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damage? It seems to be very clear that a private person could do with impunity on his own property just what the railroad company has done. He might build a house and thus shut out his neighbor's view, light and air; he might build an embankment or run a road on or along his own line, and be liable for nothing as long as he used his house, embankment or road in a lawful manner, although in either case, an injury may have been done to the adjacent property.

persons to a burden which cannot be imposed upon natural persons.

As was said by Mr. Chief Justice Tilghman in the case of Shrunk v. The Navigation Company, 14 S. and R. 82, in his comments on the company's charter, which provided that compensation should be made "if any person or persons shall be injured by means of any dam or dams being erected as hereinafter mentioned," compensation shall be made," says the learned chief justice, "for all damages arising from immediate injury to property, but not for damages where there is no legal injury, which is called damnum absque injuria. And upon reflection we find that this was a wise restriction. There would be no end to damages for injuries, considered in the most extensive sense of the word. For not only may owners of land contiguous to the river complain of injury by obstruction of the ascent of the fish, but by all other persons living in towns or on lands near the river; there are other kinds of injury too sustained, particularly by owners of lands on the river, between Fairmount dam and the lower falls; all these persons have lost the benefit of navigation free from toll, in batteaux, flats, etc., which was very useful, as it served for carrying produce to market and bringing up manure for their lands; yet it has not been contended that for such injuries compensation is to be made. Suppose the health of the country to be injured by the evaporation from the dam, is compensation to be made for this, the greatest of all injuries? I presume not. Where, then, are we to stop, or what is to be the boundary, if we go beyond the line which I have mentioned?"

Who does not know that even in the country no householder escapes injury and annoyance from clouds of dust raised in dry weather by the passage of teams over the common roads? And in the cities this griev- | ance is further aggravated by the intolerable noise occasioned by the use of stone pavements. Nevertheless we have yet to hear of a case where one lawfully using such road or street was held liable for the injury thus occasioned. When a company takes, by its right of eminent domain, part of a tract of land, and the damages to the balance is to be measured by the advantage over the disadvantage resulting from the company's works in such case, as we held in Searles v. Railroad Co., 33 Peun. St. 57, contingent and even imaginary damages may be considered by way of offset to the alleged advantages. But whilst this is so, such damage cannot be regarded as a substantive claim. And we have a reiteration of the same doctrine in the case of the New Castle & Franklin Railroad Co. v. McChesney, 85 Penn. St. 522, wherein Mr. Justice Woodward remarks, citing the case above named: "It is well settled, even under more comprehensive legislation than this, that contingent damages cannot be taken into account as a substantive claim for damage." How then can we apply to the case in hand a rule of damages that never was applicable except under special circumstances, which do not here exist? It is contended however that this case is governed by the Constitution of 1874, which provides (art. 16, $8): Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed in the construction or enlargement of their works, highways or improvements," and the cases of Pusey v. City of Allegheney, | $8 Penn St. 52; Pittsburg Junction Railroad Co. v. MeCutcheon, 18 W. N. C. 527; Pennsylvania Railroad | Co's Appeal, id. 418, and the Pennsylvania Railroad v. Duncan, 111 Penn. St. $2, are cited in support of the rule contended for by the plaintiffs. But it is a mistake to suppose that these esses are in point. In the first there was not only the construction of a road, but an actual taking. In the Junction Railroad and Duncan case the injury arose directly from the construction of the works and the taking and obstruction of the plaintiff's rights of way, whilst the Pennsylvanis Railroad Co.'s appeal covers a case where, without a warrant of law, the company laid its tracks on a public street of the borough of Middletown. In the case in hand the plaintiffs sustained no injury from the construction of the viaduct, none of their property was taken, neither were any of their rights infringed, so thas neither by the Constitution nor by That the defendant might have hauled its freight the cases quoted, is there a warrant for the plaintiffs and passengers by ordinary carriages, drawn by horses, contention. We agree that over and beyond the from its West Philadelphia depot, through Filbert damages which arise from s taking of property, street, to its station at Broad and Market, without the whether in the shape of land or a right, the Constitu- risk of actionable damages, will, I suppose, not be tion does not impose on corporations a direct respon- doubted: yet certainly the resulting noise, dust and sibility for every injury for which a natural person annoyance to the adjacent property holders would in would be liable at common law; so we have held in such case be greater than under the present arrangethe case of Edmundson v. Railroad Co., 111 Penn. St. ment. Way then for a better method of transporta316, and to this doctrine we adhere, for such we think tion, shall it be held liable? To this question no is the spirit of that instrument, but beyond this we answer has been given but the dogmatic one alluded cannot go. Nor is there any reason why we should to. "The Constitution so provides." But as the depart from a rule so reasonable and subject artificial | Constitution does not so provide, and as the plaintiff's

