Action by plaintiff, carrier of grain on the Lakes, to recover of defendant company, owning and operating an elevator at West Superior, Wisconsin, the value of 1,502 bushels of wheat alleged to have been short in a cargo shipped by A. J. Sawyer & Co., grain merchants, and loaded into plaintiff’s vessel out of said elevator. Plaintiff had issued bills of lading to the shipper for 81,000 bushels, delivered on board, in which was the usual clause,

“All the deficiency in the cargo to be paid by the carrier (except when grain is heated or heats in transit), and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee.”

The shortage was discovered at the point of destination, Buffalo, New York, where the grain was unloaded, and after an action had been commenced against this plaintiff, in which a judgment in its favor was reversed (Sawyer v. Cleveland Iron Min. Co., 16 C. C. A. 191, 69 Fed. 211), it paid the amount found to be due, and, claiming to be subrogated to the shipper’s rights, instituted this action.

1. At the shipper’s request the carrier guarantied delivery of the grain in its bills of lading. There was a deficiency, and, to the extent of its value, the carrier had to respond to the consignee, who had also, through an assignment, succeeded to the rights of the shipper. By payment plaintiff became subrogated to these rights, as fixed in the bills of lading, and could enforce the same by action, and without any formal assignment. See Emmert v. Thompson, 49 Minn. 386, 52 N. W. 31; Vega S. S. Co. v. Consolidated El. Co., supra, page 308.

2. But it is urged by counsel for defendant that special circumstances and conditions have intervened here, were established on the trial, and have been found by the court, which, if they had been shown at the trial of the Sawyer case, would have prevented a recovery in that action, and which, as a consequence, stand in the way of a recovery here. This claim is based upon the fact that in the year 1886 the Minnesota railroad and warehouse commission resolved to furnish an inspector and weighmaster at and for this defendant’s West Superior elevator, if so requested by defendant’s *510officers; that the commission was so requested; that it did furnish inspectors and weighmasters, and has ever since maintained, by consent of all parties concerned, a full and ample corps of inspectors and weighmasters; that the business at said elevator has ever since been conducted in accordance with the provisions of our law relating to and governing the weighing, inspection, grading, storage and transportation of grain (G. S. 1894, §§ 7645-7713, inclusive), and precisely as if said elevator had been located within the limits of this state, instead of across the Wisconsin line.

We shall assume, for the purposes of this case (although plaintiff’s counsel questions it), that these facts were all conclusively established by the evidence and found by the court; and we shall also assume that with these facts in existence, known to all of the parties concerned in the storage and shipment of this grain, and acted upon by them when storing and shipping the same, a voluntary contract was entered into, whereby the Minnesota weighmaster was selected as an umpire, whose decision was to be final in the matter of weighing this shipper’s grain in and out of defendant’s elevator. Whether the parties interested (plaintiff, defendant and shipper), when selecting or agreeing upon the weighmaster, merely imported an umpire, or incorporated into their contract for an umpire the Minnesota grain laws, need not be decided; for if their agreement was simply as to an umpire, whose decision could only be impeached on the ground of fraud or such gross mistake in weights, as would imply bad faith or a failure to exercise honest .judgment, or was an agreement which included in its terms, and for the umpire’s guidance and conduct, the provisions found in our grain laws, with his decision impeachable only when it could be demonstrated by clear, strong and satisfactory evidence that a substantial mistake had been made in the weighing, the evidence here was sufficient to support the findings and conclusions.

All of the grain put on board of the plaintiff’s vessel, which was first-class in all respects, was carried to Buffalo. All of it was carefully removed, and, vith extra care and caution, weighed on carefully tested and adjusted receiving scales, of Fairbank’s make, — the same make being used in defendant’s elevator, — and was run into bins apart from other wheat. The shortage was then discovered. *511For greater certainty the Buffalo elevator shipping scales were then tested and adjusted, and the grain again weighed. The shortage was 1,502 bushels, — exactly what it had been when the grain was unloaded from the vessel. Of course, this fact clearly demonstrated that a substantial mistake was made in weighing the grain which actually went on board at West Superior, and this was sufficient to support a conclusion that the error was either fraudulent, or was so gross as to imply bad faith, or a failure on the part of the umpire to exercise an honest judgment when weighing out the shipment. In either case his decision could be impeached. A deficiency of 1,502 bushels in a cargo of 81,000 (almost two per cent, of the whole) cannot be accounted for as an honest mistake. It is altogether too substantial, and would mean a loss to some person, other than defendant, of nearly 40,000 bushels every time this elevator, with a storage capacity of two million bushels, was emptied. Allowance for variations in weights must be made, and the law will not notice trifling discrepancies in scales. In fact, it was shown at the trial that the expected normal variation is from 25 to 50 bushels in 100,000.

The court below found all of the facts, and also that the mistake as to the weight at defendant’s elevator was mutual. As might be anticipated, the question of plaintiff’s negligence when the cargo was weighed out was not passed upon; nor did defendant’s counsel move that a finding be made on this, nor have they assigned error because of this omission, nor has it been referred to in their brief. As the evidence would have justified a finding that plaintiff carrier was free from negligence which contributed to the shortage, the question is not before us for review.

Order affirmed.