cross-writ. On the original writ of error the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

cover the $9,000 which the bank paid to Evans, but might recover the additional amount he paid out in order to perfect his title. In accordance with this charge the ju ry returned a verdict for $1,350. The bank assigns error on the refusal of the court to direct a verdict to the effect that it was not liable in any amount. On cross-assignments COPPER RIVER PACKING CO. v. ALASKA of error, Biddle insists that the court erred

S. S. CO.

in refusing to accept the verdict for the full Circuit Court of Appeals, Ninth Circuit. Octoamount claimed by him.

[1] In our opinion the District Judge was

ber 24, 1927.

No. 5222.

cient vessels to handle shipper's seasonal requirements with reasonable promptness held not discriminatory, nor to give unreasonable preference (46 USCA § 812).

clearly right in refusing to allow the bank to 1. Shipping 103-Contract to furnish suffi be held liable for the $9,000 paid to Evans upon delivery of the deeds. According to the undisputed evidence, the owners of the land were not named, Evans held an option to purchase, and plaintiff knew that a clear title could not be delivered without his consent. So far as the bank is concerned, however it may be as between Biddle and Evans, the method of payment of the purchase price was not in violation of instructions. If the bank had paid it to the owners, and they in turn had settled with Evans, the result would have been the same, as the amount Evans received was paid to him with their consent.

[2,3] We are of opinion, also, that plaintiff's evidence fails to sustain the verdict allowed to stand for the amount he paid to clear his title. As soon as plaintiff received the deeds, he became aware that the title was not perfect, and that the bank had not required an attorney's opinion on it. He was then put to his choice, either to take the title as it stood, or to repudiate the entire transaction and return the papers to the bank. He could not, with full knowledge of what had occurred, at one and the same time accept such title as was tendered, keep the property thereby conveyed, and hold the bank for the cost of acquiring the outstanding mineral interest. By accepting the deeds he ratified the action which the bank had taken as his agent. A principal cannot in part ratify and in part repudiate the act of his agent. Bray v. Gunn, 53 Ga. 144; Ingraham v. Barber, 72 Ga. 158. See, also, Thompson v. Neely, 32 Ga. App. 131, 123 S. E. 171; 21 R. C. L. 923; 1 Mechem on Agency, 410. The rule that a principal, who does not reject his agent's act within a reasonable time, is deemed to have ratified it, is supported by the great weight of authority. Law v. Gross, 1 Black, 533, 17 L. Ed. 185, cited with approval in Clews v. Jamieson, 182 U. S. 461, 483, 21 S. Ct. 845, 45 L. Ed. 1183.

Contract in which steamship company agreed to transport property of salmon packing company and to furnish sufficient vessels to handle shipments with reasonable promptness, subject to its regular rules, rates, and tariff, refall and spring, held not unfair or discriminatory quiring relatively large seasonal shipments in against any shipper nor did it give any undue or unreasonable preference or advantage to such shipper, in violation of Act Sept. 7, 1916, $14, as amended by Act June 5, 1920, § 20 (USCA § 812 [Comp. St. § 8146gg]). 2. Shipping 103-That steamship company might violate law by giving undue preferences to shipper held not to invalidate contract to furnish reasonably prompt transportation (46 USCA § 812).

might violate the law by giving undue preferThe mere fact that steamship company

ences, within Act Sept. 7, 1916, § 14, as amended by Act June 5, 1920, § 20 (46 USCA § 812 [Comp. St. § 8146gg]), such as loading particular shipper's shipment on a fixed day, and expediting its freight to the disadvantage of prior shippers offering freight of a similar character and to the same point, does not invalidate contract to furnish such service as might be required to take care reasonably of shipper's necessities.

3. Shipping

132(3)-Presumption is that steamship company will not violate law in carrying out contract of affreightment.

Presumption is that steamship company, in carrying out contract of affreightment, will conform to the requirements of the law.

4. Shipping 132(6)-Whether steamship company furnished vessel with reasonable promptness, as specially contracted, held fact question for jury.

In salmon packing company's action for damages for breach of special contract of affreightment, question whether defendant furnished vessel with reasonable promptness, as required by contract, held one of fact for jury. 5. Shipping 132 (3)-Burden of excusing refusal to transport shipment for salmon packing company, in violation of special contract, held on steamship company.

