Mills v. Merchants' Cotton-Press Co.

89 Tenn. 1 | Tenn. | 1890

OPINION OP COURT.

LuRTON, J.

This case has been very ably and elaborately argued, and we deem it not inappropriate to acknowledge our very great indebtedness to the learned counsel who have appeared in the cause.

The first question which we shall consider is as to the liability of the railway defendants for a breach of their obligation as carriers of goods. The decree of the Chancellor against them was predicated up'on a supposed obligation by contract to cover with insurance the cotton of complainant. It has been, however, very .much pressed upon us that the carrier is liable upon a wholly different ground — to wit, for a breach of duty and contract as carrier —and that its liability in this respect is primary and absolute, regardless of any special obligation to insure. A car'eful examination of the pleadings discloses no allegation of fact which, as matter of law, would entitle complainant to any decree against either railway company for á liability as carrier.

The primary object in making the railway companies defendants, as indicated by the form of the original bill and the relief especially prayed, seems to have been to reach the compress company through subrogation to the rights of the railway company having a contract witli the former for insurance covering cotton while in its warehouse for compression.

The bill concludes with a prayer for general relief; and if the facts stated in the pleadings are such as would entitle complainant to other or different relief than that especially prayed, then, under well-settled rules of equity pleading, such other appropriate remedy may be granted. The facts which involve any question of direct liability of the railway defendants as carriers, which are stated in the bill, are, briefly, as follows:

First.- — -That the Newport News and Mississippi Yalley Company had issued its permit for the admission of this cotton into the press designated for cotton intended for shipment over its line, on account of the Indiana, Bloomington and Western Railway, a connecting carrier.

Second. — That this delivery to the compress company Avas for compression and delivery to the EeAv-port EeAvs and Mississippi- 'Valley Company as initial carrier, to he by it transported and delAered to the Indiana, Bloomington and Western Railway as a connecting' carrier.

Third. — That the dray receipts of the compress company had been delivered to the Indiana, Bloom-ington and Western Railway, and its through bill of lading accepted for carriage of the cotton at through rate of freight from Memphis to Clinton, Massachusetts.

Fourth. — That the cotton was burned Avbile yet in the actual custody of the compress company, but after issuance of bill of lading.

This bill of lading is made an exhibit to the bill, and contains, among other things, the following special stipulations:

First. — That any carrier over whose line the cotton may pass shall have the privilege, at its OAvn expense, of compressing the cotton for convenience of carriage.

Second. — That the carrier shall have exemption from liability for loss or damage by fire “ while at depots, stations, yards, landings, warehouses, or in transit.”

Third. — That each connecting carrier shall have the benefit of all the stipulations of the bill of lading.

Fourth. — That each connecting carrier shall be responsible only for loss or damage occurring on its oavii -line.

On these facts it may be assumed that while the actual custody of the cotton was with the compress company at time of the loss, yet, as between the owner and the railway line, there was a good delivery to the carrier under the bill of lading, which provided especially for compression, and which accepted delivery at the warehouse of the. compress company as a delivery to it. Inasmuch as the Indiana, Bloomington and "Western Railway was not a line having tracks entering Memphis, and inasmuch as the bill alleges a delivery was to be made by the compress company to the Newport News and Mississippi Valley Company for carriage and delivery to the Indiana, Bloomington -and Western Railway as the company issuing bill of lading and as connecting carrier, it may be assumed that the liability of the Newport News and Mississippi Valley Company was precisely the liability of the Indiana, Bloomington and Western Railway, and that the cotton was held by the compress company for compression, for and on account of the Newport News and Mississippi Valley Company, and for delivery on its cars when compressed.'

The liability of both the Indiana, Bloomington and Western Railway and the Newport News and Mississippi Valley Company is to be determined by the common law, except in so far as modified by valid stipulations contained in the bill of lading. The exemption from liability for loss by fire at any “depot, station, yard, landing, or warehouse” contained in bill of lading, is sufficiently comprehensive to cover a loss by fire in the warehouse of the compress company. In view of the stipulation for compression, before shipment, contained in -the bill of lading, and the actual delivery by the- shipper to the compress for compression, it would, be unreasonable to hold that a stipulation for exemption while in “warehouse” did not cover cotton while warehoused for compression.

The validity of this fire clause is not questioned in the pleading, either by allegation that it was without consideration, or imposed by duress, or unreasonable for any cause. In such case, it appearing that it was contained in a through bill of lading, wherein a through rate was granted, for carriage over line of more than one carrier,' it will be presumed that the stipulation was upon a sufficient consideration and reasonable. This exemption would, however, be invalid as a protection against a loss by fire the result of the negligence 'of the carrier or of its agent for compression. The bill fails to charge that the loss was due to any want of care, either upon «the part of the carrier or of any of its agents or servants. Where, therefore, the pleadings show a valid stipulation for exemption from loss or damage by fire, and it is further shown that the failure of the carrier to safely carry and deliver was due to a loss by fire, no case is made against the carrier unless the fire be charged to have been the result of negligence. The burden of proof, when the loss is thus admitted to have been by fire, is upon the owner to prove negligence, and under plainest rules of pleading the plaintiff ought to allege in his pleading every fact necessary to fix . liability. L. & N. R. R. v. Manchester Mills, 88 Tenn., 653.

