was totally lost. Prior to the prepayment of the inland freight, plaintiff [Ed. Note.-For other case, see Shipping, Cent. Dig. § 508; Dec. Dig. Ross, Circuit Judge, dissenting. In Error to the Circuit Court of the United States for the Northern District of California; Wm. C. Van Fleet, Judge. Suit by the St. Paul Fire & Marine Insurance Company against Hachiroyemon Mitsui and others, doing business under the name of Mitsui & Co., sometimes known as Mitsui Bussan Kaisha. Judgment for plaintiff, and defendants bring error. Reversed. Harrington, Bigham & Englar, of New York City (Howard S. Harrington, of New York City, of counsel, and Oscar R. Houston, of New York City, on the brief), for plaintiffs in error. F. R. Wall, of San Francisco, Cal., for defendant in error. WOLVERTON, District Judge. This is an action to recover for freight advanced by the assignor of the plaintiff for carriage and transportation of certain cotton from points in Oklahoma and Indian Territory to Tacoma and Seattle, Wash. The complaint contains 38 counts, and is based upon 19 different shipments of cotton from points in Oklahoma and Indian Territory to Kobe and Yokohama, Japan. The cotton was carried on railroad lines from points of shipment to Tacoma and Seattle, thence by steamer to the Orient. Bills of lading accompanied each shipment, whereby the consigned property was to be carried to Tacoma, Wash., thence by steamer to the port in the Orient designated. Under the proofs, it was shown that it was optional with the carrier whether to ship to Tacoma or Seattle, Wash., and thence by steamer to Japan. The freight charge on the consignments was $1.35 per 100 pounds from point of shipment to port of destination. In the present instance the cotton was transhipped by the Great Northern Steamship Company on the steamship Dakota from Seattle. The steamship company, as had been its custom, prepaid the inland freight; that is, the freight from the point of shipment to Tacoma or Seattle. While en route to destination and in Tokio Bay, Japan, the Dakota stranded, and the cotton on board was totally lost. Prior to the prepayment of the inland freight, the defendant in error (plaintiff in the trial court) insured the Great Northern Steamship Company against partial or total loss by perils of the sea, including stranding of any and all inland freight and advance For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes charges paid by the steamship company. Later the defendant in error paid the steamship company the marine loss sustained by reason of loss of freight, including the inland charges prepaid, and thereupon the steamship company assigned and set over to the defendant in error all claims and causes of action it possessed against plaintiffs in error. Copies of the bills of lading and of the policy of insurance are attached to and made a part of the complaint. A demurrer was interposed to the second amended complaint, being the one last filed, on the ground that it does not state facts sufficient to constitute a cause of action, which was overruled. The issues being formulated, the cause was tried by the court, a jury being waived, resulting in a judgment for the defendant in error. From this judgment a writ of error is prosecuted. The defendant in error has filed a motion to dismiss the writ, assigning several reasons, chief among which is that the bill of exceptions presents no ruling of the court made in the progress of the trial, and there are no special findings of fact. [1] From an inspection of the bill of exceptions it is at once manifest that no objections or exceptions were saved, and hence no questions of law arising at the trial can now be presented to or considered by this court. But this is no obstacle to the court's considering such questions as may arise upon the record and which it is not the office of the bill of exceptions to present. [2] The action of the court in overruling or sustaining a demurrer to the complaint is a matter which appears by the record, and no bill of exceptions is necessary for saving the questions pertaining thereto for the consideration of the appellate court. Whenever error is apparent upon the record, it is open to revision, whether it be made to appear by bill of exceptions or in any other manner. Suydam v. Williamson et al., 20 How. 427, 15 L. Ed. 978. And it was specifically held in Aurora City v. West, 7 Wall. 82, 19 L. Ed. 42, that, irrespective of the bill of exceptions, the writ of error brings up for review the decision of the court below in overruling a demurrer. See, also, Young v. Martin, 8 Wall. 354, 357, 19 L. Ed. 418. Assignment of error No. 1, namely, that the court erred in overruling the defendants' demurrer to the second amended complaint, is specifically objected to on the ground that it does not point out the particular error asserted or intended to be urged; that the record does not show leave of the court to answer over; that the demurrer was waived by answering; that no exceptions to the ruling on the demurrer appear; and that the questions involved were subsequently submitted to the court in the progress of the trial. These may be answered seriatim. [3-5] The form of the