2. If different minds might honestly draw from the testimony (from which the negligence of the defendant could reasonably be inferred) different conclusions as to the cause of the accident, the settled legal rule is that such material question remaining in substantial dispute belongs to the province of the jury.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, § 327.]

3. In the trial of actions arising ex delicto, the lex fori is controlling upon the question of the quantum of evidence requisite to place the cause within the province of the jury; such question concerns the order of judicial proceedings where the action is instituted.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Mrs. Ferguson against the Central Railroad Company of New Jersey and others. Judgment for defendants, and plaintiff brings error. Reversed.

The par

On May 8, 1900, Charles Ferguson, a locomotive fireman, while engaged in the performance of his duties upon the engine of the Central Railroad Company of New Jersey (running upon the roadbed of the Philadelphia & Reading Railway Company) was, by its sudden derailment, thrown underneath it and killed. The accident occurred on the latter company's railway at a street crossing near its Jenkintown station, in the state of Pennsylvania, and the widow of the deceased has brought her action in its present form, under the authority of the statutes of that state, to recover damages from the defendants for the death of her husband, on the ground of their negligence. ticular negligence charged in the plaintiff's declaration and defined in the evidence relates to the obstruction of the railway tracks and the roadbed by drifted stones, gravel, sand, and dirt, which the plaintiff claims were negligently permitted by the defendants to be there, so as to cause the derailment. It was also insisted by the plaintiff that the signal displayed in the sight of the engineer and fireman at the crossing was a notification to the effect that the track was clear there, and misled them, and was, under the circumstances shown, a negligent act of the defendants. The plaintiff's evidence tended to establish the following circumstances, viz.: The locomotive attached to a fast express train of five cars, called "The Royal Blue Line" (made up in the west), was running from Philadelphia to Jersey City a little after 3 o'clock p. m. of the day named, at the rate of about 30 miles an hour at the time of the accident. The engineer testified that he saw the signals notifying him that the crossing was clear on the bridge on the east end of the station platform "twentyfive or thirty feet in the air," and that both he and Ferguson, the fireman, saw them "a half minute before he struck the crossing," and that he "had time to sit down on the seat and pull the engine open"; that it was then very cloudy and dark, and raining hard; that he had no trouble in seeing the signals as soon as he "could get near enough to them

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to see through the rain." He thus relates what immediately followed, viz.: "I saw the signal, and we pulled out and went over the crossing, and the next thing the engine apparently went up in the air. * She apparently raised right up in front-drivers and everything raised up * * high enough to throw me off the seat. * * The engine jumped the track, and went off into the platform-struck the depot and turned over. It went over something-some kind of obstruction I went I have reason to believe that obstruction was on the crossing. That is about where I felt her go up-I thought, about on the crossing.

over.

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She went from the crossing, about midway from the crossing, I think-the center. She dragged right across on the ties; she left the track about the middle [of the crossing] I think. She turned over; went off on the right side of the track; turned completely around towards Philadelphia. I stayed from the time of the wreck until 6 o'clock. I saw dirt and sand taken off the crossing; piled up each end of it-I should think pretty near a wagon load on each side. I was delayed there, may be half an hour, while they were shoveling the dirt off. The dirt and gravel seemed to be wet." Another witness, who had gone to the derailed engine immediately after the accident, saw the fireman dead underneath it, and thus described the condition of the crossing, viz.: "It was covered with water, partially, and on the crossing there was a lot of 'wash'-stones from the size of a hen's egg to the consistency of granulated sugarall that stuff that comes together by the rain; it was all washed on the track; I suppose there were three or four cartloads. I saw this 'wash'-these stones from the size of hens' eggs down to the size of fine sand-upon the track; that is what took my attention more than anything, was the 'wash,' and where the train passed on the crossing. *

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* It was not all spread out so much; it was washed up in a kind of cone right in the 'left-hand track,' I call it (I call the two inside tracks where there is a double track the left-hand track), and on the left-hand track was the largest accumulation of this stuff; on the outside track-the right-hand track-there was not so much of it; it was all washed on this left-hand track; that is where it accumulated the most." The derailed engine weighed about 92 or 93 tons, was moving on the left-hand (westerly) track when wrecked, and was thrown over upon the right-hand (easterly) track in the direction in which the obstruction upon the westerly track would naturally force it to fall. A local train moving upon the same track about three minutes before the accident had safely passed the crossing. The plaintiff also offered evidence tending to prove that the crossing was situated in a natural depression of the ground, and at a lower level than the

