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balance settlements, and such balances have been regarded as debts of a preferred character when there is a receivership. Again, the business association of such carriers affords to each facilities for locating primary responsibility as between themselves which the shipper cannot have. These well-known conditions afford a reasonable security to the receiving carrier for a reimbursement of a carrier liability which should fall upon one of the connecting carriers as between themselves."

The statute of June, 1906, is a law of general operation throughout the United States, and as such is to be given effect in the State courts, their jurisdiction being concurrent with the Federal courts where the amount in controversy is sufficient for Federal court jurisdiction, and where the sum involved is not large enough the State courts only have jurisdiction. Smeltzer v. Railroad Co. (C. C.), 168 Fed. 420.

Based on its assignments of error, it is urged and argued in behalf of defendant that a verdict should have been directed in its favor, for the reason that the First National Bank of Traverse City, and not plaintiff, owned the car load of apples at the time it was stopped at Mt. Vernon and seized by the sheriff of that county; that both the bank and plaintiff are shown to have acquiesced in the change of destination; that plaintiff's bill of lading was not admissible under his declaration; and that the case in any event should be reversed because the court erroneously admitted in evidence a certain letter sent by plaintiff on December 22, 1909, to the general freight agent of the Chicago, Milwaukee & St. Paul Railroad, protesting against the stoppage of the car short of its destination, giving his reasons and stating his claim in relation to the matter. Though the court thought this letter admissible in part for certain purposes, yet in disposing of the case by a directed verdict it was not considered by the court, according to the record. The learned circuit judge then said, amongst other things:

"In my opinion the bill of lading constituted a contract for a continuous trip; that this car of fruit should have made one continuous trip from Traverse City to Chamberlain, except as it might be subject to necessary stops in the course of business, and the stop at Mt. Vernon would not come under this head. They had no right, in my opinion, under this contract, to stop the car by order of W. W. Davis. The facts would not warrant any holding that there was a waiver of the right to the performance of the contract by Mr. Perkett or by the bank; and for this reason, as the letter from Mr. Perkett that was offered in evidence, and to which objection was made, contains considerable matter that was in my opinion not admissible and might have been prejudicial, I include it at the present time, the jury being excused and the matter being before the court. I think the plaintiff is entitled to the benefit of the letter, as far as it shows that there was no actual waiver on his part, and I admit it in evidence, and the defendant may have the benefit of an objection or exception so that they may make use of it. I will say that independent of this letter, I find for the plaintiff. If this letter had not been in evidence, or had not been written, my opinion is that the plaintiff would be entitled to recover. I make this decision without considering the letter."

We think it clear, as the court stated, that much of the letter was inadmissible, being devoted to statements of fact in plaintiff's favor, and reasons why he protested against the car not being sent to Chamberlain according to its billing. It is true the letter was not directed to defendant or one of its officials, but it was sent to the connecting terminal carrier, then having custody and direct control over the car, and then, as applied to that shipment, the agent of defendant. The letter was written as soon as plaintiff learned the car was stopped at Mt. Vernon, and before its contents were seized by attachment. It was defendant's claim that plaintiff had acquiesced in the car being stopped there. We think it was competent in that connection to show that he promptly wrote the

connecting carrier, who was defendant's agent then in control of the property, with power to forward it to its destination, protesting and objecting to a violation of the contract of shipment.

It is contended that the bill of lading was not admissible in evidence because "it shows on its face that defendant was not to deliver the apples at Chamberlain, but that this was to be done by the St. Paul road," while the declaration was drawn on the theory that the defendant operated a railroad from Traverse City to Chamberlain, alleged defendant was a common. carrier between those two points, and agreed to carry the apples and deliver them to plaintiff at Chamberlain.

