REG. 745,749.

As a general rule, in order to constitute a valid tender, the exact amount due must be offered: 17 AMER. LAW The debtor cannot tender a bank note or coin for a larger amount than the debt, and require change to be made: Betterbee v. Davis (1811), 3 Camp. 70; Robinson v. Cook (1815), 6 Taunt. 336. But while a railway company, by permitting a passenger to board its car without demanding the payment of his fare in advance, actually establishes between itself and him the relation of debtor and creditor, the enforcement of a rule requiring the tender of the exact fare would be impracticable, and such a rule would undoubtedly be pronounced unreasonable by the courts. In Tarbell . Central Pacific R. R. Co. (1868), 34 Cal. 616, the passenger tendered the conductor the amount of his fare in United States legal tender notes. The conductor refused to accept them and demanded coin. This not being produced, the passenger was ejected, and subsequently brought suit for damages. Counsel for the railroad company, while admitting that a common carrier is bound to carry all properly behaved persons on payment or tender of their fare, argued that, before the transportation is completed, there is no " debt within the meaning of the Legal Tender Acts, on the part of the passen ger, and that therefore a tender of United States notes was not sufficient and the company was justified in the ejection. In support of this contention they cited the case of Perry v. Washburn (1862), 20 Cal. 318 (approved by the Supreme Court of the United States in Lane County v. Oregon (1868), 7 Wall. (74 U. S.) 71, and subsequent cases), where it was held that taxes levied under State authority did not constitute a debt within the meaning of the Legal Tender Acts. But the Court held that "the point that the defendant was not

bound to carry the plaintiff because the fare which he offered to pay was in legal tender notes, is not tenable. *

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There being no contract in writ

ing stipulating for coin, we find nothing in the case which takes it out of the operation of the Act of Congress in relation to legal tender notes. Railroad fares are not taxes, and do not fall within the rule in Perry v. Washburn (supra). Whether the defendant could have legally exacted payment in coin before the plaintiff was admitted into the cars and the journey commenced, is a question not involved in this case, and upon which we express no opinion. Having received the plaintiff and proceeded several miles upon the journey, the defendant must be held to have consented to receive in payment of the fare any good and lawful money which the plaintiff might tender, when called upon for payment. The kind of money to be paid had then ceased to be an open question, for the contract was already made and in process of performance."

To the same effect is the recent case of Morgan v. Jersey City & B. Ry. Co., decided by the Supreme Court of New Jersey, November 13, 1889. There the passenger tendered a silver coin, worn smooth by use. The conductor refused to accept it, and, upon the passenger declining to tender other money, ejected him from the car. Upon the trial of a suit for damages, the Court instructed the jury as follows: "The plaintiff tendered this ten-cent piece, a genuine and recognizable coin of the United States, and that was his lawful fare, provided that you believe that the coin is in the condition in which it was when issued from the mint, except as it has been changed by proper use. If there has been no other abrasion, no other defacement of that coin, except such as it has received in the passing from hand to hand, then it is still, under the laws of the country, a good ten

cent piece, and was the fare of the plaintiff. If you think it has been therwise changed, willfully changed, it has ceased to be a lawful coin of the country, and it has ceased to be a law ful tender." The Supreme Court he'd this instruction to be substantially correct. The opinion is well worth quoting at length: "By the Act of March 3, 1875 (Rev. Stat. U. S. 3586), the silver coins of the United States shall be a legal tender, at their nominal value, for any amount, not exceeding five dollars, in any one payment. By the Act of January 9, 1879 (Supp. Rev. Stat. U. S. 488), the holder of any of the silver coins of the United States of smaller denomination than one dollar may, on presentation of the same in sums of twenty dollars, or any multiple thereof, at the office of the Treasurer of the United States, receive therefor lawful money of the United States. Section 3 increases the legal tender of silver coin to the sum of ten dollars, instead of five dollars, under the previous statute. In Section 3585 of the Revised Statutes, the gold coins of the United States are made a legal tender in all payments at their nominal value, when not below the standard weight and limit of tolerance for the single piece; and, when reduced in weight below such standard and tolerance, shall be a legal tender at valuation in proportion to their actual weight. The limit of toleration for gold coin referred to is found in Sections 3505 and 3511, to be, when reduced in weight by natural abrasion, not more than one-half of one per centum below the standard weight prescribed by law, after a circulation of twenty-years, as shown by the date of coinage, and at a ratable proportion for any period less than twenty years. This particularity in the limitation and allowance as to gold coin is not found in the case of natural abrasion in silver coins.