surrounding lands, and that during very severe rain storms the surface water ran down there and carried with it and deposited upon the railroad tracks large quantities of sand, stones, and dirt; that the drainage system as there constructed by the railroad company was inadequate for the proper discharge of such surface water from this crossing; that the culvert placed under the roadbed at the crossing by the company for the purpose of venting the surface water was too small in size and capacity to accomplish such purpose, and that, in consequence, the water accumulated there after extremely heavy rains, and deposited dirt and other solid materials upon the railroad tracks. This action was brought in this state, under the statutes of the state of Pennsylvania by the plaintiff, suing as the widow of the deceased fireman, and not in a representative capacity; but no objection has been raised in this regard. The trial justice, upon the motion to nonsuit, expressed himself, inter alia, as follows, viz.: "If there had been proof in the case that the stones were so packed about the track that it was likely or probable that they did or could derail the engine, I should have been inclined to take a different view of the situation."

John H. Backes and Clarence H. Murphy, for plaintiff in error. Thompson & Cole and George Holmes, for defendant in error.

VREDENBURGH, J. (after stating the facts). The foregoing evidence sufficed to lay a foundation from which the jury could legitimately infer that the cause of the sudden uplifting and overthrow of the engine was the deposit upon the railway track of the sand, stones, and materials washed down by the rainstorm so as to become suddenly impacted or wedged in front of the fast moving locomotive, and so obstructed its passage as to raise it up from its tracks and derail it in the manner described in the plaintiff's evidence.

In taking this case from the jury, the court erred. Upon the correct ascertainment and determination of the cause of the derailment depended the further questions at issue bearing upon the performance by the defendants of their legal duties of proper inspection and care to discover and remove from their tracks obstructions likely to derail a locomotive moving thereon, as well as

upon their liability, if any existed, for the nonperformance of duties relating to the drainage of surface water at the place of the accident.

If different minds might honestly draw from the testimony (from which the negligence of the defendant could reasonably be inferred) different conclusions as to the cause of the accident, the settled legal rule is that such material question remaining in substantial dispute belongs to the province of the jury. Newark Passenger Railway Company v. Block, 55 N. J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374; Traction Co. v. Scott, 58 N. J. Law, 682, 34 Atl. 1094; Smith v. Erie Railroad Co., 67 N. J. Law, 637, 52 Atl. 634, 59 L. R. A. 302; Adams v. Camden & Suburban Railroad Company, 69 N. J. Law, 424, 55 Atl. 254.

Upon the matter just considered, relating to the quantum of evidence required to place the case within the province of the jury, the law of the forum is controlling. It is a part of the order of judicial proceedings where the action is pending. The law of the place where the right was acquired or the liability was incurred will not govern the decision of such question. The general rule of the common law, sustained by numerous authorities, is thus stated by Story in Conflict of Laws (8th Ed.) p. 775, viz.: "That, in regard to the merits and rights involved in actions, the law of the place where they originated is to govern; but the form of remedies and the order of judicial proceedings are to be according to the law of the place where the action is instituted, without any regard to the domicile of the parties, the origin of the right, or the country of the act." To this effect, also, see Northern Pacific R. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958, approving Herrick v. Minn. & St. L. R. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771, and cases there cited. And this has long been the settled doctrine of the courts of this state in actions upon contract. Gulick v. Loder, 13 N. J. Law, 68, 23 Am. Dec. 711; Wood v. Malin, 10 N. J. Law, 247; Garr v. Stokes, 16 N. J. Law, 403, 405; Harker v. Brink, 24 N. J. Law, 334; Armour v. McMichael, 36 N. J. Law, 92, 94. The same principle applies to actions of tort. See cases cited.

The judgment below should be reversed, and a venire de novo awarded.

(77 Vt. 375)

JANGRAW v. PERKINS. (Supreme Court of Vermont. Washington. April 5, 1905.)

BASTARDY-MARRIAGE

SECURITY FOR SUPPORT -MORTGAGES-VALIDITY-PUBLIC POLICY.

Bastardy proceedings having been instituted against R., he offered to marry the complainant, and, in order to induce her and her father to consent thereto and to dismiss the proceedings, defendant executed a mortgage conditioned that R. would support the complainant and child, and not desert them. Held, that such a mortgage was not contrary to public policy, and on breach of the condition was enforceable.

[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 520, 645.]

Appeal in Chancery, Washington County; Rowell, Chancellor.

Bill by Oughtney Jangraw against Joseph Perkins. From a decree sustaining a demurrer to the bill, the orator appeals. Reversed.

