Imágenes de páginas

wise." After the sheep were load-
ed, plaintiff, who was intending
to accompany them, and had a
drover's pass, in passing by the
tender to the engine, was injured
by a stick of wood negligently
thrown therefrom. Held, that,
under the contract, defendant was
exempted from liability. Poucher
v. N. Y. C. R. R.

12. Plaintiff went with his baggage
to defendant's depot in Phila-
delphia to take passage to Chicago;
upon presenting his baggage, the
baggage master, in accordance
with a rule of the defendant, de-
clined to check until plaintiff had
procured his passage tickets; he
left his baggage to procure tickets;
in his absence the baggage master
caused it to be placed in the bag-
gage car, and on plaintiff's return
with tickets, the baggage master
refused to give him the checks
without his paying extra compen-
sation on account of extra weight
beyond what, by defendant's regu-
lations, the tickets purchased
would carry free. Plaintiff refused
to pay the extra charge and de-
manded his baggage; this the
baggage master refused to deliver,
for the reason that it was covered
by other baggage, and in order to
reach and return the trunks it
would delay the train beyond the
time fixed for starting. Plaintiff
declined to take passage without
his checks; his baggage was taken
through to Chicago, and on the
night after its arrival was destroyed
by fire. The action was for the
conversion of the baggage. Held,
that defendant did not occupy the
position of common carrier of the
plaintiff, and could not avail itself
of any of the rules which have
been established as to the liabilities
of common carriers of passengers.
Also, that defendant was liable
for the acts of the baggage-master,
though that act should be held
wrongful. It was further held by
FOLGER, J., ALLEN, J., concur-
ring, that the question whether the
reason given for the retention of
the baggage was a sufficient quali-
fication of the refusal to deliver,
to rebut the evidence of conversion
furnished by such demand and
refusal, was a question of fact for

the jury. By CHURCH, Ch. J., and
RAPALLO, J., that as matter of law
there was no conversion. By
as matter of law there was a con-
version. McCormick v. P. C. R. R.
13. A common carrier has not per-
formed his contract as carrier until
he has delivered or offered to de-
liver the goods to the consignee, or
done what the law esteems equiva-
lent to delivery. When the con-
signee is unknown to the carrier, a
due effort to find him and notify
him of the arrival of the goods is a
condition precedent to the right to
warehouse them; and if a reason-
able and diligent effort is not made,
the carrier is liable for the conse-
quences of the neglect. What is
due and reasonable effort and dili-
gence depends upon the circum-
stances of each case, and is a ques-
tion of fact for the jury. Zinn v. N.
J. S. Co.


Where, because of neglect of the
carrier to find the consignee, and
the consequent delay in delivery of
the goods, they have depreciated in
value, the fact that the consignee,
after receiving notice, neglects to
remove them in a reasonable time,
does not raise a question of concur-
rent negligence. After such notice
and reasonable time, the goods are
at the risk of the owner, and the
carrier is not liable for subsequent
depreciation. The duties of carrier
and consignee are not concurrent,
but in succession, that of the latter
growing out of the performance of
duty by the former, and their acts
of negligence cannot contribute to
the same injury.

15. Where a common carrier has
transported freight under a special
contract limiting his common-law
liability, and by which he under-
took, for an 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, limit-
ing 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 im-
plication upon the receipt thereof.
Babcock v. L. S. &. M. S. R. R. 491

16. Where a carrier undertakes for a
specified compensation to transport
over his own route, and to deliver at
the terminus thereof goods marked See RAILROAD CORPORATION, 6, 7.
to a consignee beyond such termi-
nus, a through contract will not be
implied, from the fact that in the
description of the goods in the con-
tract, the marks showing the ulti-
mate destination are given. Nor
is such a contract extended or af-
fected 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 por-
tions of the contract will control,
and only so much of the printed
matter in the blank form used as


is consistent there with is of any See ASSESSMENT AND TAXATION, 7.
effect; all that is incompatible
with or inappropriate to the intent
of the parties, as indicated by the
written portions, is to be rejected.

17. Where a common carrier con-
tracts for the transportation of
freight over his route, and for the
delivery thereof to another car-
rier, to be forwarded over con-
necting lines to its ultimate desti-
nation, the fact that the contract
fixes the price for the entire carri-
age does not make the contract a
through contract, so as to entitle
the succeeding carriers to the
benefit of exceptions from liability
contained in the contract. Etna
Ins. Co. v. Wheeler.

house by one carrier destined to
pass over the line of the other,
with notice to the latter of its arri-
val and ultimate destination, places
it in the possession of the latter,
and imposes upon him the duties
and liabilities of a common carrier
in reference thereto.

