
    Kansas Pacific Railway Company v. McCann.
    Demurrage, Railways. — A railway company is entitled to demurrage where the consignee of goods, after reasonable notice from the company, neglects or refuses to unload the cars in which the goods were shipped.
    Error to tlie District Court of Laramie County.
    During the summer of 1875, D. J. McCann, the plaintiff below,' was engaged under a contract with the United States, in transporting Indian supplies from some of the eastern cities, by way of Cheyenne, to Red Cloud and Spotted Tail Indian Agencies. He had been engaged in this business during the two previous years. In June of 1875 he entered into a special contract with the Kansas Pacific Railway Company, the defendant below, by the terms of which it was to carry these supplies from Kansas City, Mo., to Cheyenne, Wyo., at the rate of forty cents per one hundred pounds. The K. P. Railway Company received the supplies from the eastern connecting lines at Kansas City, transferred them to its cars and transported them to Cheyenne pursuant to contract.
    
      Tbe first car containing these supplies arrived here July 1st, 1875; and cars continued to arrive at irregular intervals, until August, as the following table will show:
    
      
    
    The Union Pacific Company was acting as agent for the K. P. Railway Co., in delivering goods shipped over the K. P. Railway to Cheyenne, and collecting freight / charges thereon; and its station agent here at that time, one W. B. Doddridge, and the clerk in his office, one J. K. Remick, acted in this matter. These persons notified the agent of McCann when cars containing supplies for the Indians arrived, and required their removal within twenty-four hours after notice. The supplies were not removed from the cars in accordance with the notice, and twenty-five K. P. cars were suffered to remain on a side track unladen several days; and for each of the cars £ ve dollars per day were charged against McCann as “demurrage” for the delay. The cars contained assorted merchandise for. the Indians, and the amount in. each car varied from 7,530 pounds up'to 23,580. Other goods than Indian supplies were shipped in some of the ears from Kansas City.
    In July, Mr. Wild, acting for McCann, offered to pay the freight charges and take the goods, but this was declined by those representing the K. P. Railway Company unless he would also pay the demurrage charged on the cars then here. He refused to do this, but offered to leave goods enough in the possession of the K. P. Railway Compaq, to secure the claim for demurrage, until-McCann, who was absent, could return and arrange matters with it, if the rest of the supplies were delivered to him upon the payment of the freight charges. This too, was refused.
    The demand for demurrage was resisted by McCann. It finally became necessary for him to obtain these supplies without further delay, and to transport them at once to the Indian agencies, in consequence of an order to that effect from the Commissioner of Indian Affairs at Washington.
    The amount of Indian supplies in the cars when the order was sent from Washington was about 336,000 pounds in round numbers, and the freight charges due were $3,367.02, while $3,250 were demanded for demurrage and paid, in order to obtain the supplies for shipment to the agencies. The lot was received and loaded into freight wagons on the 16th, 17th and 18th days of August; and the freight and demurrage charges paid each day upon the cars unloaded. Thus, $725 demurrage was paid August 16th; $1,500 on August 17th, and $1,025 on August 18th — in all $3,250.
    After the payment of this demurrage, and the receipt and shipment of the supplies to the agencies, McCann demanded this sum of $3,250 back from the defendant, offering, however, to allow a reasonable amount for “storage,” during the time the supplies remained in the cars upon the side track. The demand was refused, and this action was begun August 28th, 1875, to recover the money. The case was tried at the May term of the district court of first judicial district, 1876, by the court, without a jury, and the issues found for the plaintiff; and. the court after allowing the defendant $290.76 for storage and unloading of ears, rendered judgment in fayor of McCann and against K. P. Railway Company for the sum of $3,284.84 and costs of the action. A new trial was moved for by the defendant, which after argument, was denied by the court; and the case was brought up for review by petition in error, alleging error in the proceedings and judgment of the court below.
    
      W. TV. Oorlett, for plaintiff in error.
    
      D. McLaughlin, for defendant in error.
   Judgment of the district court reversed.  