T. M. PARTRIDGE LUMBER CO. v. MICHIGAN CENT. R. CO.
No. 7656
Circuit Court of Appeals, Eighth Circuit
May 16, 1928
26 F.(2d) 615
[6] Whether the interests of the beneficiaries in the trust estate were at the time of the sale, vested, as held by the majority of the Supreme Court, or were contingent, the possession and enjoyment thereof was, as to the shares set apart for the widow, deferred until her death, and, as to the Paul Otto shares, was deferred until he should reach the age of 25 years. The widow was still living, and no news had then been had of the death of Paul Otto, who, it later appeared, died unmarried and without issue before he reached the age of 25. A sale of the interests of the beneficiaries could convey no title to the shares of stock. If it is true, as we hold, that neither Schultze‘s voluntary surrender nor the subsequent demands of the Custodian operated to vest in the Custodian the legal title to the 670 shares in dispute, the sale by the Custodian was wholly void. If, on the other hand, it is true that the surrender and the subsequent demands of the Custodian were sufficient to authorize the Custodian to deal with the property as held by enemies, the Custodian had the right to sell no more than the right, title, and interest of enemy beneficiaries in the estate. No such sale was had. The sale was of stock “owned” by the widow and stock “owned” by Paul Otto. This is shown by the correspondence and the advertisements of the sale, and the order which was sent by the Custodian to the appellee, in which the widow and Paul Otto were listed as enemies and as the owners, respectively, of 500 and 170 shares of Kekaha Sugar Company stock.
The determination of the case involves the investigation of numerous documents, some of which are conflicting and some are obscure. A number of the communications addressed to the appellee from the Custodian‘s office, written as they were by different assistants to the Custodian, show upon their face that the writers were not advised of the fact that the appellee was the trustee of the estate in Hawaii. In the opinion of the Supreme Court of the territory, it was recognized that in such a case the first duty of the trustee after his appointment and qualification to act was to secure the possession of the trust property and protect it from loss and injury. Said the court: “He is bound not to do anything that would place him in a position inconsistent with the interests of the trust, or which may have a tendency to interfere with his duty in discharging it. In the case at bar the first duty devolved upon the Trent Trust Company, Limited, was to resign as depositary for the Alien Property Custodian because of conflicting interests.” With that expression of opinion we agree. We differ with the Supreme Court in the degree in which the trustee should be held accountable for loss to the estate. We agree that the appellee‘s first breach of duty was its failure to obtain possession of the estate immediately upon its appointment as trustee. It obtained possession of no part thereof until May 16, 1919, more than six months after the appointment. It was also its plain duty, we think, to institute proceedings under section 9 of the Trading with the Enemy Act to determine the rights of the beneficiaries of the trust estate.
We are of the opinion that the decision of the circuit court properly disposes of the questions at issue. The decree of the Supreme Court of the territory is reversed, and the decree of the circuit court is affirmed.
1. Carriers
Railroad‘s cause of action for recovery of excessive refund on freight overcharge was not action for recovery of charges, but was one on an implied contract to refund money paid through error, and
2. Courts
Where railroad company made excessive refund on freight overcharge, action to recover such excessive refund was action on implied contract to refund money paid through error, and was not a suit or proceeding arising under
In Error to the District Court of the United States for the District of Minnesota; John B. Sanborn, Judge.
Action by the Michigan Central Railroad Company against the T. M. Partridge Lumber Company. Judgment for plaintiff (17 F.[2d] 657), and defendant brings error. Reversed, with directions.
Stanley B. Houck, of Minneapolis, Minn., for plaintiff in error.
Allan Briggs and Briggs, Weyl & Briggs, all of St. Paul, Minn., for defendant in error.
Before VAN VALKENBURGH, Circuit Judge, and REEVES and OTIS, District Judges.
OTIS, District Judge. On April 18, 1922, the plaintiff in error, defendant below and hereinafter referred to as the defendant, shipped a car of cedar poles from St. Boniface, Manitoba, to itself at Pinconning, Mich. Later the shipment was reconsigned, and on or about May 16, 1922, delivered to the Detroit Edison Company at Detroit. Defendant should have paid defendant in error, plaintiff below and hereinafter referred to as plaintiff, $345.63 as freight charges. It did pay $386.50, or $40.87 more than was justly due. It claimed a refund, and was erroneously refunded $60.21 more than the amount to which it was entitled. On September 8, 1924, to partially reimburse plaintiff for this overpayment, defendant paid plaintiff $4.46, leaving still unpaid of the overpayment the amount of $55.75. Plaintiff brought this suit February 19, 1926, and had judgment below for that amount.
[1,2] It is one of the contentions of defendant that, if this is an action to recover freight charges, then the statute of limitations had run before the action was begun. The statute reads:
“All actions at law by carriers subject to this act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after.”
41 Stat. 492 ; Comp. Stat. § 8584 (49 USCA § 16 (3), (a) .
But that this is not an action for the recovery of charges is too clear for argument, and the trial court properly so held. Therefore this statute has no application. The trial court held, we think properly, that the action is one on implied contract to refund money paid through error. If so, however, it is not a suit or proceeding arising under any law regulating commerce, or within any other class of suits of which the federal District Courts have original jurisdiction. For that reason it should have been dismissed by the trial court.
Reversed, with directions to dismiss at plaintiff‘s costs.
VAN VALKENBURGH, Circuit Judge (concurring). I concur in the disposition of the case directed in the foregoing opinion. If the action be viewed as one on implied contract to refund money paid through mistake, the court below was without jurisdiction. If, as I think, it is for the recovery of carriers’ charges, it is barred by limitation.
From the correspondence between the parties and their representatives set out in the record, it appears that plaintiff in error on June 30, 1922, made claim for overcharge in the sum of $130.84. July 25, 1922, defendant in error acknowledged a claim for $75.92. October 26, 1922, the railroad asked the lumber company to reduce the claim to $85.48. February 15, 1923, it advised plaintiff in error that “if you will amend your claim to $101.08, we will be pleased to place in line for payment.” Amendment and payment followed. August 13, 1924, the accounting department of the railroad notified the lumber company that in this refund there had been an overpayment of $4.46. The lumber company remitted that amount to the railroad. June 17, 1925, the accounting department again revised its figures and made demand for an additional sum of $55.75 because of alleged overpayment in its refund of $101.08.
Upon refusal to meet this demand this action was filed February 17, 1926. In the stipulation of facts it is agreed: “That the balance of the overpayment by the plaintiff to the defendant still unpaid is fifty-five dollars seventy-five cents ($55.75).”
Paragraph 3 of section 16 of the Interstate Commerce Act, as amended June 7, 1924, provides that: “The cause of action in respect of a shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after.”
This action is in effect one for the recovery of a part of the carrier‘s charge; other-