This is the language of a very learned jurist, and the case is all the more in point in that the wording of the charter of the Navigation Company and that of the present Constitution is very much alike. Nor would the onerous and ruinous consequences be less to the defendant than those which the learned chief justice shows might befall the Canal Company were this doctrine contended for adopted. Every person who has property in city or country within hearing of the noise, or in reach of the dust, of a railroad, or for that matter, of a common road, might in the case supposed, have damages to be estimated as in the taking of the land, or as from a permanent injury arising from the construction of the railroad. If this Pennsylvania Company has been guilty of a nuisance, if in the use of its road it makes more smoke or dust than is lawfully allowable in the working of its machinery, and the plaintiffs are thereby injured, they have their remedy, but not for any thing short of this. Any other rule would lead to this remarkable result, that the plaintiffs would be entitled to damages without having suffered any injury; that is, for anticipated damages, and for which a natural person could not be held liable. Moreover the corporation would thus be made responsible for the manner in which it proposed to exercise its right, though such manner might not only be lawful, but the best possible, and the least injurious to the property of others.

contention has no support, either in statute or common law, we must refuse to entertain it.

The judgments are reversed and a venire facias de novo in each case awarded.

Mercur, C. J., Green and Clark, J.J., concur; Trunkey and Sterrett, JJ., dissent; Paxson, J., absent.

PARENT AND CHILD-EARNINGS OF CHILD -CONSIDERATION FOR DEED-WAR

BOUNTY.

SUPREME COURT OF APPEALS OF WEST VIRGINIA, FEBRUARY 12, 1887.

A bounty paid by the United States government, or by a State, city or county, to a minor, a citizen of the United States, during a war, upon his enlisting in the military service of the United States during a war, as well as his pay, belongs to the minor, and not to his father; and if such bounty and soldier's pay are received by the father from the son, they constitute a debt due to the son from the father, unless intended as a gift to the father by the son, and the father may satisfy such debt by a conveyance of land to the son, and such conveyance should be regarded as made for a valuable consideration, and not a voluntary conveyance.

BILL

ILL to set aside deeds. The head-note shows the point. The defendant had judgment below. W. H. Harvey, for appellant.

V. S. Armstrong, for appellees.

GREEN, J. [Omitting minor points.] But it is insisted, that the son being a minor when all these moneys were earned by him, they all belonged to his father; and when he received them of the son, he received them as his father, and as the person entitled to the money; and his subsequent conveyance of these lands without any consideration other than these moneys, and when he was solvent, must be regarded as a mere voluntary and fraudulent convey. ance, at least against the plaintiff, a creditor, when these voluntary deeds were made.

It would seem to be almost universally admitted that the father is entitled to the value of his minor child's labor and services. See Day v. Everett, 7 Mass. 145; Plummer v. Webb, 4 Mas. 380; Gale v. Parrot, 1 N. H. 28. None have ever disputed that this absolute right of the father to his child's labor extended till the child was fourteen years old. But the authorities very generally extend this right, and it seems to me justly, to the father during the whole minority of the child; that is, till he reaches the age of twenty-one, when the child is legally emancipated from the father's control. This seems to me but reasonable, as thereby the law would set off some years when the child may be useful against many preceding years when he was entirely helpless, and a simple charge upon the father. This right of the father to his minor child's services is well illustrated by a few cases to which I will refer, and which bear more or less resemblance to the case before us.

