#### ILLINOIS CENTRAL RAILROAD COMPANY v. THE UNITED STATES.1

[No. 33955.

Decided May 1, 1922.]

*On the Proofs.*

*Land-grant deductions; transportation; Government*property.— Where a contract provides that delivery shall be made at the mine or factory, and that the supplies shall be shipped on Government bills of lading and inspected at the point of destination, such supplies are Government property and the rate of transportation is subject to land-grant deductions. See also *Louisville & Nashville R. R. Go. Oase, ante, p. 268-*

*The Reporter's*statement of the case.

*Mr. Benjamin Garter*for the plaintiff.

*Mr. Perry W.*Howard, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff is, and was during the different transactions hereinafter described, a corporation duly incorporated *278under the laws of the State of Illinois, engaged in the operation of a system of railways in the States of Illinois, Indiana, Iowa, Nebraska, Kentucky, Tennessee, Mississippi, and Louisiana.

II. Three of plaintiff’s lines of railway, (1) from Chicago to Cairo, (2) from Centralia to East Dubuque, all in the State of Illinois, and (3) from Dubuque to Sioux City, both in the State of Iowa, were constructed with the aid of public lands granted-by Congress (acts of September 20, 1850, 9 Stat. 466; May 15, 1856, 11 Stat. 9; June 2, 1864, 13 Stat. 95, 98; March 2, 1868, 15 Stat. 38).

III. In the year 1914 a contract was entered into between Major G. M. Hoffman, of the Corps of Engineers, and the Chicago & Carterville Coal Company to furnish coal for river improvements in the vicinity of Dubuque, Iowa, and the coal was shipped during that year from Herrin to Du-buque. During the same year a contract was made by Major Hoffman with the Collieries Sales Company, under which shipments of coal for the same purpose were made during that year from Eldorado to Dubuque, and in 1915 and 1916 Major Hoffman made two contracts, one in each year, with Rutledge & Taylor Coal Company for coal for the same purpose which was shipped during 1915 and 1916 from Du-quoin to Dubuque.

None of the above contracts has been introduced in evidence. Certain extracts from the specifications and proposals to furnish coal and acceptances thereof found in the record are made part hereof by reference thereto.

IY. The coal was delivered under the four contracts described above on board cars at the different mines, and was shipped over plaintiff’s lines > therefrom to Dubuque on Government bills of lading furnished to said coal companies by the Government, which were duly accomplished, the coal inspected and accepted at that place by the proper Government officials. The total land-grant deductions on such shipments made by the plaintiff in stating its bills amounted to $5,234.61.

Y. During the years 1911, 1912, 1913, and 1915 numerous shipments of materials and supplies, such as coal, stone, lumber, hardware, and other articles for use in Government *279improvements of the Missouri Eiver, were made over plaintiff’s lines from Athens, Marissa, Winkle, Freeburg, Belle-ville, New National Mine, Mulberry Hill, Lenzburg, Herrin, Chicago, and Chicago Heights, in the State of Illinois; East Sioux Falls and Eowena, in the State of South Dakota; St. Louis, Missouri; Hattiesburg, Mississippi; and Houlton Junction, Louisiana, to Sioux City, the Narrows, and Eiver Siding, Iowa, and Omaha, Nebraska. These materials and supplies were all purchased on invitation to bidders, proposals of bidders, and vouchers, on which payments were made to the sellers. The form of invitation on which bids were made invariably read: “The prices will be for the articles delivered f. o. b. cars at-. The successful bidder will procure the cars, but the United States will pay the freight and furnish shipping instructions and bills of lading. This arrangement is made to enable the Government to take advantage of land-grant rates, and will not operate to relieve the dealer of any responsibilities as shipper that would attach if the delivery had been at destination.” This form of invitation was only used over land-grant or bond-aided roads, and was never used where delivery was to be made at point of use.

The shipments were all made on Government bills of lading, which were accomplished, the articles inspected, and accepted at points of use by the proper Government officials. The total land-grant deductions on such shipments made by the plaintiff in stating its bills amounted to $9,695.27.

