Railroad Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; Scheffer v. Railroad Co., 105 U. S. 249, 26 L. Ed. 1070; Railway Co. v. Insurance Co., 139 U. S. 223, 11 Sup. Ct. 554, 35 L. Ed. 154; The R. D. Bibber, 50 Fed. 841, 2 C. C. A. 50; Thomas et al. v. Lancaster Mills, 71 Fed. 481, 19 C. C. A. 88. Again, it is alleged by plaintiffs that the cattle should have been forwarded, as originally intended, by Atchison, and not by Kansas City, and, if so, that the injury would not have occurred. The written contract of shipment made, as has been seen, does not specify the route to be followed, but upon this question the contract is silent. The route originally contemplated by the parties was to Atchison, and thence by the Burlington. While the cattle were en route to Atchison, and stopped at Wellington and Strong City for feed, water, and rest, the Burlington notified the defendant that, on account of a washout on its line near Hamburg, Iowa, it could not receive the cattle. The cattle were delayed by defendant pending negotiations for a different carriage. During the pendency of such negotiations the Burlington notified defendant that its line was again open. The cattle were ordered forward, and were loaded and started en route. Again the defendant was notified by the Burlington that its line was out, and it could not receive the cattle. A portion of the cattle were again returned and unloaded at the stockyards at Strong City. At the time neither the defendant nor the Burlington had yards at Atchison to accommodate the cattle. Arrangements were completed for the Missouri Pacific to receive them at Kansas City and transport the cattle from there. By this time it was impossible for the defendant to carry the cattle over its line to Atchison, or to carry them to Kansas City otherwise than the way they were carried. That the contract of shipment and the circumstances, common business prudence, and the law, as well, authorized a departure from the originally intended route of shipment, I have no doubt, unless the defendant knew or should have known that by such departure the safety of the shipment would be endangered. Snow v. I. B. & W. Ry. Co. (Ind. Sup.) 9 N. E. 702; Hutchinson on Carriers, § 311; International & Great Northern Railway Co. v. Wentworth (Tex. Civ. App.) 27 S. W. 680. There is no evidence in the cases which in any wise sustains the allegation of plaintiffs that the cattle were not properly fed and watered while at Strong City and Welling ton. Again, it is alleged by plaintiffs that the defendant "Negligently and carelessly, and knowing that an unprecedented flood was descending the Kansas river, hauled said cattle into the low lands at the mouth of said river, and unloaded and left them in front of the approaching flood; that defendant, after having wrongfully transported said cattle to Kansas City, Missouri, as aforesaid, carelessly and negligently failed and neglected to move, or cause to be moved, the same from their position of peril in the stockyards at Kansas City, Missouri, as defendant had reasonable time and opportunity to do, but the same were overtaken by the flood." As to whether the act of the defendant in bringing the cattle to Kansas City, and there leaving them in the stockyards, constitutes such negligence as was the proximate cause of the loss to plain tiff, must be measured, not in the light of subsequent events, and as we see them to-day, but by what a person of ordinary care, skill, and prudence would have done in his own affairs, with the knowledge of circumstances and conditions as they were or should have been known to him at that time to exist. At this time it was known the stockyards where the cattle were placed were used for this purpose at all times and at all seasons of the year, and that many millions of cattle had been therein placed with the utmost safety, and that cattle that had been therein placed would be properly cared for by the stockyards company and its employés; that, in all the history of these yards, they had not been overflowed or endangered by overflow; and that the safety of cattle placed therein had not been questioned. "That which never happened before, and which, in its character, is such as not natural to occur to a prudent man to guard against its happening at all, cannot, when, in the course of years, it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening, and guarding against the remote contingency of its happening." Railroad Co. v. Columbia, 65 Kan. 390, 69 Pac. 338. The officers of the defendant company on Saturday, the 30th day of May, after investigating the conditions around Kansas City, and after considering the information on the subject of the rise in the Kansas river, moved the company's own property and the property in its charge for shipment, consisting of 1,400 loaded cars of freight, upon ground no higher than that where the cattle in question were left, with perfect assurance of safety from the flood, which property and much of the company's most expensive equipment were inundated. So far as shown in this case, all others acted in the same manner. Late that night and during the succeeding day the flood rose rapidly to more than 10 feet higher than ever before known. The property of all alike was inundated and destroyed, and plaintiffs' cattle were by the stockyards company placed in the overhead viaducts to prevent them drowning in the stockyards. In such