time the contract was made. It would be, and ability, and upon that basis adjudged grossly inequitable to deprive him of the against Ward the return of all the property benefit of his time, skill, and labor, and give then in his possession and the payment of it to the mortgagor, who all those years did over $17,000. But it is said that Ward nothing and gave no notice of any question himself repudiated the agreement because he of the completeness of Ward's title. brought suit on the first of the notes. There It seems to us that the doctrine of may have been a technical mistake in the laches applies with force, and that upon form of the action, but there was no reputhe pleadings the court should have ad- diation of the agreement, as is shown by the judged the defendant not entitled either to fact that the complaint only asked judgment a rescission of the contract or to hold the for $1,500, and that Ward filed with the vendee as a mortgagee in possession. complaint an affidavit for an attachment, in which he averred that the payment of the sum due was "not secured by any mortgage or lien upon real or personal property or any pledge of personal property." But equity will not destroy rights on account of a mere technical mistake of counsel. It may be conceded that Ward should have brought an action in form for the value of the cattle not delivered, but it is manifest that that value was all that he was seeking to recover. The judgment of the Supreme Court of Arizona is reversed and the case remanded to that court with instructions to reverse the judgment of the District Court, and remand the case to that court for further proceedings in conformity to the views herein expressed. Err., v. (192 U. S. 179) Valley Trust Company, Executors of If we look beyond the pleadings to the testimony (and that, as we have seen, was, by virtue of the statute, made a part of the record of the case in the supreme court), the error of the trial court is even more apparent. The agreement of September 12 provided for the transfer and conveyance of all cattle on the Sunflower range, branded with the named brands, "excepting only from the provision of said conveyance such cattle as shall have been sold and delivered by said Sherman-Hardenberg Cattle Company prior or to September 1, 1894, it being understood that all stock cattle which may have been sold subsequent to September 1, 1894, shall be accounted for by the party of the second part to said party of the first part." By this all the cattle belonging to the company on September 1 were to be transferred to the plaintiff, and if any of such cattle had been sold subsequently to September 1 they were to be accounted for by the company to the WABASH RAILROAD COMPANY, Piff in plaintiff. Further, the agreement stipu lated for the delivery and cancelation of the notes and mortgage "in consid- WILLIAM N. PEARCE and the Mississippi eration of the said party of the second part conveying to said party of the first part all of the property hereinbefore described within thirty days from the date hereof, and delivering possession of the same to said party of the first part or his authorized agent, in said county of Maricopa aforesaid." By the undisputed testimony two lots of cattle, one of 69 or 70 head and the other of 34 or 35 head, were sold and delivered by the company to other parties than the plaintiff after the 1st of September. Therefore the company was to account for those cattle so sold and delivered, and the duty resting upon Ward to surrender and cancel the notes and mortgage was conditioned upon the delivery within the county of the property de scribed within thirty days from September 12. In short, the terms of the contract were clear. Ward performed all that he was under obligations to perform. The default was on the part of the company. Ward took possession of the property delivered, managed it successfully for several years, and still the court held that the defaulting party could take advantage of its own default, appropriate the entire profits of Ward's care Error to state court-Federal questioncarrier's lien for duties paid on bonded goods. 1. 2. 3. Whether the payment by a carrier of the duties exacted under the statutes of the United States on bonded goods at the port of entry confers upon the carrier the right to maintain possession until reimbursed is a question respecting a right and privilege under the Federal statutes which, when specially set up and claimed, and denied by a state court, confers jurisdiction upon the Supreme Court of the United States of a writ of error to the state court. The terminal carrier, which, under its tariff agreements, has paid the duties exacted under the laws of the United States on bonded goods at the port of entry that the initial carrier was forced to pay in order to regain possession and forward the goods, has a lien on such goods for the amount of such duties. The right of a terminal carrier to a lien for