assignment would seem to be ample, as it points out the error relied upon. It was not necessary that defendant obtain leave of court to answer. Rule 15 of the trial court permits that without special leave. Nor was the demurrer waived. by answering over. In Teal v. Walker, 111 U. S. 242, 4 Sup. Ct. 420, 28 L. Ed. 415, a demurrer was interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This was overruled with leave to answer, and answer was accordingly filed. As to the question involved here the court says: "The error, if it be an error, of overruling the demurrer could have been reviewed on motion in arrest of judgment, and is open to review upon this writ of error. When the declaration fails to state a cause of action, and clearly shows that upon the case as stated the plaintiff cannot recover, and the demurrer of the defendant thereto is overruled, he may answer upon leave and go to trial, without losing the right to have the judgment upon the verdict reviewed for the error in overruling the demurrer. The error is not waived by answer, nor is it cured by verdict. The question, therefore, whether the complaint in this case states facts sufficient to constitute a cause of action, is open for consideration." The second objection is also not well taken. No exceptions are required to be saved to the ruling of the court on demurrer. The record shows the error if one is committed, and that is reviewable without further formality in saving the questions pertaining thereto for presentation in the appellate court. That the questions pertaining to the demurrer were further considered at the trial did not deprive the plaintiffs in error of their writ of error upon the record, whether they have a regular and formal bill of exceptions or not. This answers also the objections to assignments Nos. 2, 3, and 4, which assignments are all that are now insisted upon. As to the merits of the controversy, it is plain that for want of a sufficient bill of exceptions the only question that can now be considered is whether the second amended complaint states facts sufficient to entitle the plaintiff to recover. The question presented is stated by counsel for plaintiffs in error as follows: "Are the bills of lading involved indivisible contracts upon which freight is earned only on delivery of the goods at ultimate destination, or are they divisible into two parts, the land portion and the water portion, so that the inland freight is payable by the shipper on termination of the land carriage?" It arises upon demurrer, as the complaint sets forth the bills of lading by copy, and turns upon the proper construction of such bills of lading. [6] As a general rule, freight is not due and payable until delivery of the goods to the consignee. 6 Cyc. 493. As is said in The Ann D. Richardson, Fed. Cas. No. 410: "The delivery of the cargo at the port of destination is considered a condition precedent to the right to freight, and without that the acceptance of the cargo at an intermediate place, by the owner of it, is necessary to enable the shipowner to maintain a claim to full, or pro rata freight." See, also, Burn Line v. United States & A. S. S. Co., 162 Fed. 298, 89 C. C. A. 278; The Tornado, 108 U. S. 342, 349, 2 Sup. Ct. 746, 27 L. Ed. 747; Hunter v. Prinsep, 10 East, 378, 394, cited and quoted from in the last-mentioned case. [7] It is alleged by the complaint in effect that Mitsui & Co. shipped the cotton by rail from points of original shipment to be carried to Kobe or Yokohama in Japan under and in accordance with certain bills of lading, and that, in accordance with the terms of said bills of lading or contracts of affreightment, said Great Northern Steamship Company on or about the 17th day of February, 1907, paid as inland or advance freight charges for the said transportation and carriage to Tacoma or Seattle, which has not been repaid. The contracts of affreightment, as shown by "Exhibit A" attached to the complaint, in so far as they provide for transportation of the cotton and touching the freight to be paid therefor, stipulate as follows: "To be carried to the port of (A) Tacoma, Wash., and thence by S. S. Tosca or steamer or steamers of the above companies to the port of (B) Kobe (or so near thereunto as she or they may safely get) with liberty to call at any port or ports in or out of the customary route (in any order), and to be there delivered, as above consigned, or to his or their assigns upon payment of the freight thereon, at the rate of $1.35 cents from Oklahoma City to Kobe, payable as above in United States gold currency, per one hundred pounds gross weight, with all other charges, advanced charges and average, without any allowance or credit or discounts; freight and advanced charges payable at carrier's option, in advance, in cash, or immediately on discharge of the property at the port of (B) Kobe in its equivalent in local currency, at bank demand rate of exchange on New York." There is no suggestion that the carriers exercised or declared their option that freight and advance charges should be paid in advance. That the inland freight was paid by the steamship company is not questioned, and we are to determine by