The Government official examined as to the purchase of the above articles produced the form of invitation quoted— one bid and one voucher, upon which payment was made. The bids and voucher were not introduced in evidence. All the rest of the invitations, bids, and vouchers were destroyed, according to the practice of the office, after three years.

VI. Land-grant deductions on some of the shipments described in Finding V were made from October 30, 1911, to March 7, 1912, both dates inclusive, amounting to $2,511.68, and were all mad© more than six years prior to the filing of this suit on March 23,1918.

VII. On June 3, 1914, the Government, through Lieut. Col. Judson, Corps of Engineers, entered into a contract *280with the Lumber Manufacturers’ Agency of Centralia, Lewis County, Washington, for 888,720 feet b. m., more or less, Oregon or Washington fir timber, for breakwater repairs in the Chicago, Illinois, district, to be delivered on board cars at the company’s mills, and to be inspected, both at the mills and the point of delivery, before acceptance and payment.

On August 5,1914, the Government, through Major Cava-naugh, Corps of Engineers, entered into a contract with the Union Lumber Company, of Union Mills, Thurston County, Washington, for 2,793,180 feet b. m., more or less, for timber to be delivered on board cars at the company’s mills, the timber to be used for constructing part of the exterior breakwater at Chicago, Illinois.

Inspections were to be made at the company’s mills and final inspection at point of delivery before acceptance and payment. The deliveries were made as required by the two contracts, and timber was all inspected at the mills and afterwards at Chicago, and was accepted and paid for in accordance with certificates of the Engineer officer in charge of the work.

The shipments were made from Winlock, Walville, Napa-vine, Yader, Pe Ell, Bordeaux, Chehalis, Centralia, Hartford, Rainier, Littell, and Union Mills, State of Washington, to East Chicago, Illinois, and were partly over plaintiff’s lines, and were made on Government bills of lading. The total land-grant deductions for shipments over plaintiff’s lines made by the plaintiff in stating its bills amounted to $9,340.18.

The contracts are made part hereof by reference thereto.

VIII. On August 15,1916, the Government advertised for sealed proposals to furnish and deliver cement for use on revetment work on the Mississippi River at Vicksburg, Mississippi. The specifications furnished to prospective bidders stated that proposals would be considered for delivery f. o. b. cars at point of manufacture and f. o. b. cars on the Government warehouse switch at Vicksburg, Mississippi. The Carolina Portland Cement Company of New Orleans, on August 26, 1906, proposed to furnish- 10,000 barrels at $1.444- Per barrel, f. o. b: cars point of manufacture, Leeds, Alabama, or f. o. b. cars at Vicksburg at $1.90 per barrel. *281The proposal was accepted at $1.44| per barrel, f. o. b. cars, Leeds, Ala. The cement was shipped in 1916 over plaintiff’s lines to Vicksburg on Government bills of lading, which were accomplished, and the cement tested and accepted by the proper Government officials. The total land-grant deductions on such shipments made by the plaintiff in stating its bills amounted to $251.24.

The advertisement, proposal, and acceptance are made part hereof by reference thereto.

IX. On August 7,1915, Major Markham, of the Corps of Engineers, in charge of certain Government work on the Mississippi Eiver, with headquarters at Memphis, Tennessee, wrote to the Bucyrus Company of South Milwaukee, Wisconsin, inviting a proposal to furnish and install a concrete mat revetment plant. On September 8, 1915, the said company proposed to deliver the plant at South Milwaukee in fourteen weeks from date of order for $9,500.00, or to deliver same at South Milwaukee in ten weeks from date of order for $9,775.00, and to put up and install said plant at Memphis and furnish an operator for two weeks for $1,175.00 additional. On September 13, 1915, the proposal of said company was accepted for delivery at South Milwaukee in ten weeks, with certain changes of price and construction which appear to have been accepted. The plant was shipped over plaintiff’s lines to Memphis on two Government bills of lading, which were duly accomplished, the plant erected, and after proper tests, paid for by the Government. The land-grant deduction made by the plaintiff in stating its bills amounted to $81.74.

The proposal (citing the invitation to bid), the acceptance, and the voucher showing payment are made part hereof by reference thereto.

