#### UNION PACIFIC RAILROAD CO. v. THE UNITED STATES

[No. C-789.

Decided March 1, 1926]

*On the Proofs*

*Railroad rates; demurrage; consignment to contractor; UatiUty of United States*— (1) Where under, an average demurrage agreement the plaintiff is required to furnish consignee written notice of the arrival of cars, “ or as otherwise agreed to by agent and consignee,” the plaintiff must prove that written notice was given, or if such notice was not given, that an agreement was entered into, together with the terms thereof, and that such terms were complied with.

(2) Where, under the circumstances recited the cars were consigned to a Government contractor, the liability of the United States to pay the demurrage to the plaintiff must be established by proper proof. See opinion.

*768
      *The Reporter's*statement of the case:

*Mr. William R. Harr*for the plaintiff. *Mr. Charles H. Bates*was on the briefs.

*Mr. Joseph H.*Sheppard, with whom was *Mr. Assistant Attorney General Herman J. Gallowaty,*for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff is a corporation duly organized under the laws of the State of Utah and as such now is, and was during the times hereinafter mentioned, engaged as a common carrier in the transportation of persons and property in and through the State of Kansas and other States of the United States. ■

II. On May 12,1917, and June 20,1917, two cost-plus contracts were entered into between the United States and the George A. Fuller Construction Co. for the construction of certain cantonment buildings at Fort Riley, Kans. Fort Riley is the original Army post, Pawnee Flats adjoins Fort Riley on the east, and Camp Funston is located about two miles east of Pawnee Flats. Cantonment buildings so-contracted for were constructed at all three of said places.

The said contracts provided that the contractor should furnish the labor, material, tools, machinery, equipment, facilities, and supplies, and do all things necessary for the construction and completion of the said buildings. It was also provided therein as follows:

“ The United States reserves the right to pay directly to common carriers any or all freight charges on material of all kinds, and machinery, furnished under this contract ****

III. During the month of July, 1917, the plaintiff delivered at Fort Riley, Pawnee Flats, and Camp Funston a number of cars containing material for installation or for consumption in the course of the said work, consigned to the George A. Fuller Construction Co., by whom is not shown.

IY. On June 11, 1917, and July 20, 1917, the said George A. Fuller Construction Co. entered into two average de-murrage agreements with the plaintiff, the earlier one covering cars handled for the account of the said construction *769.company at Fort Eiley, Kans., station, and the later one •covering such cars at Camp Funston, Kans., station. Said agreements were entered into by the Fuller Co. at the request of the construction quartermaster of the Army at said places, and were as follows:

AGREEMENT

*To Union Pacific Railroad Company:*

Being fully acquainted with the terms, conditions, and effect of the average basis for settling for detention to cars .as set forth in Cir. 120-C, being the car demurrage rules governing at all stations and sidings on the lines of said railroad company, except as shown in said tariff, and being ■desirous of availing ourselves of this alternate method of ■settlement we do expressly agree to and with the Union Pacific Eailroad Company that with respect to all cars which -may, during the continuance of this agreement, be handled for our account at Fort Eiley, Kans., station, we will fully ■observe and comply with all the terms and conditions of said rules as they are now published or may hereafter be lawfully modified by duly published tariffs, and will make prompt payment of all demurrage charges accruing thereunder in accordance with the average basis as therein established or .as hereafter lawfully modified by duly published tariffs.

This agreement is to be effective on and after the 1st ■day of July, 1917, and to continue until terminated by written notice from either party to the other, which notice shall become effective on the first day of the month succeeding that in which it is given.

George A. Fuller Construction Co.

Edgar S. Belden, *V. P.*

Approved and accepted June 11, 1917, by and on behalf •of the above-named railroad company.

By E. C. Manson, E.,

*Superintendent of Transportation.*

Approved:

W. H. Sanford,

*Asst. Treas.*

AGREEMENT

*To Union Pacific Railroad Company:*

Being fully acquainted with the terms, conditions, and •effect of the average basis for settling for detention to cars .as set forth in Cir. 120-C, being the car demurrage rules *770governing at all stations and sidings on the lines of said railroad company, except as shown in said tariff, and being desirous of availing ourselves of this alternate method of settlement we do expressly agree to and with the Union Pacific Railroad Company that with respect to all cars which may, during the continuance of this agreement, be handled for our account at Funston, Kans., station, we will fully observe and comply with all the terms and conditions of said rules as they are now published or may hereafter be lawfully modified by duly published tariffs, and will make prompt payment of all demurrage charges accruing thereunder in accordance with the average basis as therein established or as hereafter lawfully modified by duly published tariffs.