Argued before TYLER, MUNSON, START, WATSON, HASELTON, and POWERS, JJ. R. M. Harvey and E. M. Harvey, for appellant. Heaton & Thomas and Frank S. Williams, for appellee.

POWERS, J. When this case was here on a demurrer to the original bill (Jangraw v. Perkins, 76 Vt. 127, 56 Atl. 532) it was held that the contract set forth therein was contrary to public policy, and void. The cause was remanded. The bill has been amended, and the sufficiency of the amended bill is now submitted to our determination.

The facts now shown by the record, so far as it is necessary to recite them, are as follows: Mary Jangraw, the unmarried minor daughter of the complainant, being pregnant, instituted bastardy proceedings against one Revett, and caused his arrest thereon. Revett gave bail, acknowledged that he was the father of the child, and offered to marry the girl. Mary and her father objected to the marriage and the discharge of the bastardy proceedings, unless Revett gave security for the support of the mother and child. Thereupon the defendant, a relative of Revett's, at Revett's procurement, executed the mortgage here in question, and agreed to deliver the same to the complainant upon the marriage of Mary and Revett and the discontinuance of the bastardy proceedings. Relying upon this mortgage, the complainant and his daughter consented to the marriage. The ceremony was performed, the bastardy proceedings discontinued, and the mortgage delivered according to the agreement. After a time Revett deserted his wife and child, and neglected and refused to care for and support them.

This is an entirely different case than was before presented. The new allegations relieve the contract of its objectionable features, and the rule which controlled the case as made by the original bill does not now apply. A marriage between parties situated 60 A.-25

as these were is especially favored and encouraged by the law; not only that the most appropriate recompense may be afforded, and the most effectual reparation may be made, but that the offspring may be made legitimate; and the contracts and undertakings of the seducer made in contemplation of such a marriage are valid and binding. Bish. Cont. § 511. In Wyant v. Lesher et al., 23 Pa. 338, John Lesher, one of the defendants, addressed the daughter of the plaintiff, and, she being pregnant, he refused to marry her, and a prosecution was instituted against him. After his arrest he proposed to marry the girl, and the plaintiff required from him security that he would treat her well and not desert her. He thereupon gave a bond, with surety, the condition of which was that “he treats her as a loving and affectionate husband ought to do, and not to desert her," the penalty being payable to the plaintiff for the use and support of the daughter and her heirs; and the father consented to the marriage. The action was on the bond. It was urged in behalf of the defendants that the bond was without consideration, and was against public policy, and void. Both points were ruled in favor of the plaintiff. "I see no more tendency," said the court, "in such a contract as this bond, to disturb the har mony of conjugal life than in a marriage settlement, or in articles entered into after marriage looking to a future separation. This husband stipulated simply for the performance of his duty, and a faithful discharge of that was the surest way to preserve peace in his family. Among the most imperative of the duties assumed in the marriage contract were the support and maintenance of his wife and child, and for these it was prudent in her father to exact from him a security additional to the marriage vow." In Wright v. Wright (Iowa) 87 N. W. 709, 55 L. R. A. 261, the plaintiff had given birth to an illegitimate child of which the defendant's son was the father. She afterwards entered into a written agreement of marriage with the younger Wright. At the same time, and as a part of the same transaction, the defendant executed a written agreement with the plaintiff, which contained the following provision: "If she [the plaintiff] shall marry said Edward Wright on this day, and perform the duties of a wife to said Edward Wright to the best of her ability, and Edward Wright should forsake her or her child, Edward Wayne Wright,

then I will furnish a home for her and said child." The husband deserted the plaintiff; and suit was brought on the contract. It was insisted in defense that the contract was without consideration, and was contrary to public policy. Judgment was given for the plaintiff in the lower court, and in affirming that judgment the court quotes approvingly from the opinion in Wyant v. Lesher, supra. Armstrong v. Lester et al., 43 Iowa, 159, was an action on the

following contract: "One day after date I promise to pay Russell Armstrong for the use of Isabel Nicholson, or the child with which she is now pregnant and of which the principal hereof is the father, sum of five hundred dollars.