the amount paid by it to satisfy the duties exacted under the laws of the United States on bonded goods at the port of entry is not defeated because the initial carrier wrongfully changed their bonded destination, to the own. *181 *180 er's damage, where the contract of shipment stipulated that each carrier should be liable only for loss or damage accruing upon its own road, and that such carriers should not be jointly liable, nor either for any loss or damage accruing upon the road of the other. [No. 112.] Submitted December 18, 1903. Decided January 11, 1904. IN to St. Louis. The inspection at St. Paul was in strict accordance with the laws of the United States, and the duties exacted were properly chargeable upon the goods. When the defendant received the goods from the Chicago, Milwaukee, & St. Paul Railway Company it became responsible under its traffic agreements for the payment of the charges then on the goods, including the custom duties, and has since paid those charges. On receipt of the goods in St. Louis they were tendered to the plaintiff upon payment of the charges. The goods were shipped in bond to St. Louis, and this was so marked on the boxes. If they had been transported to St. Louis in bond, as they should have been, they would there have been opened and N ERROR to the St. Louis Court of Appeals of the State of Missouri to review a judgment which affirmed a judgment of the Circuit Court of the city of St. Louis in favor of plaintiff in an action in replevin to recover a consignment from a carrier. Reversed and remanded for further proceed-examined and retained in the custody and ings. See same case below, 89 Mo. App. 437. Statement by Mr. Justice Brewer: On June 25, 1895, Charles E. Pearce, the testator of the defendants in error, commenced his action in replevin in the circuit court of the city of St. Louis, Missouri, to recover from the railroad company four boxes of curios. After answer a trial was had before the court without a jury, resulting in a judgment for the plaintiff, which, on May 7, 1901, was affirmed by the St. Louis court of appeals. 89 Mo. App. 437. An application to transfer the case to the supreme court of the state on the ground that it involved the validity of a statute of, or authority exercised under, the United States, was denied (State ex rel. Wabash R. Co. v. Bland, 168 Mo. 1, 67 S. W. 580), and thereupon it was brought here on writ of er ΤΟΥ. The facts are undisputed, and are as follows: Pearce was the owner of the curios, and in Yokohama, Japan, shipped them to St. Louis. The bill of lading was issued by the Canadian Pacific Railway Company, and recited that the goods were shipped upon the company's steamer, Empress of India, to be carried to Vancouver, British Columbia, and thence over the Canadian Pacific and connecting lines to St. Louis, Missouri. The boxes were carried to Vancouver and thence by the Canadian Pacific Railway Company over its own and a connecting line controlled by it to St. Paul, Minnesota. Upon arrival at St. Paul the custom officers took possession of the boxes, opened and examined the contents, and duly assessed the duties thereon at $264.31, which sum was paid by the railway company, and had to be paid in order to regain possession and forward the goods. The goods were thereafter delivered to the Chicago, Milwaukee, & St. Paul Railway Company, by it to the defend ant at Given, Iowa, and by the latter carried possession of the custom officers, not only during examination and inspection, but also until the duties were paid. Messrs. Wells H. Blodgett and George S. Grover for plaintiff in error. Mr. Edward C. Kehr for defendants in error. *Mr. Justice Brewer delivered the opinion of the court: Two questions are presented, one of ju risdiction and the other on the merits. With regard to the first, the decision of the supreme court of the state is not controlling. It is not the province of a state court to determine our jurisdiction; and further, the Missouri statute, providing for a review of certain cases by the supreme court, is not identical with but more limited than § 709, Rev. Stat. (U. S. Comp. Stat. 1901, p. 575), which prescribes our jurisdiction over final judgments of state courts. It is contended that the only question determined by the state court was the applicability of the equitable doctrine of subrogation; that no statute of Congress was suggested giving a right of subrogation in cases like this, and therefore that the decision of the state court rested upon a matter of general law. But the answer of the defendant, after stating the circumstances of the payment by the several carriers, alleged that it was "entitled to the first lien on said goods under the laws of the United States for the amount of said duties. Although no single statute was mentioned, it claimed a lien on the goods under and by virtue of the laws of the United States, and thus directly called for a determination of a Federal