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to be demanded of the citizens. In such event the citizen becomes subject to a monopoly as complete and absolute as though there was but a single line of railway with in his reach. Thus is found in the contract and combination entered into by the defendant companies elements which directly tend to the establishment of a monopoly, complete and absolute, over the transportation traffic in the region traversed by the lines of the defendant companies, due to the undeniable fact that the price charged for the transportation of the property of the community exercises a controlling influence over the question of the success or failure of the various business pursuits and avocations upon which the citizens are dependent for a livelihood, and, moreover, it directly affects and controls the cost to the public of all the necessaries of life.

The declaration found in article I. of the contract shows upon its face the main purpose of the combination, it being therein recited that "the traffic to be included in the Trans-Missouri Freight Association shall be as follows: (1) All traffic competitive between any two or more members hereof pass

results flowing from combinations between the carriers, and other portions are not to be affected thereby. Is it not the natural result that the public will be subjected to different burdens, and that differences in rates will be charged, which in effect will result in discriminations for or against particular locali. ties? But I shall not dwell upon this and other points of minor importance. As I view the subject, the inherent and fatal vice existing in the combination and agreement entered into between the defendant railway companies is found in the fact, patent upon the face of the contract, that it is the main purpose of the contracting parties to stifle competition in the matter of rates to be charged the public. The illegality of such purpose is not dependent upon the extent of the restraint placed upon the freedom of the public business, but upon the fact that the avowed intent is to place a restraint, whether slight or great, upon a class of business which is inherently and always of a public nature, and touching which the declaration of the law, both common and statutory, is that it must remain wholly free and unrestricted. If the protection afforded by fair and free

ing between points in the following de- competition can be evaded and nullified by scribed territory," etc. Does not this clearly means of combinations such as are contemshow that the main purpose of the contract-plated and provided for in the contract en

ing parties is to deal with that traffic which, in the absence of combinations between the railway companies, would be controlled by the results of competition, and to deal with it in such manner that it will cease to be competitive traffic and become the subject of combinations and agreements whereby the rates to be charged-which is the essential element in which the public has a vital interest-is removed from the protection de rivabie from free and unrestrained competition, and is left to the determination of committees appointed by the railway companies, whose action is binding upon the members of the association, and against which the individual citizen is without adequate remedy, no matter how unjust the rate fixed by the committee may in fact be?

Another feature observable on the face of this contract is that by the exceptions contained in article I. the traffic between many points and in some classes of freight are excepted out from the operation of the agree ment, and thus it appears that it is the express purpose of the defendant companies to carry on part of their business subject to the 24 L. R. A.

tered into by the defendants in this case then the only safeguard against unreasonable rates will be stricken down, and thus interstate commerce will be subjected to the restraints and injuries flowing from the imposition of tariff rates ag agreed upon by the companies, but in the establishment of which the public has no direct control through legislation, nor direct influence through the effect of free competition.

In my judgment, the right to insist upon free competition between railway companies engaged in carrying on interstate commerce is a right which belongs to the public, of which it cannot be deprived except by its own consent, and every contract or combination between these public corporations which tends to remove the business carried on by them from the influence of free competition tends to deprive the public of this right, of necessity tends to subject interstate commerce to burdens which are a restraint thereon, is inimical to the public welfare, is contrary to public policy, and in contravention of both the language and spirit of the AntiTrust Act of July 2, 1890.

SOUTH CAROLINA SUPREME COURT.

Sidney J. KOHN et al., Respts..

0.

RICHMOND & DANVILLE R. CO., Appt. (37 S. C. 1.)

1. A demand of goods in the hands of a carrier by virtue of a chattel mortgage after condition broken but without any legal process made by a constable acting merely as agent of the mortgagees will not make the carrier liable for conversion if it refuses to surrender them where the goods were received from a third person who has a bill of lading therefor. 2. No admission as to the ownership of chattels in possession of a carrier is shown by the fact that the one holding the bill of lading remains silent when an unsuccessful demand is made by a third person for them upon the carrier in his presence under alleged title papers, which will make the carrier's refusal to comply with the demand wrongful.

A

(Pope, J., dissents.)

(November 18, 1892.)

Houston & T. C. R. Co. v. Adams, 49 Tex. 748, 30 Am. Rep. 116.

But seizure of goods on legal process justifies delivery.

Savannah & G. N. A. R. Co. v. Wilcox, 48 Ga. 432; Robinson v. Memphis & C. R. Co. 16 Fed. Rep. 57; Ohio & M. R. R. Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727.