This agreement is to be effective on and after the 14th day of July, 1917, and to continue until terminated by written notice from either party to the other, which notice shall become effective on the first day of the month succeeding that in which it is given.

Geoege A. Fullee Consteuction Co.

Edgae S. Belden, *V. P.*

Approved and accepted July 20, 1917, by and on behalf of the above-named railroad company.

By E. C. Manson, R., *Superintendent of Transportation.*

Approved:

W. H. Saneoed,

*Asst. Treas.*

Y. The said average demurrage agreements were made under the provisions of plaintiff’s circular No. 120-C, I. C. C. No. T-29, effective December 15, 1916, to October 9, 1917, both dates inclusive, duly filed with the Interstate Commerce Commission December 11, 1916, and with the Public Utilities Commission for the State of Kansas. This tariff enabled the consignee, signing the agreement, to make monthly settlements for demurrage charges and obtain the benefit of certain credits for cars released within the Erst 24 hours of free time, and subjected him to certain debits for cars released after the expiration of the free time.

VI. The rules of said circular No. 120-C provided that “ notice shall be sent or given consignee by agent in writing, or as otherwise agreed to by agents and consignee, within 24 hours after arrival of cars and billing at destination ”; *771that “ on cars to be delivered on any other than public-delivery tracks, time will be computed from the first 7 a. m. after actual or constructive placement on such tracks ”; and “ the agent must send or give the consignee written notice of all cars he has been unable to deliver because of the condition of the private or interchange tracks, or because of other conditions attributable to consignee,” said written notice to be considered constructive placement.

VII. By a practice arranged between the plaintiff, the constructing quartermaster, and the George A. Fuller Construction Co. the plaintiff gave verbal notice, usually by telephone, of the arrival of all cars at their destinations and made up a list of such cars, and this list was checked daily by some representative of the quartermaster and of the George A. Fuller Construction Co.

There is testimony tending to show that this arrangement was reduced to writing in two documents. The said writing is not in evidence, its absence is not satisfactorily explained, and its contents are not proved.

There is no satisfactory proof that the written notice of the time and other circumstances of the arrival of the cars involved in this suit, required to be given by plaintiff’s said circular 120-C, was waived by the defendant.

VIII. The plaintiff, after consulting with an officer of the Army, laid down and during July, 1917, maintained temporary tracks in or about the aforesaid Government reservations sufficient to accommodate all incoming cars had they been released within the free time allowed by its said circular No. 120-C. The delay in unloading was due to an insufficient force of men being employed by the contractor and to inadequate housing facilities for material which could not immediately be put to use. It is not proved that it was due to the conduct of the constructing quartermaster. The evidence does not show that he was authorized to contract in respect to service in connection with transportation or demurrage, or that he had authority to change or modify the contract of transportation, or to waive any notice of the arrival of cars which it was incumbent upon the plain*772tiff to give, or to change the form of such required notice from written to verbal.

IX. Some of the said cars were placed by the plaintiff, on their arrival, directly upon tracks so constructed by plaintiff on the Government reservations, but in instances, owing to the occupancy of such tracks by other cars, some were placed, on their arrival, first upon plaintiff’s passing tracks at Fort Riley and then were moved by plaintiff on to the reservations as fast as the unloading there permitted. The evidence does not show the number of cars so handled, or identify any of them. The related bills of lading are not in evidence and their absence is not satisfactorily explained.

X. The plaintiff rendered prompt and efficient service, and there was no delay on its part.

XI. On or about September 9, 1919, the plaintiff, by its attorney, submitted to the War Department a bill for the sum claimed in this suit. After considerable correspondence the chief of the first district office, construction service, Quartermaster Corps, addressed a letter from Washington, D. C., December 9, 1920, to the manager of the mid-west demurrage bureau, Union Pacific Building, Omaha, Nebr., as follows:

*“*1. Reference is made to your letter of June 22, 1920, file *#192,*relative to demurrage bill of the Union Pacific Railroad Company in the amount of $1,448.00, assessed on carloads of Government material used in construction of cantonment buildings at Camp Funston and Fort Riley, Kansas, under average agreement *#2777,*July, 1917.

