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bill of lading or in a charter party the effective cause by sea was liable for loss or damage to goods, except
is to be looked to, and not the immediate cause, iu the only in the event of accidents caused by the act of
sense of its being causa proxima, as in the case of a God or of the king's enemies.
policy of insurance. That is the defect in the careful In Dale v. Hall, 1 Wils. 281, the loss was occasioned
and elaborate judgment which he has given.

by a leakage caused by rats guawing a hole in the botFor the purpose of regularity in business, and in tom of the vessel. The goods were not carried under order that people may know what their liabilities are, any bill of lading, and it was beld that by the commou and wbat they are undertaking, it seems to me that law the hoyman was not excused on the ground of we must revert back to the old rule, and say that any act of God. The larger exception to the carrier's wbere the effective cause of a loss under a charter- liability contained in the exception of perils of the party or a bill of lading is the damage to the cargo by seas or accidents and dangers of the seas has sprung rats that is not a peril excepted, and where the rats, up gradually since the reign of Queen Elizabeth, no by being the effective cause, let in the sea, this letting | such provision being found in the forms of charterin of the sea is not a cause at all. It is the effect of parties or of bills of lading given in West's Symboleowhat was done by the rats, and the rats were the effec- graphie, but being known apparently in the reign of tive cause.

Charles 1. See Pickering v. Burkley, 1 Style, 132; I cannot therefore agree with the judgment, and I Mors v. Slew, 3 Keb. 73; and Barton v. Wolliford, 3 am of opinion that it must be overruled.

Comb. 56. The cargo in the present case was carried BOWEN, L. J. The judgment I am about to read is under a bill of lading containing the pow familiar ex. the judgment of my Brother Fry and myself.

ception, and we have to consider accordingly whether This was an action brought against the owners of a a carrier who would not be excused by the common sbip to recover damages for sea injury to the cargo law for loss due to leakage caused by rats, can find caused by a leakage of which rats were the authors. protection under the express term “accident or dauThe defendants' ship had been chartered by the plain- ger of the sea.” tiffs to proceed to Akyab and there load a cargo of The exact deinition of the term "dangers or acci: rice for Liverpool. The excepted perils in the charter dents of the sea,” or of the cognate expression party were the act of God, and all and every other perils' of the sea, which latter name is only the dangers and accidents of the seas, rivers, and steam Latinised equivalent for "dangers," has been the navigation of whatsoever nature and kind and errors subject of perpetual discussion both in England and of navigation during the voyage, and the tenor of the America. On the one side it has been sought to conbills of lading was the same. It appeared that the fine it to calamities which occur only through the riodamage was caused during the voyage to Liverpool, lence of the elements (esc marina tempestatis discrimine) after the ship had left Akyab, by sea water passing or (to use the language of Marshall, vol. 2, p. 487, part through a hole in a metal pipe connected with a bath- I, ch. 12, $ 1), “such as arise from stress of weather, room in the vessel, this pipe baving been gnawed winds and waves, from lightning and tempests, rocks through by rats.

and sands," etc. By others it has been sought to exIt was not disputed at the trial that all reasonable tend it so as to include all inevitable accidents which precautions had been taken by the captain and his crew occur upon the seas, or at all events all such as occur to keep down the rats on the voyage from Liverpool | by the action of sea-water in the course of navigation, to Akyab. The jury found further that the rats which for which human negligence, or for which at all events caused the damage were not brought on board by the the carrier's negligence is not responsible. The term shippers in the course of shipping the rice at Akyab, "peril of the sea" is one which has long been em. and that those ou board had taken reasonable precau- ployed in policies of insurance as well as in contracts tions to prevent the rats coming on board at Akyab of carriage, though losses which fall within the meanduring the shipping of the cargo. There was on the ing of the policy (owing to the different nature of the other haud no finding of the jury, and no admission contract) are not always losses which would fall by the parties as to the condition of the vessel in re- within the bill of lading exception. But it may be at spect of rats when she left Liverpool for Akyab, or as least considered probable (subject always to any questo the original cause of the presence of rats on board tion of usage or construction) that if a loss is not due the abip.

to a peril of the sea within the meaning of a policy of The case was dealt witń by Lopes, L. J., on further insurance, neither will it be due to a peril of the sea consideration, and he directed a verdict for the de. within the meaning of the ordinary bill of lading. fendants on the ground that the case was one of dan- According to Lord Tenterdeu the decision of the ger or accident of the seas within the exception in the judge upon what is a peril of the sea may be guided by shipping documents, and that the shipowners were usage and the course of practice among merchants, thereby exonerated. From this judgment the plain- and it is observable that the case in which pirates tiffs now appeal.