The declaration recites in apt language the cause of action, and the Federal statute under which it is planted. Under that statute defendant's liability would be the same whether it owned a line clear to Chamberlain or not. The declaration is not misleading. It alleges the delivery to defendant of 194 barrels of apples, for shipping from Traverse City on a certain date, the receipt of a bill of lading by plaintiff from defendant, describing the property in apparent good order-

"Consigned to the order of L. F. Perkett, destination Chamberlain, State of South Dakota, notify W. W. Davis at Chamberlain, State of South Dakota, route, Chicago, Milwaukee & St. Paul Railway, car initial, A. R. L., car number 6423, which said defendant, in and by said receipt or bill of lading, agreed to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination, and said defendant further agreed, in and by said receipt or bill of lading, that the surrender of said receipt or bill of lading, properly indorsed, should be required before the delivery of the property, and that inspection of the property covered by the said receipt or bill of lading should not be permitted unless provided by law,

or unless permission was indorsed on the original bill of lading, or given in writing by the shipper."

It is also urged as a fatal variance between the declaration and the bill of lading that the latter provides:

"In issuing this bill of lading this company agrees to transport over its own line, and except as otherwise provided by law, acts only as agent with respect to the portion of the route beyond its own line.'

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The law apparently otherwise provides, treating the connecting carriers as agents of the receiving carrier, and holding the latter liable as principal for the acts of its agents. Atlantic Coast Line R. Co. v. Riverside Mills, supra. We think the shipping bill was sufficiently described in the declaration to entitle it to be received in evidence.

The contention that plaintiff cannot recover because he did not own the apples when stopped at Mt. Vernon and when attached is not tenable. It is true that he had indorsed the bill of lading and delivered it to the bank for collection, and in the meantime had been credited with the amount it was expected would be collected, thus technically, for the time being, vesting the bank with title to the apples; but the bank, when endeavoring to make the collection, recognized that it was acting for him and under his direction, and obtained his consent before sending the draft to Mt. Vernon for presentation to Davis. On return of the uncollected draft and attached papers, from the Mt. Vernon bank to the Traverse City bank, the draft was promptly charged back to plaintiff, and the papers returned to him. The bank, having failed in making collection, had no further interest in the matter. Plaintiff's legal title to the property and relations with the defendant carrier then stood as they did when the bill of lading was issued. But, conceding that plaintiff at the time of the alleged wrongful diversion and conversion had entirely parted with the title and

then had no interest in the property, a condition fatal in some jurisdictions to his subsequently bringing an action in trover (which is the principle here contended for by defendant) it is, in any event, clear that he had reacquired ownership of the property, with legal title, at the time this suit was brought. This action involves a right of property, incident to which is a wrongful withholding or conversion of the property, and a right of action for conversion is assignable in this State. Final v. Backus, 18 Mich. 218; Brady v. Whitney, 24 Mich. 154; Grant v. Smith, 26 Mich. 201; Upham v. Dickinson, 38 Mich. 338; Dayton v. Fargo, 45 Mich. 153 (7 N. W. 758); Felt v. Evaporating Co., 52 Mich. 602 (18 N. W. 378); Crippen v. Fletcher, 56 Mich. 386 (23 N. W. 56); Smith v. Thompson, 94 Mich. 381 (54 N. W. 168).

We do not find that there is legal evidence that plaintiff and the bank consented to the car being stopped at Mt. Vernon. It is contended that Davis, under his contract with plaintiff, had the right to do so, and that the bank, with plaintiff's approval, on being advised that the car had been stopped short of its destination, acquiesced in that diversion by sending the shipping bill and draft there for collection. We find no testimony in the record tending to show any agreement between Davis and plaintiff that Davis could, at his option, divert any of the cars from the points to which they were billed. Davis furnished to plaintiff, at the time the apples were purchased, the points to which they should be shipped. He testifies:

"I told him that I would give him the billing of the cars as soon as I could, but probably would want to change the order or billing on part of them; he said to let him know as soon as I found out just where I wanted them."

They were all billed according to Davis' directions, and there is nothing in his testimony, or any other that we have discovered, tending to show any authority

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