Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volumes 1-12 online

. (page 9 of 51)
Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 9 of 51)
Font size
QR-code for this ebook


147. Appellant, for M.'s accommodation, indorsed his note, which was

discounted by appellee, with the knowledge that it was an accommodation note.
At its maturity M. presented a second note, purporting to have appellant^s
indorsement thereon, which was accepted in good faith by the appellees as a
substitute or renewal of the first note. M. was insolvent. Appellant's indorse-
ment on the second note was a forgery. In an action on the first note, hM,
that appellant was not discharged. 1871. AUen v. Sharpe (37 Ind. 67). X, 80.
See Banks and Banking ; Bond ; Pabtnsrship ; Ububt.

BONA FIDE PURCHASER — /S^Vbndob and Pubchasbr.

BOND.

1. Signature prooored by fraud. An illiterate man signed a bond being
induced thereto by the fraudulent representation that it was a petition. Held,
that he was not liable thereon although the obligee was not aware of the fraud.



Digitized by



Google



BOND — BOUNDAEY. 59

1871. SchuylkiU Otmnty y. Oopky (67 Penn. St. 886), V, 441. See S. P. Bills

AUD NOTB8.

2. The raretles to a bond are not holden if it be not exeoated by the person
named as principal. 1871. EusseUY. AnnabU (109 Uaaa.n),XJI,Wi.

3. Stolen. A purchaser for value, without fraud or bad fidth, of stolen
necrotiable bonds, obtains good title thereto. 1872. Welch ▼. 8age (47 N. T.
148), Vn, 438.

4i Good fidth of porchaser. Plaintiff made advances upon coupon bonds^
payable to bearer, which had no certificates attached when he received them.
A clause in the bonds stated, in effect, that upon the surrender of the cwiificate
and bond the holder was entitled to full paid preferred stock. HM, that the
absence of the certificates was not of itself sufficient to charge plaintiil with
want of good faith. A

6. Ck>apons negotiablei It is settled by the current of American authorities
that a coupon bond is negotiable, and that its coupons maj be detached and
negotiated separately by simple delivery, and sued on separately from the bond
and this after the bond itself has been paid and satisfied, as well as before.
1866. Natumal Exehange B'k v. Hartford, etc., R. B, Oo.{SKL 876), V, 582.

6. A coupon once detached and negotiated, ceases to be a mere incident

of the bond, and becomes an independent claim, and its amount, with interest
after demand of payment, is recoverable under a general count in debt. lb.

The coupons of government bonds are negotiable instruments, and conver-
sion will not lie against one who has received, as agent, in good faith, and has
sold, stolen coupons and has turned over the proceeds to his principal. 1869.
JBjpoaner v. ffolmci (102 Mass. 608), in, 491.

BOND (OFFICIAL) — See Offiokb.

BOUNDARY.

1. Whflre the legal line between two towns differs from the line universally

leoognixed by the inhabitants of the towns, a deed describing a boundary in

terms equally applicable to either line, contains a latent ambiguity, which may

be cleared up by oral evidence. 1868. Putnam v. Bond (100 Mass. 68), 1, 82.

2. Although the presumption would be that the deed conveyed to the legal
line, that presumption would be rebutted by proof that a different line had
been adopted and universally recognized by the inhabitants of the two towns. lb,

3. There is no absolute presumption of law that parties to a deed intend to
govern themselves by a boundary line adopted by town or town officers, and
which does not accord with the legal line ; and where the words which they use
are equally applicable to either, it is for the jury, upon a consideration of all
the circumstances, to determine which line was actually meant lb.

4. A parol agreement made between the proprietors of adjoining lands to set-
tle a doubtful boundary line, if acted upon for a long period mutually, will be
binding, although the period is not equal to the " twenty years " sufficient
to establish adverse possession. 1870. Smith v. HamUUm (20 Mich. 488), IV, 898.



Digitized by



Google



(JO BBOEEB.

BREACH OF PROMISE OF MARRIAGE - /SIm Mabbiaob.
BRIDGES — See Highway.

BROKER.

