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Opinion of the Court, per GROVER, J.

will be given to a party who seeks it if he has not been grossly negligent, and comes within a reasonable time, although he has not complied with the strict terms of the contract. But in all such cases the court expects the party to make out a case free from all doubt, and to show that the relief which he asks is, under all the circumstances, equitable; and to account, in a reasonable manner, for his delay and apparent omission of his duty.” Applying these principles to the facts found in the present case, I think it clear that the plaintiff was not entitled to the relief granted by the court. He had paid no part of the purchase-money. The vendor had remained in possession, so far as appears, regarding and using the premises as his own. The plaintiff delayed for three years and a half in commencing his action, without giving any intimation to the defendant in the mean time of any design to insist upon the execution of the contract, although notice of such intention might easily have been given. No excuse whatever for this long delay is contained in the facts found. If, under such circumstances, specific performance may be decreed, the doctrine of courts of equity, that diligence must be exercised in the pursuit of this kind of relief, is wholly without meaning. But it is said that this question was not properly raised in the trial court. The facts were found, from which the conclusion was deduced, that the plaintiff was entitled to judgment for specific performance. To which conclusion the counsel for the appellant excepted. It is difficult to see how the question could have been more distinctly raised or presented. It only remains to inquire whether the evidence would have warranted the finding of such additional facts as would sustain the judgment.

The plaintiff, in his complaint, to excuse his delay, alleges that the defendant told him that he had appealed from the judgments, which were liens, to the Court of Appeals, and that the plaintiff must wait till the determination of said appeals and the settlement of said suits; and that the defendant would then, according to his contract, convey said premises to the plaintiff, and to which the plaintiff assented. This allegation was SICKELS-Vol. IV.

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Opinion of the Court, per GROVER, J.

denied by the answer. No proof whatever was given to sustain it. The only proof given, having any relation to this allegation, was the testimony of the plaintiff, that the defendant requested him to wait a short time, and until the 1st of January, 1863, by which time he said he would have the liens removed; to which the plaintiff assented. The plaintiff further testified that he did not learn that the judgments were removed until shortly before the commencement of the action in August, 1866. It may be assumed that the judge found in accordance with this testimony. Upon this assumption it appears that the defendant, being unable to perform his contract in December, 1862, the parties agreed verbally to extend the time for such performance until January 1st, 1863; at which time the plaintiff was to receive his deed and pay the entire purchase-money. The plaintiff waits three years and a half without taking any steps toward performance on his part; the defendant remaining in the possession of the land. Had the contract originally fixed the first of January for performance, that this delay would have been a bar to the remedy sought, is too clear for discussion. I am unable to see how the plaintiff is in any better position by this day having been fixed by the agreement for extending the time. When the plaintiff ascertained that the lien was removed is immaterial. His right to proceed to enforce the contract was perfect before such removal. In such proceeding the court would have compelled the defendant to remove the lien, if in his power; and if not, given him an election to take such title as the defendant could give, or the damages to which he was entitled. It must be borne in mind that the defendant had lost all remedy upon the contract against the plaintiff

. Under such circumstances the plaintiff had no equitable right to watch and wait during the period of the statute of limitations to avail himself of the benefit of the contract if advantageous to him, but absolved therefrom if

Statement of case,

otherwise. The judgment appealed from must be reversed,
and a new trial ordered, costs to abide event.

All concur, except RAPALLO and PECKHAM, JJ., dissenting.
Judgment reversed.

49 491 127 149

IRA BABCOCK, Appellant, v. The LAKE SHORE AND MICHIGAN

SOUTHERN RAILWAY COMPANY, Respondent.

