delivered the opinion of the court:
This suit involves an alleged shortage in the potatoes that were shipped to defendant under a contract of sale.
On September 26, 1947, plaintiff contracted to deliver to the defendant 640,000 pounds of seed potatoes at a unit price of $3.75 per hundred pounds.
The contract stipulated that the plaintiff should be responsible for the articles shipped until they should be delivered at the designated point.
The potatoes in question were shipped in October 1947 by railway freight on commercial bills of lading. The defendant claims that potatoes of the contract value of $423.75 were short or missing from four cars when delivered and similar products of the contract value of $588.75 were short or missing from another car.
The defendant in mailing payment deducted these two sums totaling $1,012.50 from the contract price. The plaintiff sues for this balance.
The plaintiff made purchases from various growers or dealers, the potatoes being trucked or shipped to plaintiff’s warehouse, where they were sorted, graded, and sacked. It also made some purchases of potatoes that had already been sacked and tagged by Government inspectors.
In loading for shipment under the contract the sacks of potatoes were placed on a conveyor belt, which deposited them in the doorway of the freight cars. From that point the actual loading was done by hand. The bags were loaded in tiers at one end of the car and when that end was finished *267the other end was loaded in a similar manner. The plaintiff used only one man in the actual hand loading of a car.
In the process of loading no one made an actual count of the number of bags placed in the cars. After the loading the approximate number of sacks may be determined from the tiers or layers. It would, however, be impossible to count the number of sacks after the car is loaded. When no count is made the number of sacks in the several cars may vary at least to some degree.
After the cars were loaded an inspector from the Department of Agriculture inspected the potatoes and certified them as to quality. He did not count the sacks, but on each tag noted “loader’s count.”
The inspector sealed each car. No count was made by the railroad, the company accepting “shipper’s weight and loader’s count.”
On arrival in San Francisco, the Army loaded the potatoes on transports, at which time a count of the sacks was made.
According to the Army records, comprised of tally sheets made upon unloading the cars, the cars varied, five of them being short from 2 to 198 sacks and four of them varying from 1 to 86 sacks over the normal number of sacks per car. There was an average net shortage of 52 sacks per car.
A part of the refund was set off against a tax refund due plaintiff for the year 1948. It has been agreed that the tax claim is merged in this action.
Plaintiff filed a claim for the shortages, but this claim was denied.
What became of the potatoes ? Were they actually loaded ? Were they lost? The record does not furnish any complete and final answer.
In view of the record we are unable to reach any other reasonable conclusion than that there was a net shortage of the potatoes actually delivered.
We have no doubt plaintiff intended to ship the full quota of potatoes according to its contract. It was a responsible and experienced shipper.
However, there was no actual count of the sacks or bags at the time of loading. The method of loading would neces*268sarily lend itself to some variation. The evidence shows that there was uniformly at least some slight variation in the number of sacks that were used in loading a car.
We are face to face with an actual count as against an estimate.
The contract states that the contractor was responsible for the articles or materials until delivered at the designated point. From the record as a whole we find that the potatoes in dispute were not actually delivered to the defendant.
The petition is dismissed.
Howell, Judge; Madden, Judge; Whitaker, Judge; and Littleton, Judge, concur.FINDINGS OF FACT
The court makes findings of fact, based upon the evidence, the report of Commissioner Marion T. Bennett, and the briefs and argument of counsel, as follows:
1. The plaintiff is a corporation organized and existing under and by virtue of the laws of the State of Minnesota and operating out of Moorhead, Minnesota.
2. The plaintiff and defendant entered into a contract, No. W30-280 QM-5922, Order No. 841, on September 26, 1947, wherein the plaintiff was to deliver 640,000 pounds of seed potatoes to the defendant for the amount of $24,000, representing a unit price of $3.75 per hundred pounds. Pertinent parts of the contract were as follows:
1. Kesponsibilittfor Supplies Tendered. — The Contractor shall be responsible for the articles or materials covered by this contract until they are delivered at the designated point, but the contractor shall bear all risk on rejected articles or materials after notice of rejection. Where final inspection is at point of origin but delivery by Contractor is at some other point, the Contractor’s responsibility shall continue until delivery is accomplished.