1. Real aitaU: oommlaaioiuu A broker employed to sell real estate moBt
produce a person who oltimatelj becomes a purchaser before he is entitled to
his commissions, unless his failure to do so is occasioned bj the fault of the
vendor. 1869. Bieharda ▼. Jaekeon (31 Md. 250), 1, 49.

2. The defendant employed a broker to sell certain real estate for a fixed

compensation, advising him of his title ; the broker found a customer and
brought him to the defendant, but no sale was affected on account of the
defective condition of defendant's title. The property was afterward sold by
the defendant, at auction, to a third person, and brought a higher price than the
said customer had once offered. Held, that the broker was entitled to no com-
pensation on the contract for services. 1869. Tombs v. MeoDonder (101 Mass.
255), m, 849.

3. A party having employed a broker to sell real estate, may notwith-
standing, negotiate himself, and, if he does so without any agency of the broker,
he is not liable to the latter for a commission. To entitle the broker to his
commission, he must be an efficient agent in, or the procuring cause, of the
contract. 1872. ifbC^JoM v. PaiTW (49 N. Y. 561), X, 481.

4i The defendant sent a proposal to a broker in these words : " If you send

or cause to be sent to me, by advertisement or otherwise, any party with whom
I may see fit and proper to affect a sale or exchange of my real estate, above
described, I will pay you the sum of $200." The broker found a person who
proposed to purchase the property, but the sale was not effected. Held, that
the broker was not entitled to compensation. 1869. Walker v. Tirrel (101
Mass. 257). m, 852.

6. Authority. H. told A. to sell certain lots for $2,000. Held, that this
was no more than a mere authority to A. to find H. a purchaser at the price
named, and did not authorize him to execute a contract of sale to D., the pur
chaser whom he found. 1870. Duffy v. Hobeon (40 Cal. 240), VI, 617.

6. Stock broker. A broker who purchases stock for another broker, whom
he has reason to believe to be acting as agent, although for an unnamed prind-
pal, cannot hold the stock or its proceeds to secure the payment of a balance
due him by such other broker. 1870. Fieher v. Brown et al. (104 Mass. 269),
VI, 285.

7. Where a broker purchases stock, through a correspondent, in pursu-
ance of orders from a customer, and in the usual mode of dealing, but the certifi-
cates are not called for nor the stock paid for, the broker after waiting a reasona-
ble time, may sell or cause to be sold, the stock so purchased, on notice to the
customer, and recover for the loss, if any, from the customer. 1869. Boeen-
etoek V. Tormey (82 Md. 169), lU, 125.

See BAiLMENt.



Digitized by



Google



BURDEN OP PROOF — CAKEIER. 61

BUILDING CONTRACT — ifi^ Cohtbact.

BURDEN OF PROOF.

1. The burden is on the proponent of a will, not only to proye the due

execution thereof, but alBo the teatamentary capadty of the testator. 1870.
WUUami ▼. Bobmion (42 Vt. 658), 1, 869.

JBee Cbdcinal Law; Vehdob Ain> Pubohasbb.

BUBQLABT — /SmCbimikal Law.

BY-LAWS — /8^ COBPOBATION.

CAPITAL— /8^ Tbubt.

CARRIER.
L Oabbiebb of pbopebtt.

1. General principles.

2. Obligation to carry.

8. Limitation of liability by eontracL
4 DeUtery by carrier.
6. TomUnation of UabilUy.

6. Liability beyond Une.

7. Connecting Une$.

8. Expreee companies.

n. CABBIBRS of PA8BBNOEB8.

1. C^enoral prineiplee.

2. Liability for negligence in earrging.
8. Paeeengefe baggage.

4 Drover^e ticket.
m. Cabbibbs of cattlb.
IV. Cabbibbs bt sea— /SSm Ship and SHXPPme.
V. Liabilitt fob KEoiiiOBNOB — 5m Nbgliobkob.
YL Liabilitt fob bebtabtb — /Sm Masteb Ain> Sebtabt.

L Cabbibbs of fbopbbtt.
1. General prindplee.

1. Who are — tow-boats. In Pennsylvania steam tow-boats or tugs are not
oommon carriers as regards the vessels they have in tow and their cargoes.
1870. Brown v. Olegg (68 Penn. St. 51), m, 522.