were first held to be a peril of the sea was decided That damage done to cargo by the direct action of upon a certificate of merchants, read in court, that rats, which devour it on the voyage, is not due to a they were so esteemed. Style, 132. It is not veces. peril of the sea, was decided in Kay v. Wheeler, L. R., sary in the present instance, and not being necessary 2 C. P. 302, by the exchequer chamber. See Laveroni it would be undesirable to lay down an exhaustive dev. Drury, 8 Ex. 166; 22 L. J. (Ex.) %, and Aymar v. finitiov as to the meaning of the term “perils of the Astor, 6 Cow. 266. It was contended however in the sea," either in contracts of carriage or in policies of present case, on behalf of the shipowners, that the insurance. We desire to leave ourselves entirely free question is a different one where cargo is directly to consider (whenever the necessary occasion arises) damaged by sea-water entering a ship through leaks whether the term “perils of the sea" may not emwhich rats have caused, and that although the ship- brace other dangers beyond those which are due owner is not excused when the rats eat a cargo of rice directly to the violent action of the elements. Unless directly--if a rat eats through a pipe which lets the there be some exception to such a definition it is diffigea-water in upon the rice, the accident is one for cult to account for the fact that pirates by mercantile which the sbipowner will not be responsible-a dis- custom are a peril of the sea, or that shipwreck tinction, which if it exists, must be admitted to upon a hidden boulder, when not due to the negllsavor of subtlety. By the common law of this country, gence of the master, would be due to the same exwhich in this respect is stricter than either the civil cepted cause. law or the law of many continental nations, a carrier It is sufficient to affirm broadly that within tbe

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meaning of an ordinary charter-party or bill of lading been the case when Roccus wrote, we cannot but a loss cannot be due to the perils of the sea which the thiuk that rats might be now banished from a ship by exercise of reasonable skill and diligence on the part of no very extraordinary degree of diligence on the part the shipowner might have averted.

of the master.” 8 Ex. 172. It is not impossible that In the case of The Schooner Reeside (A. D. 1837), 2 it was on some such broad common sense view of the Sum. 571, Story, J., thus expresses himself: "The case that Lord Ellen borough proceeded when in Hune phrase · danger of the seas,' whether understood in ter v. Potts, 4 Camp. 203, he held that a loss arising its most limited sense, as importing only a loss by the from rats eating holes in the ship's bottom is not natural accidents peculiar to that element, or whether within the perils insured against by the common form understood in its more extended sense, as including of a policy of insurance. As a rule, rats can be kept inevitable accidents upon that element, must still, in out of ships which are fit to carry cargo, and speaking either case, be clearly understood to include only broadly, a loss which is due to leakage caused by rats such losses as are of an extraordinary nature, or arise will probably be found to be due not to the perils of from irresistible force, or some overwbelming power, the sea, but to the defects of the ship or the want of which canu at be guarded against by the ordinary ex- precautions of the shipowner. In his chapter dealing ertions of human skill and prudence.” So again in with policies of insurance, the learned author of Kent's Marshall Ins., vol. 1, p. 234, Part I, ch. 7, $ 4: “If any commentaries, says: “It has even been a vexed loss or damage happen to the goods, from any fault or question whether the damage done to a ship by rats defeot of the ship (uot arising from sea damage, or was among the casualties comprehended under perils from any accident or misfortune in the voyage, but of the sea, and the authorities are much divided on from some latent defect before she sailed), the owner the question. The better opinion would however of the goods bas his remedy against the owners of the seem to be that the insurer is not liable for this sort ship for such loss or damage.The judgment of of damage, because it arises from the negligeuce of the Lopes, L.J., in the court below, accepts this principle, common carrier, and it may be prevented by due care, but proceeds upon the basis that the action of the rats and is within the control of human prudence and in gnawing through the pipe and letting in the sea- sagacity.” Vol. 3, pp. 300, 301. He adds in a note water upon the cargo was a matter beyond all human some references to a number of foreign juridical control, that it was, to adopt his own words, a case writers, who have all maintained the principle that "of sea damage at sea and nobody's fault." The bur- the owner, and not the insurer, is liable for an injury den of proof of this rested upon the shipowner, but by rats, and states that the only case which he has the admission made during the trial of the case and met with directly to the contrary is that of Garrigues the finding of the jury seem to us to fall far short of v. Coxe, 1 Bin. 592. Story Bail., $ 513, adds, that "it establishing the inference drawn by Lopes, L. J. It seems that a loss occasioned by a leakage which is is cousistent with both the verdict and the findings caused by rats gnawing a hole in the bottom of the that the presence of rats may have constituted an vessel is not in the English law deemed a loss by a original vice in the ship when she sailed to take in peril of the sea." Lord Tenterden in his work on cargo, which continued down to and at the time when Shipping, part IV, ch. 5, § 4, adopts language to the she in fact took it in. Their presence at such a time, same effect:

" Where rats," he says, occasioned a so far as their presence constituted any element of leak in the vessel, whereby the goods were spoiled, danger to the cargo, was to that extent a defect in the the master was held responsible for the damage notship. Even if it were shown to be impossible to have withstanding the crew afterward, by pumping, etc., excluded the rats which caused the mischief to the did all they could to preserve the cargo from injury. pipe, a topic which it may be said we have not the ma- And this determination agrees with the rule laid down terials before us for discussing exhaustively, it would by Roccus, who says: If mice eat the cargo and still we think be doubtful whether a ship with rats on thereby occasion no small injury to the merchant, the board her that receives goods into her hold ought not master must make good the loss, because he is guilty to bear the responsibility for all damage done to the of a fault. Yet if he had cats on board his ship he goods by the rats.

shall be excused.' This rule and the exception to it, The burden, as we have said, rests upon the ship- although bearing somewhat of a ludicrous air, furnish owner. An owner of cargo bas no means of knowing a good illustration of the general principle, by which what has been done by the ship in respect of rats or the master and owners are held responsible for every what is the conditiou of the vessel. He has a right to injury that might have been prevented by human assume that the ship is reasonably fit for the carriage | foresight or care. In conformity to which principle, of his goods. The broad inference of fact which most they are responsible for goods stolen or embezzled on persons would accordingly be inclined to draw is that board the ship by the crew or other persons, or lost or rats capable of doing substantial mischief to a ship or injured in consequence of the ship sailing in fair cargo, and which do not come on board with the cargo weather against a rock or shallow known to expert itself, are not the kind of inevitable misfortune which mariners." happens to ships fit to carry cargo; that a rat and all It is not strictly necessary to decide what would be the direct or indirect mischief a rat does is, in other the result in the somewhat improbable case of a shipwords, a peril of the ship and not a peril of the sea.

owner who succeeded in proving that the presence of Sir William Jones (Essay on the Law of Bailments, rats that have caused mischief by leakage to the cargo, 105), commenting upon the case of Dule v. Hall, 1 was neither due to any defect in the reasonable coudi. Wils. 281, in which the rats had gnawed out the tion of his ship nor a matter which by reasonable preoakum and made a small hole through which the cautions could have been prevented. This hypothetiwater gushed, says that it must have been at least or- cal case of a possible exception to what we may call diuary negligence to let a rat do such mischief in a the broad and natural inference of faot is reserved by vessel, and quotes the Digest (19, 2, 13, 6): “Si fullo Marshall, vol. 1, p. 235, part 1, ch. 7. $ 4, where he says vestimenlu polienda ucceperit, eaque mures roserint, ex that the owners are liable for damage done by rats, locato tenetur, quia debuit ab hac re cavere.” The court unless it appear that all necessary precautions were of exchequer in Laveroni v. Drury, 8 Ex. 166; 22 L. J. used to prevent it. The academical question which (Ex.) 2, seem to have been of the same opinion. Speak- / Marshall and other writers have left open it is not ing of a passage from Roccus, which states that keep- | necessary in the present case to close, so far as relates ing cats on board excused the shipowner from damage to leakage caused by rats as distinguished from damby rats, Pollock, C. B., says: “Whatever might have age done by them to the cargo directly.

