PPEAL by plaintiff from a judgment of the Circuit Court for Albemarle proved January 23, 1896 (Acts 1895-6, p. 159). The property of a college or university is not exempt from mechanics' liens, though it be prohibited from creating any encumbrance on its property by mortgage or otherwise. University of Lewisburg v. Reber, 43 Pa. 305. Messrs. Duke & Duke and John B. Moon, for appellees: The state in its sovereign capacity at all times jealously holds the university subject to its absolute control, thus retaining it as a part of itself,-not subject to any power but itself, and to be governed as the state itself is governed; viz., by its general assembly. The University of Virginia is in no sense a private institution. It was created by a public act, and has no charter in the ordin A The buildings of the university are public brought to enforce a mechanic's lien. Af buildings, the property of the state and of firmed. The facts are stated in the opinion. The statute erecting "The Rector and Visitors of the University of Virginia," a corporation (Code 1887, § 1541); the statute fixing the general law as to corporations (Code 1887, § 1068); the cases of Eastern Lunatic Asylum v. Garrett, 27 Gratt. 163; McClanahan v. Western Lunatic Asylum, 88 Va. 466, 13 S. E. 977; and Maia v. Eastern State Hospital Directors (Va.) 34 S. E. 617, post, p., establish the fact beyond question that the defendant is a corporation. It is in some senses, perhaps, a public corporation, but nevertheless, as to contracts within the scope of its powers it is amenable as a private individual. the public just as much as the capitol at Richmond or the courthouse of a county. No lien can be had upon a public building belonging to the state. Manly Mfg. Co. v. Broaddus, 94 Va. 547, 27 S. E. 438; Hicks v. Roanoke Brick Co. 94 Va. 741, 27 S. E. 596. The mechanic's lien does not apply to labor or materials furnished for the state, or the general or local public. Thomas v. Illinois Industrial University, 71 Ill. 310; Ray County Sav. Bank v.üramer, 54 Mo. App. 587; Thomas v. Urbana School Dist. Bd. of Edu. 71 Ill. 283; Mayrhofer v. San Diego Bd. of Edu. 89 Cal. 110, 26 Pac. 646; Whiteside v. School Dist. No. 5, 20 Mont. 44, 49 Pac. 445. Riely, J., delivered the opinion of the court: The right to sue the Rector and Visitors of the University of Virginia carries with it, necessarily, the right to obtain a judgment, and the consequential right to enforce col-University of Virginia. lection. This suit was instituted to enforce a mechanic's lien asserted on buildings of the While the rector and visitors of the university could not contract any debt on account of the university without the consent of the legislature previously obtained (Code 1887, § 1556), the debt created by the contract with Langley & Co. was pursuant to and founded on the act of the legislature apNOTE.—As to mechanics' liens on public property, see First Nat. Bank v. Malheur County (Or.) 35 L. R. A. 141, and note. It is a well-settled rule that public property used for public purposes is not liable to sale for the payment of debts. To allow it to be done would thereby annihilate the public uses. For this reason public policy forbids a lien on public property. A lien upon property implies the right to sell it for the payment of the lien, but, public property not being liable to be sold for the payment of debts, a mechanic's lien cannot be asserted upon it, unless expressly authorized by law. This is the general current of decisions. Phil- | ing the land, erecting the buildings, and perlips, Mechanics' Liens, § 179; 2 Dill. Mun. Corp. 577; Lessard v. Revere, 171 Mass. 294, 50 N. E. 533; Hovey v. East Providence, 17 R. I. 80, 9 L. R. A. 156, 20 Atl. 205; Thomas v. İllinois Industrial University, 71 Ill. 312; Patterson v. Pennsylvania Reform | School, 92 Pa. 229; and First Nat. Bank v. Malheur County (Or.) 35 L. R. A. 141, and note. In Boisot, Mechanics' Liens, § 308, the law on this subject is thus stated: "There can be no mechanic's lien on public property, unless the statute creating such lien expressly so provides, since such a lien would be contrary to public policy, and would also be incapable of enforcement, public property not being subject to forced sale. For this reason there can be no mechanic's lien on a courthouse, nor on county buildings generally. Public school buildings are also exempt from mechanics' liens. And there can be no mechanics' lien on such public institutions as the Illinois Industrial University, the Nebraska State Lunatic Asylum, the Pennsylvania Reform School, and Girard College. manently endowing the university was appropriated by the general assembly. Large appropriations out of the public treasury have been and still continue to be annually made for its support by the general assembly. And all white students of the state of Virginia over the age of sixteen years are entitled to receive instruction in the academic department of the university without charge of tuition. 