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the

Pro

vided that if A. W. Lester, principal, shall marry and in good faith live and abide with and support Isabel Nicholson, and support and keep and care for the child with which she is now pregnant and of which he is the father, no part of this note shall become due or payable; but if he should not marry, or, having married, leave or abandon her for any cause, this note shall become and shall be considered due. * [Signed] A. W. Lester, Principal. J. T. Lester, H. W. Lester, Sureties." The sureties defended. After holding that the consideration was sufficient, the court says: "It is urged that the contract is illegal, and against public policy. But an obligation whereby one secures a provision made for a wife and child, so far from being illegal, is regarded with favor by the law. * • Marriages celebrated under such circumstances are encouraged by the law. All settlements and contracts entered into in contemplation of such marriages, which have been fairly made, and would, under other circumstances, be upheld, cannot be defeated." The new allegations of the bill bring the case under consideration squarely within the authority of these cases, the reasoning of which is satisfactory and decisive.

Decree reversed pro forma, demurrer overruled, bill adjudged sufficient, and cause remanded, with costs in this court to the complainant.

1. Where the final letter in a correspondence leading up to the contract shows that it was intended to embrace the whole agreement, and to finally conclude it, it is the only evidence of the contract; and oral testimony of what was said or done during the negotiations, or other letters written pending the negotiations, will not be permitted either to contradict the written contract, or to supply terms with respect to which the writing is silent.

2. The construction and effect of a written instrument is a matter of law to be determined by the court, and not by the jury.

[Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 767-770.] (Syllabus by the Court.)

Error to Circuit Court, Essex County. Action by the Grueber Engineering Company against Edward M. Waldron and others. Judgment for plaintiff, and defendants bing error. Reversed.

James E. Howell, for plaintiffs in error. Frank E. Bradner, for defendant in error.

FORT, J. There are but two matters assigned for error in this case. The first is that the trial judge erred in holding that the contract between the parties under which the freighthouses were to be erected was contained solely in the letter of the plaintiff of November 2, 1901, and the reply thereto of the defendants of November 7, 1901. In this we think there was no error. Much correspondence had occurred between the parties, and at least one interview, before the proposition of November 2, 1901, was. written by the plaintiff, and the reply of November 7, 1901, accepting the same, was written by the defendants. A careful examination of the evidence shows that these two letters of November 2d and 7th embrace the whole of the finally concluded terms of agreement between the parties, and that all the other letters, telegrams, and interviews were introductory. This conclusion therefore justified the trial court in directing that the $600 item on "difference between estimates for short and long delivery," referred to in the earlier correspondence, was not to be deducted from the $6,900 fixed in the letter of November 2, 1901, as the consideration for the work agreed to be done. Where a final letter in a correspondence shows that it was intended to embrace the whole agreement and to finally conclude it, it is the only evidence of the contract; and oral testimony of what was said or done during the negotiations, or other letters written pending the negotiations, will not be permitted, either to contradict the final written contract, or to supply terms with respect to which the writing is silent. This rule is now so well settled in this state that it is axiomatic. Hallenbeck v. Chapman (N. J. Sup.) 58 Atl. 1096; Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380; Bandholz v. Judge, 62 N. J. Law, 526, 41 Atl. 723; Hanrahan v. N. B. L. & P. Association, 66 N. J. Law, 80, 48 Atl. 517; Van Horn v. Van Horn, 49 N. J. Eq. 327, 23 Atl. 1079; McTague v. Finnegan, 54 N. J. Eq. 454, 35 Atl. 542; Russell v. Russell, 60 N. J. Eq. 282, 47 Atl. 37; s. c. 63 N. J. Eq. 282, 49 Atl. 1081.

The other error assigned is that the trial judge submitted to the jury the question as to whose duty it was, under the written contract in evidence, to brace the columns furnished and erected by the plaintiff. The contention of the defendants was that it was a part of the duty of the plaintiff, under the contract, to do the work of bracing the columns. It was undisputed that the plaintiff had not done the bracing. The defendants had been compelled to do so, and sought to set off against the contract price the expenses reasonably incurred in doing the work which the plaintiff was required to do. Whether the plaintiff was required to do the work of bracing, under the contract, the trial judge left to the jury, and they found in favor of the plaintiff. We

think that upon this point the contract was free from doubt, and that by its terms the plaintiff was required to do the bracing, and hence it was error to leave this question to the jury. Smith v. Lunger, 64 N. J. Law, 539, 46 Atl. 623; Rogers v. Colt, 21 N. J. Law, 704. By the defendants' letter of November 7, 1901, accepting the proposition of the plaintiffs in their letter of November 2, 1901, it is expressly stated that the two freighthouses are to be erected "according to the plans and specifications of Mr. Joseph O. Osgood, Chief Engineer." These specifications expressly required that "all columns must be well braced in course of erection." The proposal of the plaintiffs, by their letters of November 2, 1901, was to erect "the whole complete in place, for the sum of six thousand and nine hundred dollars." These three writings, when together, leave no room for a disputed question of fact as to the duty of the plaintiff to do the bracing of the columns in question. It was the duty of the court to so say to the jury, and, if the work done by the defendants was reasonably necessary to make good the work which the plaintiff was required to do, but failed to do, the item of expense claimed for the work was one which the defendants were entitled to have allowed against the plaintiff's claim in suit.