It is however obvious that the continental writers to Williams went on and took off a portion of the timwhom Story refers as entertaining a view that in such ber within the two years, and before the time limited a case the owner would be protected, wrote at a time had expired he agreed with James Ford, the owner of when ships were very different from the carrying ships the land, verbally, for an extension of time for one of the present day, uor indeed were their views fol. gear in which to cut and remove the balance. Before lowed by the court of exchequer in Luveroni v. Drury, this extended time expired, be and Ford agreed upon 8 Ex. 166; 22 L. J. (Ex.) 2, or by the exchequer cham- , another extension, to and including the winter of ber in Kuy v. Wheeler, L. R., 2 C. P. 302. It never 1885-6. This agreement was also verbal, and both of must be forgotten that the English law is less indul. ( them were withont auy new consideration passing gent to the carrier than either the Roman law or the from Williams to Ford. November 27, 1885, defend. law of many continental nations. In the present in- ants purchased the lands upon which the trees were stance, the burden of proof resting with the shipowner, standing from their uncle, and received a deed exeno facts have been established which raise this specu- cuted on that day. It was not a full covenant warlative point. It was consistent with all the findings ranty deed, but contained a covenant against the that the mischief done to the pipe and the incursion grantor's own acts. At the time of their purchase of sea-water which followed would never have hap: however they were fully inforined that the plaintiff pened but for either a defect in the condition of the had purchased the timber, and that the time in which ship or some want of providence iu the sbipowner or he was to cut and remove it had been extended by his servants. The question therefore does not arise verbal agreement, as above stated. Shortly after New whether there may not be a conceivable case of leak- Year's of 1886 the plaintiff commenced to cut the timage caused by rats which would not fall within the ber with a view of removing it, when he was forbid. broad and every day rule.

den to do so by the defendants, who claimed to owu For these reasons we are of opinion that the judg- the timber by virtue of their deed. ment of the court below must be reversed, and the Plaintiff desisted, and brought this action to recover appeal allowed with costs.

the value of the timber, buth standing and serered, Appeal allowed.

left on the land covered by his bill of sale from James Judgment for the plaintiffs.

Ford. The Circuit judge instructed the jury to reuSolicitors for plaintiffs: Hollams, Son and Coward.der a verdict for the plaintiff, but how much the verSolicitors for defendants: W. A. Crump & Son. dict should be was left to the jury to determine under

the testimony. The jury returned a verdict in favor

of the plaintiff for $546.33. LICENSE TO CUT TIMBER-EXTENSION-SALE Que of the principal questions presented for considOF LAND-LIABILITY OF GRANTEE.

eration is whether the limitation of time for the re.

moval of the timber from the land is a covenant that MICHIGAN SUPREME COURT, NOV. 4, 1886.

the purchaser will remove the timber in two years, or

a condition subsequent of the contract of sale, which WILLIAMS V. FLOOD.

upon default would terminate the right of removal,

and revest the title to such timber as remained upon A. agreed in writing to sell to B. the timber standing on cer- the land in the vendor. The question was raised, but

tain land, and provided that the same should be cut and not decided, in Green v. Bennett, 23 Mich. 464, as the
removed in two years. Afterward he agreed orally with facts of the case showed that the vendor bad treated
B. to extend the time for cutting and removing the same, the limitation of crime as a covenant, and bad sued
but before the time had expired A. made a sale of the the vendee for a breach thereof, and obtained judg:
land to C., who had actual notice of the parol agreement ment.
with B., and forbade his cutting any more. In the action In applying rules of construction, the language em.
of trespass on the case by B. against C. for the value of ployed in the instrument, the circumstances under
the timber, held, that the agreement for extension was a

which the contract was made, and the purpose for license to B , which C. had a right to revoke; that B. had

which it was made, are to be taken into consideraa right only to remove the timber which he had cut, until

tion. The operative words ju the written agreement forbidden by C. to cut any more; and that he could main.

“The party of the first part, for and in considertain no action against C. for the value of the standing

ation of the sum of $500, to us in hand paid by Henry timber.

W. Williams, the receipt whereof is hereby acknowlto Berrien.

edged, does by these presents sell, assign and convey

to the said Henry W. Williams all the standing timC. B. Potter (Clapp & Bridgman, of counsel), forber," etc. The words express the intention to sell and plaintiff.

convey the standing timber as timber attached to and N. A. Hamilton and Eduarl Bacon, for defendants

a part of the freehold, by which a present title was to

pass, and cannot be construed into an executory agreeaud appellante.