location, and on account of the flood conditions, the height of the water, the swiftness of the current, the floating of débris, the lack of equipment, they were not, and could not be, properly cared for, and the loss thus accrued. It may be conceded that the cattle need not have been brought into Kansas City in the first instance, or, being in, that they could have been removed in the cars in which they arrived, or in others, or on foot. Guided by events that followed, as now seen by us to-day, the cattle undoubtedly should and unquestionably would have been removed from their place of peril. That these circumstances and acts of the defendant company furnished the occasion for the loss is unquestionable, but that the direct and proximate cause of the loss and damage was the unprecedented and unexpected flood and attendant disaster that came wholly without anticipation on the part of the defendant company, or the plaintiffs and their agents accompanying the stock, is shown by all the testimony in the case. It was a serious loss and great hardship upon plaintiffs, but, in my judgment, it must be borne by them, as like losses are borne by others with property unfortunately situated in this unhappy valley in that ill-fated time. It therefore follows, on the main case, the request for instructions to the jury to return a verdict for the defendant must be sustained, and the like request of plaintiffs must be denied. This will be done. On application of attorneys for the defendant, the cross-petition is dismissed, without prejudice, at cost of defendant. KIRKPATRICK v. EASTERN MILLING & EXPORT CO. (1.) (Circuit Court, D. New Jersey. July 14, 1904.) 1. INSOLVENT CORPORATION-INTERVENING PETITION AGAINST RECEIVERS-PABTIES. A bank made a loan of money to a corporation, taking its note, and, as collateral security, an issue of bonds of the corporation, together with an assignment of an underwriting agreement by which the subscribers agreed to take the issue of bonds at a stated price, but were to have also common stock of the company equal to 75 per cent, of the face value of the bonds. The corporation becoming insolvent, the bank filed its petition against the receivers to require them to turn over the stock which had been issued and was in their possession, to enable it to enforce the underwriting agreement against the subscribers. The answer of the receivers disclosed that a suit was pending in another state, brought by the subscribers against the bank, claiming the right to have the underwriting agreement surrendered and canceled. Held that, in view of such controversy as to the validity of the agreement, the court could not determine the rights of the bank thereunder in a proceeding to which the subscribers thereto were not parties. 2. CORPORATIONS-EXECUTION OF INSTRUMENT-SEAL AS EVIDENCE OF AUTHOR ITY. The corporate seal affixed to an assignment purporting to be the act of a corporation by its president is prima facie evidence that the assignment was executed by corporate authority. [Ed. Note.-For cases in point, see vol. 12, Cent. Dig. Corporations, § 1729.] 8. ACTIONS-STAY OF PROCEEDINGS-ANOTHER ACTION PENDING. The rule that, where two suits between the same parties and for the same cause of action are pending in different states, the remedy of the defendant is to apply to the court in which the second suit is brought to stay proceedings until the first suit is determined, cannot be applied where the parties to the two suits are not the same. In Equity. Sur petition of Corn Exchange National Bank for an order on receivers to deliver certain certificates of stock. Samuel Dickson, for Corn Exchange National Bank. LANNING, District Judge. The petition in this case is filed by the Corn Exchange National Bank of Philadelphia against William G. Audenried, Jr., and F. Morse Archer, receivers of the Eastern Milling & Export Company of New Jersey. By the petition and the exhibits thereto annexed, it appears that on May 13, 1903, the Eastern Milling & Export Company of New Jersey executed and delivered to the Corn Exchange National Bank a promissory note for $25,000, payable in two months after that date; that the promissory note contained a declaration to the effect that the maker had deposited with the petitioner, as collateral security for the payment of the note, "six hundred thousand dollars of first income bonds of Eastern Milling and Export Company and underwriting for same." On the same day (May 13, 1903) a paper purporting to be an assignment of the "underwriting" by the maker of the note to the petitioner was delivered to the petitioner. This alleged assignment appears to have been executed by the president of the Eastern Milling & Export Company of New Jersey, and to have had the corporate seal of that company thereto affixed. The "underwriting" was an agreement between the Eastern Milling & Export Company of New Jersey and certain other parties whereby the other parties agreed, upon the terms therein contained, to purchase an issue of $600,000 of first income 5 per cent. 40-year collateral trust bonds of the Eastern Milling & Export Company of New Jersey and the Eastern Milling & Export Company of Pennsylvania, and that one of the provisions of this agreement was that the Eastern Milling & Export Company of New Jersey should deliver to each of the underwriters, upon the payment of his subscription for bonds, common stock of the Eastern