Mr. George S. Mower, for respondents: In Spriggs v. Camp, 2 Speers, L. *181, it was also held that the mortgagor had no more than a permissive possession under a license resulting from the covenant in the mortgage. It would seem to follow that where the mortgagor parted with the possession, the mortgagee would be entitled to recover upon a refusal to deliver the property upon demand. There is no doubt that after breach of condition the legal title vests in mortgagee.

Reese v. Lyon, 20 S. C. 20; McClendon v.
Wells, Id. 520; Levi v. Legg, 23 S. C. 284.
Nor that the mortgagee can recover for a
conversion of the property.

Williams v. Dobson, 26 S. C. 110.
Any withholding of the property against the
will of the owner is evidence of a conversion.
Jones v. Dugan, 1 McCord, L. 430. See
also Hutchinson v. Bobo, 1 Bail. L. 546: Har-

PPEAL by defendant from a judgment of
the Common Pleas Circuit Court for New-ris v. Saunders, 2 Strobh. Eq. 370.

berry County affirming a judgment of a trial
justice in favor of plaintiffs in an action
brought to recover damages for the alleged
conversion of certain chattels. Reversed.

The facts are stated in the opinion.
Mr. J. F. J. Caldwell, for appellant:

A refusal upon demand is no evidence of conversion, if the party bona fide and reasonably refuse on the ground of his not being satisfied that the party making the demand is the real owner of the goods, etc.

1 Chitty, Pl. *160.

In action of trover against bailee (hirer) of slave by bailor, the bailee should not be allowed to prove ownership of property in a third person, being held incapable of disputing the title of his bailor.

Manning v. Norwood, 2 Mill. Const. 374. He is responsible if he delivers to a third person who afterwards appears not the rightful

owner.

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A carrier cannot dispute title of deliverer of goods for shipment by setting up adverse title in himself or another, which is not being enforced against him.

Wallace v. Matthews, 39 Ga. 617, 99 Am. Dec. 473; Great Western R. Co. v. McComas, 33 III. 185.

Carrier is liable for goods lost by misdelivery, whether by mistake or fraud practiced upon him.

Little Rock, M. R. & T. R. Co. v. Glidewell, 39 Ark. 487; Scheu v. Erie R. Co. 10 Hun, 498;

A refusal by the mortgagor to deliver possession of the property on demand amounts to a conversion of it, and action for the conver

sion will lie.

Fletcher v. Neudeck, 30 Minn. 125; Cutter v. Copeland, 18 Me. 127; Bates v. Wilbur, 10 Wis. 416; Badger v. Batavia Paper Mfg. Co. 70 IIL 302.

Wrongful intent is not an essential element
of the conversion.
Laverty v. Snethen, 68 N. Y. 522, 23 Am.
Rep. 184.

In the case at bar there was a refusal to de

liver the property to the owner upon demand. Lewis v. Mobley, 20 N. C. 323, 34 Am. Dec. 379.

The appellant could not, even if an adverse claim had been made by Clendenning, defend or defeat respondents' action by asserting that it had decided in favor of Clendenning, and had aided him in removing the property against the will of the respondents, who were clearly entitled to the property under their

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NOTE. The decision that a demand by virtue of a chattel mortgage after default is not such that a carrier must yield to as in case of a demand under legal process seems to be entirely new.

For the necessity of paying freight charges be

fore suing a carrier for conversion of goods, see
Baltimore & O. R. Co. v. O'Donnell (Ohio) 21 L. R.
A. 117; and note; also Miami Powder Co. F. Port
Royal & W. C. R. Co. (S. C.) 21 L. R. A. 123.