ment to sell and convey the timber when it should be CHAMPLIN, J. This is an action of trespass on the thereafter severed. case, to recover the value of certain standing and The agreement conveyed an interest in the land, down timber ou a parcel of land described in plain and was such as the statute of frauds required to be in tiff's declaration. On the 16th day of September, 1882, writing to be valid. Russell v. Myers, 32 Mich. 522; James Flood, who is an uncle of defendants, was the Wetmore v. Neuberger, 44 id. 362; Spalding v. Archiowner in fee of the land, and on that day, by a writ-bald, 52 id. 365; Putney v. Day, 6 N. H. 430; 8. C., 25 ing under seal, sold to the plaintiff “ all the standing Am. Dec. 470; Owens v. Lewis, 46 Iud. 488; S. C., 15 timber from and orer the size of vine inches in diam- Am. Rep. 295; Daniels v. Bailey, 43 Wis. 566; Slycum eter on the stump, situated, standing, or being upon v. Seymour, 36 N. J. L. 138. the land" in question. The instrument contained the When conveyed it was an interest in lands, and did following clause: “Giving and granting the said not cease to be such thereafter until severance. If the Herry Williams the undisputed right, for two years limitation as to time of removal should be construed from this date, to enter upon the said premises and as a covenant on the part of the purchaser that he remove the said timber, the same as if he, the said would remove the timber in the time specified, the Henry W. Williams, was the owner in fee of said title to the timber would remain in the purchaser land."

after the time limited bad expired, and he could still

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enter upon the premises, and remove the same at his licensee, or would be productive of great hardship, in
pleasure, being liable to the vendor for such damages such cases treating the license as an agreement to give
as he should cause in so doing. The vendor would the right.
also bave a right of action against his vendee for a The Circuit judge rightly left it to the jury to find
breach of the covenant in not performing the cove- whether the defendants refused to permit the plaintiff
pant as agreed. But it is perceptible at a glance that to remove such of the timber as he had severed before
this might be a very inadequate remedy. The stand the license was revoked, but he was wrong in instruot-
ing timber would be an incumbrauce upon his land, ing them to returu a verdict in favor of the plaintiff
and would deprive him of its use for agricultural pur- for the value of the standing timber.
poses and it would be a constantly-recurring injury The judgment should be reversed, and a new trial
quite incapable of estimation in dollars, and would ordered.
depreciate the marketable value of his land while the Campbell, C. J., and Sherwood, J., dissent.
timber remained. It cannot be claimed that the words
employed in the agreement amount to an express Cov-
enant to remove the timber in the time named. Nor UNITED STATES SUPREME COURT AB-
do I see that one is implied from the nature of the


It appears to me that the parties intended the one EVIDENCE-DECLARATIONS OF AGENTS-MEMORANto sell and the other to purchase the standing timber, DUM.-(1) In an action against a railroad company to upon the condition that it should be removed from recover damages for injuries received by a passenger the land within the time specified, and that the title on a train, a declaration of the engineer, made beto such as should remain upon the land at the expira-tween ten and thirty minutes after the accident oction of the time should revest in the vendor, the ef- curred, as to the rate at which the train was going at fect of the whole transaction being a sale of so much the time, is not admissible in behalf of the plaintiff. of the timber as the vendee should remove from the The acts of an agent, within the scope of the authorland within the time limited in the agreement for its ity delegated to him, are deemed the acts of the prinremoval. That this was the intention of the parties, as cipal. Whatever be does in the lawful exercise of that expressed by the contract, is borne out by the conduct authority is imputable to the principal, and may be of the parties, who appear to have placed this construc- proven without calling the agent as a witness. So in tion upon it. The vendee asked for and obtained a consequence of the relation between him and the verbal extension of the time upon two different occa- principal, his statement or declaration is, under some sions; and it is upon this extension of the time that circumstances, regarded as of the nature of original the rights of the parties depend in this controversy. evidence; “ being,” says Phillips, "the ultimate fact The breach of the condition worked a forfeiture of to be proved, and not an admission of some other the plaintiff's right and title to the remaining tim. fact.” 1 Phil. Ev. 381. “But it must be remember.

bered," says Greenleaf, " that the admission of the That the vendor could waive the forfeiture or breach agent cannot always be assimilated to the admission of condition cannot be disputed. That he did so in of the principal. The party's own admission, whenthis instance cannot be denied, if it was competent ever made, may be given in evidence against him; but for him to do so by parol. The defendants insist that the admission or declaration of his agent binds him the contract, being of that nature which the statute of only when it is made during the continuance of the frauds requires to be evidenced by writing, any exten- agency, in regard to a transaction then depending et sion of time in which it was to be performed must dum fervet opus. It is because it is a verbal act, and also be in writing to be binding. Abell v. Munson, 18 part of the res gestre, that it is admissible at all; and Mich. 306; Couk v. Bell, id. 393.