We are therefore of opinion that, under the pleadings, no such facts are stated as would entitle complainant to any decree against either of the railway defendants for any breach of duty as carriers. The decree pro confesso against the Indiana, Bloomington and Western Railway did not authorize any final decree fixing liability upon it for this loss. No relief can be granted upon a bill in equity taken for confessed, beyond the fair scope of the allegations and prayer of the bill. McGavock v. Elliot, 3 Yer., 374; Ross v. Ramsey, 3 Head, 16.

The decree actually pronounced was based upon the supposed liability of that company under an obligation to insure, and not by reason of any, breach of carrier duty. That decree is not before us for review, inasmuch as that company has not appealed; but as it is now sought to affect the defendants who have appealed, by reason. of the assumed liability of the non-appealing carrier, we have felt it necessary to consider the weight to be attached to the decree against the'Indiana, Bloom-ington and Western Railway.

Second. — Is the defendant compress company directly liable to complainant as for a breach of duty as warehouseman?

The seventh issue submitted to.the jury involved the degree of care and diligence required to be exercised by the cotton-press company, with regard to precautions against fire and saving cotton from fire at and before this loss.

The jury were instructed upon this issue that “if you find that the defendant compress company held this cotton at the time of its destruction as warehouseman only (that is, for storage and compression without any superadded obligation, and in this connection you need not consider the question of insurance), then the law imposed on it as the measure of its duty, ordinary care, or, as specifically stated by an eminent law writer, ‘ the care and diligence which good and capable warehousemen are accustomed to show under similar circumstances, or that which business men experienced and faithful in the particular department, are accustomed to exercise when in the discharge of their duties.’ The warehouseman must erect a good building, reasonably suited and adapted for safe-keeping of the particular property intended to be taken care of (it need not be fire proof), and he must keep it watched in proportion to the risks he is subject to, and the value of the goods with which he is likely to be intrusted, having of course in view the position in which his building is to stand, and his capacity of thus burdening himself without incurring unjustifiable expense.”

They were further instructed that if they found any other duty was superadded by agreement or confidence, aside from insurance, that then they should report what such superadded duty was, and what degree or measure of care was imposed thereby, and that, in case of such superadded duty, the law imposed as the measure of care extraordinary diligence. The jury was likewise fully instructed as to the grades of diligence implied from the terms “ordinary care” and “extraordinary care.”

The response of the jury to this issue, as defined by the charge quoted, 'was in the following words:

“ In response to the seventh issue they find and answer: The jury are unable to determine from the evidence the immediate cause of the fire. As to the measure of care and diligence used in protecting and caring for the cotton as warehouseman, the jury are of the opinion that ordinary care and diligence was used in the warehouse proper, or upstairs, both before and at the fire, the water supply seeming ample, and the engine and hose were handled with promptness and intelligence; but, in the opinion of the jury, the construction of the warehouse was faulty in some respects, especially in not being closed up on the west side, or riverfront, below the level of the floor where cotton was held. The jury think this space or opening should have been closed up, or there should have been a watchman stationed under the warehouse or on the levee in front of the warehouse.”

The charge of the learned Chancellor was full and without error in defining responsibility of ware-housemen. Waller v. Parker, 5 Cold., 477; Schouler on Bailments, Sec. 101.

The finding of the jury must be construed as a finding that the compress • company was liable only as a warehouseman, and that 'neither by “ agreement or confidence” had it assumed any other or higher responsibility than that of warehouseman for storage and compression. If it had assumed absolute responsibility for. the safe-keeping of the goods, or direct liability for a loss by accidental fire, the jury should, under this charge, have reported such superadded duty or responsibility. Under the rule of ordinary care, this finding acquits the defendant of negligence, unless the defect in the building pointed out by the jury in some way was the proximate cause of the loss or contributed to the loss. ¥e -have carefully examined the very voluminous proof upon this question of negligence, and are entirely satisfied with the finding of the jury, and with the decree of the Chancellor holding that no negligence was established.

The defect in the building referred to by the jury does not appear to have in any way contributed to the loss, ■ or to have been the cause of the fire. There is a total want of connection between the negligence and the injury. This want of causal connection is fatal to any demand that a decree should pqss finding a loss by negligence. The rule, as we understand it, is that “the burden of proof is upon the bailor to prove the contract and the delivery of goods; then upon the bailee to show their loss and the manner of the loss. The burden then shifts to the bailor to establish that the loss was due to negligence.” Runyan v. Caldwell, 7 Hum., 134; L. § N. R. R. v. Manchester Mills; Schouler on Bailments, Sec. 101.