This difference is very noticeable and important in a question of statutory construction and legislative intention. It seems by these statutes that, so long as a genuine silver coin is worn only by natural abrasion, is not appreciably diminished in weight, and retains the appearance of a coin duly issued from the mint, it is a legal tender for its original value: U. S. v. Lissner (1882), U. S. Circ. Crt. D. Mass., 12 Fed. Repr. 840. The coin in question in this case was shown in court to the jury. It does not appear in the evidence to have been so worn that it was light in weight, or not distinguishable as a genuine dime. With no limitation put upon its circulation by the Government, it would seem that none was intended, so long as it was not defaced, cut, or mutilated, and was only made smooth by constant and long-continued handling, while being circulated as part of the national currency. The instruction was right, as the facts appear, and as the jury found them."

In both the cases cited, the relation subsisting between the carrier and the passenger, after the latter had entered the car without pre payment of his fare, was recognized to be that of creditor and debtor. Consequently the passenger was required to offer to pay his fare in the legal tender of the country, and the carrier, when such a tender was made, was bound to accept it. As has been already stated, a strict application of the rules of tender, would justify the carrier in refusing to accept anything except the exact amount of the fare. But another principle here comes into play and must be recognized. It is this principle which sustains the ruling in the principal case. Reasonableness must characterize all the dealings of a common carrier with its passengers. It has the power to make rules and regulations to guide and govern its agents

n the discharge of their duties and for he conduct of passengers while upon ts cars or conveyances, but such rules ind regulations must be reasonable : Wheeler on Carriers, 130-1-2. "Reguations will be deemed reasonable, which are suitable to enable them (carriers) to perform the duties they undertake, and to secure their own just ights in such employment; and also such is are necessary and proper to insure the safety and promote the comfort of passengers:" Commonwealth v. Power (1844), 7 Met. (Mass.) 596; State v. Chovin (1858), 7 Iowa 204. So also the regulations of the carrier must be enforced in a reasonable manner, and its treatment of its passengers must in all cases be characterized by this same quality of reasonableness. Thus in several cases it has been held that, where a passenger, who has purchased a ticket, but is unable to find it at the moment of the conductor's demand for its production, is entitled to be allowed reasonable time to make search for it: Maples v. New York & N. H. R. R. Co. (1871), 38 Conn. 557; Hayes v. New York Cent. & H. R. R. R. Co. (S. Ct. N. Y. 1884), 10 Alb. Law Jour. 469; International & G. N. R. R. Co. v. Wilkes (1887), 68 Tex. 617.

A passenger who has neither ticket nor money is also entitled to reasonable time in which to borrow the sum needed from other passengers, if he requests to be permitted to do so: Curly. Chicago, R. I. & P. R. R. Co. (1884), 63 Iowa 417; Clark v. Wilmington & Weldon R. R. Co. (1885), 91 N. C. 506.

An interesting case is Louisville & Nashville R. R. Co. v. Garrett (1881), 8 Lea (Tenn.) 438. The plaintiff had there boarded a train without ticket or money, but having a tax certificate, which he supposed would be accepted for his fare, but which the conductor refused to receive. The latter also refused to allow him to proceed to the

next station, where he stated that he could get money. As the conductor was ejecting him, another passenger offered to pay the fare, but the conductor would not accept it. The Court said: "The fact of a party getting on a passenger car for the purpose of travel, of itself creates by operation of law a contract, or the law defines the terms of the contract, the obligations of which bind both parties. On the part of the carrier, among other things, the party is entitled to be carried with the care required by law, at the established rates and with no unnecessary delay. On the part of the passenger, he is bound as the first duty to pay, or offer, or be willing to pay his fare according

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if another person offered to pay the fare before ejection from the car, the carrier was bound ro receive it and transport the passenger. It is unimportant to the carrier from whom the money comes. If it is the proper amount, he gets what he is entitled to, and must perform the duty imposed. * To test this further, however, suppose a carrier should make a regulation that none but money from the pocket of the passenger himself should be received by conductors on passenger trains, and if money should be offered by a friend to pay a party's fare, it should be rejected, no one could hesitate to say such a regulation would be void as unreasonable, and beyond the power of the company to make. If such a rule could not be

properly made, the act of a conductor in such a case, without a regulation to that effect, cannot be justified. * * * Public policy, the interest and rights of of the public, as well as the known conditions surrounding the business of carrying passengers by railroads in this country, demand that no narrow or technical rules should be prescribed to enable them to exercise any arbitrary authority whatever in the performance of their duties growing out of their relation to the public. On the other hand, every principle of fairness and right demands that the carrier should be sustained in enforcing such reasonaable regulations as may by experience be found necessary and proper in the conduct and management of the vast machinery to be administered in carry. ing on this complicated and responsible business."

Questions as to what is, or is not reasonable, are sometimes determinable by the Court and sometimes by the jury. In the principal case the Court held, as a matter of law, that it would be unreasonable to require a passenger to tender the exact fare and that the carrier must be prepared to furnish change to a reasonable amount, and further that five dollars was such a reasonable amount, so that the tender of a five dollar goldpiece, cr note, was reasonable.

