of Otis, Wilcox & Co. was effected without the aid of any of the special remedies to which chancery is accustomed.
The only substantial doubt is raised by the constitution of the New York Stock Exchange, extracts from which are found in the record. These are susceptible of such a construction as to bar any lien in favor of a member of the exchange who does not prove his claim to its committee named in the constitution. They are, however, equally susceptible of a different construction; and, inasmuch as their substantial purpose is to secure other members against a defaulting member by a lien on the proceeds of his seat, we ought, in the absence of clear language to the contrary, to adopt such an interpretation as accomplishes that intent. Appreciating the fact that the New York Stock Exchange, like other similar exchanges in the great commercial marts, is, so to speak, "domestic” in its character, and reserves to itself the determination of all questions arising between its various members so far as it is practicable and lawful so to do, we perhaps would decline to interfere in the disposition of this fund if it still remained with the exchange. But, after the exchange had parted with it, the possibility of its taking jurisdiction in reference thereto ceased, and we do no injustice to any one, and do not interfere with any “domestic” policy, by now substituting ourselves in place of its committee. We are encouraged in this, if not fully sustained, by the expressions in Clews v. Jamieson, 182 U. S. 461, 495, 496, 21 Sup. Ct. 845, 859, 45 L. Ed. 1183, with reference to the rules of the Chicago Stock Exchange, although it is true that the rules there referred to related to the adjustment of accounts between its members, and not to the particular topic which we have before us. The opinion says:
“The sales were made subject to the rules referred to, but, so far as regards a remedy for their violation, those rules provide a means by which parties may seek and obtain relief in accordance with their terms. They do not assume to exclude the jurisdiction of the courts, or, in other words, they do not ssume to provide an exclusive remedy wbich the parties must necessarily follow, and which they have no right to refuse to follow without violating such rules, and thereby violating their contract.”
So, in the present case; we may well say that, inasmuch as the extracts from the constitution of the exchange before us do not "assume to exclude the jurisdiction of the courts,” or “assume to provide an exclusive remedy” because they contain no express terms to that effect with reference to the existing circumstances shown by this record, we may now justly adjudicate in reference hereto. Consequently we hold that Otis, Wilcox & Co. had a lien and equitable security on the fund while it was in the hands of the exchange, that the rules of the exchange did not interpose any limitation of time, that their rights thereto were only intermitted and not lost, and that their lien followed the fund into the hands of the trustee in bankruptcy, so that the decree of the district court in that respect was correct.
The parties have raised before us no question with reference to interest on the fund in issue, but we find it necessary to consider it. Ordinarily, an appellant, or other party, who has postponed by a proceeding in an appellate tribunal the payment of an amount justly due, should pay damages therefor equal, at least, to legal interest, even if he has not received any increment of the fund corresponding thereto. In Hutchinson v. Le Roy (C. C. A.) 113 Fed. 202,1 already referred to, we allowed interest against the petitioner; but there the fund which it was determined belonged to him had been held adversely from the outset, as it grew out of a tort of the bankrupt which arose before proceedings in bankruptcy were commenced. În the present case, however, the fund came into the hands of the trustee in bankruptcy, not through any tort, but through the oversight of Otis, Wilcox & Co. The trustee merely held it until the courts could determine to whom it belonged, and the record does not show that the trustee has received any increment thereof. Under the circumstances, and as this appeal was taken by the trustee in his official capacity to settle a question involving substantial doubts, we think that interest should not be allowed. We have discussed the matter of interest under circumstances of like special character in New England R. Co. v. Carnegie Steel Co., 21 C. c. A. 219, 75 Fed. 54, 59, and in The H. F. Dimock, 23 C. C. A. 123, 77 Fed. 226, 239, 240. In New England R. Co. v. Carnegie Steel Co., the fund was, for a portion of the time, held under conditions analogous to those at bar, in that it was in the hands of the court. So far as that period was concerned, we followed Thomas v. Car Co., 149 U. S. 95, 116, 13 Sup. Ct. 824, 37 L. Ed. 663. For the remaining period the fund was in the hands of the New England Railroad Company, having been transferred to it by the order of the court, and as that corporation took out the appeal, which was decided against it, we awarded interest from the time it was taken.
In No. 415 (Hutchinson, Trustee, Appellant, v. Otis, Wilcox & Co., Appellees) the decree of the district court allowing the appellees' proof
151 C. C. A. 159.
of claim is affirmed, and the costs of appeal are awarded to the appellees.
In No. 416 (Hutchinson, Trustee, Petitioner) the decree of the district court directing the payment by the trustee to Otis, Wilcox & Co. of $4,091.28 is affirmed, without interest, the costs on the petition are awarded to the respondents, and the district court is directed to give effect to this decree, both as to debt and costs.
(115 Fed. 945.)
CONTINENTAL COAL CO. V. BOWNE.
BOWNE v. CONTINENTAL COAL CO.
Nos. 424, 425.
A clause of a charter party or bill of lading providing that, after arrival and notice to the consignee, the vessel shall have precedence in discharging over all vessels arriving or giving notice after her arrival, and stipulating for special demurrage in case of a violation of such provision, is in the nature of one for a penalty, which should not be imposed unless the case comes clearly within the purpose which it intended to accomplish; and where the original consignee of the cargo, to whom notice of arrival was given, refused to receive it, and the master was instructed by the shipper to deliver to another, the latter became from that time the consignee, for the purposes of such clause, and the special demurrage is not recoverable because precedence in discharging was given to another vessel, through the action of the original
consignee, after its refusal to accept the cargo. Appeal from the District Court of the United States for the District of Rhode Island.