1 Rev. Code, p. 90, chap. 34; Id. p. 89, chap. 33, § 20; Rev. Code Supp. p. 44, chaps. 29, 30; Id. p. 46, chaps. 32, 33; Id. p. 47, chap. 34; and Code 1887, chap. 68. The university, from its foundation, has been wholly governed, managed, and controlled by the state, through a corporation created for the purpose, under the style and title of "The Rector and Visitors of the University of Virginia," which is a public corporation, without capital or stockholders, and private individuals have no interest in or control over it. The visitors composing the corporation were originally appointed by the governor, with the advice of the council, and are still periodically appointed by him, by and with the consent of the senate. The rector is chosen by the visitors from their own body. The rector and visitors were original And in 2 Jones, Liens, § 1375, the law is similarly stated. "On grounds of public policy, the mechanics' lien laws," it is there said, "do not, in the absence of express pro-ly required to make a report annually to the visions, apply to public buildings erected by states, counties, and towns for public uses. Schoolhouses erected for the use of public schools come within this exemption. Such buildings are exempt from attachment and from sale upon execution, and for the same reason are exempt from liens which might result in an adverse sale." In Manly Mfg. Co. v. Broaddus, 94 Va. 547, 27 S. E. 438, Keith, P., speaking for the court, said: "The board of supervisors cannot give a lien upon a public building; nor does the contractor, nor do those who furnish materials, nor the artisans employed in its construction, acquire a lien of any kind upon it." And in Hicks v. Roanoke Brick Co. 94 Va. 747, 27 S. E. 598, it was said: "It is contrary to public policy to allow a lien to be acquired on public property, and the mechanic's lien laws do not apply to public buildings or structures erected by states, cities, and counties for public uses, unless the statute creating the lien expressly so provides." The mechanics' lien laws of this state do not in terms embrace public buildings or structures, and therefore under the law, as generally expounded, a mechanic's lien cannot be acquired on buildings erected by the state, its counties or cities, for public uses. The inquiry then is as to the nature of the University of Virginia. Is it a public or private institution, and are its grounds and buildings public or private property? The University of Virginia was established by the general assembly, and the land upon which its buildings stand was acquired by the state through the conveyance from the Central College, in Albemarle county, to the president and directors of the literary fund. The money to defray the expenses of procur president and directors of the literary fund, to be laid before the general assembly, embracing a full account of the disbursements, the funds on hand, and a general statement of the condition of the university. This report is still required to be made, but now directly to the general assembly. 1 Rev. Code, p. 90, chap. 34, and Code 1887, chap. 68. From the time the university was established, down to the present, the law has expressly provided that the rector and visitors should be at all times subject to the control of the general assembly, and should conform to such laws as it might from time to time enact for their government. And they are expressly prohibited from contracting any debt whatever on account of the university without the consent of the general assembly, previously obtained. 1 Rev. Code, chap. 34, § 9, and Code 1887, § 1554. It is plain that the University of Virginia is in the strictest sense a public institution, and that its grounds and buildings are public property, the property of the state, that it is governed and controlled solely by the state, that its grounds and buildings are wholly dedicated to public uses, and that the interest of the public constitutes its ends and aims. The fact that the rector and visitors of the University of Virginia were given authority by the act of January 23, 1896, to borrow money and issue bonds therefor, to be secured by a deed of trust on the property of the university, to enable them to erect other buildings in the place of those destroyed by fire, and that the mechanic's lien was asserted by the appellant on the buildings so erected, does not alter the case. The principle is the same. The buildings were erected on the grounds of the university, the property of the state, and were erected for public pur- | poses, and are so used. The general assembly, by the very act that gave the rector and visitors the authority to borrow money with which to restore the buildings, in addition to the regular annual appropriation, made an additional annual appropriation for the sole purpose, and no other, of paying the interest on the bonds as