18. Where there is an agreement be-
tween two common carriers, ope-
rating connecting lines, for the
carriage of freight over both routes
at an agreed price to be divided
between them, and where they
have, at the point of connection,
a warehouse used in common for
the transfer of freight from one
line to the other, the expenses of
handling being paid in common,
a delivery of freight at the ware-


See PLEADINGS, 2, 3, 4, 5, 6, 9, 10, 11,
12, 13.

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If A. has property upon which he
has received advances from B.,
under an agreement that he will
ship it to B. to be sold to pay the
advances, or to pay any indebted-
ness, he may or may not comply
with this contract. He may ship
to C. or to B. upon conditions, but
if he ships to B. in pursuance of
his contract the title vests in B.
upon the shipment. The highest
evidence that he has so shipped is
the consignment_and uncondi-
tional delivery to B. of the bill of
lading; but if A. retains the bill of
lading and notifies B. by letter that
he has shipped the property for
him in pursuance of the agree-
ment, or if in any other manner
the intent thus to ship is evinced,
the title passes as effectually, as
between them, as if the bill of


lading had been delivered. Bailey | 2. A commissioner of appeals is not
v. H. R. R. R.
a judge of the Court of Appeals,
and is not prohibited by section
21 of article 6 of the State Con-
stitution from acting as referee.

2. To sustain an action gainst a
common carrier for a failure to
deliver goods, the plaintiff must
be the owner thereof, or have
some special interest in them.
Thompson v. Fargo.

3. Prima facie, the consignee is the
owner. If the goods are ordered
of the consignor by the consignee
stating where, but not how, to
send them, the consignor has suffi-
cient title to maintain the action.

4. A consignee cannot, after notice
of the arrival of property for him,
defer taking it away while he at-
tends to his other affairs. It is his
duty, at once and with diligence,
to act upon the notice, to seek de-
livery, and continue until delivery
is complete. So much time as he
gives to his other business, to the
neglect of taking charge of the
property and removing it from the
custody of the carrier, cannot be
allowed to him in estimating what
is a reasonable time in which to
take delivery. Hedges v. H. R. R.



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1. Where the terms of a written
constitution are clear and unam-
biguous, and have a well under-
stood meaning and application,
effect must be given to the intent
of its framers as indicated by the
language employed. The opera-
tion and effect of the instrument
will not be extended by construc-
tion beyond the fair scope of the
terms employed, merely because
the more restricted and literal in-
terpretation might be inconvenient
or impolitic, or because a case
may be supposed to be to some
extent within the reasons which
led to the introduction of some
particular provision, plain and
precise in its terms. Settle v. Van



provision for the reorganiza-
tion of the Court of Special Ses-
sions of the city of New York is
not embraced in and is not con-
nected with the subject of pro-
viding for the government of that
city. An act providing for either
is local." The insertion, there-
fore, in the city tax levy act for
the year 1870, of a section de-
signed to accomplish the reorgani-
zation of said court (section 49,
chapter 383, Laws of 1871), was
in hostility to section 16, article 3
of the State Constitution, which
declares that no private or local
bill, etc., shall embrace more than
one subject, and that shall be ex-
pressed in its title," and said sec-
tion is void. Huber v. The People.


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the contract-price for 800 ties. | See INSURANCE, LIFE.
After the timber was drawn out,
D. pointed it out to defendant,
saying, "here are your ties.'
Defendant replied that he wanted
them inspected. Subsequently the
timber was levied upon and sold
upon an execution against D. Held,
that the defendant had acquired
no title to the timber, either under
the original contract, as something
remained to be done to identify
the property embraced in it (i. e.,
the inspection) or by the subse-
quent transaction, as defendant did
not then accept, but required an
inspection; the title, therefore,
remained in D., and passed by the
levy and sale. Stephens v. Santee.


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2. Defendant contracted to sell and See NEGLIGENCE, 1, 2, 3, 4, 6, 7.

deliver plaintiff, at Brooklyn, with-
in threee months, 400,000 brick at
$10.50 per M. Defendants deliv-
ered 213,500 during the specified
time. In an action to recover

damages for the non-delivery of
the residue,-Held (PECKHAM, J.,
dissenting), that the delivery of
the entire quantity was a condition
precedent of the right of defend-
ants to demand payment, and the
fact that, when they discontinued
the delivery, plaintiff had not paid
for those delivered was not an
excuse for the non-delivery of the
residue; also, that it was not neces-
sary, as a condition precedent to
a right of action, for plaintiff to

make a formal demand of the
brick, and tender payment there-
for at the place of delivery; that
it was enough if he was ready and
willing to receive and pay on de-
livery; nor was it necessary that
plaintiff should have had, during
the whole time specified, a sum of
money on hand sufficient to pay
the whole purchase-price; it was
sufficient if he had the means and
resources at command which
would have enabled him to pay if
the brick had been delivered.
Mount v. Lyon.