2. Fenryman. One who keeps a ferry for his own use and for the conveni-
ence of customers to his mill, but who charges no ferriage is not a oommon
carrier, and is only bound to ordinary diligence. SeffY. Dunn (42 Ga. 528), V,
544 See Fbbbt.

3. B xp re ss companies. Express companies engaged in carrying goods for
hire, but in conveyances owned and operated by others, are common carriers.

1870. Ihristenson v. American Ekoprees Co. (15 Minn. 270), II, 122, and noU.



Digitized by



Google



62 OAERIEK.

4. To oarry wlOioiit pref«r«iioe. The defendants contracted with the Easl^
em Express Company to give the latter a certain share in the baggage and
mail car attached to passenger trains for the carriage of their goods, and agreed
not to let any similar space in anj car attached to passenger trains to any other
persons or express carriers daring the continuance of the contract. Pl^ntiff's,
another express company, offered packages to be transported on defendant's
passenger trains, which the defendants refused to receive or transport. HM,
that the defendants were liable to plaintiffs for such refusal. 1869. New Bfnif-
land Express Oo, y. Maine OentrcU B. B. Co. (57 Me. 188), II, 81.

6. Preference as to wharfagOi Plaintiff was accustomed to ship coal by
defendants' railroad for transportation beyond their line upon the Delaware
river. Defendants had also allowed plaintiff, for a certain consideration, to
use their wharf at the river terminus of the railroad ; but, subsequently, there
not being room for all the shippers, they denied plaintiff the wharf fkdlitiee,
while they allowed others to use the wharf. HM, that although transporta-
tion by defendants, common carriers, was necessarily open to the public with-
out discrimination, yet wharfage was within the discretion of defendants, and
a mandatory iig unction would not lie compelling them to allow wharfage
facilities to plaintiff as well as others. 1871. Audenried v. Philadelphia db
Beading BaOroad Co. (68 Penn. St. 870), VIII. 195.

6. Custom or usage will control the general law of liability of common car-
riers. 1871. MeMasters v. Pennsylvania R B, Oo. (69 Penn. St. 874),VIII, 264.

7. Ziex loot When a contract is made in one State to transport goods over
a line extending through two or more States and the goods are lost, the rights
of the parties will be governed by the laws of the State where the loss hap-
pened. Barter v. Wheeler (49 N. H. 9), VI, 484 ; Gray v. Jackson (51 N. H. 9),
Xn, 1 ; but see, as to passengers, Dyke v. Erie By. Co. (45 N. T. 118), VI, 48.

8. Interest on reooTrery. In case of loss for which the carrier is found to be
liable, interest is recoverable upon the value of the property from the day of
its loss. 1869. MoU v. Chicago, etc., B. B. Co. (27 Iowa, 22), I, 212.

9. Notice to agent A carrier is not bound by notice to his agent unless it
relates to his particular business, and is given when he is acting within the
scope of his authority. 1869. Congar v. Chicago, etc.. By. Oo. (24 Wis. 157), I,
164

O. Uability for goods missent Where the consignor of goods is guilty
of negligence, in not properly marking their destination upon tiiem, common
carriers are not liable for injuries arising from their being missent. 1869.
Congou V. The Chicago A Northtceslem Baiheay Co. (24 Wis. 157), 1, 164

11. DeUvery to canler by Tendor. A carrier, designated by the buyer,
may receive the goods purchased, so as to make a compliance with the statute
of frauds. 1871. Orossy. aDonnell(U Jil.Y.Wl),lY, 121.

12. Where the contract of purchase is silent as to the method of delivery,

ft delivery, by the vendor to a common carrier in the usual oourse of bnsinees,
transfers the title to the vendee. 1870. Magruder v. iShige (88 Md. 844), III,
177



Digitized by



Google



OAEBIER. 63

13. Stolen good! — may be reoorered from oarxier. . The owner of goods
which haye been obtained from him bj f raad and have been placed in ehaige
of a carrier, may recoyer them from the carrier. BoMeU y. Spoffard (45 N. T.
887), VI, 101.

