Opinion of the Court-Deady, J. [March, dition to the general verdict for the plaintiff, answered the particular question in the negative; the defendants moved for a new trial. Held, that the special finding was a fact in the case to which the court must give legal effect in any stage thereof, and that therefore the motion must be denied even if the court is now satisfied that its instruction to the jury as to which of the parties was bound to care for the wheat in case of flood, is erroneous, because it appears from such finding that the plaintiff, if even bound to care for the pledge, was not guilty of negligence, and therefore is not liable to the defendants for the loss sustained by the injury to it in any view of the matter; and also, that it is not an error, if error at all, of which the defendants can complain, that the court assumed in its charge to the jury that the uncontradicted testimony given in the case, by one of them, was true. Before DEADY, District Judge. William H. Effinger and Joseph N. Dolph, for the plaintiff. H. Y. Thompson and George H. Williams, for the defendants. DEADY, J. On September 27, 1880, the plaintiff was a foreign corporation doing a banking business at Portland, Or., and the defendants, George Marshall and J. M. ten Bosch, as George Marshall & Co., were engaged in the business of buying and selling wheat at the same place. They usually purchased wheat from the dealers and producers in the interior of the state, and shipped it in sack by boat and rail to Portland, where they stored it in the warehouses on the river-front, until disposed of for shipment abroad. When so disposed of, the vessels carrying the grain were usually loaded directly from the warehouse. On that day, the defendants being desirous of procuring money from time to time, to be used in their business during the wheat season, and the plaintiff being also desirous of furnishing the same, the parties came to an understanding, in pursuance of which the defendants signed and delivered to the manager of the plaintiff, a printed letter addressed to and previously prepared by him, to the effect following: "In consideration of advances made and to be made to us from time to time, we hereby agree to repay the same, with interest thereon, after the rate of ten per cent. per an 1882.] Opinion of the Court-Deady, J. num; and we further agree that all moneys and securities for moneys, warehouse, shipping, or other receipts, or other securities, which may from time to time be handed in to you by us, whether indorsed over or simply delivered, shall, during the whole time they are in your possession, stand to you as security for any balance that may then be due from us, to the said Bank of British Columbia, as for said advances or otherwise; we hereby giving to you, for said bank, a lien not alone upon the moneys or other securities now in your hands, but also upon all such to be hereafter and hereunder delivered to you. "We hereby irrevocably authorize and empower you, for the said bank, to sell and dispose of all such personal property or any part thereof, at public or private sale, after the expiration of ten days' notice to us, and from the proceeds arising therefrom, to pay the principal and interest, and all charges that shall be then due, and the costs of sale, and the balance, if any, to pay over to us or our representatives, on demand." Then follows a clause stating that "by the schedule hereto annexed we [the defendants] enumerate the securities referred to herein." The proposition contained in the letter was accepted by the plaintiff. The schedule referred to is written below the letter upon the same sheet, and simply consists of a list of various lots of wheat and flour, the warehouse receipts for which were issued and delivered by the warehouseman to the manager of the plaintiff by direction of the defendants, and of certain promissory notes made or indorsed by them. to the plaintiff. The first entry in these schedules is dated September 28, 1880, and reads: "5272 sks wheat, No. R [eceipt] 99; Greenwich" [dock]; and the second is dated. October 1, 1880, and reads: "1630 sks wheat, No. R. 105; Pacific." The last one is dated February 2, 1881. Between these dates the defendants caused to be issued and delivered to the plaintiff's manager, warehouse receipts. from Portland warehousemen for 90,484 sacks of wheat, 13,096 half sacks of flour, and also the promissory note of the defendant Marshall for $1000 and that of Lent for Opinion of the Court-Deady, J. [March, $275, from which the bank realized the sum of $192,745 30. During the same period the plaintiff advanced to the defendants sums of money which, with the interest charged thereon, amount to $204,943 48. And this action is brought to recover the difference between the amount realized from the securities and the account for money loaned—namely, $12,198 18. 