The first case to which I would call attention is Monaghan v. School District No. 1, 38 Wis. 104. Cole, J., in delivering the opinion of the court, says: "Is there any difficulty in the way of the father maintaining this action? The daughter was employed by the officers of the district to teach the district school. A written contract was entered into by which it was agreed she should teach the school for four months, and should be paid $25 a month for her services. The father was present when the contract was entered into, and assented to his daughter entering into it. The contract has been performed on her part. But it

is claimed that by the school laws a minor is competent to contract as a school teacher, and therefore such contract may be enforced by the minor the same as by an adult. It is conceded that the parent has the right to prevent his minor child from teaching, but assenting to her teaching, he, it is argued, must be held to assent to the contracting, with all its legal consequences. This is the argument. Is it satisfactory? Does it follow, because the parent assented to this employment, that he emancipates his child, and relinguishes his claim to her services? *

* It appears that the daughter is about sixteen years of age, and the father was charged with certain duties in respect to her, as education, support and protection, and as some compensation for these duties he has a right to claim her earnings. And there is no substantial objection to his maintaining this action. We are quite clear that the recovery will bar any future action by the minor."

In the case of White v. Henry, 24 Me. 531, it was decided that a minor was not emancipated by a marriage without the father's consent; and the son having so married, and gone to sea, being employed by one who knew he was a minor, but married, the father can recover from such employer the wages earned by such son. The court says: "The father has in no way consented he should have his earnings, but has always been ready and willing to support him. The defendants, knowing that he was a minor, without the knowledge or consent of the father, employed him as a seaman, and have paid him his wages in full. To allow the defense would hold out encouragement to sons impatient of parental control to resist the reasonable authority of their fathers, and give the latter little means to secure their own legal rights beyond the exercise of physical restraint." The plaintiff was given judgment against the defendant for three months and twenty days' wages at the rate of $14 per month, and interest.

In Weeks v. Holmes, 12 Cush. 215, where a minor shipped on a whaling voyage without his father's consent, it was held the father could recover of the employer the fair share, or lay, as it is called; that is, one per cent of the earnings of the voyage.

And in Bishop v. Shepherd, 23 Pick. 492, it was decided that where a minor shipped himself as a seaman in a whale-ship, without his father's consent, and deserted in the course of the voyage, whereby his share of the earnings, by the custom in such voyages, was forfeited, and inured to the benefit of the ship-owner, the father could sue the ship-owner for the value of the son's services and earnings upon an implied contract, if the father repudiated the contract of the son, as he had a right to do. The services due in this case were for three years.

If the Wisconsin case be sound law, and it seems to me that it is, then it would be unimportant, in the Maine and Massachusetts cases above cited, whether when the son shipped himself as a seaman, being a minor, he did so with or without his father's consent. In either case the father could recover the wages of his son under his contract for pay on the voyage. The only difference is, that if the minor son shipped himself as a seaman without his father's consent, the father could repudiate the son's contract, and recover for the value of his services without regard to the contract; but if the son shipped himself with the father's consent, the father could recover only such pay as under the contract the son, if of age, could have recovered.

But it is universally agreed that the father may voluntarily relinquish his child's earnings, though he be a minor, and allow him to earn for himself, and receive and appropriate his own earnings at his pleasure; and such an arrangement between the father and his

minor son is called an emancipation of the son. By such an agreement the son is put, in reference to his services, on the same footing as though he had at tained the age of twenty-one years, when the law itself would emancipate him. Such an emancipation by the father may be in writing or by parol, and may be proved by circumstantial evidence or it may be implied. There are some cases which seem to proceed on the idea that an emancipation may arise without the father's agreement, as the result of his failure to perform his obligations as a father, or his utter inability to do so. But it does seem to me this is not a correct principle. See Woods, J., in Jenness v. Emerson, 16 N. H. 489. But the right of the father to emancipate his minor son is unquestionable, and this right exists though the father be insolvent. See Campbell v. Cooper, 34 N. H. 49; Cloud v. Hamilton, 11 Humph. 104; Armstrong v. McDonald, 10 Barb. 30; Atwood v. Holcomb, 39 Conn. 270; Lackman v. Wood, 25 Cal. 147; McCloskey v. Cyphert, 27 Penn. St. 225; Dierker v. Hess, 54 Mo. 250; Hall v. Hall, 44 N. H. 293; Chase v. Elkins, 2 Vt. 290; Winchester v. Reid, 8 Jones (N. C.), 379.