Where steamship company contracted to furnish sufficient vessels to handle salmon packDefendant in error takes nothing by his ing company's shipments with reasonable

22 F.(2d) 12

promptness, and packing company proved capacity of steamship company's vessel sailing on a certain date and demand for space for shipment, with tender of freight and refusal thereof several days before it was loaded, it made out a case of breach of special contract of affreight ment, and burden of showing any valid excuse for violation thereof was on steamship company.

6. Shipping 132(5)—Exclusion of evidence that steamship company's agent had notice of shipper's requirement before contract was executed, and was notified of necessity of furnishing shipping vessels, held error.

In action for breach of special contract

requiring steamship company to furnish sufficient vessels to handle salmon packing company's shipments and for special damages, exclusion of evidence that, before contract was executed, plaintiff's agent told defendant's agent that it would require a quantity of empty cans on a certain date, that after the contract was executed defendant's agent stated that he knew plaintiff's requirements, that defendant could be relied on to transport the required cans on one of its ships, that on certain date plaintiff notified defendant that it needed the cans, and that unless the cans were delivered heavy loss would result, held error.

In Error to the District Court of the United States for the Northern Division of the Western District of California; Jeremiah Neterer, Judge.

Action by the Copper River Packing Company against the Alaska Steamship Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Kerr, McCord & Ivey, of Seattle, Wash., for plaintiff in error.

Lawrence Bogle, Cassius E. Gates, and Edwin G. Dobrin, all of Seattle, Wash., for defendant in error.

Before HUNT, RUDKIN, and DIET. RICH, Circuit Judges.

HUNT, Circuit Judge. Plaintiff, a salmon packing company, has a cannery at Nellie Juan, Alaska, with a capacity of from 1,200 to 2,000 cases of salmon per day. The season begins about July 4th and ends about the 18th of August of each year. The steamship company and plaintiff entered into a contract in March, 1922, by the terms of which the steamship company would deliver or receive at ship's tackle all the property owned or controlled by the packing company covered by the agreement, which would require transportation to or from the wharf, it being understood that the bulk of the packing company's north-bound shipments moved in relatively large shipments in the spring and south-bound shipments in relatively large shipments in the fall. The steamship

company agreed to furnish sufficient vessels to handle the north-bound shipments in the spring and the south-bound shipments in the fall "with reasonable promptness and dispatch, and at other times during the season to furnish such additional vessels, either direct or by detours from a regular route, as may be reasonably required by the necessities of the second party's business." The packing company was to ship exclusively by the steamers of the defendant company. All property to be transported was to be received, held, carried, and delivered by the steamship company subject to the conditions of its regular and then current shipping receipt, and, except as otherwise specifically provided, to the rules, rates, and conditions of the then current freight tariff. Provisions covered specific rates upon fish in cans and upon empty cans. In consideration of the obligations on the part of the steamship company to furnish such service as might be required, "to reasonably take care of second party's necessities," it was agreed that, in should be transported to or from the wharf case any freight covered by the agreement by any other vessel than one belonging to the steamship company, such violation of the agreement would give the shipping company an option to terminate the agreement upon notice to the packing company.

The amended complaint averred that the Alameda was one of the boats operated by defendant; that plaintiff tendered to defendant for transportation on the Alameda 2,500 cases of cans on her voyage leaving Seattle about August 9, 1922, for delivery to Nellie Juan, and that five days before the Alameda sailed defendant refused to carry the cans, in violation of the terms of the contract; that

the Alameda could have delivered the cans if they had been shipped to plaintiff not later than August 15th; that the cans measured 60 tons and about 13 tons dead weight; that plaintiff was obliged to pack its red salmon in a way which caused it to lose large profits, to its damage in the sum of $7,375.

Defendant pleaded its general obligations as a common carrier, lack of space, and lack of reasonable notice.

In presenting its evidence plaintiff offered the contract, but upon objection the court ruled that it was not admissible unless the shipping receipt was included; also because, under the allegations of the complaint, it was not averred that there was available space on the Alameda. Thereupon, in view of what the court said, the plaintiff amended its complaint by alleging that there was available space for carrying the cans, and

the contract and receipt and tariff were put the order to ship was received and refused on in evidence.