Under this rule the burden of proof was upon complainant to show that this fire was the probable result of negligence. If this defect in construction of building can be shown to have been the proximate cause of the fire, or to have contributed to the loss, then the liability is made out; but the proof makes it absolutely certain that this fire did not originate from beneath the building— the exposed part — but that it originated upon the heads of bales of cotton standing on end upon the floor. At the time it was discovered it did not cover more than the heads of three bales. If it had appeared that the fire originated on the floor, or beneath the floor, then a connection between the defective and exposed building and the fire would have been rendered probable. The loss, therefore, was not, in the opinion of the Chancellor, attributable to this exposure of the under parts of the warehouse 'to the invasion of the tramp or the torch of the incendiary. In this view we agree with him.

The answer of the defendant compress company presents an issue of negligence which was wholly unnecessary, in view of the failure of complainant to charge negligence. LTo presumption of negligence arises from the destruction by fire of goods in the hands of a bailee for hire. This we had occasion to consider at this term in Railroad v. Manchester Mills, supra. Therefore, a bill alleging a loss by fire of goods in hands of bailee should, in order to make an issue, ehárge 'such loss to have been by negligence. In view, however, of the fact that’ the answer presented an issue, and that the parties went to the jury upon the issue thus made in the answer, we have, without committing ourselves to the sufficiency of the pleading, treated the question of negligence as sufficiently _ raised, so far as the compress company is affected.

Third. — It is next insisted that under the facts of this case the obligation of the compress company is that of an insurer against loss or damage by fire; that its liability is not for a breach of obligation to take out insurance, nor for damage resulting from false representation that its policies were sufficient in terms' and amount to cover owner’s interest in all cotton while in its compress, but that it is liable as an insurer.

It may be assumed that the corporate powers of this defendant were ample to authorize it to contract with its customers that it would assume liability for any loss by fire, whether -accidental or the result of its negligence. But did it do so ? The contracts between the railway lines and the compress company explicitly negative any idea of such liability. These contracts require of the compress company that insurance for the benefit of the carriers should be taken “in good and solvent companies.” The dray ticket receipts stated that the cotton was “covered by them with insurance for the owner as interest may appear.” This form of dray ticket was not habitually used. The statement on' these receipts varied, and shippers seem to have themselves dictated the terms in which this insurance obligation was stated. The following forms of dray receipts are shown to have been in use at the date of this transaction:

Memphis, Tenn., Oct.'20, 1887.

Received at the Merchants’ Cotton-press and Storage Company No. 4, from Jones Bros. & Co., the following cotton in good order:

N. B. — It is agreed anid understood that the cotton enumerated below is fully covered by the policies of insurance of the Merchants’ Cotton-press and Storage Company, of Memphis.

Marks. No. Cotton Bales.

ETON 25 Twenty-five B. C.

Jones. Cooper.

Me. I.

Memphis, Tenn., -, 188

Received of A. A. Patón & Co., by Merchants’ Cotton-press and Storage Company, for compressing, and covered by them with insurance, the following cotton in good order at press No.-:

If held in press over fifteen days before bill of lading issues, or if sold while in press, fifty cents per bale per month charges will be collected before delivery or shipment.

Oct. 21, 1887.

Memphis, Tenn., ■-, 188

Received by the Merchants’ Cotton-press and Storage Company, from E. L. Topp & Co., the following cotton in good order and condition, to be compressed:

If held in the press over fifteen days before the bill of lading issues, or if sold while in press, fifty cents per bale per month charges will be collected before delivery or shipment.

Oct. 22, 1887.

Memphis, Tenn., 10-1887.

Received of C. E. F. Hall, Agent, in good order, the following cotton, marked as per margin, by-.

Memphis, Tenn., 9, 28, 1887.

Received at the Merchants’ Cotton-press and Storage Company No. 4, from Alsobrook, Bowling & Co., the.following cotton in good order:

N. B. — It is agreed and understood that the cotton enumerated below is fully covered by the policies of insurance of the Merchants’ Cotton-press and Storage Company.

Subject to storage and insurance if held in the press over fifteen days before bill of lading is issued. Not transferable without charges from date of receipt.

The voluminous proof as to “course of business,” “general understanding,” and “local custom” has been carefully examined, and we concur with the Chancellor in. holding that there was no such uniformity in the “course of business” or concurrence in “general understanding” between the compress company and the buyers and shippers at Memphis as to constitute proof of any assumption of the liability of an insurer. . As to verbal agreements and representations concerning this obligation and its extent, the finding of the jury seems, conclusive against the claim now asserted by complainant.

In response to the third issue of fact the jury responded that “they assumed a liability verbally and according to terms of the written contracts to carry insurance for the benefit of railroads, transportation lines, or owners upon -all cotton in bales while in their possession.”

In response to the fourteenth issue, which called for a finding as to representations made as to its liability for cotton destroyed by fire, the jury responded that it “represented to the agent of complainant that the cotton in their (the compress company’s) presses, was fully insured, as per contract already exhibited in answer to the first issue.”