In the case referred to in the opinion of the Court (Fulton v. Grand Trunk Ry. Co. (1858), 17 U. C. Q. B. 428), it was also as a matter of law held, that the tender of a twenty-dollar gold piece in payment of fare amounting to one dollar and twenty-five cents" was not a reasonable offer to pay," requiring, as it did, more than eighteen dollars to be paid back in change. Even the officer attending at the ticket office "might reasonably object to the offer of a twenty-dollar gold piece in order that one dollar and thirty-five cents might be taken out of it. If any or all of the

passengers might put him to the troubl of giving back so much change as tha it would be impossible that the busines could be transacted with the expedition which is necessary, or with prope caution." Much less reasonable would it be to require the conductor to be pre pared to make change to such a

amount.

Thus, it appears that the question to be determined is recognized in both cases to be, what is reasonable under the cir cumstances. This is emphasized in the principal case by reference to the fact that this question might have to be answered differently in the case of steam railroads, where fares may be paid at the ticket office, and street railways, where they are payable only upon the cars. While in each of these cases the Court very properly treats the question of reasonableness as one of law, circumstances might be readily conceived which would render the reasonableness of the amount tendered a question of fact, to be submitted to the jury.

In a number of cases the duty of a street railway to deal with its passengers in a reasonable manner, has been recognized and enforced by the courts. In Hall v. Second and Third Sts. P. Ry. Co. (1883), 14 W. N. C. (Pa.) 242, where a passenger, in handing his fare to the conductor, dropped the coin into the straw upon the floor of the car, the Court held that he was entitled to remain upon the car for a reasonable length of time to search for the coin, before he could be ejected for non-payment of fare. In Corbett v. Twentythird St. Ry. Co. (1886), 42 Hun. (N. Y.) 587, the facts were as follows: The passenger, on entering a car which was operated by a driver without a conductor, put into the box used for that purpose five fares for himself and three companions. Upon discovering his mistake and applying to the driver for the restitution of the excessive fare

placed in the box, the driver refused to restore it, alleging that he had no authority to return the fare or correct the mistake, and directed the passenger to repair to the office of the company for his money. During a wordy altercation between the passenger and the driver, which followed the latter's refusal to return the fare, a lady entered the car and delivered her five cents fare to the passenger who placed it in his pocket, and, upon his refusal to deposit it in the box, the driver ejected him from the car and delivered him into the custody of a policeman. A regulation of the company required a passenger thus deprived of his money by his own mistake, to go to the office of the company for reimbursement. The Court held that "the plaintiff was clearly entitled to a restitution of the money deposited by him by mistake in the box placed in the car to receive the fare of the passengers, and, as the driver himself was not authorized to return the fare, and in that manner correct the mistake, it was an entirely reasonable course to adopt for the plaintiff to receive the fare, which he did of the other passenger, and in that manner reimburse himself for the money inadvertently placed in the box. The regulation of the railway company requiring a passenger, who may be deprived of his money by his own mistake in this manner, to go to the office of the company for its reimbursement and the correction of the mistake, is entirely unreasonable. * As long as the company does not authorize the driver himself to rectify the mistake, it is no more than reasonable that the passenger should be at liberty to do so by receiv ing, for that purpose, the fare of any passenger afterwards entering the car.”

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In the case of Morris v. Atlantic Ave. R. R. Co. (1889), 116 N. Y. 552, a rule of the company imposing an extra charge for packages brought upon its

cars and "too large to be carried on the lap of the passenger without incommoding others," was considered. The Court say: "For the successful operation of the road, and for the accommodation and comfort of its passengers, certain regulations are evidently essential. The one in question was reasonable, but that portion of it relating to the present case is indefinite in so far that it does not in terms furnish all the information necessary to its execution, which is dependent upon the fact that the package is too large to be carried in the lap of the passenger without incommoding others. A package may be such and so large as to require the conclusion that it is within the rule, which entitles the company to demand the increased fare, and in such case the Court might, as matter of law, so determine. When it does not necessarily so appear, the question arising, in that respect, becomes one of fact to be otherwise disposed of. In the present case *** the question was for the jury to determine whether the extent of the plaintiff's package was such as to be embraced within the meaning of the regulation."

It has been frequently decided that the conductor of a street car has the power to expel a passenger whose condition and conduct, either by reason of intoxication or other cause, are "such as to give a reasonable ground of belief that his presence and continuance in the vehicle would create inconvenience and disturbance and cause discomfort and annoyance to other passengers:" Vinton v. Middlesex R. R. Co. (1865), 11 Allen (Mass.) 304; Murphy v. Union Ry. Co. (1875), 118 Mass. 228; Lemont v. Washington & G. R. R. Co. (1881), 1 Mack. (D. C.) 180. In the last mentioned case the Court held that a passenger in a street railway car, who is unable to sit up and is sick to vomiting, may lawfully be expelled, whether his sickness proceed from drunkenness or