“ 2. You are advised that the records of this project show cars actually placed only, therefore the attached demurrage bill in above amount can not be approved for payment on basis of constructive placement.

“3. It is noted in your letter of May 6, 1920, that there was a verbal agreement between the Union Pacific Railroad Company and the George A. Fuller Company whereby cars were to be placed at any convenient place for unloading without notice being sent (as required under average agreement rules), further this letter states that yard men employed by the George A. Fuller Company called at the railroad office every morning and got lists of cars received during the preceding twenty-four hours.

*773“ 4. This statement is not borne out in letter of May 24, 1920, from E. S. Belden, vice president of the George A. Fuller Company, in which he places the entire responsibility of issuing instructions to the railway companies, etc., on the constructing quartermaster’s office.

*“5.*As there was no agreement between the constructing quartermaster and the railroad company to modify any part of the average demurrage agreement, it is thought by this office that if these notices had been sent to the constructing quartermaster, as required, that the constructing quartermaster would have taken some action to relieve the car congestion, as claimed by the railroad company.

“ 6. Average agreement debit *#2777*for July, 1917, checks with the car records of this project on actual placement, with a very few exceptions, and if the railroad company will change their demurrage bill from constructively placed to actually placed, it will be approved without further delay.”

The court decided that plaintiff was not entitled to recover.

Ghai-iam, Judge,

delivered the opinion of the court:

The plaintiff here seeks to recover payment of demurrage on more than 900 cars held at the Government reservation upon which Fort Eiley and Camp Funston, Kans., are located, which cars contained material for use in the construction of cantonment buildings at said places.

The Fuller Construction Co. was at the time of the alleged delivery of these cars constructing certain cantonment buildings at Fort Eiley under contracts with the defendant dated May 12, 1917, and June 20, 1917. Fort Eiley was the original Army post; Pawnee Flats adjoins Fort Eiley, and Camp Funston is located about 2 miles east of Pawnee Flats. Under these contracts defendant furnished the material, except the organization, machinery, tools, etc., necessary to do the work, and title to all the work completed or in course of construction was in the defendant. The contracts reserved the right to the defendant “ to pay directly to the common carriers any or all freight charges on material of all kinds and machinery furnished under ” said contracts. The deliveries upon which demurrage is sued for here are alleged to have been made in July, 1917. It. being *774apparently inconvenient to settle demurrage claimed on each car at time of release, on June 11, and July 20, 1917, respectively, plaintiff entered into two average demurrage agreements with the Fuller Construction Co., the first covering cars handled on account of said company at Fort Eiley and the other cars handled on its account at Camp Funston. By these agreements monthly settlements for de-murrage charges could be made, demurrage to be computed on the basis of the average time of detention of all cars released during the month, the method of computing same being contained in plaintiff’s circular No. 120-C filed with the Interstate Commerce Commission. The sum sued for here is the average demurrage on 931 cars computed according to this circular, claimed to have been delivered to the United States Government or its representative at the points where the cantonment buildings were being erected by a constructing quartermaster. But it does not appear from the facts that said quartermaster made or attempted to make the defendant a party to any average demurrage agreement or to the said two average demurrage agreements entered into with the plaintiff by the said Fuller Construction Co.; nor has it been shown that he had any authority to bind the defendant by any such agreement had he attempted to make it. There being no proof of an express contract on the part of defendant, the plaintiff’s case must rest upon the general principles of law applying to the payment of demurrage.

It is unnecessary to discuss in detail the two methods of computing demurrage, the one based on actual, and the other on constructive, placement. Suffice it to say that plaintiff’s claim in this case is based upon constructive placement; and, of course, under these circumstances in order to create a liability there must be satisfactory proof of notice of arrival in the case of each car. The plaintiff’s regulations and those contained in said Circular 120-C provide for written notice to the consignee within 24 hours after arrival of a car, and the agent must give the consignee written notice of all cars he is unable to deliver because of the condition of the private tracks, or other conditions attributable to the consignee. There is no proof that this written notice was given as to any of the cars upon which *775demurrage is claimed in this action. The plaintiff’s claim rests upon an alleged agreement between plaintiff, the Fuller Construction Co., and the constructing quartermaster that the written notice be waived, and that the notice be given verbally or by telephone. It is alleged in the petition that the practice under this latter agreement was for the representatives of the Fuller Construction Co., upon receipt of telephonic notice, to check up daily the cars as they arrived, and plaintiff avers that this was done. The proof of it, if it were sufficient notice to bind the defendant, is not satisfactory. There is some proof that the construction company’s representatives and sometimes those of the defendant visited the offices of plaintiff daily, in answer to telephonic notice, to check up the arrival of cars. There is no proof that the particular 931 cars upon which demur-rage is sued for here were thus checked up. That they were rests upon the assumption that notice was given as alleged, and that these 981 cars were so checked under this practice.