of a lot of household goods, to be shipped by defendant's train to Laurens. After said agent had received and receipted for said goods, defendant's agent was notified by an agent of plaintiffs not to ship said goods, as they be longed to plaintiffs under a mortgage given by Clendenning to plaintiffs, the condition of which had been broken. The goods were, however, placed on the cars, and the cars sealed. Soon after this, and just before the arrival of the train for Laurens, one Hair, a constable, appeared at the depot with the mortgage, upon which an indorsement had been made by a trial justice, purporting to authorize said Hair to take possession of the goods, and demanded them from defendant's agent, who refused to deliver them, upon the ground that the paper was not sufficient; "that I ought to have had a distress warrant." Clendenning was present at the time, but, so far as appears from the evidence, neither said nor did anything. The goods remained at the depot, in the car in which they had been placed the evening before, until 1 o'clock the next day, when they were sent on to Laurens; no further steps having in the meantime been taken by plaintiffs to obtain possession of said goods. The mortgage above spoken of was given by Clendenning to the plaintiffs to secure the payment of a note which fell due on the 1st of May, 1887. The plaintiffs having obtained judgment for the value of the goods, defend ant appeals upon the several grounds set out in the record, which need not be specifically stated, as the case turns upon the single question whether a common carrier who has received goods for transportation from one person, and given him a bill of lading therefor, is bound to surrender them upon demand to a third person, who claims to be the true owner thereof, under pain of being liable to an action for the conversion of said goods at the suit of such third person. It is conceded that under the stringent rule of the common law a common carrier is liable as an insurer for goods committed to his charge for transportation, and nothing but the act of God or the public enemies will excuse him for failure to deliver the goods at their destination to the person to whom he has contracted to deliver them,-the consignee. Under this rule it is very obvious that the carrier would be liable to his bailor even if the goods were taken from his possession by process of law, and much more so if he voluntarily delivered them to the true own er, for this would not be either the act of God or of the public enemy. But it is claimed, and, we think, justly, that this stringent rule has been modified so as to excuse the carrier from liability where the goods have been taken from his possession by process of law, provided the carrier gives prompt notice of such seizure to his bailor; for, as it is well put by Campbell, Ch. J., in Pingree v. Detroit, L. & N. R. Co., 66 Mich. 143: "If he is excusable for yielding to a public enemy, he cannot be at fault for yielding to actual authority what he may yield to usurped authority.' See also Stiles v. Davis, 66 U. S. 1 Black, 101,17 L. ed. 33. And the same doctrine is, at least impliedly, recognized, though the point was not distinctly raised, in our own case of Faust v. South Car olina R. Co., 8 S. C. 118. It is also contended

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that the rule is still further modified so as to excuse the carrier from liability to his bailor for the nondelivery of goods intrusted to him for transportation if he can show that he has delivered the goods to a third person, who was the true owner, and entitled to the possession thereof, and the case mainly relied upon to establish this proposition is The Idaho, 93 U. S. 575, 23 L. ed. 978, though there are cases which have been decided in several of our sister states recognizing the same doctrine. In our own state, however, we have no case, so far as we are informed, which recognizes this modification of the rule as to a carrier's liability. It is true that the case of Robertson v. Woodward, 3 Rich. L. 251, does seem to recognize the doctrine that an ordinary bailee-not a common carrier-may dispute the title of his bailor in an action of trover brought by the latter by showing that his bailor had sold the subject of the bailment before the bailment arose, and that defendant was authorized to defend the action, for the benefit of the purchaser. But it seems to us somewhat difficult to reconcile that case with the previous case of Manning v. Norwood, 2 Mill. Const. 374. Be that as it may, however, and assuming, for the purposes of this case, that the stringent rule of the common law as to a carrier's liability has been thus further modified, as contended for by respondents, the question still remains whether the rule thus modified applies to this case. It will be observed that the cases which establish or recognize this modification of the rule only go to the extent of holding that a common carrier may deliver the goods intrusted to him for transportation to the rightful owner upon his demand, and, if he does, he may defend himself against an action brought by his bailor to recover damages for the nondelivery according to the contract of bailment by showing that he has delivered the goods to the rightful owner; but none of them go to the extent of holding that he is bound to deliver them to one who demands them as rightful owner, unless it be the case of Wells v. American Exp. Co., 55 Wis. 23, 42 Am. Rep. 695. In that case a package of money was intrusted to the carrier to be delivered to Wells & Cartwright. When the package addressed to Wells & Cartwright reached its destination, the money was demanded by Wells alone, he claiming to be the sole owner, and that Cartwright had no interest in it, to which Cartwright, being present, assented verbally, though there was no assignment by Cartwright of his apparent interest in the package to Wells, and no written order by Cartwright to deliver to Wells, and no offer of any receipt or acquittance from both." The defendant refused to deliver the money to Wells alone, and insisted also that the money had been subjected to garnishee proceedings against Cartwright. Wells then brought his action, not upon the bill of lading or express receipt, but for money had and received, and the court held that, "irrespective of the garnishment," the plaintiff, having established his individual right to the money, was entitled to recover. The authorities cited by the learned judge, while they do establish the doctrine that a common carrier may, with safety, deliver to the rightful owner, do not establish the doctrine that he is bound to do so; and his as