These, findings 'are abundantly sustained by the evidence, and we decide that' the compress company did not agree or promise, verbally or otherwise, to assume the responsibility of an insurer against loss or damage by fire.

Fourth. — This brings us to a consideration of the alleged obligation of the - compress company to carry insurance in terms and amount sufficient to cover the interest of owners until actual delivery to the carrier.

The learned Chancellor, in an able and elaborate opinion, reached the conclusion “that both the Newport News and Mississippi Yalley Company and the compress company assumed an obligation to fully insure the cotton in the press from the moment it was received there until it was delivered on the cars for transportation.”

The position of counsel representing the compress company, presented in pleadings and in argument, is that its contract for insurance of owner’s interests is found alone in its dray ticket receipts, and that upon the surrender of this contract to the carrier, and the acceptance of bill of lading, the compress company ceased to bear any relation, by contract or otherwise, to the depositor of cot-/ ton, and that the carrier- was substituted in the relation of bailor formerly held by the depositor, and that the latter must thenceforward look alone to his bill of lading and to his own insurance for protection; that, on the other hand, the relation and liability of the compress company to the carrier who had taken up the dray tickets, and in exchange given its own bill of lading, is not identical with that formerly held by the depositor, but is to be determined alone by the written contract for compression existing between the carrier issuing bill of lading and the compress company. This argument concedes that the interest of owners was within the insurance obligation assumed by the defendant until terminated by surrender of the contract contained in dray ticket to the carrier. This position assumes that the dray receipts, in themselves, constitute the contract between the depositor and the cotton-press company. If conceded, it would narrow the controversy to a construction of the language of these receipts, and a determination of the effect of the transfer of them to the carrier in exchange for a hill of lading, and the subsequent surrender of same to the compress company for a different receipt. This presents altogether too narrow and contracted a view of this case. In order to determine the character and extent of this obligation concerning insurance, we must look-to the course of business between the compress company and the depositors of cotton, its relations to the cotton-buyers and cotton-shippers at Memphis, its relations, contractual or otherwise, to the carriers who issued bills of lading upon its dray receipts, and the representations concerning insurance made by its agents and officers to those doing business with it, and especially to Bowles & Sons, the agents of complainant and the depositors of this cotton.

The evidence establishes that at the date of this transaction, and for several years previous, the railway companies had no rate for compressed cotton. The rate was exclusively for uncompressed cotton in bales. The carriers were accustomed in their bills of lading to stipulate for the privilege of compression at their own expense. For many years the defendant compress company had had an absolute monopoly at ■ Memphis of the compression business. During this time it had contracts with every railway entering Memphis, identical in substance with the one set out in statement of the case. Under their contracts each carrier contracted to give to this defendant all cotton shipped over its line for compression. The agreement by which the carrier contracted with the compress company to issue bills of lading upon its dray tickets was undoubtedly the result of an arrangement between the carriers and shippers and compress company, and was intended to facilitate the prompt issuance of bills of lading and avoid delay while awaiting compression. Th'e consignor of cotton was thus enabled, so soori as he could have his cotton drayed to the compress, to obtain a bill of lading, upon which he could draw for value of shipment against Ms consignee. This arrangement saved capital, and interest on capital, and greatly advanced the interests of buyers of cotton on Memphis market.

The fourth clause in the compression contract with the Newport News and Mississippi Valley Company, constituting the compress company the agent for the carrier for the receipt of cotton, is the important feature of this contract. It was an essential part of the arrangement by which the carrier accepted a deliveiy at the cotton-press as a delivery to it, and by which the consignor as-, sented to the stipulation permitting the carrier to have all cotton intrusted to it for transportation compressed before shipment. This agency for any particular carrier could not, with reference to any particular lot of cotton, begin until the cotton had been received for compression, and for shipment over line of a designated carrier with whom a compression contract existed. Hence arose the permit system, under which no cotton was received into the compress (as a general rule) until a permit had been granted by the carrier controlling the particular press in which the shipper wished his cotton deposited. It is true that permits were not in every instance demanded, and it is likewise true that the depositor obtaining such permit was not thereby obligated to ship'his cotton out over the line granting the permit. It was regarded, however, as indicating that the depositor expected to “route” his cotton out over the line granting permit. The obligation of the carrier to issue his bill of lading upon cotton so “permitted” into a particular press did not by the contract arise until the depositor’s dray tickets were presented. These evidenced the fact that the compress company held the cotton for compression, and the carrier accepted the delivery to him of the dray receipts as a symbolical delivery of the cotton, though the cotton was actually in custody of the compress company, and was to remain there until compressed.