therefore it is not necessary to call the agent to prove This position would seem to be consistent with the it; but wherever wbat he did is admissible in evirulings of this court, holding that such a sale of stand-dence, there it is competent to prove what he said ing timber conveys an interest in real estate, and is about the act while he was doing it.” 1 Greenl. Ev., not valid unless in writing; for if the interest of the § 113. This court had occasion in Packet Co. v. vendee in the standing timber would cease at the ex- Clough, 20 Wall. 546, to consider this question. Repiration of the time limited in the contract for its re- ferring to the rule as stated by Mr. Justice Story in moval, the effect of the extension would be to grant a his Treatise on Agency, $ 134, that “where the acts of new or further interest in the land, and would re- the agent will bind the principal, there his represenquire a contract in writing as much as the original tations, declarations and admissions respecting contract.

the subject-matter will also bind him, if made at the If however the agreement for the extension was in- same time, and constituting part of the res geste," the valid as a contract, it would be good as a license, and court, speaking by Mr. Justice Story, said: “A close a protection to the vendee for any act done under it attention to this rule, which is of universal acceptuntil it was revoked. He would have the right to re- ance, will solve almost every difficulty. But an act move all the timber which he had cut up to the time done by an agent cannot be varied, qualified or exthe defendants forbade his cutting more; and if they plained, either by his deciarations, which amount to refused to permit him to enter upon their land for no more than a mere narrative of a past occurrence, that purpose, it would in law amount to a conversion or by an isolated conversion held, or an isolated act by them of the timber so cut. They would not be lia- done, at a later period. The reason is that the agent ble in this action for the timber standing upon the

to do the act is not authorized to narrate what he had land at the time the license was revoked. This must done, or how he had done it, and his declaration is no be the result in an action at law, especially in those part of the res gesta." We are of opinion that the decStates where the jurisdiction of courts of law and laration of the engineer, Herbert, to the witness equity are administered separately. In some States, Roach was not competent against the defendant for where the courts of law have equitabıe cognizance, re. the purpose of proving the rate of speed at which the liei is granted upon proper pleadings in common-law train was moving at the time of the accident. It is courts. Courts of equity have in proper cases en.

true, that in view of the engineer's experience and poforced a license, and restrained its revucation, where sition, bis statements under oath as a witness in resuch revocation would operate as a fraud upon the spect to that matter, if oredited, would have influence