as

sumption that the one follows from the other is not, in our judgment, well founded. In addition to this, the action in that case was for money had and received, which does not necessarily imply a tort on the part of defendant; while here the action is for the conversion of the goods, which does involve the idea of tort. Again, ain, in that case it appeared that Cartwright, one of the persons named as consignee, was not only present when Wells, the other consignee, demanded the money, claiming it his individual property, but actually assented to such claim, and hence the carrier had no ex cuse for refusing to comply with the demand. It seems to us that the whole case turns upon the question whether a carrier, resting under very stringent obligations to his bailor, is bound to assume the burden, where a third person makes a demand upon him for goods intrusted to him for transportation, not enforced by legal process, of showing not only that such third person is the rightful owner, but is also entitled to the immediate possession of the goods. It seems to us that common justice would require that such burden should be assumed by the claimant, who is most likely to have the means of meeting it, and not upon the carrier, who cannot be supposed to know anything about the real ownership of the goods, and has a right to assume that the person from whom he received possession of the goods was such rightful owner; possession of personal property being evidence of title. The most that could be properly required of the carrier would be to hold the goods, notifying his bailor of the demand which had been made upon him, and let the claimant contest with the bailor the question of ownership. Under these views, we do not think that the judgment below can be sustained. The goods were not seized or demanded under any legal process. The fact that the person selected as the agent of plaintiffs to enforce their mortgage claimed to be a constable cannot affect the question, for, even where a mortgage of personal property is placed in the hands of the sheriff, with instructions from the mortgagee to seize and sell the mortgaged property, the sheriff does not act officially, but merely as the private agent of the mortgagee. Robins v. Ruff, 2 Hill, L. 406. It is claimed, however, that the bailor, Clendenning, being present when the goods were demanded of the defendant's agent by the agent of the plaintiffs, and saying nothing, was an admission that plaintiffs were the rightful owners, and entitled to the immediate possession of the goods, and therefore defendant had no excuse for re

fusing to comply with the demand. We cannot take that view. We do not see what obligation rested upon him to interpose in the colloquy between the agents of plaintiffs and defendant. He delivered the goods for shipment to the defendant, and held its bill of lading obligating defendant to deliver them according to its terms, and there was no occasion for him to speak. If he had stood silently by and allowed the defendant to deliver the goods to plaintiffs, claiming to be the rightful owners, without protest or objection, we can very well see how he might have been estopped from subsequently claiming them from defendant; but we do not see how his silence when plaintiffs were making an unsuccessful demand on defendant could possibly affect the question involved here.

The judgment of this court is that the judgment of the Circuit Court be reversed, and that the case be remanded for a new trial.

McGowan, J., concurring:

The amount involved in this case is not large, but the principle is important. After careful consideration, it seems to me that, when a common carrier is intrusted with property for transportation, his first responsibility is to the person who has intrusted him with the prop erty, and, upon claim of the property by a third party, that he should not be required, at his risk, to judge between the parties as to the ownership of the property. He should, however, always and at once yield to the force of legal process, which intervenes and takes the property, thus relieving the carrier from the responsibility of being judge in the matter. I have not been able to satisfy myself that the paper presented to the official of the railroad in this case was in the proper sense "legal process." It seems to have been a simple mortgage of personal property, after condition broken, but there was about it none of the usual indicia of legal process, such as a summons, warrant, writ, or seal of the court. It did not appear that there had been any judicial determination of the matter, and the paper was in the hands of one who, on the occasion, was acting merely as the agent of the mortgagees. For this reason I concur in the opinion of the chief justice.

Pope, J.: I dissent, and will file a dissenting opinion.

NOTE. This case has been held in type for the purpose of embodying the dissenting opinion in the report, but the opinion has not' yet been filed and it is impracticable to wait longer for it. [ED.]

NEW YORK COURT OF APPEALS.

Andres W. KETCHAM et al., Respts.,

v.

Henry NEWMAN et al., Appts.

(141 Ν. Υ. 205.)

1. Entry by contractors on the premises of another to shore up his build

NOTE. On the question of liability for acts of contractors, see, in connection with the present

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2. The owner of premises who contracts for excavations with agreement that the contractors shall do the necessary shor

case, the note to Hawver v. Whalen (Ohio) 14 L. R. A. 828.

ing, etc., as required by law is not liable for an | plaintiffs could not recover in this action. It

entry by the contractors on the premises of the adjoining property without license to do such shoring as the law requires them to do only when afforded the necessary license.

