James Clark McReynolds

“ The fact, if correct, that plaintiff was bound to accept the shipments from the Ed Past Grain Company, may not be a complete defense to plaintiff's cause of action, but it does raise an issue which may become important on the measure of damages if any are recoverable in the action; and whether there was a custom of grain dealers to rely on the datings of bills of lading, of which the carrier had notice or was bound to take notice, was also a question of fact, and therefore not demurrable. The scope of the powers of defendant's agent at Denver could not be determined by demurrer ”

“ The answer not only relied upon nonnegotiable features of the bills-the federal question-but advanced other defenses good as against the general demurrer. It denied the existence of any trade usage to accept as accurate recitals as to dates in bills of lading, also that the Denver agent had power to issue the substituted bills. It asserted that petitioner was obligated to accept the grain irrespective of the dates of original shipments, and that if due diligence had been exercised no loss would have occurred. ”

“ Johnston, 142 U.S. 73, 78, 12 S.C.t. 141, 35 L. Ed. 941; Enterprise Irrigation District v. Canal Company, 243 U.S. 157, 164, 37 S.C.t. 318, 61 L. Ed. 644.
It seems clear that the Supreme Court of Kansas rested its judgment, affirming the action of the trial court, upon a nonfederal ground broad enough to sustain it. ”