The liability of the carrier to the shipper unquestionably began when it issued its bill of lading. To protect itself it contracted that the compress company should stand responsible to it as a bailee for hire, and that it should carry insurance covering the cotton against loss by fire while in its custody. It might have limited the ■ obligation of the bailee to an insurance of its interest in the cotton from date of issuance of bill of lading, or to insurance against liability upon its bill of lading. In such case, if the insurance had issued in these terms, the owner’s interest in the insurance would have depended upon the primary liability of the carrier to the owner by reason of some breach of carrier obligation. But the carrier did . not limit the obligation of the compress company to a procurement of insurance protecting only its insurable interest. In the same terms by which the compress company contracted to compress all cotton, it contracted to carry insurance upon all cotton in its presses for compression. Its contract was that it should “ compress all of said cotton, and shall insure the same for the benefit of the first party.” The cotton itself was to he insured. Eor the benefit of the carrier it is true. But a carrier has such an insurable interest in goods intrusted to him for carriage that,, it may insure not only its interest or its liability, but the whole value of the goods. And in such ease it may collect the whole value, and, after re-imbursing itself for its special loss, it will hold the surplus in trust for the owners. Wood on Eire Insurance, 'Sec. 294. Home Insurance Company v. Warehouse Company, 93 U. S., 541.

An insurance for the benefit of a carrier upon the goods in its custody, not limited to an insurance of its liability or interest, is an insurance of the whole value, and one in which the owner has an interest. The ease of Home Insurance Company v. Baltimore Warehouse Company is an instructive and well-reasoned case, and meets our approval. The insurance in that case was taken out by warehouse-men against loss by fire “on merchandise their own, or held by them in trust, or in which they have an interest or liability,” contained in a designated warehouse. It was held that the policy •covered the merchandise on storage itself, and not merely the interest or claim of the bailee. The assured was allowed to recover the entire value, holding the 'remainder; after satisfying their own loss, as trustees for the owners. The warehouse-men were under no obligation to insure owner’s interest, their warehouse receipts containing, by requirement of charter, a statement that it “was not insured by the corporation.”

Evidence was offered tending to show that the insurer and assured intended only to insure the interest or liability of the warehousemen. This proof was rejected upon the ground that there was no ambiguity; that the merchandise itself was insured, and not the interest of the assured; and these plain words could not be explained away by parol. 93 U. S., 527.

The case of London and North-western Railway Company v. Glynn, 1 Ell. & Ell., Q. B., 652, is a leading case much cited. The policy was for £15,000, “on goods their own and in trust as carriers” in a certain warehouse. In an action on the policy it was held that, to the extent of the policy, the whole value of goods in the warehouse in the carrier’s possession was insured by it, and not merely their interest in the goods, and that the carriers would be regarded as trustees for the. owners of the amount thus recovered, after deducting their charges as carriers.

So in the case of California Insurance Company v. Union Compress Company the policy was taken out by the compress company to cover cotton “their own, or held by them in trust or on commission.” It was conceded that this policy covered owner’s interest; but the ‘contention was that railway companies which had issued bills of lading upon the cotton while in the compress, and which had been held liable, as carriers, for the value of the cotton (the fire being result of negligence of carriers), were not beneficiaries under the policy. It was held by the Court that the railway companies, with outstanding bills of lading, had an insurable interest in the cotton, and to that extent were the owners of the cotton which was held in trust for them by the compress company. 133 U. S., 409.

In the light of these authorities, we are of opinion that the contract between the Newport News and Mississippi Valley Railroad Company and the Merchants’ Cotton-press and Storage Company imposed an obligation upon the latter to insure all cotton in their presses against loss by fire, and that this obligation was imposed in such broad and unambiguous terms as to require insurance upon the full value of the cotton, and covering every interest in such cotton.

The compress company was under no duty to insure owner’s interest, unless this contract imposed the duty and furnished the consideration. That it regarded this obligation as imposed would seem to be indicated by the terms of its policies of insurance on cotton in press No. 4. This insurance amounted, at date of this loss, to $301,000, and was in about forty different offices. All of this insurance was (in so far as the written parts of the policy show) in the same terms and upon same interest, and was in these words:

“ On all cotton in bales received by tliem as agents, for the benefit of railroads, transportation lines, or owners, in the boundaries of the Merchants’ Cotton-press and Storage Company’s west navy-yard compress, situate and bounded as follows: East by the west line of Eulton Street, west by the Mississippi River, north by Auction Street, and south by Market Street.

“The liability of the insurers is to begin on the receipt of said cotton on premises of the assured, as herein described, for compressing, and is to cease and terminate when removed from the platforms of the Merchants’ Cotton-press and Storage Company for transportation.”

In express terms these policies covered “ all cotton in bales received by them as agents,” and for the benefit of railroad or owner. We attach no importance to the disjunctive “ or.” The clear contract was to insure the cotton itself in the hands of" the assured as agents; whether agents for railroads, transportation lines, or owners, it was alike insured, and for the benefit of these different classes of persons having insurable interest. There is no ambiguity in the policies, and evidence offered to show an understanding limiting the plain and obvious meaning of the written contract of insurance was not admissible, and was properly rejected. 93 U. S., 527; 133 U. S., 418; 36 Md., 898; 66 Md., 339.