X. On June 5,1914, Eichard E. Egglebrecht, of St. Louis, Missouri, entered into a contract with the United States, through Capt. F. G. Stritzinger, of the Quartermaster Corps, to furnish and deliver by June 30, 1915, free on board cars at Carterville, Illinois, 13,500 tons of coal, to be paid for after delivery at Omaha, at the rate of $1.56 per long ton.

On June 1, 1916, the Nebraska Fuel Company entered into a contract with the Government, through Col. G. S. *282Bingham, of the Quartermaster Corps, to deliver free on board cars at Duquoin, Illinois, coal in such quantities and at such times as might be required by the receiving officer or agent of the Quartermaster Corps. Payment to be made at Omaha, Nebraska, at the rate of $1,739 per short ton, which included the cost of unloading and storing in bins.

The coal furnished under said contracts was shipped from Carterville and Duquoin over plaintiff’s lines to Omaha, Nebraska, on Government bills of lading, which were duly accomplished, and the coal inspected and accepted at that place by the proper Government officials. On said shipments land-grant deductions of $159.29 were made by the plaintiff in stating its bills.

The two contracts and material parts of the specifications are made part hereof by reference thereto.

XI. The plaintiff’s bills were presented to the Government for payment of the net freight for. the transportation of said coal and other articles after the proper land-grant deductions had been made by the plaintiff in stating its bills and payment was made to the plaintiff of the full amount claimed on that basis and accepted without protest.

XII. It is not shown whether the plaintiff, when said freights were received and transported and when its bills were rendered and payment received, was or was not informed of the conditions of the contracts or orders with reference to inspection and acceptance or rejection at point of destination or when, if thereafter, it was so informed.

XIII. The Government form of bills of lading used in the transportation of the articles in question provided on its face for the hauling of Government property only, and the directions on the back of the same limited their use to Government property. The agreement on the back of the same between the United States and the carrier stipulated that prepayment of charges should in no case be demanded by the carrier, nor should collection be made from the consignee; that on presentation to the office indicated on the face of the bill of lading properly accomplished, attached to freight voucher prepared on authorized Government form, payment would be made to the last carrier unless otherwise specifically stipulated; that the shipment was to be *283made at the restricted or limited valuation specified in the tariff or classification at or under which the lowest rate would be available unless otherwise indicated on the face of the bill of lading.

1

 Appealed.

MEMORANDUM BY THE COURT.

All the transportation here involved was of supplies purchased under contracts or orders providing for delivery f. o. b. cars at mine or factory. That, the United States and its contractors, having seen fit to so contract, also saw fit to provide for a final inspection at place of delivery, with incidental right of rejection, or for some further service to be rendered by the contractor at that point, either for the original or an additional compensation, are matters of no concern to the railroad company unless they are entitled to assert that because thereof the shipments were not shipments of “ Government property ” and hence not entitled to land-grant rates. Such a contention is not tenable. The United States and the contractors were privileged to write into their contract such terms as they saw fit, and a third party, even though incidentally interested as a carrier, may not give an effect to one provision other than that plainly intended by the parties, because the parties themselves saw fit to agree to other terms regarded by it as inconsistent therewith. Provisions for a final inspection at point of delivery or for the rendering of a further service by the contractor at that point were not inconsistent with and could not be invoked to nullify a specific provision under which the title to the property passed to the United States by delivery at the initial point of shipment to the carrier as agent. Land-grant rates were applicable.

In rendering its bills the plaintiff itself made land-grant deductions from commercial rates, claimed only the land-grant rates resultant from such deductions, and accepted payment thereof without protest. It is thus estopped to assert a further claim for the same service except upon a showing of fraud or mistake of fact. There is no proof that the plaintiff was in any way deceived or mistaken as to the facts or was not fully informed with reference thereto when it rendered the service, presented its bills, and re*284ceived payment thereof. *B. & O. case,*52 C. Cls. 468; *Oregon-Wash, case,*54 C. Cls. 131, affirmed 255 U. S. 339, Part of the claim presented, amounting to $2,511.68, relating to shipments from October 30, 1911, to March 7, 1912, was barred by the statute of limitations when this suit was commenced, March 23, 1918.

The petition is dismissed.