There are two decisions which I have seen in which the facts resemble the case before us, and which were decided differently, because of a diversity in the facts of the two cases. The decisions themselves seem to be correct in both of them; and a statement of the character of these two cases, and an observation of the diversity between them which led to opposite decisions will, I think, aid us in reaching a correct conclusion in this case.

The first of these cases is Winchester v. Reid, 8 Jones (N. C.), 370. In this case the minor son had worked in a gold mine for some two or three years, at from seventy-five cents to one dollar per day, and he had no other property but these earnings. Having in this way accumulated money, when the son was between twenty and twenty-one years of age, the father, who was then largely indebted and insolvent, made a deed for a tract of land worth from $300 to $400 to his son, for which the son paid him down in cash $250, his earnings in working this gold mine, and gave his note to his father for $50, the residue of the purchasemoney. Parsons, C. J., delivering the opinion of the court, when the question involved was whether this deed was fraudulent, says: "A father is entitled to the services of his child until he arrives at the age of twenty-one. Musgrove v. Kornegay, 7 Jones (N. C.), 71. It is true, a creditor cannot make his debtor work to pay his debt, nor can be force him to make his children work, or sell under execution the valuable interest which a father has in the services of his child or which a master has in the services of his apprentice. But if in fact a child does work and earn wages, the proceeds belong to his father, and if the father invests the money so earned in the purchase of land, taking the title in the name of the child, the father being insolvent, his creditors can subject the land to the payment of their debts. Worth v. York, 13 Ired. 206. Therefore when the son worked at the gold mine, his wages belonged to his father, and he was bound as an honest man to have taken the money and applied it to his debts, instead of attempting, under the color of this money, which was his own, to pass this land into the hands of his son. The deed is voluntary and void against creditors." The appellants insist that the case before us is substantially like this case; and it is, unless there is a distinction between wages paid a minor for working in a gold mine and wages and bounties paid a minor for military services in the army of his country. Whether this would make any difference we will presently see.

The other case to which I refer is Jenney v. Alden,

12 Mass. 375. The facts in this case were, that when the son was about fourteen years of age, his father told him he might go to sea, and he (the father) would give him his time, or all that he should earn, till he should be twenty-one years of age. The son accordingly went to sea, and has followed the course of business ever since. The father at different times received the wages earned by his minor son. When the son was about nineteen years of age, the father caused to be executed to the son a deed for eighteen acres of land, which the father had bought and paid for; the father being then in good credit, and not involved, though he owed one debt to one Church. No account was kept of the wages of the minor son received by the father before this deed was made, but it was believed to be equal to the value of the land when so conveyed to the son, and it was intended as a compensation for the wages of the son, so received from time to time before that by the father. The father afterward became insolvent, and the court held that this was not a voluntary conveyance to the son, and was not fraudulent as to Church's debt, which was existing when this deed was made to the son. Parsons, C. J., said: "It appears there was an equitable consideration subsisting between the father and son; the former having received the earnings of the latter, an agreement having been entered into by the father that the son should enjoy the fruits of his own labor, although not of age to be emancipated. The agreement was a lawful one, and the money received by the father from the earnings of the son may be equitably considered as the earnings of the son, which if he could not obtain it by coercion, was yet a good and valuable consideration for any promise from the father, and would fully justify the consideration in this deed as paid by the son." This case resembles much the facts in the case before us, except in the important particular that in this case there is not the slightest evidence of an emancipation, and no reason to believe that there was any agreement between the father and the son that the son should enjoy the fruits of his own labor, though he was a minor. It is obvious that but for this agreement, made before the wages were earned by the minor son, the last decision would have been different, and the deed to the son would have been declared voluntary, and therefore fraudulent as to existing creditors of the father. And such would be necessarily our conclusion in this case on these authorities, unless there can be drawn a distinction between wages earned by a minor son when serving as a seaman in a private mercantile vessel, and wages and bounty earned by a minor son while serving as a soldier in the army of his country. So that the determination of this case must depend upon whether there be such a distinction.