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with the jury. Although the speed of tbe train was the case admits. The present case does not require us
in some degree subject to his control, still his author- to enter upon an examination of the numerous au-
ity in that respect did not carry with it authority to thorities upon this general subject; for it does not
make declaratious or admissions at a subsequent time appear here but that at the time the witness testified
as to the mauner in which, on any particular trip, or he bad, without even looking at his writteu state-
at any designated point in his route, he bad performed meat, a clear, distinct recollection of every essential
his duty. His declaration, after the accident had be- stated in it. If he had such present recollection,
come a completed fact, and when he was not perform- there was no necessity whatever for reading that paper
iug the duties of an engineer, that the train at the to the jury. Applying then to the case the most lib-
moment the plaintiff was injured was beiug run at eral rule announced in any of the authorities, the rule
the rate of eighteen miles an hour, was not explana- ings by which the plaintiff's were allowed to read the
tory of any thing in which be was then engaged. It physician's written statement to the jury as evidence,
did not accompany the act from which the injuries in in itself, of the facts therein recited, was erroneous.
question arose. It was, in its essence, the mere narra- It is however claimed in behalf of the plaintiffs that in
tion of a past occurrence, ilot a part of the res yesta- bis auswers to other interrogatories the physician tes-
simply an assertion or representation in the course of tified apart from the certificate to the material facts
conversation as to a matter vot then pending, and in embodied in it, and that therefore the reading of it to
respect to which his authority as engineer had been the jury could not have prejudiced the rights of the
fully exerted. It is not to be deemed part of the res defendant, and for that reason should not be a ground
gestæ simply because of the brief perivd intervening of reversal. We are unable to say that the defendaut
between the accident and the making of the declara- was not injuriously affected by the reading of the phy.
tion. The fact remains tbat ths occurrence had ended sician's certificate in evidence. It is not easy to de
when the declaration in question was made, and the termine what weight was given to it by the jury. In
engineer was not in the act of doing any thing that estimating the damages to be awarded, in view of the
could possibly affect it. If this declaration had been extent and character of the injuries received, the jury,
made the next day after the accident, it would scarcely for aught that the court can kuow, may have been
be claimed that it was admissible evidence against the largely controlled by statements. The practice of ad-
company. And yet the circumstance that it was made mitting the unsworn statements of witnesses, pre-
between ten and thirty minutes--an appreciable pe- pared in advance of trial, at the request of one party,
riod of time-after the accident, cavnot upon princi- and without the knowledge of the other party,
ple make this case an exception to the general rule. If should not be encouraged by further departures from
tbe contrary view should be maintained, it would fol- the established rules of evidence. While this court
low that the declarations of the engineer, it favorable will not disturb a judgment for an error that did not
to the company, would have been admissible in its operate to the substantial injury of the party against
behalf as part of the res geste, without calling him as a whom it was committed, it is well settled that a re-
wituess-a proposition that will find yo support in the versal will be directed unless it appears beyond doubt
law of evidence. The cases have gone far enough in that the error complained of did not and could not
the admission of the subsequent declarations of agents have prejudiced the rights of the party. Smitbs v.
as evidence against their principals. These views are Shoemaker, 17 Wall. 630, 639; Deery v. Crary, 5 id.
fully sustained by adjudications in the highest 795; Moores v. National Bank, 104 U. S. 630; Gilmer
courts of the States. (2) In an action brought by a v. Higley, 110 id. 50; S. C., 3 Sup. Ct. Rep. 471. Nov.
husband and wife to recorer for injuries to the latter, 1, 1886. Vicksburg & M. R. Co. v. O'Briert. Opinion
a written statement of her physician as to the nature by Harlan, J. Waite, C. J., Field, Miller avd Blatch-
and extent of her injuries, made at the request of the ford, JJ., disseuting.
husband after the writer had been attending the wife
for some time, is not admissible, in connection with the POST-OFFICE-CONTRACT IMPLIED FROM SERVICES.-
physician's testimony that it correctiy stated her con- GOVERNMENT MAIL CONTRACTS.—Where in the coudi-
àition at the time--it not appearing that the witness tiou for the carrying of the United States mails, at-
could not recall the facts therein stated at the time of tendant upon the land grant to a railroad corporation,
giving his testimony; and although the wituess testi. the postmaster-general is empowered to establish the
fied, apart from the writing, to the material facta em- price until tixed by Congress, such power includes the
bodied in it, the admission of it in evidence is ground power to prescribe the period of its duration which is
for reversul, as it cannot be determined what weight in his discretion, unless collateral stipulations, which
may have been given it by the jury. The authorities could not be enforced without consent of the com-
are uniform in holding that a witness is at liberty to pany, are annexed to the agreement with him. In
examine a memorandum prepared by him, under the that case a contract is created which cannot be disre-
circumstances in which this one was, for the purpose garded by the government without a breach of good
of refreshing or assisting his recollection as to the faith. The plaintiff, a railroad company, carried the
facts stated in it. But there are adjudged cases which United States mails for four years under a written
declare that unless prepared in the discharge of some contract with the postmaster-general. It was bound
public duty, or of some duty arising out of the busi- to carry the mails, under the terms of its land grant,
ness relations of the witness with others, or in the reg- at such prices as Congress should by law direct. After
ular course of his own business, or with the knowl the expiration of the written contraot the company
edge and concurrence of the party to be charged, and continued to perform the same services for four years
for the purpose of charging bim, such a memorandum more, receiving pay for some months at the old rate,
cannot under any circumstances be admitted as an in- then at a reduced rate fixed by the postmaster-general,
strument of evidence. There are however other cases and then at rates reduced twice successively by acts of
to the effect, that where the witness states under Congress, of which the plaintiff received notice. Held,
oath that the memorandum was made by him pres. on an action to recover the difference between the
ently after the transaction to which it relates, for the rates as reduced by Congress and the rates fixed by
purpose of perpetuating the recollection of the facts,

the postmaster general, no right could be implied and that he knows it was correct when prepared, al against the government from the continuance of the though after reading it he cannot recall the circum- / services, nor was plaintiff bound by the terms of its stances so as to state them alone from memory, the written contract. Nov. 1, 1886. Jacksonville, P. & M paper may be received as the best evidence of which R. Co. v. United States. Opinion by Field, J.

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