it should accrue, and of providing a sinking fund for the redemption of the principal. The authority to the rector and visitors to secure the loan by a deed of trust on the property held by the university constituted no authority to the contractor, subcontractor, or other person who did the work or furnished materials therefor, to assert a mechanic's lien upon the buildings erected with the money so borrowed. No provision was made for any lien other than the deed of trust, which was wholly intended as security for the lender of the money, and not directly or indirectly for the benefit of anyone who might do the work or furnish materials for it. The circuit court did not err in sustaining the demurrer of the appellee and dismissing the bill. Its decree is affirmed. Keith, P., absent. KENTUCKY COURT OF APPEALS. PULLMAN'S PALACE CAR COMPANY, | ant's agents and employees in charge of the Appt., v. Lucille HUNTER. 1. The theft of diamond rings from the finger of a woman while she is asleep in a sleeping car gives her a right of action against the sleeping-car company, if the theft result from the failure of the agents and employees in charge of the car to use ordinary care and watchfulness to protect her and her property from thieves. 2. A The car to use ordinary care and watchfulness to protect her and her property from thieves, as was their duty to do under the law. defendant denied that its agents were guilty of any carelessness, negligence, or misconduct in the discharge of their duties to the plaintiff, or that the loss of her rings was due to failure on their part to exercise ordinary care and watchfulness to prevent such. loss. The trial resulted in a verdict and defendant moved the court to set aside, and judgment for plaintiff for $250, which the grant it a new trial, upon the ground that the verdict was contrary to the law and eviNeglect of the duty to keep a reasonable watch over the safety of dence, and that the court erred in refusing sleeping passengers and their persons is to give a peremptory instruction. a question for the jury, where the only person whose duty it was under the rules of the company to keep a lookout in the car had taken charge of it after a long and fatiguing passage, which to some extent disqualified him for the duties of a watchman, and he on two occasions during the night, when the train stopped at stations, voluntarily absented himself for at least twenty minutes at a time. (January 12, 1900.) PPEAL by defendant from a judgment of the Circuit Court for Jefferson County in favor of plaintiff in an action brought to recover the value of property taken from plaintiff's person while a passenger in defendant's car. Affirmed. The facts are stated in the opinion. Messrs. Phelps & Thum for appellant. Burnam, J., delivered the opinion of the court: This was a suit to recover the value of three diamond rings alleged to have been stolen from appelee while she was asleep in one of the defendant's cars, and which loss she alleged resulted from the failure of defend NOTE. As to liability to passenger on sleeping car for loss of property, see Mann-Boudoir Car Co. v. Dupre (C. C. App. 5th C.) 21 L. R. A. 289, and note; also Pullman Palace Car Co. v. Gavin (Tenn.) 21 L. R. A. 298; Pullman's It appears from the testimony that appellee, a young lady under twenty-one years of age, rented lower berth No. 11 of defendant's sleeping car, which left St. Louis, Missouri, on the night of September 26, 1895, for Louisville, Kentucky, over the Baltimore, Ohio, & Southwestern Railroad, paying $2 for the use thereof, and while she was asleep three diamond rings belonging to her, and which were of the value of $250, were stolen from her finger. The testimony of the employees of defendant shows that there were three sleeping cars attached to the train when it left St. Louis, all of which were in the charge of a single conductor, but that each car had its separate porter; that at North Vernon, Indiana, the sleeping car destined for Louisville was detached from the train with which it had been connected, and attached to another locomotive, which brought it into Louisville; that at this point another conductor took charge of the car, but that it was not a part of the duty of either conductor to keep any special watch over the person or property of the sleeping passengers; that this matter was left entirely to the porter, a colored man by the name of Greene, who testifies that this was his first trip over that route; that his regular run was from St. Palace Car Co. v. Martin (Ga.) 29 L. R. A. 498; Louis to El Paso, Texas, which took three nights and two days, and required that he should be continually on duty eighteen hours out of each twenty-four, that he arrived in St. Louis from this trip on the morning of September 26, 1895; and that, owing to the inability of the regular porter to make the trip to Louisville, he was detailed by defendant's officers to make