right. Crowell v. Randell, 10 Pet. 368, 9 L ed. 458; Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116-142, 17 L ed. 571-576; Furman v. Nichol, 8 Wall. 44, 56, 19 L. ed. 370, 376; Dooley v. Smith, 13 Wall. 604, 20 L. ed. 547. The question in goods imported were free from duty, or that there had been overcharges or wrongful conduct on the part of the government officials. Here the regularity of the proceedings on the part of the government officials and the correct amount of the duties collected are unquestioned. fact presented and decided was not simply | rights would exist if it were alleged that the the scope and applicability of the doctrine of subrogation, but rather to what extent, considering the obligations cast by the revenue laws and the duties of common carriers as between themselves and the shipper, the carrier was protected by the laws of the United States in paying custom duties exacted under them. When we stop to consider the We are of opinion that the custom laws great volume of imports handled almost ex- of the United States are potent to fully proclusively by common carriers, the owners or tect the carrier in the payment of the legal consignees being often in the interior of the duties charged upon goods in its possession. country, this is obviously a question of su- In order to fully understand the force and preme importance. And this question is scope of any statute or body of statutes we solved not alone upon general principles of must have regard to the conditions and cirlaw, but involves an inquiry as to the effect cumstances for which the legislation was of exactions made under authority of the intended and under which it is to bestatutes of the United States. We are, by come operative. We are not narrowly 709, Rev. Stat. given jurisdiction over the to read the letter and ignore the state final judgments of state courts "where any of affairs to which that legislation was title, right, privilege, or immunity is intended and is applicable. As we have claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed. The contention of the railroad company is that payment of duties exacted under the statutes of the United States does not operate simply to release the goods, but also gives, in cases like the present, to the carrier, the right and privilege of maintaining possession until it is reimbursed these duties. Is the statute to be considered simply as a demand for money, or does it also carry a grant to one situated as this carrier, of a right and privilege of possession? This right and privilege was specially set up and claimed by the railroad company. Whether it existed was the substantial question presented and decided. And, whether rightly or wrongly decided, the presentation of the question, the claim of the right and privilege, was, when denied by the state court, sufficient to give this court jurisdiction. said, the great body of imports is subject to duties, and payment thereof is, by statute, specifically required to be made at certain places. These imports are brought in by carriers, and distributed by them to the several places of destination. *It is unnecessary to cite authorities to the proposition that it is the common-law duty of the carrier to receive, carry, and deliver goods; that by virtue of this obligation it is entitled to retain possession until its charges are paid. Nor is this lien confined to the charges for its own transportation. The law is thus stated in Overton on Liens, § 135, p. 166: "The lien attaches not alone for the particular item of charge for carriage due upon the goods, but for such other legal charges as the carrier, in the course of his duty, may have been compelled to expend upon their care, custody, and preservation. As when a railway, in the transportation of live stock, as cattle, horses, and swine, has been at expense of labor and money in feeding and preserving them, such expense is a legitimate charge in addition to their transportation. For the carrier is under special obligation to guard and protect such property, hence the propriety of a lien for such extraordinary expense and care. If a carrier, in the ordinary course of the business, pay back charges upon goods due to another carrier in the course of transportation, as they come to him, he may recover for such back charges and freight so paid; and the owner may seek his remedy for any damages done them against the party in whose hands it was done, or under his original contract of shipment." We pass, therefore, to consider the merits. Do the laws of the United States exacting the payment of duties at ports of entry justify the carrier in paying those duties, and give to it a lien therefor as against the owner? It must be remembered that the government has not prescribed payment simply at the place of delivery, but has named the ports of entry at which, and at which only, payment can be made. Must the carrier insist that the owner shall be present at