For this error there must be a reversal, with a venire de novo.

NEW JERSEY TRUST & SAFE DEPOSIT CO. et al. v. BODINE et al.

(Court of Chancery of New Jersey. March 15, 1905.)

CORPORATIONS-BILL FOR STOCKHOLDERS-EVIDENCE OF OWNERSHIP-BONA FIDE PURCHASER-DELIVERY OF CERTIFICATE.

1. Complainants, who base an equity upon the ownership of certain shares of stock, which ownership is in dispute and is denied, must affirmatively prove their own title. in order to be entitled to the relief sought. If the complainants fail to show that they have title to the disputed shares as alleged, it is immaterial whether the defendant who claims them has title or not.

2. One who accepts and pays for certificates of stock which are indorsed by a blank power of attorney to transfer them, signed by the party to whom they were issued, is not a bona fide purchaser, if he had previous knowledge that those shares were in pledge; and the party from whom the buyer receives them, and whom he paid for them, was neither the pledgee nor the pledgor, nor entitled to act for either.

3. Mere physical delivery of certificates of stock, indorsed by a blank power of attorney to transfer them, duly signed by the party to whom they were issued, will not pass title to them, even if value be paid, if the purchaser knows that those shares were in pledge, that the pledgee is dead, and the party assuming to dispose of them is neither the administrator nor executor of the deceased pledgee, nor entitled to act for such a representative, nor for the pledgor.

(Syllabus by the Court.)

Bill by the New Jersey Trust & Safe Deposit Company and others against Charles H. N. Bodine and others. Dismissed.

The complainants in this cause are the New Jersey Trust & Safe Deposit Company, a corporation of this state, administrator of the goods, etc., of J. Alfred Bodine, deceased (hereinafter referred to as the "Trust Company"); Ernest C. Bodine and others, trustees for the next of kin of said J. Alfred Bodine; Ernest C. Bodine individually; Louis F. Bodine individually; and Herbert B. Garwood and Samuel Garwood. These complainants claim to be, in the aggregate of their severally owned shares, the holders of a majority of the capital stock of the John V. Sharp Company, a corporation of this state conducting a canning business at Williamstown, in Camden county. They set out in their bill of complaint a list of the shareholders, showing that together they hold 1 more share than a majority of the whole capital stock issued; that this ownership of a controlling majority of the stock is dependent upon the holding of 15 shares, which, on the books of the company, stand in the name of the complainant Samuel Garwood, and are evidenced by 2 certificates issued to him by the company-one (No. 26) for 8 shares, and the other (No. 57) for 7 shares. Those certificates have been produced in evidence on the hearing of this cause. No. 26 was issued May 26, 1890. No. 57 was issued January 18, 1900. The complainants allege: That the complainant trust company, as administrator, etc., of the estate of one J. Alfred Bodine, deceased, had entered a judgment in New Jersey Supreme Court against Samuel Garwood and Luther M. Halsey on November 10, 1902, for $6,910.06, damages and costs, and another judgment on the same day against one Luther M. Halsey for $267.64, damages and costs. That, on executions issued under said judgments, lands of said Halsey were seized and sold to his wife, Alice B. Halsey, and difficulties arose in regard to her completing her purchase, and other proceedings were instituted to reach other lands claimed to belong to the defendant Halsey. Pending these matters a proposition was made to the trust company, administrator, etc., which resulted in an agreement to settle both judgments. By this proposal the trust company was to cancel or assign the judgments, and to pay Alice B. Halsey $750, the par value of 15 shares of the stock of the John V. Sharp Canning Company, standing in the name of said Samuel Garwood, which was then in possession of and owned by said Alice B. Halsey or Luther M. Halsey, and, in addition, said Luther M. Halsey was to sell and deliver to the trust company 80 shares of the Bodine & Chew Company stock, and also 7 shares of the John V. Sharp Canning Company stock, standing in the name of Alice B. Halsey, to pay all the costs of the trust company, agreed to be $300. That by this