The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 48
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272 FEDERAL REPORTER
was allowed to introduce the books of the Norfolk & Western Rail-
road, showing that the cars marked as indicated, after being loaded,
were actually consigned to the defendants. The books were fully
identified, and the entries proved by the railroad officials who made
them to have been made in the course of the railroad's business by
the direction of Tredwell. The proof outside of the book entries was
plenary that the cars described were loaded with nitrate, the property
of the United States. The only material fact proved by these book
entries was that the cars so loaded and so marked were consigned to
the defendants. The verity of the books on this point did not depend
on information furnished by Tredwell ; they were the records of acts
of consignment to the defendants, done by the railroad officers them-
selves in the due course of the railroad's business, In this view, and
for this purpose, all possible objection to the book entries disappear.
This becomes the more evident when it is remembered that other rail-
road records, introduced without objection, showed the delivery of
the identical cars to the defendants.
[2, 3] In actions like these, based on the implied promise of one who
converts to his own use the goods of another to pay for them, the
measure of the recovery is usually the market value of the goods at
the time of the conversion. Here, however, the proof was that the
market for nitrate of soda had been closed by the government as a
war measure; that it could not be bought and sold except by govern-
ment consent and at prices fixed by the government. The United States
had bought this nitrate of soda in Chile at the prevailing price paid
by all the allied governments, and had paid $25 a ton additional for its
transportation to Norfolk. This cost price delivered at Norfolk was
therefore the value to the United States of any nitrate of soda re-
ceived by the defendants, and was therefore necessarily the only cri-
terion for ascertaining the damage resulting to the government from
the loss of any nitrate of soda stolen from it. The court correctly so
The defendants introduced testimony to the effect that the material
received by them as nitrate of soda did not have the usual appearance
of nitrate of soda: that nitrate of soda, applied as this substance was
applied, was beneficial to crops; and that the application of the sub-
stance received by defendants in the proper quantities killed their grow-
ing crops of spinach and kale. There was also evidence of the well-
known fact that the same element, nitrogen, which makes nitrate of
soda valuable in making munitions constitutes its value as a fertilizer.
All this was in the effort to prove that the cars received by defendants
were not loaded with nitrate of soda, but with some other substance.
Responding to the issue thus made the court charged:
"The burden is upon the government to prove by a preponderance of the
evidence that the nitrate of soda mentioned in each declaration was the prop-
erty of the government, that the same was purchased and received by each
of the several defendants, and that theretofore it had been stolen from the
 This meant it was necessary that the jury should find, as a con-
dition for the recovery of the government, that the substance which the
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/70/: accessed December 15, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.