what right, obligation, or authority it paid such freight and what obligation Mitsui & Co. are under to reimburse the steamship company. The strong contention of defendant in error is that the contracts of affreightment are divisible as to freight and the time of payment thereof, and the theory rests upon the fact that they contain two parts by designation, namely, 1 and 2; part 1 relating to the delivery of the cotton at port (A) and part 2 to the delivery at port (B) and upon certain provisions contained in paragraphs 2, 3, 11, and 12. The provisions as set out in the briefs read: "2. No carrier is bound to carry by any particular train or vessel. Every carrier shall have the right, in case of necessity, to forward said property by any railroad or route between the point of shipment and the point to which the rate is given. "3. No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route." "11. No carrier shall be liable for delay nor in any other respect than as warehousemen, while the cotton awaits further conveyance; and in case the whole or any part of the cotton be prevented from going from said port in the first steamer of the ocean lines above-stated, leaving after the arrival of such cotton at said port, the carrier then in possession is at liberty to forward said cotton by succeeding steamers of said line, or if deemed necessary, by any other steamer. "12. This contract is executed and accomplished and all liability terminates on the delivery of the said property to the steamship, her master, agent, or servants, or to the steamship company, or on the steamship pier at the said port, and the inland freight charges shall be a first lien, due and payable by the steamship company." The contracts are tripartite in form and purpose; that is, they are contracts in which the relations, duties, and obligations of three parties are set out and defined, namely, the connecting railroad lines, the Great Northern Steamship Company and Mitsui & Co. The contract for carriage itself is to be performed by the railroad companies. and the steamship company, they to carry from point of receipt of the cotton to port (A) namely, Tacoma or Seattle, thence by steamer to port (B) which is Kobe or Yokohama in Japan, all for the rate and sum of $1.35 per 100 pounds, one undivided consideration or lump sum to be paid by the shippers, the property to be delivered at the latter ports to the consignee or assigns on payment of the freight thereon. The stipulations as to this we have set forth more fully heretofore. Then it is further agreed that the service to be performed shall be subject to the conditions, whether printed or written on the face or back of the contract. The division of the contract as to freight is effected, if at all, by the conditions printed on the back thereof. Part 1 of these conditions provides that "with respect to the service until delivery at the port of (A) Tacoma, Wash., first above mentioned, it is agreed," etc., followed by twelve paragraphs, included among which are 2, 3, 11, and 12 above noted. Part 2 reads: "With respect to the service after delivery at the port of (A) Tacoma, Wash., first above mentioned and until delivery at the port (B) second above mentioned, it is agreed," etc. Then follow 19 paragraphs. The carriers, through their agents, signed the bill of lading "severally, and not jointly." By a reading of the contract it will be seen that part 1 relates almost exclusively to stipulations between the shippers and the connecting lines of railroad carrying to Tacoma, and not beyond. The 12 paragraphs thereof relate to and define the rights and duties as between the shippers and connecting railroad lines carrying to Tacoma, with the one notable exception provided by the last clause of paragraph 12 that "the inland freight charges shall be a first lien, due and payable by the steamship company." This clause, of course, was assented to by the shippers, but it is clearly not an express stipulation on their part to pay the freight charges when the railroad lines deliver the property to the steamship company, or upon the steamship pier, for such company. It is a direct stipulation, however, on the part of the steamship company to pay the freight, that is, what is denominated the inland freight, at that time to the railroad lines. Part 2 relates almost wholly to matters of concern between the shippers and the steamship company. A number of stipulations contained in part 1 are repeated in substance in part 2, where applicable. Thus, for instance, clause 8 in part 2 provides for the manner of ascertaining the amount of claim for loss if any shall have been sustained. The same thing is provided for in clause 3 of part 1. This indicates. a purpose of holding separate the stipulations of the inland carriers with the shippers from those of the ocean carrier; hence the shippers' agreement with the former is in a manner distinct from that with the latter. There is, however, in part 2 no reference whatever to the freight charges, or to the time or conditions of payment thereof, except as contained in paragraph 3. This provides, among other things, that the carrier shall have a lien on all goods for all freight, |