66 The defendants by their answer allege that this wheat was deposited" with and "pledged" to the plaintiff as security for the advances aforesaid, and it carelessly and negligently caused said wheat to be stored upon the lower tier of certain Portland wharves known as the Pacific, Jones', and Smith's wharf, at a place where the Wallamet river was accustomed to overflow; that about the middle of January, 1881, it did. negligently permit 27,690 sacks of said wheat, of the value of $47,501 76, to be damaged by a rise in the water of said Wallamet river, whereby the value thereof was diminished by $20,046 75; and plead the same as a counter claim against the demand of the plaintiff, and pray judgment against the bank for the balance of $8,748 57. The answer also contains allegations to the effect that certain of said securities were sold by the plaintiff without notice to the defendants, and that a portion of the wheat represented by said securities was sold for less than its fair market value, whereby the latter were damaged in the additional sum of $814 20. But on the trial these allegations were abandoned. The plaintiff replied, and denies that the defendants ever deposited "with or pledged" to the plaintiff the property mentioned in the schedules aforesaid-denies that it stored the wheat on said wharves carelessly, or at all, or so neglected to care for it while there, or that the defendants suffered any damage by the negligence of the plaintiff concerning said wheat; and alleges that the warehouse receipts for said wheat were issued and delivered to the plaintiff's manager-W. W. Francis-in his own name, who thereupon indorsed them to the plaintiff, who thereby acquired under and by virtue of the stipulations contained in the letters aforesaid, "a lien as by mortgage or hypothecation upon 1882.] Opinion of the Court-Deady, J. the wheat represented" by them; that the defendants selected the wharves upon which said wheat was stored and stored the same thereon, and had the same in their "actual possession" all the time it was so stored, and cared for it as they could or thought best, to prevent it from being injured by a rise in the river, and that the plaintiff was under no obligation to take any care thereof; that in January, 1881, the Wallamet river "suddenly and unexpectedly rose to a great and unusual height," by means of which said sacks of wheat were damaged as alleged without the negligence or fault of any one. On the trial the defendant Marshall testified in substance that when he proposed to Mr. Francis to open an account with the plaintiff and give wheat receipts as security for advances, the latter said that he would take such receipts if issued to him directly by good warehousemen in Portland, but none other; and on being asked if receipts issued by Captain George Flanders, of the Greenwich dock, and Mr. Z. J. Hatch, of the Pacific docks-which phrase colloquially included the Jones and Smith wharves aforesaid-were good, he answered they were; that when, and as the defendants sold wheat for shipment, the receipts for which had been issued to Mr. Francis, they obtained an order from the plaintiff to the warehouseman for the removal of the same, and as soon as it was delivered to the buyer on the wharf or on shipboard they delivered the money or bills of lading received therefor to the plaintiff, and received from it the warehouse receipts which they surrendered to the warehouseman who issued them; that on the eleventh, twelfth, thirteenth, and fourteenth of January, the water rose in the Wallamet river until it was within seventeen inches of the lower tier or floor of the Pacific docks, and that in the afternoon of the latter day it was first ascertained from The Dalles that the Columbia river was rising, and that it was quite probable that the wheat was in danger, but it was too late to remove it with the means at hand; that Marshall watched the rise in the river day and night, and was of the opinion that the wheat was not in danger at least to justify the expense of its removal-un Opinion of the Court-Deady, J. [March, til the unexpected rise in the Columbia was heard from, and that he then communicatod the news to Mr. Francis and conversed with him on the subject, who told him that he had no suggestions to make, whereupon Marshall commenced to remove the wheat as quickly as he could to the Greenwich dock, a distance of over a mile, but only succeeded in saving one thousand five hundred sacks before the wharf overflowed on the evening of the fourteenth of January, and prevented further operations. It is a matter of common knowledge and general notoriety in this country, and was so assumed by counsel in their arguments, and by the court in its charge to the jury, that the Columbia river does not rise in the winter season, but is generally then at a lower stage than its southern tributary— the Wallamet-and that the sudden overflow of the latter on the Pacific docks on the evening of January 14th was largely due to the unprecedented rise in the Columbia, which by that time had reached the mouth of the Wallamet and backed up the water therein. It was also generally known and admitted that for some days before January 14th, telegraphic communication up the Columbia had been suspended by the falling of the wires from an extraordinary sleet storm, and that therefore the rise in the Columbia and the unprecedented warm rain to the eastward of the Cascade mountains, which produced it, were not known in Portland until the afternoon of January 14th, when a rise of some eight feet had already passed The Dalles-a distance of about one hundred miles east of the mouth of the Wallamet. Receipts were issued to Mr. Francis by the direction of the warehouseman of the Pacific docks for the one thousand five hundred sacks of wheat removed to the Greenwich dock, and the wheat was afterwards sold by the plaintiff on due notice to the defendants, and the net proceeds applied on their account. The sacks of damaged wheat were afterwards removed from the Pacific docks, and the contents poured out and dried by Marshall with the consent of the plaintiff, and then sold by the latter, upon due notice, to the defendants, and the net proceeds applied in the same way. The receipts given by the Pacific docks to the plaint |