That this obligation was imposed upon the compress company primarily to secure the railway company itself, cannot affect the fact that in securing its own protection it likewise secured the interests of owners. Many reasons might be suggested moving it to demand that the cotton itself and not merely its own liability or interest should be covered.

The obligation thus imposed upon the compress company to insure' .the cotton itself against any loss, during the entire period of its custody, explains the representations made by the officers and agents of that company concerning its liability to carry insurance. It accounts for and explains its representations — made orally and in writing and printed upon its dray tickets — that cotton was insured for benefit of owners; and the finding of the jury that it represented that cotton was so insured while in its press is abundantly supported. This obligation was co-extensive with its custody. It was not limited by the life of the dray ticket. It was not affected by the issuance of the bill of lading. The actual 'possession of the cotton remained with the compress company. The effect upon the possession of the compress company of the issuance of a bill of lading while the cotton was in fact in the custody of the compress company, was discussed in Insurance Company v. Compress Company, supra. What was there said is so applicable that we quote a paragraph: “As to the suggestion that by the bills of lading the possession of the cotton was transferred to the railroad companies, and that the policy was avoided thereby, the answer is, that the cotton was still in the hands of the plaintiff', in its actual possession, and upon its premises. At most the railroad companies, by acquiring the receipts of the plaintiff and issuing bills of lading for the cotton, took only constructive possession of it; and the plaintiff, retaining actual physical possession of it, did not lose the right to effect insurance for its own benefit, and as bailee or agent, for the protection of the railroad companies. All that the railroad companies acquired was the right to ultimate possession, which passed to them by the transfer to them by the original depositors of the cotton receipts given by the plaintiff.” 133 U. S., 415.

Fifth. — What is the liability of the Newport News and Mississippi Valley Company by reason of the failure of the cotton-press company to carry insurance sufficient in amount to cover full value of owner’s interest? Was this railway company under any obligation as to insurance? The Chancellor on the facts, and upon a construction of its contract with the compress company, reached the conclusion that “the railroad company, by its contract with the compress company, in express terms assumed this obligation, and appointed the latter its agent to carry it out.”

Unless the imposition of an obligation upon the compress company is the same thing in law as an express assumption of a like obligation, then this conclusion is not to be sustained. Nowhere in that contract does the railway company assume that it is under any obligation concerning insurance. Reither are we able to give any such construction to this contract as constitutes the compress company the mere agent of the railway company in carrying insurance. If the carrier was, by law or by contract with shippers, obligated to carry insurance, then it would not escape responsibility by showing that it had required the compress to do what it was bound to do. It could not thus throw its duty upon another. The liability of the Rewport Hews and Mississippi Valley Company was the liability of a carrier, not the technical liability of an insurer. After bill .of lading issued it was not liable for a loss by fire, unless the result of negligence. This liability of a c'arrier, modified -or not by fire clause, was one which it could carry or insure against. It was under no obligation whatever — this contract out of the way —to carry insurance either upon its own liability or covering owner’s interest. In view, however, of its own liability, it was a wise and reasonable precaution to require the compress company to carry insurance for its benefit. That this contract bound the compress company to insure the cotton itself, and not merely the carrier’s responsibility, and thus such insurance would incidentally inure to the benefit of owners, affords no reason whatever for holding the carrier liable for the .failure of the cotton-press company to fully carry out its obligation. The voluntary imposition of an obligation of insurance incidentally beneficial to owners of cotton is not in law or reason tlie same thing as the assumption of an obligation of insurance. The failure ■ of the cotton-press company to carry such insurance may result in incidental damage to owners; but unless the railway company was under some obligation to insure, or that the compress company should insure, no right of action exists in favor of owners against it. There is no privity ■ between, the railway company and owners with respect to insurance. If it could be shown that the railway company had represented to shippers that cotton, while awaiting compression, was covered by the policies of the corporation employed by it to compress sanie, and such shipper, in reliance upon this representation, had accepted a bill of lading giving the carrier a right to ’have the cotton compressed, and had not, by reason of these representations, taken out insurance for himself, then an action would lie upon such facts. But no such case is made here. The most that can be said is that the general purport of the contract was known to shippers, though these contracts were private, unregistered instruments, and manifestly not intended by the carriers to influence or affect the action of shippers as to insurance. But assuming that this complainant ’knew the precise terms of this contract, in what way is he to draw from it' the conclusion that, in case the compress company fails to insure, he may fall back upon the railway because the railway has imposed voluntarily the duty of insurance upon the compress company? The agency of the compress company foi* the railway company in no way related to insurance. The body of this contract related to the terms and conditions upon which compression of cotton should be carried on for the railway company. With respect to this we must regard the compress company- as an independent corporation, carrying on the business of compression for all who demanded its services. The railway company, as a large customer, required, as a condition upon which it would do business, that it should carry insurance. This was an obligation imposed upon the compress company, and not one assumed by the railway company to be executed by the former as agent for the latter. Ro other relation existed between the railway company and the compress company than shown by the written contract. This the jury have expressly found in response to the ninth issue. We find no reason for doubting this fact.