Where a common carrier has transported freight under a special contract

limiting his common-law liability, and by which he underte uk for au agreed compensation to carry it to the terminus of his route, and then deliver it to another carrier, no authority results from the relation or from the contract, empowering him to enter into a special contract on behalf of the owner with the next carrier limiting or restricting the liability of the latter ; the whole duty of the first carrier terminates with the delivery of the goods to the second, and the common-law liability of the latter attaches at once by necessary implication upon the receipt

thereof. Where a carrier undertakes for a specified compensation to transport over

his own route, and to deliver at the terminus thereof goods marked to a consignee beyond such terminus, a through contract will not be implied from the fact that in the description of the goods in the contract the marks showing the ultimate destination are given. Nor is such a contract extended or affected by the fact that in making it a printed blank is used adapted to a through contract extending over other and connecting lines, and making the contract to read ostensibly for and on behalf of all the carriers over whose lines the goods may pass. The written portions of the contract will control, and only so much of the printed matter in the blank form used as is consistent therewith is of any effect; all that is incompatible with or inappropriate to the intent of the parties as indicated by the written portions is to be rejected.

(Argued May 21, 1872; decided May 28, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment for the defendant entered on decision of the court upon trial without a jury. (Rep. below, 43 How. Pr.R., 317.)

The action was brought to recover the value of a quantity

Statement of case.

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of petroleum oil destroyed by fire while in possession of defendant as common carrier.

On November 14th, 1867, the plaintiff shipped fifty-six barrels of refined petroleum, at Oil City, in the State of Pennsylvania, by the Atlantic and Great Western Railway Company, under an agreement, of which the following is a copy:

“Atlantic and Great Western Railway, 7.35. “Oil City Station, November 14th, 1867.

“Received from Babcock for shipment by The Atlantic ar Great Western Railway Company, the following property in good order, except as noted, marked and consigned as follows: Mark.

Article. J. W. O. & Co. : : & Co.) J. W. Osborne & Co. 56 Bbls. R. Oil, Car 1,848. Albany, N. Y. {5 mue}

Rate in cents per 100 lbs. $25.00 per car.

Which this company and connecting roads agree to deliver with as reasonable dispatch as their general business will permit, delays and accidents excepted, but they do not agree to transport the same by any particular train, nor in any specified time.”

Subject to the conditions below: At Corry station upon payment of freight and charges thereon.

“In consideration of the reduced rate given and specified above for the transportation of petroleum, it is understood that the owner or shipper assumes all risk of damage from fire or leakage or from any cause whatever while in transit, or at the depots or stations of any of the companies whose lines of road it may be transported upon or over.

“ The rates on petroleum, when taken at the companies' risk, or damage from fire or other causes, being double the amount herein specified. “The owner or shipper of this property, in consideration of having the same transported at such reduced rates, does hereby release this and all other

Statement of case.

companies over whose lines of road it may pass, from all claim for loss or damage by fire, leakage or any other cause whatever, such products of petroleum as naphtha, benzine, benzole, etc., etc., being exceedingly hazardous, will not be transported except by special agreement as to time of receiving and rates to be charged ; and any party shipping such articles without notifying the company and getting their consent, shall not only forfeit all claim against the company for damages sustained, but shall be accountable to the company for loss it may sustain in consequence thereof.

“The acceptance of this receipt by the owner or shipper will be considered as evidence of his assent to all the conditions contained therein.'

“D. W. GURNSEY, Jr., Agent.The price stated in the contract was the customary price for the transportation of freight from Oil City to Corry.

That company carried the petroleum to Corry, and there delivered it to The Buffalo and Pittsburg Railroad Company, which company carried it to Brocton, in this State, and delivered it to the Buffalo and Erie Railroad Company, of which company defendant is successor and liable for its debts and obligations. While in the possession of the Buffalo and Erie Railroad Company the oil was destroyed by fire.

George W. Cothran for the appellant. It is contrary to public policy to permit a common carrier to restrict its common-law liability. (Pa. R. R. Co. v. Henderson, 51 Penn., 315.) The exemption must at least be secured by clear and unambiguous language. (French v. Buffalo, N. Y. & Erie R. R. Co., 4 Keyes, 108; Steam Navigation Co. v. Merchants' Bank, 6 How. U. S. R., 344; Wells v. Steam Nav. Co., 8 N. Y., 375.) To release a carrier from his commonlaw liability there must be a consideration. (Bissell v. N. Y. C. R. R. Co., 25 N. Y., 442.)

A. P. Laning for the respondent. A common carrier may by special agreement limit his liability. (Steinweg v. The

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