Milling & Export Company of New Jersey to the amount of 75 per cent. of the face value of the bonds allotted to him. The petition alleges that upon the execution of the promissory note above mentioned, and the assignment of the underwriting agreement, the maker of the note delivered to the petitioner the bonds, of the par value of $600,000, but, "through inadvertence, accident, and mistake," failed to deliver to the petitioner stock to the amount of 75 per cent. of the par value of the bonds; that is to say, stock to the amount of $450,000. The averments of the petition are, further, that the company is insolvent; that the stock has no value; that it is necessary, in order that the petitioner may enforce its rights against the subscribers to the underwriting agreement, that the petitioner shall be in a position to tender to them not only the bonds now in possession of the petitioner, but the certificates of stock now in possession of the receivers; and that the receivers have refused to deliver up the certificates of stock to the petitioner. The prayer of the petition is that an order may be made requiring the receivers to show cause why they should not make such delivery. The receivers have filed their answer, and in it say, on information and belief, that the Eastern Milling & Export Company of New Jersey did not authorize any assignment to the petitioner of the underwriting agreement, and that it was not through inadvertence, accident, or mistake that the certificates of stock above referred to were not delivered to the petitioner, but that they were not delivered for the reason that there was no agreement for their delivery. The answer further sets forth that the right of the petitioner to the possession of the certificates of stock has been denied by the underwriters who subscribed the underwriting agreement, and that they have filed a bill of complaint against the petitioner in a court in the city of Philadelphia, and a copy of the bill of complaint is annexed to the answer. The prayer of that bill is that the Corn Exchange National Bank, its officers and directors, be enjoined from instituting any suit or suits against the subscribers to the 135 F.-10 underwriting agreement, and that the bank and its officers and directors be required to surrender and deliver to the underwriters for cancellation the agreement of underwriting. Upon the facts as thus presented, the petitioner insists that it is entitled to an order directing the receivers of the Eastern Milling & Export Company of New Jersey to deliver to the petitioner the certificates of stock in question. The corporate seal affixed to the assignment of the underwriting agreement is prima facie evidence that the assignment was executed by corporate authority. Parker v. Washoe Manufacturing Co., 49 N. J. Law, 465, 9 Atl. 682. But, of course, such presumption may be overcome by other proof. The receivers, however, by their answer, have disclosed to the court the fact that the persons signing the underwriting agreement insist that they were entitled to have it surrendered to them and canceled. Whether such surrender and cancellation should be made is now an issue between the Corn Exchange National Bank and the signers of the underwriting agreement. With such a fact presented to me, I ought not to grant the prayer of the petition, in the absence of the signers of the underwriting agreement, and without a hearing afforded to them. It has been suggested by the counsel for the receivers that this court might stay the proceedings on the petition herein filed until after the determination of the suit now pending in the city of Philadelphia. But this is not a case where such stay ought to be ordered. The rule is that the pendency of a suit between the same parties and for the same cause of action in one state is no bar to a subsequent suit brought in a sister state, and that the remedy of the defendant is to apply to the court in which the subsequent suit is brought to stay proceedings, or to refuse final determination, until the suit first instituted is determined. Fairchild v. Fairchild, 53 N. J. Eq. 681, 34 Atl. 10, 51 Am. St. Rep. 650. But the parties in the proceeding now before me are not the same as the parties in the suit pending in Philadelphia, and I cannot, therefore, apply the rule stated in Fairchild v. Fairchild. There is nothing for me to do but to dismiss the petition, with costs. The order to dismiss it, however, will be without prejudice to the right of the petitioner to file a new petition, or to institute any other proceedings that it may be advised are proper, at any future time. KIRKPATRICK v. EASTERN MILLING & EXPORT CO. (2.) No. 57. 1. CORPORATIONS-RECEIVERS-PETITION FOR OWNERS TO TURN OVER PROPERTY -PRACTICE. A petition for an order on the receivers of an insolvent corporation, of which the court has taken charge, to turn over certain property claimed by the petitioners, is simply an application for incidental administrative relief, and is not adapted to the determination of substantive issues. The only question to be considered, therefore, is whether the petitioners have shown such title to the property that the court ought in justice to direct the receivers to surrender it. 2. SAME MERITS OF CONTROVERSY WITH OPPOSING CLAIMANTS. Where, in such case, the property claimed consisted in certain stock certificates made out to the subscribers to an underwriting agreement to |