this extra trip. He says that, after making down the various berths, he stood in the aisle of the gentlemen's end of the car, blacking the boots of the male passengers, but that he made frequent visits to the smoking room, to see if anything was wanted; that when his car arrived at Vincennes and North Vernon, Indiana, he locked the back door of the coach, and walked out the front door, and stood on the steps of the vestibule while the train remained at each of these places for about twenty minutes; and that during this time there was no officer or agent of the company on duty inside the coach. Conductor King, who took charge of the car at North Vernon, says that when he got on the car no agent of the company, except the porter, was on duty. The main inducement offered to the traveling public to occupy sleeping cars, and to pay the extra fee charged therefor, is that the fatigue and discomfort of railroad travel is in some degree ameliorated by being able to sleep with security; and the company, in advertising its accommodations for sleeping, and accepting compensation therefor, becomes thereby obligated to keep a reasonable watch over the safety of its sleeping passengers and their property; and this seems to be the measure of their responsibility as defined by other courts. In the case of Plum v. Pullman Sleeping Car Co., (decided by the United States circuit court in Tennessee) 13 Alb. L. J. 221, it was held that "the company must take reasonable care of its guests and their property, especially while said guests were asleep." In Palmeter v. Wagner, 11 Alb. L. J. 149, the marine court of New York held that sleeping-car companies must, by a reasonable watch, protect a passenger and the property about his person during sleep; and in the case of Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474, 43 Am. Rep. 102, the company was held liable for the loss of a pocketbook and watch because of failure to keep a sufficient watch during the night, and to take reasonable care to prevent thefts. It seems to us that the instructions given in this case go no further than to require at the hands of appellant a faithful performance of this duty. We are of the opinion that the motion for a peremptory instruction was properly overruled under the rule, which has been established by numerous decisions of this court, that it is improper to give a peremptory instruction for the defendant when there is any evidence which conduces to establish the right of recovery. The fact that the sole person whose duty it was, under the rules of the company, to keep a lookout in the car, had arrived in St. Louis on the morning of the day on which this train left, after a long and fatiguing passage from El Paso, Texas, certainly to some extent disqualified him from the duties of a watchman on the succeeding night; and when there is added the fact that at least on two occasions during the night he voluntarily absented himself from the car for a period of at least twenty minutes on each occasion, it furnishes some evidence conducing to show negligence on the part of the agents of the company, and authorized the submission of the case to the jury. For the reasons indicated, the judgment is affirmed. 1. 2. 3. T. L. STOVALL, Appt., v. MCCUTCHEN & COMPANY et al. (........Ky.........) Mutual promises of merchants to refrain from engaging in business after 6:30 P. M. of each day are sufficient loss or detriment in the way of financial transaction, or are sufficient gain and advantage from a social or healthful standpoint, to support a contract to close their places of business at that hour. The slight restraint of trade resulting from a contract between merchants to close their places of business at a certain hour each day is not illegal. An injunction is the proper remedy. to prevent the breach of a contract between merchants for closing their places of business at a certain hour each day, since it is necessary in order to prevent a multiplicity of actions or to prevent a repeated and recurring cause of action. (January 23, 1900.) PPEAL by defendant from a judgment of the Circuit Court for Logan County in favor of plaintiffs in an action brought to enjoin a violation of a contract for the early closing of business houses in Russellville. Affirmed. The facts are stated in the opinion. Messrs. S. R. Crewdson, J. S. Hooker, and John S. Rhea for appellant. Messrs. H. S. McCutcheon, W. P. Sandidge, and Craddock & Sandidge for appellees. White, J., delivered the opinion of the court: In May, 1895, appellant and appellees, all merchants of Russellville, signed an agree ment as follows: "We, the undersigned, merchants of Russellville, do hereby agree and obligate ourselves to close our place of business at 6:30 o'clock, beginning May 15, 1895, and lasting until the first of September." The pleadings and proof all agree that the intention of this writing was that the stores were to be closed at 6:30 