The father is clearly entitled to the wages of his infaut son serving in a mercantile vessel owned by a private individual, except when he has before the wages have been earned agreed that the son might have all the wages he so earned though he was a minor. But it does not follow that the father is entitled to the wages and bounty received by his minor son, serving in the army or navy of his country as a soldier or sailor with the father's consent, though the father never agreed with the son, before such services were rendered, that he should have either the wages or the bounty. If in such a case the father is not entitled to the bounty and wages, then the decision of the Circuit Court in holding the deeds from the father to the son to have been made for a valuable consideration, and were therefore not fraudulent and void as to the father's creditors, must be sustained. Otherwise it must be reversed.

The oldest case on this subject which I have seen 18

an English case, Carson v. Watts, 3 Doug. 350. This was a suit brought to recover a minor's share of a prize taken by a privateer vessel during the war. It was brought by the administrator of the minor sailor against the owner of the privateer vessel, and the question involved was whether the minor's share of the prize belonged to him or to his master, as the minor, during all the time he served on this privateer, was an apprentice as a mariner, and the master received the wages due him for the two voyages the minor had made, and now claimed the prize money which was coming to this minor, his apprentice. The following were the opinions of the different judges in the case:

"Willis, J. I think the master is entitled to all the wages or money fairly acquired by the apprentice as for labor or service; but to any extraordinary gains he may acquire out of the usual course of his service I think the master not entitled. Suppose that in case of a wreck at sea, an apprentice, by any exertion of his own, had recovered part of the wreck from a ship stranded, would the master be entitled?

"Lord Mansfield. It is very extraordinary that no case has occurred since 1747. I did think it had been decided. Upon the first argument I thought it clear that whatever an apprentice who runs away gains in another service, eo nomine belongs to the master, aud is earned for him; and if it is any thing specific, the master may bring trover for it. I could see no difference in the case of a privateer or letter of marque, between wages and prize money, which is in lieu of wages. In men-of-war there is a difference. This is not like the case of extraordinary gain, as the instance put, treasure trove, recovery of wrecks, etc., for that is no remuneration of services. But I am now struck very much with the usage, and am unwilling to go against it. We must take the usage to be as stated by Mr. Ward [this usage was that the apprentice should have the prize money, and the master the wages], and I think it ought to decide.

"Buller, J. Independently of statutory regulations, the prize money is as much a bounty of the crown on board privateers as on board king's ships. There does not seem much difference in the case from that circumstance. I rather incline to the opinion that the apprentice is entitled to the prize money acquired."

The next oldest case is United States v. Bainbridge, 1 Mas. 71, decided in 1876. Judge Story, in the opinion in this case, on page 83, says "All the acts, from the first establishment of the navy, authorize the employment of midshipmen (who are invariably minors when they enter into the service), and all the acts since the statute of June 30, 1798, ch. 81, including those now in force, and under which the present applicant has been enlisted and held in service, in express terms authorize the president to engage and employ 'boys' in the ordinary duties of the navy. In no one of them is there any provision requiring the consent of parents or guardians to their engagement, or authorizing them to make it. The laws manifestly contemplate that it was a personal contract made by the infants themselves for their own benefit. They are entitled to the pay, the bounties and the prize money earned and acquired in the service. To suppose that the Legislature meant to authorize an infant to enlist in the navy, and yet the contract should be voidable at his election, would be to suppose that it meant to repeal the rules and articles of the navy in his favor, and enable him to desert when his services were most important to the public."

In Mears v. Bickford, 528, it was decided that "upon a contract made with his father's consent, between a minor and the defendant, to enlist as a substitute, the father cannot maintain an action in his own name. The bounty money is a gift to the person en

listing, and not wages; and it belongs to the minor, and not to his father or master." The court says (p. 529): "It has been held in Banks v. Conant, 14 Allen, 497, that a bounty paid by the national government, or by a State, city or town, to a child or apprentice upon his enlisting into the military service of the United States, belongs to him, and not to his father or master."