the place of entry to himself make payment, or, after notifying the owner, leave the goods in the hands of the government of ficials to be held for the charges thereon, or, See also Hutchinson, Carr. § 478a; Ray, may the carrier pay the charges, and main- Freight Carr. § 102. In Schouler on Bailtain possession until reimbursed by the own-ments, p. 544, it is said: er? It is unnecessary to consider what "A common carrier, then, may usually re *187 188 tain particular goods, by virtue of his lien to us, is the fair import of this legislation, right, until the freight and charges due there-enacted, as it was, in view of the well recog on for his whole transportation are paid or nized rights and duties of carriers. The detendered him, and he cannot be compelled to fendant should not, therefore, have been degive them up sooner. This lien, moreover, prived of the possession of the goods withextends to all the proper freight and stor- out a repayment of the duties. age charges upon the goods throughout the whole of a continuous transit over successive lines; since the last carrier or final warehouseman may advance what was lawfully due his predecessors, and hold the property as security for his reimbursement." In making payment to a connecting carrier of its freight charges the carrier is not a mere volunteer, such as is referred to in Etna L. Ins. Co. v. Middleport, 124 U. S. 534, 31 L. ed. 537, 8 Sup. Ct. Rep. 625. All this was matter of common knowledge, and upon this the legislation in respect to duties was enacted. Is it to be supposed that Congress intended that protection to the carrier should depend upon the perhaps varying opinions of the courts of the different states as to whether, in making payment, the carrier was a mere volunteer, or whether it can be subrogated to the rights and remedies of the nation? It must be remembered that the importation of goods is a subject of national, and not of state, regulation, that such power of regulation continues until the final delivery of the imported articles, so that over the entire transportation of these goods to St. Louis, the place of delivery, the power of Congress was supreme and exclusive. It must also be remembered that bonded goods are, by § 2993, Rev. Stat. (U. S. Comp. Stat. 1901, p. 1962), deliverable only to carriers designated by the Secretary of the Treasury, who are made responsible to the United States, and are required to give bond to the United States in such form and amount and with such conditions and security as the Secretary of the Treasury shall require. Is it not reasonable to hold that Congress,-having in mind the duty of carriers in reference to transportation and delivery, their customary lien for charges, and their right to retain possession during transit,-in directing the custom house officers to take goods out of a carrier's possession, inspect and hold until the duties are paid, intended that, upon payment, the government lien should pass to the carrier, with a view of enabling it to discharge its duty of carriage and delivery to the consignee? It was not necessary to specifically state that the government's lien was transferred, for when Congress provided by statute for interrupting the carrier's common-law right of possession, it is implied that the action necessarily taken by the carrier to regain possession shall work no injury to the rights which flow from possession. Such, it seems It is insisted, however, that the goods were shipped in bond to St. Louis, that the Canadian Pacific for its own convenience wrongfully changed their bonded destination to the port of St. Paul, and that during the examination and inspection at St. Paul some of the curios were broken, and some lost, whereas if they had been shipped in bond to St. Louis they might have been opened and examined in the presence of the plaintiff, and injury and loss prevented. Conceding this, and that the Canadian Pacific by its wrongful act was liable for the injuries resulting to the plaintiff, the contract of shipment stipulated that each of the parties employed in the carriage should be liable only for loss or damage accruing upon its own road, and that such carriers should not be jointly liable, nor either for any loss or damage accruing upon the road of the other; so that whatever claim the plaintiff may have had for such injury and loss was only against the Canadian Pacific, and could not operate to prevent the defendant company from receiving that which, by its payment, it was entitled to. The judgment of the St. Louis Court of Appeals is reversed and the case remanded to that court for further proceedings not inconsistent with this opinion. 1 (192 U. S. 189) GEORGE H. CROSSMAN and Herman Sielcken, Composing the Firm of W. H. Crossman & Brother, บ. THEODORE G. LURMAN and Benjamin D. Williams, Composing the Firm of Theodore G. Lurman & Company. Constitutional law-pure food legislation as affected by commerce clause. 1. 