P. M. of each day during the time specified, except on Saturdays. After compliance for a few evenings after the 15th of May, appellant NOTE. As to validity of contracts in restraint of trade, see Trenton Potteries Co. v. Oliphant (N. J.) 46 L. R. A. 255, and footnote. . notified appellees that he declined to further | Ky. 222, 5 L. R. A. 856, 12 S. W. 297, held comply with the agreement, but would dis- a promise to abstain from the use of tobacco regard it. This he did. Appellees insti- to be a sufficient consideration for an agree tuted this action. to obtain an injunction ment to pay $500. The court of appeals of against appellant to prevent a violation of New York, in Hamer v. Sidway, 124 N. Y. the agreement, or, rather, to compel him to 538, 12 L. R. A. 463, 27 N. E. 256, held the specifically perform the agreement. A tem- same thing. We are of the opinion that the porary injunction was granted. Appellant mutual promises to refrain from engaging made defense to the action, pleading that he in business after 6:30 P. M. of each day are signed the agreement conditionally. He al-sufficient loss or detriment in the way of leges that one of the conditions was that others, who never did sign, were also to sign the agreement. Another condition was that he, at the end of a few days' trial, could withdraw from the agreement if he so desired, and that these conditions were left| out by mistake, as were the provisions that the closing was to be daily at 6:30 P. M., and not to apply to Saturday. On these is sues, presented by the answer, proof was taken, and on final hearing the temporary injunction was made perpetual, and from that judgment this appeal is prosecuted. It is insisted by counsel for appellant that there is no consideration for the agreement; that it is against public policy and void; that, because of its uncertainty, it cannot be specifically enforced; and that the trial court erred in adjudging, on the proof, that there were no conditions omitted from the writing. We are of opinion that the proof fails to establish that appellant signed the writing with the understanding that any others were to sign than those whose names appear thereto. We are also of opinion that the proof fails to establish appellant's contention that he had the privilege of withdrawal after trial. We think there is sufficient consideration to uphold the contract. "Valuable considerations," says Bouvier (title, Consideration), "are either some benefit conferred upon the party by whom the promise is made, or upon a third party at his instance or request, or some detriment sustained, at the instance of the party promising, by the party in whose favor the promise is made;" citing Overstreet v. Philips, 1 Litt. (Ky.) 123; Lemaster v. Burckhart, 2 Bibb, 30; Wooldridge v. Cates, 2 J. J. Marsh. 222. Again the same author (Bouvier) says, "Mutual promises made at the same time are concurrent considerations, and will support each other, if both be legal and binding." This court, in the case of Talbott v. Stemmons, 89 47 L. R. A. financial transaction, or are sufficient gain or advantages from a social or healthful standpoint, to support a contract. The loss or gain is to be supposed to be alike to all parties. There is a complete mutuality. While it is true that contracts in restraint of trade are to be carefully scrutinized, and looked upon with disfavor, all contracts in restraint of trade are not illegal. The restraint here put is but partial,-very inconsiderable. It is but a few hours, at most, each day, and for three and one-half months, during the extremely hot weather. It has come within the observation of the members of this court that during this season (May 15 to September) many merchants close about 6:30 or 7 P.M. This cannot be held to be an illegal restraint of trade. As to the question of uncertainty of the contract, appellant's position might be tenable, if it were not shown by the pleadings in the case precisely what the contract was intended to mean. The courts rarely ever reform and then specifically enforce a contract. The reason of this is that the dispute comes as to what contract was intended to be entered into. This is not so here. All parties agree that this writing was intended to say and mean that the places of business should be closed at 6:30 P. M. each day, excepting Saturdays, between May 15 and September 1. We think that in this case injunction is a proper remedy. The recurring breach each day of the contract would require numerous actions at law, and by different plaintiffs, as well; or, if not, there would at least be a continuing damage by the breaches and violation of the contract up to September 1. It has repeatedly, if not universally, been held that injunction is proper in either of these classes of cases, to prevent a multiplicity of actions, or to prevent a repeated and recurring cause of action. Sutton v. Head, 86 Ky. 156, 5 S. W. 410. Judgment affirmed. |