In Kelly v. Sprout, 97 Mass. 169, it was decided that bounty money, to which a minor becomes entitled upon his enlistment as a soldier, belongs to him, and not to his master, and that an agreement to give his military bounty to his master for permitting him to enlist was voidable by the apprentice on the ground of infancy.

So too money paid to the minor for his enlistment as a substitute, is to be regarded as a gift by the government, and the regular pay of the soldier which is regarded as pay for services rendered. It seems to me that there is no well-grounded distinction between the two. In time of war the government has a right to demand military service of its citizens, whether adults or minors, And it may compel the service, whether the citizen be minor or adult, whether he does or does not consent, and it may fix itself the price it will pay for such services. It seems to me therefore that this sovereign power of a government to require the military services of an infant, a citizen, in time of war, on what terms it pleases, makes it regular to pay to such citizen as much a gift or bounty as what is paid to induce the citizen to volunteer, is all to be regarded in the some light as bounty, and not as way for services. The sovereign power of the State supersedes the rights and powers of a father over his infant child in such a case; and as it may require the military services of an infant in a war, if it chooses, without any compensation, so it may fix what his compensation shall be. And if the State fixes the bounty to be paid, and the regular pay of the soldier, and directs it to be paid to the soldier who volunteers, whether a minor or an adult, no other person, in case the soldier be a minor, can claim such bounty or pay, whether the minor has been emancipated or not by his father or master. The . minor's right to receive such pay and bounty does not arise from his having obtained the consent of his father to receive the same, but from a better reason, that his sovereign State has directed it to be paid to him personally.

I am therefore of opinion that in this case Bartley F. Miller, though a minor when he received his bounty and pay as a soldier, was entitled to retain them as his own, and his father having received such bounty and pay, he thereby became indebted to his son; and as the amount of his indebtedness, including interest, exceeded the value of the land which his father conveyed to him, such conveyances cannot be regarded as voluntary and fraudulent against the plaintiff, a creditor of the father. This case, on this view of the law, becomes very like the case of Jenney v. Allen, 12 Mass. 375, and the principles on which the deed to the son in that case was decided to be not fraudulent and void, must control in this case, and require us to hold the two deeds from the father to the son as made for a valuable consideration, and not fraudulent. For these reasons the decree of the Circuit Court appealed from must be affirmed, and the appellees must recover of the appellent their costs in this court expended and $30 damages.

The other judges concurred in this opinion.

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action against a sheriff for levying upon a stock of goods in plaintiff's possession as mortgagee, the defense was that the mortgage was fraudulently given to protect the mortgagors against the claims of their creditors, and that the mortgagors were permitted to make sales out of the mortgaged stock for their own benefit. There was evidence tending to show that the mortgage was given for a valid indebtedness, and that the mortgagees employed an agent to look after the goods, and protect their interests. Held, that the question of fraud was properly submitted to the jury. (2) In such action there was evidence that the plaintiff made an arrangement with the mortgagor's bookkeeper by which the latter was to look after the interest of plaintiff as mortgagee. The court charged the jury that it was for them to say whether such arrangement, "if made, was made in good faith, and the intent was a change of possession and control, or on the other hand was a blind." Held, that a subsequent request by defendant to charge that "the possession of plaintiff by the book-keeper was not such a possession by plaintiff as to remove the case from under the statute," was properly refused. (3) Defendant's request to charge that "if the jury found that the plaintiff had an agent in the store of the mortgagors during the time the mortgage was in existence who knew the full facts of sale out of the mortgaged property, and that the mortgagors disposed of the proceeds of such sales for their own account, they should find for the defendant," held properly refused, (1) because the testimony did not warrant the assumption that the mortgagors made sales, and applied the proceeds to their own use; (2) because even if the plaintiff, through its agent, had notice of such sales and appropriation, such notice was merely evidence from which a previous agreement to permit them might be inferred. (4) A party may be examined, as to his own intentions and motives, when a question of fraudulent intent on his part is in issue, but he cannot testify as to the motives or intent of another party. (5) Where a witness has been examined upon a point in his direct examination, and is not cross-examined as to such point, it is discretionary with the trial court to permit further testimony on the point by the same witness on redirect examination. April 19, 1887. Manufacturers & Traders' Bank of Buffalo v. Koch. Opinion by Rapallo, J.