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Statement by Andrews, Ch. J.: The plaintiffs were wholesale merchants, and lessees of the first floor and basement of No. 633, Broadway, New York city, where they conducted the business of the sale of millinery goods. The defendants owned the adjacent lot on the south, and, being about to erect a new building thereon, upon a plan which required their lot to be excavated twenty-two feet below the curb, entered into a written contract with the firm of F. & S. E. Goodwin, professional shorers, whereby that firm agreed as follows: "We agree to do the shoring, sheath piling, and bridging (as required by law) that is necessary to erect buildings Nos. 628 and 630 Broadway, running through to Crosby street; do the work, according to plans and specifications, for the sum of one thousand one hundred and seventy-five dollars; work to commence at once when ready ($1,175), also agree to be responsible for any accident by improperly doing the work." The foundation of the southern wall of the building occupied by plaintiffs was nine feet below the surface, and, unless shored up in some way during the progress of the excavation on the defendant's lot, the wall would naturally be undermined, and would probably fall. The contractors entered upon the premises occupied by the plaintiffs, and inserted needle beams in the basement of the building, breaking the wall for that purpose, and occasioned serious damage to the stock of goods of the plaintiffs from dirt and their exposure to dampness, and greatly hindered them in the transaction of their business. There was conflicting evidence upon the question whether the contractors obtained permission from the plaintiffs to enter the premises for the purpose of shoring up the wall. The plaintiffs denied that such permission was given, and they gave evidence tending to show that they protested against such entry, and that the contractors, in defiance of their protest, invaded their premises, and committed the trespasses of which they complain. On the part of the defendants one of the contractors testified, in substance, that before commencing the work he informed one of the plaintiffs that he was employed to do the shoring, and pointed out what was necessary to be done; that he consented that the witness might proceed with the work. The judge submitted to the jury the question whether such consent was given, and charged them that if consent was given the

was conceded that the Goodwins were independent contractors, and the judge so charged the jury. It was shown that they had large experience in this kind of work, and their competency was not questioned. One of the contractors testified that he had forty years' experience, and he further testified: "I know of no other way in which I could have shored up that brick wall than the way which was employed." It does not appear that the defendants gave any directions to the contractors during the progress of the work, or that they had any knowledge of the circumstances under which they entered the plaintiffs' premises, or whether such entry was with or without the license of the plaintiffs. Their connection with the transaction commenced and ended, so far as appears, with the making of the written contract above given, except that one of the plaintiffs, after the work had progressed for some time, asked one of the defendants to intercede with the contractors to do the work in a way which would cause them less inconvenience, which he promised to do. The defendants neither employed nor had any control of the men engaged in the work. They were employed and paid by the contractors. The court charged the jury that if the plaintiffs gave no license to the contractors to enter the premises to do this work the defendants were liable for the injury sustained by the plaintiffs.

Mr. Nathaniel Myers, for appellants: The plaintiffs' building was not entitled to be supported by defendants' land.

Radcliff v. Brooklyn, 4 N. Y. 203, 53 Am. Dec. 357.

The judgment in this case can find no justification in anything contained in the Act of the legislature of 1855.

(a) Because that act is unconstitutional.

That statute imposes a servitude upon land not existing under the common law, and it finds no justification in the police power of the state or any other constitutional power.

(b) That the Act of 1855 applies only to a case where the one excavating is "afforded the necessary license to enter on the adjoining land, and not otherwise."

Goodwin was an independent contractor; and the defendants are not liable for his acts, they having simply contracted with him to do "necessary" things in a "lawful" way.

One contracting with another to do a lawful act is presumed to have contracted with him to do it in a lawful manner.

If the contract is a legal one the wrongful acts of the independent contractor are his own, and not those of the party with whom the contract is made, but who has no control over the details of the work nor over the means which the contractor employs to fulfill his contract.

It was error for the court to charge the jury that although they should find that plaintiffs had consented to the entry by Goodwin and to his inserting the needles, still their verdict should be for plaintiffs, if they found that Goodwin did his work negligently.

Butler v. Townsend, 126 N. Y. 105; Wyllie v. Palmer, 19 L. R. A. 285, 137 N. Y. 257; McCafferty v. Spuyten Duyvil & P. M. R. Co. 61 N. Y. 178, 19 Am. Rep. 267; King v. Nero

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