William B. Greenough, for Continental Coal Company,
Frank Healy (Archibald C. Matteson, on the brief), for William B. Bowne.
Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.
PUTNAM, Circuit Judge. This is a question of demurrage. By the bill of lading, a lien was reserved against the cargo, not only for freight, but for demurrage. Both parties have appealed. The leading facts are stated in the opinion passed down in the district court. Questions arising from the same forms of charter party and bill of lading were raised in "1,755 Tons of Cumberland Coal,” decided by us on March 4, 1902 (Evans v. Blair, 52 C. C. A. 396, 114 Fed. 616).
One question is whether any demurrage should have been allowed. The district court allowed it at the ordinary rate, and the appeal of the Continental Coal Company is against this allowance. It is based on two propositions. R. B. Little & Co., the consignees named in the bill of lading, refused to receive the cargo. Thereupon communication was had with the shipper, which was the Continental Coal Company; and it is claimed that the shipper promptly telegraphed the master of the vessel to deliver to the Providence Coal Company, that the master was absent, and that if he had not been absent, and had attended immediately to delivery, the cargo could have been discharged in season to have avoided demurrage. It is true that the master went to his home over Sunday; that he did not provide for proper attention to telegrams, as he should have done; and that the dispatch from the Continental Coal Company was received on the afternoon of Saturday, when he was absent. Nevertheless, on his return on Monday morning he was ready to attend to the delivery of his cargo; but there was no person ready to pay his freight or guaranty his demurrage, and the duplicate bill of lading was not at hand. This last was necessary, because R. B. Little & Co. had merely refused to receive the cargo, and had not signified the status of the duplicate bill of lading, so that in its absence the master could not be sure of right delivery. Therefore it follows that no detriment came to the Continental Coal Company from his absence over Sunday.
During Monday or Tuesday the master was satisfied with reference to the freight and demurrage, and the duplicate bill of lading was at hand. At this point, however, the Continental Coal Company claims that the master delayed docking his vessel. The record is obscure on the question whether this delay was caused by the master, or by the fault of the Providence Coal Company, which, acting for the Continental Coal Company, had agreed to notify the master, through the tugs which were to dock the vessel, when it would be ready to receive delivery; but it is clear that this is not essential, because the crucial delay was caused by the fact that a coal-laden barge was already discharging at the same dock, and that both vessels could not be there unladen simultaneously. On the whole, we are of the opinion that the decree of the district court in allowing demurrage was correct.
The appeal of William B. Bowne, who represents the vessel, is against the refusal to allow special demurrage under the following clause:
“After arrival and notice to the consignee as aforesaid, and the expiration of said twenty-four hours, said vessel shall have precedence in discharging over all vessels arriving or giving notice after her arrival; and for any violation of this provision she shall be compensated in demurrage as if while delayed by such violation her discharge had proceeded at the rate of three hundred tons per day.”
This clause is in the nature of a penalty, so that it ought not to be imposed unless the case comes clearly within the purpose which it intended to accomplish. That is the preventing of unjust discrimination. It has no proper relation to what occurs through contingencies like that in the case at bar. From the time that R. B. Little & Co. refused to accept the cargo, and the Providence Coal Company consented to receive it, the latter became its real consignee, notwithstanding the bill of lading was not indorsed to it. R. B. Little & Co. might, necessarily, have been considered the consignees, for the purpose of notifying them of the arrival of the vessel. But after they refused to receive the cargo, they no longer remained the consignees for any other substantial purpose. Therefore, even if the Providence Coal Company might not be regarded as the consignee for all purposes, within a literal construction of the charter party and the bill of lading, yet, under the circumstances, they became such in substance, and the relations of the parties on this question should be treated from that standpoint. Inasmuch as the precedence given to another vessel was given by R. B. Little & Co. after they had refused to accept the cargo, there would be no substantial justice in holding the clause in question applicable to this case; and there is no such condition of the law relating to the construction of mercantile instruments as requires us to stand by the mere letter for the purpose of enforcing what is, in substance, a penalty.
Both parties having appealed, and the appeal of each failing, interest on the amount decreed should not be allowed.
In each case the decree of the district court is affirmed, and the appellee recovers the costs of appeal.
(115 Fed. 947.)
ROCKPORT GRANITE CO. v. BJORNHOLM.
1. MASTER AND SERVANT-ASSUMED Risks.
While an employé assumes the known risks of his employment, he assumes them with all of their qualifications, which include the exercise of the care which the employer is accustomed to use to obviate or mini
mize the danger from such risks. 2. SAME-SAFETY OF WAYS AND WORKS-CARE REQUIRED OF SERVANT.
It was not error to refuse an instruction that an employé could not recover for an injury alleged to have resulted from the negligence of the master, in failing to make proper examination and test of a ledge of rock before a blast was made, if he "had as good an opportunity as defendant's superintendent to examine the situation,” where he was not charged by his employment with any duty in that respect, and the defect which caused the accident was not so obvious that he must be held to have known of it as matter of law. Railroad Co. v. O'Leary, 93
Fed. 737, 741, 35 C. C. A. 562, applied. In Error to the Circuit Court of the United States for the District of Massachusetts.
Frank E. Dunbar, for plaintiff in error.
Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.
PUTNAM, Circuit Judge. This case comes up on a writ of error brought by the defendant below. For convenience, we will style it the defendant, and the defendant in error plaintiff. The case was tried to a jury, with a verdict for the plaintiff.
The defendant says that the plaintiff is 25 years old; that for 5 or 6 years he had been working at cutting paving blocks in quarries, during which time he had seen the usual quarrying and blasting operations; that he then went to work for the defendant in its quarry,