forcible ejection. The plaintiff tendered to the conductor of the defendant a five-dollar gold piece for a five-cent fare. The conductor refused it and thereupon ejected the plaintiff from the car. Mr. Justice Paterson said: "The question on the merits to which counsel have mainly directed their arguments is, whether the passenger was bound to tender the exact fare. It is argued for the appellant that the rule in relation to the performance of contracts applies, and that the exact sum must be tendered. But we do not think so. The fare can be demanded in advance as well as at a subsequent time. And so far as this question is concerned, we see no difference in principle where the fare is demanded in advance and where it is demanded subsequently. If it be demanded in advance, there is no contract. The carrier simply refuses to make a contract. Consequently the rule in relation to the performance of contracts, whatever it be, has no necessary application. The obligation of the carrier in such case would be that which the law imposes on every common carrier, viz., that he must, if able to do so, accept and carry whatever is offered to him, at a reasonable time and place, of a kind that he undertakes or is accustomed to carry. This duty, like every other which the law imposes, must have a reasonable performance. And we do not think it would in all cases be reasonable for the carrier to demand the exact fare as a condition of carriage." 212. What denomination of money may be tendered. What denomination of money it will be reasonable to require a conductor to change has been considered in several cases. In the case just cited, as has been seen, it was held reasonable to tender a five-dollar coin. On the other hand, a tender of a fivedollar bill in a street car has been held unreasonable, at least where a regulation of the company required the conductors to furnish change for two-dollar bills, and no custom to change larger bills was shown.5 In the case of Barker v. Central Park, North and East River Railroad, Mr. Justice Bartlett said: "In the case at bar the reasonableness of the rule established by the defendant is obvious. In a large city like New York the round trip of a car of any street line means a very considerable number of fares paid in, and the necessity for the conductor to carry and pay out a large amount of small change. When the defendant enacted the rule requiring its conductors to furnish change to a passenger to the amount of two dollars it did all that could reasonably be expected of it in consulting the convenience of the general public, and it would be unreasonable and burdensome to extend the amount to five dollars. It would require conductors to carry a large amount of bills and small change on their persons, and greatly impede the rapid collection of fares." 7 The weight of authority may be said to favor the view herein expressed; but there is no doubt that a tender of a greater proportionate amount is unreasonable. Thus, a tender of a twentydollar bill to pay a fare of one dollar and twenty-five cents is obviously unreasonable. In so holding Mr. Chief Justice Robinson said: "The general practice is for the passengers to pay at the office and get tickets. The officer attending there might reasonably object to an offer of a twenty-dollar gold piece in order that one dollar and twenty-five cents might be taken out of it. If any or all of the passengers might put him to the trouble of giving back so much change as that, it would be impossible that the business could be transacted with the expedition which is necessary, or with proper caution, for there would be people probably who would soon take their chance of putting off coun 5 Barker v. Central Park N. & E. R. R. R., 151 N. Y. 237, 45 N. E. 550, 56 Am. St. Rep. 626, 35 L. R. A. 489 (1896); Muldowney v. Pittsburgh & B. Tr. Co., 8 Pa. Super. Ct. 335, 43 W. N. C. 52 (1898). 6 Supra. 7 Fulton v. Grand Trunk Ry., 17 Up. Can. Q. B. 428 (1859). terfeit coin or bills, if they found that the officer was obliged to receive them under circumstances which did not admit of his taking time to scrutinize them; and a person rushing into a car without a ticket has no reason to expect that he will find the conductor prepared to change a twenty-dollar gold piece, for he relies upon receiving tickets from the parties, or if money is to be paid to him instead, that it will be paid with reasonable regard to what is convenient under the circumstances." § 213. Tender of money refused as counterfeit. If the tender of a proper amount is made, the conductor refuses it at his peril. Thus, if he rejects a bill or coin as counterfeit, or a coin as too much worn, and the money is found to be in fact good, the carrier is responsible; and if the passenger was ejected on the ground that he refused to pay his fare, the carrier is liable for the wrongful ejection. But a refusal to carry one who presents a mutilated note is justifiable, although it could be