3. The plaintiff made a shipment of the potatoes in October 1947 by railway freight on commercial bills of lading. The sum in controversy between the plaintiff and the defendant is $1,012.50. Of this sum $423.75 represents potatoes which the defendant claims were missing from railroad cars FGEX *26936278, WFEX 65327, FGEX 52337, and FGEX 36462, and $588.75 represents potatoes which the defendant claims were missing from railroad car FGE 51222.
4. The plaintiff purchased potatoes from various sources which were trucked or shipped by rail to plaintiff’s warehouse for processing. The potatoes were then sorted, graded and sacked. However, the plaintiff also purchased potatoes which had already been sacked and properly tagged by Government inspectors.
5. The loaded sacks were placed on a conveyor belt which deposited them in the doorway of the freight cars, but actual loading of the car was done by hand. The plaintiff and its vendors used only one man in the actual hand loading.
6. There is no fixed way of loading a freight car with sacked potatoes. A normal shipment is 450 sacks although the cars can be loaded to 500. The bags are laid in tiers or layers in a criss-cross fashion. After one end of the car is loaded the process is repeated on the other end.
7. In the loading operation no one made an actual count of the number of bags going into the freight cars. By using the tier or layer method an approximation of the number of bags is made after the loading operation is completed. It would be physically impossible to count the number of sacks after the car is loaded. It is possible to have a varying number of sacks in a car since no actual count is made. The plaintiff, on one occasion, acknowledged a 50-sack shortage.
8. After the cars were loaded, an inspector from the Department of Agriculture inspected the potatoes for quality and certified thereto by attaching a signed tag. He did not make a count of the sacks. In each instance, the inspector stated “loader’s count” on the tag.
9. After each car was loaded the railroad inspector sealed it. However, no count was made by the railroad as to the quantity of potatoes in the cars, the railroad also accepting “shipper’s weight and loader’s count”. The cars were sealed when they arrived at their destination.
10. When the cars arrived at San Francisco, the Army loaded the potatoes on transports at which time a count of the sacks was made. The Army records, comprising tally sheets made upon unloading the cars, show both shortages *270and overages ranging from 2 to 198 sacks short and 1 to 36 sacks over.
11. The cars, shortages and overages are set out as follows:
Car number Quantity billed (pounds) Quantity received (pounds) Over (pounds) Short (pounds) WFEX 65327. FGEX 36278. FGEX 52337-FGEX 36462. FGE 51222— PFE 94024— NWX 70382— URT 7756— FGE 34445— 45.000 45.000 45.000 45.000 45.000 45.000 50.000 50.000 50.000 41,400 44,800 41.200 41.300 25.200 45.100 63,600 50.100 50.300 100 3,600 100 300 3,600 200 3,800 3,700 19,800 420,000 393,000 4,100 31,100
12. The Department of the Army balanced the shortages against the overages which resulted in a shortage of 27,000 pounds or equivalent dollar value of $1,012.50.
The Department of the Army, in its settlement with plaintiff, deducted $423.75 for the shortages in shipment then known to it. An additional shortage in shipment amounting to $588.75 was subsequently discovered. This latter amount was set off by the General Accounting Office against a tax refund due the plaintiff for the year 1948.
The plaintiff has agreed that any claim he may have for the above-mentioned refund of taxes in the sum of $588.75 for the year 1948 is merged in this action, and that final judgment herein will forever foreclose him from thereafter asserting any such claim against the defendant.
13. The plaintiff filed a claim for the above shortages with the railroad company which carried the potatoes. The railroad denied the claim.
CONCLUSION OF LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is not entitled to recover, and the petition is therefore dismissed.
Judgment is rendered against plaintiff for the cost of printing the record herein, the amount thereof to be entered by the clerk and collected by him according to law.