SALE-DELIVERY — CONDITION FOR PROMPT SHIPMENT. A Contract was made in New York, on February 2, 1881, for the sale of "about one hundred tons of old iron vignol rails for prompt shipment by sail from Europe, and for delivery on dock at the port of New York," at a certain designated price. On the following day (February, 3), a quantity of rails were loaded on a ship in Germany lying in a river forty miles from the sea. This river was frozen fast at the time, and remained unnavigable until the beginning of the following month of April, when the ship sailed, and reached New York on June 14, after a voyage of ordinary length. The vendors then tendered the rails, and the vendees refused to accept them, alleging a decline in their market value pending the delay in arrival. The evidence showed that rails of a similar character could have been readily obtained in other European ports, where a delay from ice could not have occurred. Held, that the vendors had not complied with the provisions of the contract for " prompt shipment," and that they consequently were not entitled to recover in an action brought by them against the vendees. This implies expedition, admits of less delay than would be permitted under a covenant to act merely within a reasonable time, and in effect the plaintiffs interpret it as meaning directly" or at once." Such indeed was their conduct. The con

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tract was made in New York on the second of February, 1881, and the plaintiffs rely upon a bill of lading showing that on the very next day, at Stettin, iron rails answering in description to those named in the contract were put on board a veseel chartered for New York. Therefore respondents' contention is that the whole condition is satisfied; and "if any delay thereafter occurred to the prejudice of the defendant, he must look to the ship for his indemnity." The last position fails when we see that no privity existed between the defendant and the vessel or its master, and that its only contract relation was with the plaintiffs. The sole object of prompt shipment was to secure a speedy arrival for delivery in New York. Until then the goods were at plaintiffs' risk, and only then could the defendant's liability attach. Before that event happened there was to be neither transfer of title nor transfer of possession. It is quite unimportant to inquire how it might be as between the master of the vessel and the plaintiff or the shipper, one of whom may be assumed to be the owner, and the other, by virtue at least of the bill of lading, entitled to possession. As to the plaintiffs in the case before us, it is more reasonable to construe the coudition of prompt shipment as a precedent to delivery, and so relating to the actual commencement of the voyage that the known unnavigable condition of the river could furnish no excuse for the delay. The defendant was entitled to such timely delivery as would follow an effective shipment; in other words, to an exact performance by the plaintiffs of their contract to ship and deliver, not two things separable in their nature, but two steps to a single end. That involves not only a purpose to transport, but an expectation that transportation would commence, if not at once, certainly within a reasonable time. Shipment cannot be said to have been made from Europe when the port selected had no passage-way or outlet. Nor can it be fairly argued even, that the iron was shipped "for delivery in New York," if it was apparent to the shipper that the vessel could not leave the docks where it took in freight. Something more than shipment was bargained for, viz., prompt shipment; and the delivery was to be within such time, as dangers of the sea only excepted, might reasonably follow. Nothing less could have been in the minds of the party than expedition, or immediate and effective or beneficial shipment as a step toward delivery. Payment was postponed to delivery, both to be made in New York. The sale was for shipment from Europe, altogether at the vendor's expense and risk, and no exception was provided for save "dangers of the sea," among which a certain and safe confinement in port is not included. Duncan v. Topham, 8 C. B. 225. "Prompt" is synonymous with "quick," sudden," precipitate." Indeed one who is ready is said to be prepared at the moment; one who is prompt is said to be prepared beforehand. Such represents the condition of the plaintiffs. Their immediate loading of the vessel shows that they were prepared beforehand; but if their construction of the contract is correct, the qualifying word might as well be one of postponement and delay. The fault was with the plaintiffs. It was optional with them to ship from any port in Europe. If at the time of shipment, the plaintiffs or their agents knew, or might have known, that detention and delay at the place of shipment, and before ground could be broken for the voyage, were unavoidable and to be expected, they must have also known that the delivery could not be made as contracted for, and the subsequent tender was too late. It was not a "prompt shipment," and the defendant was not bound to receive the cargo. I have not overlooked the argument of the plaintiffs by which our attention is directed to

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