14. ZJan for freight. A carrier's lien on goods transported is only oo^xt^-
siye with his right to daim and recoyer freight. Therefore, where carriers
haye, by delay in transporting and deliyering goods, injured the consignee to
an amonfit equal to their charge for freight, their lien ceases, and the con-
signee may maintain repleyin for the goods without paying or tendering the
freight. 1869. Dyer y. The Grand Trunk Railroad Oo, (42 Vt 441), 1, 850.

16. One who carries property for the oonyenience, and at the request of

the bailee thereof, has no lien thereon for seryices as against the owner. 1871.
OiUtm y. Choinn (107 Mass. 126), IX, 18.

2. ObUgaHon to carry,
16. Damages for negleot to forward. Where a common carrier, from neg-
ligence, omits to transport merchandise within a reasonable time, and its mar-
ket yalue falls in the mean time, the measure of damages is the difference in
its yalue, at the place of deliyery, at the time it ought to haye been deliyered,
and at the time of its actual deliyery. 1871. Ward y. The Nm York Central
RaUroad Oo. (47 N. T. 29), VII, 405.

17. The plaintiff haying a lot of wool which he had contracted to sell at a

certain price, deliyerable in B., called upon the agent of defendants, conunon
carriers, and told him that he wished to send it to B. immediately, and that it
was sold if it could be forwarded at once. The agent told him that it should
go without fail. The plaintiff deliyered it accordingly, but the defendants
neglected to forward it for several weeks, during which time it depreciated in
yalue, and on its arrival in B. the purchaser declined to receive it on account
of this delay, and the plaintiff was compelled to sell it at a diminished price.
EM, that plaintiff could recover damages for the depreciation in its market
yalue, and also for the loss of his chance to sell. 1860. Doming v. Orand
Trunk Railway Co. (48 N. H. 455), n, 267.

18. Pexishablo urapet iy — delay in transportation — military possessfon —
damages. In an action against defendants, as common carriers, to recover dam-
ages occasioned by an alleged neglect of duty in failing to deliver a number of
car loads of com at Cairo, Illinois, within a reasonable time after receiving it
for transportation, whereby it became heated and of little value ; held (1), that
defendants were not discharged from liability under a clause in the receipt re-
leasing them from loss on " perishable property," corn not being such in the
commercial sense ; (2) that it was no defense that the military authorities of
the United States had ordered defendants to give a preference to the property
of the government in transportation, where they failed to show any interfer-
ence on the part of army officers which prevented them from sending this
oom forward in the usual time ; (8) that it was no defense that the track at
Cairo was obstructed with cars filled with rejected government oom, where the
evidence showed that, immediately after the rejection of such oom, the gov-



Digitized by



Google



54 OAKRIEB.

emment officers oeaaed to control it, and it relapsed into the hands of defend-
ants, who could have unloaded it in a day or two ; (4) that if the com was shipped
under a special contract, the contract price should be taken as the basis for
estimating the damages ; otherwise the market price at Cairo at the time the
com ought to haye arrived, must goyem. 1870. lU, OerU. B, B. y. McOlcUan
(54 m. 68), V. 88.

19. Where usual route is obstmotod. Plaintiff shipped goods at Irvineton,
Penn., to be transported to Boston by defendants, common carriers, aiM reoeiyed
a bill of lading oontidning a condition that '* this merchandise may be carried
in box cars, covered skeleton cars, or open platform cars ; if destined beyond
Philadelphia, it may be transported by water, in vessels, boats, bargee, or light-
ers, and if so destined to any point beyond, the same may be intrusted or
delivered in the cars of this company, or otherwise, to any other railroad or
transportation company or agent," etc. The usual route of defendants was by
rail to Philadelphia, and thence by water to Boston. HM, that defendants were
not bound to send the goods by rail from Philadelphia, when there was a tem-
porary obstruction in the water communication. 1871. Empire TraiMportaHan
Oo, v. WaUace (68 Penn. St. 802), VUI, 178.

8. nmitoHon of liability by contract.

QO, May limit liability. A common carrier may, by special contract, avoid
or limit his liability at common law as an insurer of property intrusted to him
against loss or damage by fire occurring without fault on his part. 1868.
Qraee v. Adams (100 Mass. 505), 1, 181.

