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perience in shipping cotton, makes it certain that as matter of fact the plaintiff's agent knew of and assented to the fire clause. Shippers have been held bound by the fire clause in a bill of lading, even when they claimed that they did not know that the clause was in the bill of lading, provided they were afforded a full and fair opportunity to acquaint themselves with the contents of the bill of lading. Failure to read the bill of lading has been held, under such circumstances, not to avail the shipper. But, of course, the present cause is one in which, as matter of fact, the shipper knew, or must be held to have known, that the bill of lading contained the fire clause. I am clear that there is nothing in the evidence which would invalidate the bill of lading for duress, concealment, fraud, or misrepresentation by the carrier.”

So far as it affects this case, the statement of the law embraced in the foregoing extract from the trial judge's opinion is fully supported by the leading case of York Mfg. Co. v. Illinois Cent. R. Co., 3 Wall. 107, 18 L. Ed. 170, which has been cited with approval by the supreme court as late as the case of The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419.

We have carefully examined the record submitted to us on this hearing, and concur in the view taken by the trial judge that there is nothing in the evidence which would invalidate the bills of lading for duress, concealment, fraud, or misrepresentation by the carrier.

The judgment of the circuit court is therefore affirmed.

(113 Fed. 92.)


(Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)

No. 1,082.


A shipper is bound by a provision in a bill of lading exempting the carrier from liability for loss of the goods by fire where he was chargeable with knowledge that the bill contained such clause, and made no objection thereto, and it is not shown that the loss resulted from the carrier's negligence. In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

B. K. Miller, for plaintiff in error.

W. W. Howe, W. B. Spencer, and C. P. Cocke, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. This was an action very similar to that of Jovite Cau against the same defendant (just decided), 113 Fed. 91. It was for the value of cotton delivered to the defendant carrier, which issued to the shipper a bill of lading with the fire exemption clause identical in terms with that given in the Cau Case. The cotton was received on a country or plantation switch, which the defendant had put in about the time of the construction of its main line, and which for 10 or 11 years had been used by the planters conveniently adjacent thereto precisely in the manner that this shipment was made. There was a small platform and a small shelter to be used in connection with sending and receiving freight, according to its character and the other conditions at the time of handling, but no agent or employé of the company had ever been put or kept there for the purpose of receiving and guarding freight there received or delivered. The long-established practice was for shippers who had produce to be transported from that point to notify the nearest station agent of the fact, and of the number of cars desired, when the defendant would furnish the cars as requested, and, as soon as they were loaded by the shipper, promptly take them by the first one passing of its local freight trains to the point of destination. There is no evidence that any question or protest was made by this shipper to the contract as limited in the bill of lading. We concur with the trial judge in holding that the evidence does not tend to show negligence on the part of the carrier. There was no dispute as to the goods having been received by the carrier, nor as to the loss falling within the terms of the fire exemption clause. If there was negligence upon the part of the carrier the burden of proving that fact was on the plaintiff, and, as we have said, the proof offered by the plaintiff did not, in our opinion, tend to show such negligence. This case falls clearly within the authority of Clark_v. Barnwell, 12 How. 272, 13 L. Ed. 985; Transportation Co. v. Downer, II Wall. 129, 20 L. Ed. 160; York Mig. Co. v. Illinois Cent. R. Co., 3 Wall. 107, 18 L. Ed. 170.

151 C. C. A. 76.

The judgment of the circuit court is affirmed.

(113 Fed. 93.)


(Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)

No. 1,080.


A declaration set out a writing by which defendant authorized plaintiff to sell for him certain timber lands and other property for a price stated, such authority to continue for 60 days. It alleged that, by defendant's request, plaintiff prepared a written memorandum more specifically describing the property; that plaintiff procured within the co days the making of a written contract between defendant and a third person, which was set out, and by which defendant agreed to convey the property on terms therein stated, and the other party agreed to have the same examined within 60 days, and to purchase the same if it should appear from said examination that the statements contained in plaintiff's memorandum were substantially correct; that, by reason of the premises, defendant became indebted to plaintiff for his services in the sum of $100,000, for which judgment was prayed. Held, that such declaration must be construed as one to recover commissions as a broker, and was demurrable as failing to state a cause of action, because, under the contract pleaded, plaintiff could recover only by proving (1) either that he had made an actual sale of the property, or (2) that within the time limited he had procured a purchaser able and willing to buy it on the terms stated, and that a sale was prevented by some act or default of defendant, neither of which facts was alleged.

McCormick, Circuit Judge, dissenting in part. In Error to the Circuit Court of the United States for the Northern District of Florida.