The compress company was regarded by all who had dealings with it as the only obligated party as to insurance. The bill nowhere charges an obligation, imposed by law or assumed directly or indirectly by the carrier, to insure or cause to be insured the interest of shippers. As stated in a foregoing part of this opinion, the relief which seems to have been contemplated by the pleader was a mere substitution of complainant to the rights and equities of the railway company under its contract . with the compress company. That these contracts between the several carriers and the cotton-press company tended very directly to suppress competition and to build up and sustain a monopoly we have no doubt; but that the monopolistic tendencies of these arrangements should have the effect of imposing an obligation of insurance not otherwise deducible from the contracts, is not so clear or understandable.

"Whatever loss complainant has sustained by failing to protect itself by its own insurance, was wholly due to reliance upon the representations concerning insurance made by the compress company. The railway company entered into no direct obligations with owners concerning insurance, and made no representations, misleading or otherwise, on the subject. The obligations and representations of the compress company were not the obligations .or representations of any authorized agent of the railway company, and there is nothing in this record which entitles complainant to any decree whatever against the railway company.

Sixth. — We come now to a consideration of the damage resulting to complainant by the breach of the obligation of the cotton-press company to carry insurance sufficient to cover full value of the cotton destroyed by fire. To the extent that it took out policies of insurance in good and solvent companies, in terms covering owners of cotton against loss or damage by fire until actual delivery to the carrier, it has complied with its obligation. As to such insurance-it is a trustee for the, owners, and as trustee it is bound to make proofs of loss, and institute nece&sary proceedings for collection.

Assuming that the insurance in force shall be collected and distributed pro rata, it will leave .about four-sevenths of the value uninsured by policies carried by the warehousemen. Is the defendant liable for this uninsured loss? This will depend upon the legal effect of a contract to carry insurance. A contract to carry insurance, or to cover with insurance, or a representation to a depositor that his deposit is insured, is very different in its legal effect from the absolute liability of an insurer. In the latter case the' action would be upon the risk or policy for the value of the property destroyed, if within the amount of the risk. In the other cases the action would be for such damage as resulted from breach of the- obligation to carry insurance. The measure of damages may in both cases be- the same — the value of the property destroyed. The difficulty in this case arises from the fact that complainant at the time of this loss was covered by a marine risk in the Insurance Company of-Rorth America, containing a fire clause covering “ goods on shore prior to shipment” for ten days. That this risk covered this cotton at time of loss is not disputable. Prior to the bringing of this suit an amount of money equal to the full value of the cotton burned, plus ten per cent, (that being the. terms of the policy), was paid over to complainant, and a paper executed styled in the record a “borrowed and received. note.” This document is in following words:

“Boston, Mass., January 23, 1888.

“ Borrowed and received of the president and directors of the Insurance Company of North America, of Philadelphia, Pa., the sum of twenty-two thousand thirty-seven dollars and sixty-nine cents ($22,037.69), being a loan pending the investigation and determination whether the loss of four hundred and thirteen (413) bales of cotton, being part of a lot of 500 hundred bales marked <L> K, 1 — 500, shipped by ¥m. Bowles & Sons, Memphis, under a bill of lading of the Indiana, Blooming-ton and Western Pailway Company, dated Memphis, November 16, 1887 — said cotton reported burned at Memphis on or about November 17, 1887 —is a .loss for which the carrier should be held liable; and if the carrier should be held liable, the undersigned agrees to return to the said president and directors the amount thus loaned when and to the same extent same shall be recovered from the carrier.

“(Signed) LancasteR .Mills,

“By HaRCouRT Armort, Treas.”

The Chancellor, in speaking of this defense to this suit, thus states the issue presented by this receipt:

“ The only question for judgment between the parties to this suit is whether the transaction between the complainant and the Insuranc Company of North America is a payment of this loss. If it is, the defendant’s breach of duty and of contract has not damnified it, and there can be no recovery here.”

Upon a construction of this receipt, and upon the authority of the case of Inman, Swan & Co. v. Railway Company, 129 U. S., 129, the Chancellor reached the conclusion that this was not intended as a payment, hut as a mere loan pending determination of the liability of the other parties supposed to he primarily liable for the loss. It would seem that if the Lancaster Mills, not relying upon the obligation of the compress company to carry insurance, had, for itself, procured other insurance in good and solvent companies, it would not be heard to say that it had been damnified by the failure of the defendant to do for it what it had done for itself. It is not, however, necessary. to determine this, for we are convinced that the transaction between the Insurance Company of Rorth America and the complainant, and evidenced by this receipt, is in fact and law a payment and satisfaction of the loss sustained by the burning of this cotton. The substance of this transaction is that the insurer has paid the amount of its liability under the policy, subject alone to be repaid upon the contingency that the assured shall recover same from the carrier as being primarily liable. The precaution taken in calling it a loan was doubtless due to a fear that payment might affect the right of the insurer to the benefit of a recovery against the carrier.