22 F.(2d) 12

414, the Supreme Court, referring to an interstate carrier, quoted from an earlier case, Cincinnati, New Orleans & Texas Pacific Railroad Co. v. Rankin, 241 U. S. 319, 36 S. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265, saying: "It cannot be assumed, merely be cause the contrary has not been established by proof, that an interstate carrier is conducting its affairs in violation of law. Such a carrier must comply with strict require ments of the federal statutes or become subject to heavy penalties, and, in respect of transactions in the ordinary course of business, it is entitled to the presumption of right conduct." Northern Pacific R. Co. v. St. Paul & Tacoma Lumber Co. (C. C. A.) 4 F. (2d) 359.

Davis v. Cornwell, 264 U. S. 560, 44 S. Ct. 410, 68 L. Ed. 848, one of the cases cited by defendant in error, is inapplicable. There the transportation service to be performed was that of a common carrier under published tariffs, and not under a special contract. The court held that the promise of the agent of the company that cars for loading cattle would be available on a day named imposed a greater obligation upon the carrier than that implied in the tariff, where the obligation was to use diligence to provide upon reasonable notice cars for loading at the time desired. The court reaffirmed the ruling in Chicago, etc., Co. v. Kirby, 225 U. S. 155, 32 S. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501, that a special contract to transport a car by a particular train on a particular day is illegal, when not provided

for in the tariff.

[4] Obviously, that any particular vessel should be employed to transport cans was of no moment to plaintiff; what it wished was to have the cans shipped in time to meet the necessities of their packing business, which was confined to a limited time. In calling for shipment by the Alameda to leave Seattle on August 8th, plaintiff simply emphasized its need for cans about the date that ship would arrive at Nellie Juan. If defendant had shipped the cans by any other vessel, which could have delivered them about August 14th, no cause for complaint could have existed. As presented, the main issue -the question of reasonable promptnessbecame one of fact, dependent upon the availability of space upon a ship of defend

ant leaving Seattle about August 9th. The court, therefore, should have submitted the issues to the jury.

[5] We think the court erred in requiring plaintiff to prove that there was space available aboard the Alameda at the time of the tender of the freight. It would be practically impossible, ordinarily, for shippers to know whether a carrier had space for a limited quantity of merchandise offered, and in the present case, inasmuch as the contract fixed the obligation to carry with reasonable promptness, when plaintiff proved the capacity of the defendant's ship and that demand was made for space for the cans, and that tender of the freight was made and refused several days before the ship was loaded, its case was made out, and the burden of showing any valid legal excuse that may have existed for default in performance was cast upon defendant. Clark v. Barnwell, 12 How. 272, 13 L. Ed. 985; Columbus R. Co. v. Columbus, 249 U. S. 399, 39 S. Ct. 349, 63 L. Ed. 699, 6 A. L. R. 1648; Inter-Coast Steamship Co. v. Seaboard Transportation Co. (C. C. A.) 291 F. 13.

[6] The complaint having alleged special damages, including loss of profits, the court should have permitted plaintiff to prove that before the contract was executed plantiff's and defendant's agents had a conversation wherein plaintiff's agent told defendant's agent that it would require a quantity of cans about the 1st of August, and that after the contract was executed the defendant's agent stated that he knew what plaintiff's requirements were, and defendant could be relied upon to transport the required cans on one of its ships, and that on August 2d plaintiff notified defendant that it needed the cans, that the fish were ready to pack, and that unless the cans were delivered the loss would be very heavy. 10 C. J. 316; Morrow v. M. P. R. Co., 140 Mo. App. 200, 123 S. W. 1034. Those were matters which arose from the circumstances and character of the particular case, and of which defendant must have had knowledge at the time of the making of the contract. 8 R. C. L. 459, § 27; 1 C. J. § 199.

The judgment is reversed, and the cause is remanded, to be proceeded with in accordance with the views herein expressed.

SOUTH AMERICAN S. S. CO. et al. v. AT- pany and others. Decree for libelant (19 LANTIC TOWING CO.

had listed about 20 degrees because of shifting Ga. (Lawton & Cunningham, of Savannah, T. M. Cunningham, Jr., of Savannah,