2. The prohibition against the sale within the state of adulterated food products which is made by N. Y. Laws 1893, chap. 661, § 41, does not, as applied to food products imported into the United States through the channels of foreign commerce, violate the commerce clause of the Federal Constitution, but is a valid exercise of the police power of the state to legislate for the benefit of its people in the prevention of deception and fraud. A contract made in New York by residents thereof for the sale to residents of another state of coffee to be shipped from Rio Janeiro to New York city by a designated steamer, the buyers to have free storage and fire insurance for the first month after the arrival of the steamer, and the storage of the coffee in New York, is a New York contract, and as *189 *193 The enactment by Congress of the prohibi such is governed by the prohibition made by | compound, brew, distill, have, sell, or offer 8. 4. acted in the exercise of the police power of the state, to prevent deception and fraud. hibition of N. Y. Laws 1893, chap. 661, § 41, With these provisions in force, in July, 1894, the firm of Crossman & Brothers, hereafter referred to as the sellers, residents of New York city, by contract made in New York, sold to the firm of Theodore G. Lurman & Company, hereafter referred to as the buyers, residents of Baltimore, five hundred bags of Rio coffee, one half the bags to be No. 8 grade and the other half No. 9 grade. It was stipulated that the coffee was to be shipped from Rio Janeiro to New York city by a designated steamer, the coffee to be sound or to be made sound by the sellers. The grades 8 and 9 referred to in the memorandum of sale were standard types, bearing those numbers, established by the Coffee Exchange of the city of New York, and it was agreed that the coffee was to be of the average of such types, and differences arising on the subject were to be determined by a "grader," to be selected by each of the parArgued December 18, 1903. Decided Janu- ties, the two to select a third in the event of The exclusion of evidence of a demand in some portions of the United States for artificially colored coffee, on the issue whether such coffee was adulterated within the proagainst the sale within the state of adulterated food products, will not require a reversal of the judgment of a state court on writ of error from the United States Supreme Court, on the theory that the effect of such evidence ly colored as a means of fraud and deception was a recognized article of commerce, the right to deal in which was protected by the commerce clause of the Federal Constitution. would have been to show that coffee artificial 1N [No. 117.] ary 11, 1904. N ERROR to the Supreme Court of the State of New York to review a judgment entered in pursuance of the mandate of the Court of Appeals of that State, which affirmed a judgment of the Appellate Division of the Supreme Court for the First Judicial Department, which had in turn affirmed a judgment of the Supreme Court for the county of New York, sustaining the contention of vendees that the subject of the sale was adulterated within the provisions of the health laws of the state. Affirmed. a disagreement, his decision to be conclusive. It was stipulated that on the arrival of the steamer and the storage of the coffee in New York the buyers were to have the advantage of the first month's storage and fire insur ance, free of expense. *In due time the named steamer reached the port of New York, and the five hundred bags of coffee were stored and delivery tendered in New York city to the buyers. Some of the coffee was accepted and the remainder was rejected, on the ground that it was adulterated, because it had been arti ficially colored by coating the beans with a See same case below in Court of Appeals, yellow wash. Without going into the de171 N. Y. 329, 63 N. E. 1097, and in Ap-tails of what transpired between the parties pellate Division of Supreme Court, 57 App. Div. 393, 68 N. Y. Supp. 311. The facts are stated in the opinion. as a result of the refusal to accept the coffee, it suffices, for this case, to say that ultimately the graders provided for in the contract were named, and on their disagreement a third was selected, who decided that, although the coffee had been coated with the Mr. Charles Stewart Davison for de- wash, its average quality was yet equal to fendants in error. the specified types of the Coffee Exchange referred to in the contract. The buyers re delivery and pay for the adulterated coffee. * Mr. Justice White delivered the opinion fused to abide by this finding, and to accept of the court: The law of the state of New York con- The sellers then disposed of the coffee for tained the following: Sec. 41. Adulterations.-No person shall, within the state, manufacture, produce, account of the buyers, and commenced this suit to recover the difference between the amount produced by the alleged sale and the 194 |