This precaution cannot change the fact that the assured has' been paid, .and that this payment is to stand unless a liability shall be fixed upon the carrier, in which case the recovery from the carrier is to inure to the benefit of the insurer. The precaution was unnecessary. If the liability of the insurer was secondary, and it pays the loss, it is substituted to the rights of the assured against the party primarily liable, and may maintain a suit in the name of the assured for its benefit.

If the carrier or compress company is, as between it and the insurer of the owners, primarily liable, then an action in the name of the assured may be maintained for the benefit of the insurer, and the fact of ’payment will not affect the recovery. This we expressly decided at this term in the case of Railroad v. Manchester Mills, 88 Tenn., 653.

The case of Inman, Swan & Co. v. Railroad, supra, is not in any way in conflict with the conclusion we reach as to effect and meaning of this borrowed and received note. In that case it appeared that cotton in the custody of a railway company was destroyed by fire. The carrier’s bill of lading stipulated that it should have the benefit of any insurance held by owner on goods destroyed by fire while in its possession. On the other hand, the owners held open policies of insurance on the burned cotton, which provided the assured should, in case of loss, transfer to the insurer his claim against the carrier, and providing tliat the insurance should be forfeited in case any agreement was made by the assured whereby the insurer’s right to recover of the carrier was released or lost. The owners filed proofs of loss, and their open policy was re-instated for original amount. They then entered into an agreement to prosecute their claim against the carrier as the party primarily liable, and the insurer agreed to allow interest on the claim until collected.

The Court held that this stipulation did not amount to a payment; that the policies were not available to the carrier, inasmuch as the liability of the insurers depended upon the condition of resort over against the carrier. It was also held that the insurers under their contract had the right to require the assured to proceed first against the carrier, and to decline to indemnify them until the question of the carrier’s responsibility was first settled. That case and this are totally unlike both with respect to the fact of payment (for no money was paid or loaned to the assured) as well as in the more important distinction that there the carrier’s liability was primary as between it and "the insurer. So we hold: Eirst, that in point of fact the complainant has- received payment for its loss from its own insurer; second, that this fact of payment would not prevent the maintenance of a suit for the benefit of the insurer of the owner in the name of the assured, provided the loss is one which the defendants ought to have paid as between them and the insurer of the owners. If tbe liability of defendants, or either of them, was a direct one — as for negligence, or by con-ti’act for the absolute “ safe-keeping ” of the cotton— then the liability of defendants would be primary as for a loss proven or presumed to have been caused by them. 'In such case the insurer of the complainant would be subrogated to the right of the assured against the party primarily liable. This distinction is very clearly and forcibly illustrated in the case of the North British Insurance Company v. London, Liverpool and Globe Insurance Company, 5 Chancery Division, Law Deports, 569.

As this case has been much relied upon by the learned counsel for complainant, we briefly state the facts of the case. The case was this: A firm of warehousemen “ being -by express agreement,, or a local custom of London,” liable for any loss or damage which occurred to grain warehoused with them, for their own protection took out policies on grain in their custody. The owners of certain grain so warehoused, although they had the primary liability of the wharfingers, 'for their better protection took ■ out policies in another company upon their interest in the same grain, A loss occurred. The wharfingers’ companies and the bailors’ companies contributed to a fund to re-imburse the warehousemen, who had paid the loss to the owners of the grain. The suit was one between the respective companies to determine how the loss should- be borne between themselves. It was held that the wharfingers’ companies were liable for the whole loss, notwithstanding there was the usual clause requiring contribution where there was double insurance. The decision was rested upon the ground of the primary and absolute liability of the warehouseman to the owner of the goods in his custody. If the wharfinger had taken, out no insurance, and the insurer of the owner of the grain had paid the loss, it would have been substituted to the assured’s right of action against the wharfinger, who ryas absolutely and primarily liable. The warehouseman had by his insurance protected himself against this primary responsibility. It was held, therefore, not to be a case of double insurance, hut of separate insurance upon entirely difieren! interests.

Here the essential fact which would entitle the insurer of the owner of the warehoused cotton to recover is missing — that is, the primary and absolute liability of either the carrier or compress company. The liability to the owner for a breach of obligation to carry insurance is not a primary liability as between the compress company and the insurer of the owner. By subrogation the insurer obtains no right which ' the assured could not enforce. As the assured did for itself just what the compress company agreed to do for it, and having no right of action save for premiums, its insurer, who has paid the loss, has none. "Whatever rights the insurers of the complainant have against the insurers of the defendant compress company for contribution must be settled in- a suit between themselves. These insurers are not parties, and we therefore express no opinion upon this question.

The decree of the Chancellor holding that complainant had not been indemnified by its own insurer, was erroneous, and this results in dismissal of complainant’s bill, with costs.