redeemed, for the applicant cannot cast upon the carrier the redemption of it." § 214. Tender of fare usually waived by the carrier. But though the carrier is entitled to insist upon the payment of fare or freight before accepting passengers or goods for carriage, he may, of course, waive the requirement, and he does so. when (as usually happens) he accepts a passenger or goods for carriage without making such a demand. When this happens, he is a common carrier of the passenger or goods though the fare or freight has not been paid.10 8 Mobile St. Ry. v. Watters, 135 Ala. 227, 33 So. 42 (1902); Atlanta C. T. Ry. v. Keeny, 99 Ga. 266, 25 S. E. 629, 33 L. R. A. 824 and note (1896); Breen v. St. Louis Tr. Co., 102 Mo. App. 479, 77 S. W. 78 (1903); Jersey City & B. R. R. v. Morgan, 52 N. J. Law, 60, 18 Atl. 904 (1890); Vassau v. Madison E. Ry., 106 Wis. 301, 82 N. W. 152 (1900). 9 North H. C. R. R. v. Anderson, 61 N. J. L. 248, 39 Atl. 905 (1898). 10 United States.-Mellquist v. The Wasco, 53 Fed. 546 (1892). Illinois.-Ohio & M. R. R. v. Muhling, 30 Ill. 9, 81 Am. Dec. 336 (1851); TOPIC C―GOODS MUST BE TENDERED IN A PROPER MANNER. § 215. Goods must be tendered to the carrier at proper time. Carriers of goods are only obliged to accept goods which are actually presented to them for carriage at a reasonable time and place. Thus, in Frazier v. Kansas City, St. Joe & Council Bluffs Railway,1 where a complaint was made against a railroad for not forwarding freight offered, it was proved that the cattle in question had not arrived at the station when the train was being loaded, but that the shipper had sent ahead and requested that the train be held until he could get his cattle to the station and load them; it was decided that the railroad was not liable. Mr. Justice Day said: “A delay of a few minutes at one station might occasion a corresponding delay of every train on the line of road, and even result in accidents destructive of property and life. No person desiring to become a passenger upon a train could rightfully demand a delay of one minute to enable him to reach the train and get on board. Upon what principle, then, can these plaintiffs demand damages because the defendant's train did not wait until they could drive their hogs into defendant's yard, load four cars, count them, have way-bill made out, shipping contract signed, and the hogs placed in the train?" Woods v. Devin, 13 Ill. 746, B. & W. 130 (1852); Frink v. Shroyer, 18 Ill. 416 (1857); Cleveland, C., C. & S. L. R. R. v. Scott, 111 Ill. App. 234 (1903). Indiana.-Evansville & T. H. R. R. v. Keith, 8 Ind. App. 57, 35 N. E. 296 (1893). Iowa.-Russ v. Steamboat War Eagle, 14 Ia. 363 (1862). North Carolina.-Porter v. Raleigh & G. R. Co., 132 N. C. 71, 43 S. E. 547 (1903). Texas. Houston & T. C. R. R. v. Washington (Tex. Civ. App.), 30 S. W. 719 (1895). 148 Iowa, 571 (1878). § 216. Passengers must enter vehicle at the proper time. A passenger must present himself for carriage and enter the train at the proper time, neither too early nor too late. He cannot force himself on the railroad as a passenger by entering the car prematurely. Thus, he does not become a passenger by entering the car before it has been placed in a position in which passengers are to be received,2 cr by entering the car, even if it is at the proper position at the station, if it is not yet ready for passengers.3 Similarly, a person who reaches a train after it begins to move has no right to be received, and if he attempts to board he is not a passenger.* 217. Goods must be tendered properly packed. 5 The carrier may refuse to receive goods for carriage unless they are properly packed; and indeed he must so refuse or take the risk from the improper packing. The same thing is true where freight is improperly loaded on a car by the shipper; the carrier must decline to accept it, properly prepare it himself for carriage, or be responsible for its safety. But the requirements of the carrier as to packing must be reasonable; he cannot reject a package on this ground if it is in fact rea 2 Farley v. Cincinnati H. & D. R. R., 108 Fed. 14, 47 C. C. A. 156 (1901); Curry v. Georgia M. & G. R. R., 92 Ga. 293, 18 S. E. 422 (1893). 3 Brown v. Scarboro, 97 Ala. 316, 12 So. 289 (1893); Hodges v. New H. S. Co., 107 N. C. 576, 12 S. E. 597 (1890); Tillett v. Lynchburg & D. R. R., 115 N. C. 662, 20 S. E. 480 (1894). 4 Illinois C. R. R. v. O'Keefe, 168 Ill. 115, 48 N. E. 294, 61 Am. St. Rep. 68n, 39 L. R. A. 148 (1897); Merrill v. Eastern R. R., 139 Mass. 238, 1 N. E. 548, 52 Am. Rep. 705 (1885); Georgia Pac. Ry. v. Robinson, 68 Miss. 643, 10 So. 60 (1891). 5 The David & Caroline, 5 Blatch. 266, Fed. Cas. No. 3,593 (1865); Union Express Co. v. Graham, 26 Ohio St. 595 (1875). 6 Elgin, J. & E. Ry. v. Bates Mach. Co., 98 Ill. App. 311 (1901). See Miltimore v. Chicago & N. W. R. R., 37 Wis. 190 (1875). Compare Michigan Congress Water Co. v. Chicago & G. T. Ry., 2 Int. Com. Rep. 428 (1888). |