This action was brought by William Alfred Milliken, a citizen of New York, against Martin H. Sullivan, a citizen of Florida. The case was first tried on a declaration containing 12 counts, and resulted in a verdict for the de fendant, Sullivan. A new trial was granted by the circuit court, and the plaintiff amended his declaration by adding counts numbered 13 and 14. These counts differ but little, and counsel for the plaintiff (the defendant in error here) agrees that count No. 14 may be eliminated. The case was tried and is here considered as based on the thirteenth count, which will be referred to herein as constituting the declaration. It is as follows, including the three exhibits:

“The plaintiff sues the defendant, for that before the institution of this suit, to wit, on and before October 12, 1899, the defendant employed the plaintiff to sell the pine timber lands of the defendant in the state of Alabama, comprising about 230,000 acres, lying in the counties of Escambia, Conecuh, Monroe, and Baldwin, together with the railways and mills situ. ated thereon, for the sum of one million five hundred thousand dollars, and defendant's wharf in the city of Pensacola, Florida, for the sum of one hundred thousand dollars, and, as evidence of the said employment, executed and delivered to the plaintiff on October 12, 1899, a written instrument, a copy of which is hereto attached, marked 'Exhibit A, and made a part hereof; that, for the purpose of a fuller specification and description of the said property, the plaintiff, at the request of and for the defendant, prepared a written memorandum more fully describing the said property, a copy of which memorandum is hereto attached, marked 'Exhibit B.' That in pur suance of the said employment the plaintiff procured that the defendant and one W. D. Man should and did on November 16, 1899, enter into a written contract by which the defendant agreed to convey the property mentioned in the written authority and memorandum hereinbefore set forth as Exhibits A and B (which memorandum is the memorandum referred to in the said written contract) to a corporation to be organized by the said Mann as set forth in the said agreement, and the said Mann agreed to cause the said corporation to be organized, and to pay to the defendant for the said property five hundred thousand dollars in cash, one million dollars in the first mortgage bonds, and one hundred thousand dollars in the stock, of the said company, all of which is set forth in the said agreement which is hereby referred to, and, as Exhibit C, hereto attached and made a part hereof for greater particularity and exactness. Plaintiff avers that by reason of the premises he became entitled to demand and receive from the defendant and the defendant became obliged to pay to the plaintiff, for his services aforesaid, a large sum, to wit, the sum of one hundred thousand dollars, which sun, or any part thereof, the defendant has refused to pay to plaintiff, although often requested so to do, to the damage of plaintiff of one hundred thousand dollars, whereupon he sues."

Exhibit A.

“New York, October 12th, 1899. “W. A. Milliken, Esq., N. Y. City.-Dear Sir: I hereby authorize and empower you to sell my pine timber lands in the state of Alabama, comprising about 250,000 acres, lying in the counties of Escambia, Conecuh, Monroe, and Baldwin, together with the railways and mills situated thereon, for the sum of $1,500,000; also my wharf in the city of Pensacola, Fla., for the sum of one hundred thousand dollars ($100,000). This authority to remain good for sixty days. I will made a deed in fee, with general warranty, to the purchaser.

M. H. Sullivan."

Exhibit B.

“Sullivan Timber Lands. "Vartin H. Sullivan, of Pensacola, Fla., is the owner in fee of two hundred and fifty thousand acres of long leaf yellow pine timber land, in the state of Alabama, situated in the following counties: County of Escambia...

156,000 acres County of Conecuh.

12.000 acres County of Monroe.

40,000 acres County of Baldwin.

12,000 acres


250,000 acres "This land is in one body, beginning on the northern line of the state of Florida, in the county of Escambia, two and a half miles east of Flomaton Junction, ou the Louisville & Nashville R. R. It runs north about 25 miles, into the county of Conecuh; thence west some 8 miles, into county of Monroe; thence south 6 miles; thence west 10 miles; thence south with the county line between Escambia and Baldwin to the Florida state line. Within this outline there are several one-quarter (14) and one-half (16) sections in the different townships which do not belong to Sullivan. The 12,000 acres in Baldwin county fronts on the Alabama river bel w old Fort Montgomery, and runs back east to the Escambia county line, connecting with the main body at that point. The great body of this land lies on the head waters of Escambia river, in Escambia county. On the east side the L. & 1. R. R. runs through it from Flomaton Junction north to Selma, Alabama. On the south the L. & X. R. R. runs through it from Montgomery, Ala., to: Mobile. It is about 50 miles by rail from Sullivan Mill, on this land, to Mobile, and about 45 miles from Flomaton by rail to Pensacola, Fla. The map accompanying this statement shows the position of these lands as. marked thereon. The lands are all above overflow, and the timber on every acre is perfectly accessible. The timber on the land is what is known as the 'Long Leaf Yellow Pine'; the trees growing from 70 to 90 feet to the first limb, perfectly straight. The largest will square 12 inches, 70 to 80 feet from the butt. About 200,000 acres of this timber is practically virgin forest. The remaining 50,000 acres has been partially cut prior to 1892. Only the largest trees were cut then, leaving all under fifteen inches in diameter. These lands were carefully selected by Mr. Sullivan, who is a timber expert, baving been engaged in the timber business about 40 years. His estimate is that the poorest lands will cut five thousand (5,000) feet, and the entire tract can safely be estimated at seven thousand (7,000) feet per acre; and Sullivan is not a man who will make an overestimate in this matter. On this land Jr. Sullivan has built three railroads of standard gauge, as follows: One road running from Sullivan station, on the L. & X. R. R., Gut eleren (11) miles through the forest to a former mill site; one from Wallace station, on the L. & X. R. R., some ten (10) miles out into the forest; and another branch from this line, six (6) miles. These lines were laid with 30-1b. rails, and were built to haul logs from the forest to the mills. and the timber from inills to L. & S. R. R., and thence to Mobile and to Pensacola. They were built in 1890 and 1891, and used during that time, but have not been in use since. The rails are in good condition, but the road is not. There are two mills and one mill site on these lauds, as follows: One known as 'Wallace Mill,' situated on the L. & N. R. R., near Wallace station in Escambia county. This is a fine stean mill, built in 1991, and with all modern improvements, and cost $125,000. It was run less than 1 year, and is in perfect order, and, with the purchase of a new band. could be put to work at once. It has a capacity of 100,000 feet of timber per diem. It has every facility for handling logs and timber, and the output of this mill can be delivered by rail 55 miles to Pensacola, Fla. Another, known as the 'Pine Log Mill,' is situated in Baldwin counir, near the Alabama river. This is a water mill of about 35 to 40 thousand feet capacity per diem. It is in moderately good condition. Its output can be shipped down the Alabama river to Mobile, about 70 miles. A mill site known as 'Sullivan Jill' is situated in Escambia county, on the 11-mile:

31 C.C.A.-6

branch road running from Sullivan station on the L. & N. R. R. Here is a magnificent boom, and every facility for handling logs and timber. There was a water mill here in 1891–2. The output from a new mill built at this point could be sent by rail to Mobile or to Pensacola. These improvements were put on this land by Mr. Sullivan in 1890–1, when he organized the Sullivan Timber Co., and with a view of carrying on the timber business on an extensive scale. The price of timber declined in '92 to such a point (being about $7.50 per thousand at Pensacola and Mobile) that he preferred to close up the business rather than cut his trees and sell timber at such rates. Since then the trees have been carefully preserved, and to-day the forest is intact. These lands were all high and dry, slightly undulating, good soil, and, where cultivated, produce excellent corn and cotton, and all the fruits of that climate, of fine quality. Lands in these counties, when cleared of timber, sell readily at from $1.00 to $6.00 per acre for agricultural purposes. The climate of this section is delightful, being, of course, mild in winter; and the summer heat is tempered by the ocean winds from the south. The health of these counties is unusually good.

"I consider the following figures as a safe, low estimate of the value of the timber on this land, and the value of the lands after the timber is cut: The poorest, 50,000 acres, at 5.000 ft.....

250,000.000 ft. The other, 200,000 acres, at 7,000 ft..

1,400,000,000 ft.


Making the total timber.....

1,630,000,000 ft. "There are excellent locations on these lands, where four (4) new steam mills can be erected, on these railroads, of a capacity of 100,000 feet to eac') per day. These four, together with the two now on hand (changing the water mill into a steam mill), would put out 600,000 feet per day, or 15,600,000 feet per montlr of 20 working days, or 187,000,000 feet per an

The present price of timber at Pensacola, Fla., and Mobile, Ala., is $16.50 per th: usand. To cut these trees, haul them to the mills, saw into timber, load on cars, and deliver on wharf at Pensacola or Mobile, is less than $5.00 per thousand. These six mills can cut the entire timber from these lands in less than nine (9) years. But it cannot be expected that timber will remain at the present high figures more than a year or two. One can safely, however, count on timber continuing for many years at very remunerative figures. But for the next two years, by putting the 4 new mills in operation, the six mills can put out 187,000,000 feet per annum. This, delivered at Pensacola, will net certainly $10.00 per thousand, or $1,870,000 per annum. This show's the possibilities for the next two years at the present unusually high price for timber. It is proper to state here that the demand for timber at Pensacola and Mobile for foreign shipment is far beyond the output. Contracts can be made there with thoroughly reliable houses for timber for 6 to 8 months' delivery at present rates. These four new mills, of the capacity required, can be built to-day for $30,000 each. It is not necessary to erect so expensive a mill as the one now at Wallace.

"Turpentine. Another source of revenue from this timber, and one not to be overlooked, is turpentine. Contracts can be made with reliable parties to allow them to box these trees ahead of the cutters, so as not to injure them for timber, and from this source from $2.50 to $3.00 per acre can be obtained. None of this timber nas ever been boxed. It is in the forest primeval.'

"Resale. If the purchaser of this land sh uld desire to du so, this land can be sold off to great advantage in lots from 10,000 to 30.000 acres. Jr. Sullivan will not break his block up, but prefers to sell it as a whole or not at all.

“Stumpage. In this section of Alabama and Florida, stumpage is $2.00 per thousand. A purchaser of this land can sell as much stumpage as he cares to at $2.00. Mr. Sullivan considers it a waste to sell it at such figures, and will not do so.

"These are the principal facts in conuection with these lands.

"The price of the lands, with everything on them.-mills, will booms, and railroads, is $1,500,000. Of this $300,000 in casli, and $1,000,000 will be

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