It might be sufficient to say that it does not appear that defendant’s representatives received any of these notices or did any of this checking, or that any such agreement waiving notice was made by anyone representing the defendant, or with authority to bind it, and that plaintiff has failed to show what it should show, that the notice was given as to each of the cars named in its bill in this case. This would dispose of the case against the plaintiff. However, there are other matters that should be noticed.

It is incumbent upon a party asserting a claim in court to prove its case with proper evidence; if its case rests upon documentary proof, to.produce the documents, or, if they have been lost or destroyed, proper proof of their contents; if essential facts are necessary to establish its claim, to prove those facts. The mere fact that the claim is complicated, that the items are difficult to prove, does not relieve plaintiff of the necessity of submitting the required proof. For instance, if the plaintiff were suing for demurrage on one car, it would be necessary to prove the arrival of the car at the place of destination, the written notification of its arrival, the hour of day at which free time for unloading expired, and the date of release of the car by the consignee. *776A failure to prove any one of these facts would prevent it from recovering. If it relied upon a waiver of written notice, such a waiver would not only have to be proved, but it would be necessary to prove verbal notice of the arrival of the car; and to recover for constructive placement it would be further necessary to show that actual placement was not possible owing to the conduct of the consignee.

Plaintiff has failed to show essential facts as to the time of arrival of the cars and date of release. The bills of lading are not produced and there has been no attempt to prove their contents or explain their nonproduction. This-is important as showing the shipment, the names of the consignor and consignee. All the cars shipped were billed to the Fuller Construction Co., as consignee. If the shipments were straight shipments in each case for the Fuller Construction Co., as consignee, the latter would be liable for legitimate demurrage.

Again, the plaintiff mentions in its amended petition what it calls its demurrage bill No. D-21, dated August 13, 1917, which it is alleged was presented to the constructing quartermaster at Camp Funston and a copy thereof, marked “ Plaintiff’s Exhibit A,” “was filed by plaintiff with its original petition herein, and plaintiff refers to the same as its ‘bill of particulars ’ herein,” in which in itemized form are given the alleged numbers of the cars, dates received, dates of constructive and actual placement, date of release, number of days held, and the excess charges. It appears that this bill was not made a part of the plaintiff’s original petition, and under the practice of this court it should not have been filed with that petition. It is admitted that it is a copy. There has been no attempt to prove the accuracy of the items charged in this bill, except by the statement of a witness who says that he compared it during an examination of a few hours of certain records at the office of the company at Camp Funston. The original books and papers are not produced, and it does not even appear from the testimony that plaintiff’s so-cálled “ Exhibit A ” or “ Bill of Par*777ticulars ” was ever placed in tKe bands of any witness or in any way identified or the contents thereof properly proven. It is not filed with the testimony nor offered in evidence.

This may be a very tedious and troublesome case to prove, and it may be that the proof of it has been difficult and possibly impossible at the date at which this suit was brought, but this does not relieve the plaintiff of the necessity of making proper proof. It is a situation on its face largely due to the conduct of the plaintiff and the manner in which the transactions alleged were carried on with its consent.

It appears that on September 9, 1919, the plaintiff’s attorney submitted to the War Department a bill for the sum claimed in this suit, and that in reply thereto the department in effect stated that if the bill for demurrage were changed “from constructively placed to actually placed” it would be approved. The claim here is, as stated, based upon constructive, not actual, placement.

In no aspect of this case is the plaintiff entitled to a recovery.» The petition should be dismissed, and it is so ordered.

Hat, *Judge;*DowNet, *Judge;*Booth, *Judge;*and Campbell, *Ghief*Justice, concur.