LACHES, 1, 2.

STATUTE OF FRAUDS, 1, 2, 3, 5, 6.

H. CANAL CO. (Mem.), 652.
CONOR v. DEMPSEY (Mem.), 665.
PENTER (Mem.), 668.
BEATSON. ELWELL (Mem.), 678.
(Mem.), 681.




DAMAGES, 2, 3.





A corporation cannot avail itself
of its own negligence as a basis of
a cause of action against a stock-
holder. It may waive a perform-
ance of its own rules and is es-
topped by its acts and official de-
clarations, the same as a natural
'person. Where, therefore, a stock-
holder in a corporation, organized
under the laws of the State of
Connecticut, transferred his stock
in good faith, which transfer was
not made upon the books of the
company, as is required by the
statute of Connecticut (§§ 209, 212,
chap. 14, Laws of Conn., revision
of 1849) in order to pass the title
(the company having no transfer
book), and the certificate required
by the statute to be filed and re-
corded in the town clerk's office,
to make the transfer valid as to
creditors, was not signed by the

president and treasurer of the com-
pany, as required by its by-laws,
but the same was recorded by the
direction of the company, and the
transfer was acquiesced in by it,
and the transferee recognized as
the owner,-Held, that the original
stockholder was not liable for un-
paid calls upon the stock transfer-
red, made subsequent to the trans-
fer. Isham v. Buckingham.


2. The capital stock of an incorpo-
rated company is personal pro-
perty; it has not, nor has the cer-
tificate or other evidence of title
or ownership, any of the qualities
of commercial or negotiable paper.
Weaver v. Barden,

3. As a rule, the purchaser or as-
signee of shares of the capital
stock in a corporation acquires no
other or better title than the seller
or assignor has, and takes it sub-
ject to the legal and equitable
rights of third persons.


4. Where stock is transferred partly
in payment of a precedent debt
and partly for a consideration paid
at the time, the purchaser will not
be regarded as a holder for value
as against one having the legal
title or a prior equity, so far as the
assignment was received in pay-
ment of the precedent debt (GRO-
VER, J., dissenting), but is enti-
tled to a lien for the amount of
the consideration paid, and to a
repayment of that amount, before
he will be required to reconvey
the stock.

5. Plaintiff's complaint alleged, in
substance, that certain of the
creditors of an insolvent railroad
corporation entered into an agree-
ment to purchase its property upon
a foreclosure sale, and to organize
a new company for the purpose of
operating the road, which agree-
ment provided for the issuing of
bonds and stock of the new com-
pany, and apportioning them
among the holders of the mort-
gage bonds, actually issued, of the
old company and among certain
other specified classes of credi-
tors; that in pursuance of the
agreement the property was pur-
chased for less than the amount of

mortgage bonds held by the par-
ties to the agreement and was af-
terward transferred to the new
company, its stock and bonds
issued, and distributed as stipu-
lated; that the old company was
indebted to plaintiff upon a con-
tract for iron rails furnished to
lay its tracks, and, under the con-
tract of purchase, plaintiff was
equitably entitled to its mortgage
bonds for the balance claimed.
This claim was unprovided for in
the creditors' agreement. Plain-
tiff was a party to that agreement,
he holding a large amount of the
mortgage bonds provided for
therein, and he received their pro-
portion of the bonds and stock of
the new company. Plaintiff
claimed that the bonds to which
he was equitably entitled should
be considered as issued at the time
of making the creditor's agree-
ment, and that the property in the
hands of the new company was
subject to the trust of providing
for them, as other mortgage bonds
were provided for in that agree-
ment. There was no allegation of
any fraud in the agreement, or
that any of the stockholders of
the old company derived any bene-
fit thereunder, or that the foreclo-
sure or sale were collusive. On
demurrer,-Held, that the creditors
who entered into the agreement
were bona fide purchasers, and took
the property clear of any trusts
in favor of other creditors: that
although as between the old com-
pany and its creditor equity would
consider that done which ought
to have been done, the rule did
not affect the rights of third par-
ties (as between each other) who
had contracted in reference to
what the company had actually
done, and especially where the one
claiming the benefit of it was a
party to that contract, assented to
its terms and received its benefits;
and that, therefore, the facts stated
did not constitute a cause of ac-
Vose v. Cowdery.


A resolution of the board of di-
rectors of a corporation, ratifying
the act of one acting as its agent,
is competent evidence of the au-
thority of the agent, Dent v. N.
A. S. Co.

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