21. Presumption as to knowledge of contents of reoeipt A receipt in proper
form delivered to the plaintiff by the defendants as their contract, with the
terms and conditions expressed in the body of it in a way not calculated to
escape attention, and its acceptance by the plaintiff at the time of the delivery
of his package, without notice of dissent, authorised the defendants to infer
his assent to the' terms. lb.

22i The plaintiff, a passenger in a railway car, delivered to the messenger

of a baggage express two checks for two packages of baggage, which the messen-
ger agreed to transport from the railway terminus to another point, and deliver
to plaintiff. At the time of taking the checks, the messenger entered their
numbers on a printed form, purporting to be a receipt containing certain stipu-
lations, limiting the company's liability, and handed it to the plaintiff. The car
was dark, so that it would have been impossible to read the stipulations, and
plaintiff did not read them. The stipulations were in small print, but a direc-
tion to read this reoeipt was in conspicuous print. Held, that the plaintiff was
not presumed to know the contents of the receipt, or to assent to them. 1870.
BUmom v. J)odd (48 N. T. 264), UI, 701.

23. Pl^ntiff delivered to defendant for transportation a trunk, and re-
ceived a receipt which provided that the plaintiff, in case of loss, should not
demand beyond the sum of fifty dollars, fixed as the value of the article for-
warded, unless otherwise expressed. Held (1), that it was a presumption of
law that plaintiff was acquainted with the contents of the reoeipt, and (2)



Digitized by



Google



OABBIEB. 65

HhtA bj accepting Uie receipt the plaintiff aaeented to and was bound by its
conditions. 1870. B^&r ▼. Dinitnare (51 N. T. 166), X, 675 ; Bee, howerer,
Frankenb0rg ▼. lU. Cent. B, B. Go. (54 111. 88), V, 92.

d4i Bat a passenger is not preeamed to know or assent to a printed

notice in his ticket limiting the weight and yalue of his baggage. 1872. BawBon
V. F^nn. B.RCh,(4a N. T. 313), VUI, 548.

26. Cannot oontraot against negUgenoa. A common carrier cannot, by con-
tract, relieve himself from liability for the loss of goods delivered to him for
transportation, which has been occasioned by his own or his servant's negligence,
however slight, or where such negligence has in any degree contributed to
BQch loss. 1871. lOMgan amthem, €U^B.ROo. v. Eeaton (87 Ind.448), X, 88,
and Mie, 06.

26. The plaintiff shipped goods over the defendants' railroad. By a danse

in the bill of lading, the defendants were released from liability from damage
or loss to any article from or by fire or explosion of any kind. The goods were
destroyed ^hile on one of defendants' trains, by fire, which caught from a spark
from the engine of the train. £Md, that the defendants were not, by the stip-
olation in the bill of lading, released from liability for loss arising from its own
negligence. 1870. SMnweg v. Erie BaHway (48 N. T. 138), HI, 678.

27. Where a common carrier receives goods in coarse of throagh trans-
portation, under V stipulation that it bhall not be liable for "damage or loss by
fire " it is, nevertheless, liable in case of damage or loss by fire resulting from
its own negligence ; but affirmative proof of such negligence must be adduced
to obtain a recovery. 1870. LanA v. Camden dt Amboy B. B. Go. (46 N. Y.
271), VII, 837.

28. An oil company shipped a quantity of oil by the Empire Transporta-
tion Co., under a condition, set forth in the receipt, that the oil company should
assume all risk, and the transportation company should be released from all
responsibility for loss or damage. The car containing the refined oil was
coupled in a train to one containing crude oil, which took fire from sparks
from the engine, and, on account of a defect in the coupling, could not
be separated from the car of refined oil, and both were consumed. Held, that the
transportati<m ccnnpany was liable, notwithstanding the condition in the receipt.
1870. Empire TraneportaUon Go. v. WameuUa Oii Go. (68 Penn. St 14), 111,515.

29. A declaration in an actioo on contract alleged that the defendants,

as common carriers, received the plaintifili' goods for transportation, and that the
goods were injured while in defendants', custody, through the fault of the
defmidants. The answer, after admitting the receipt of the goods for trans-
portation by the defendants as common carriers, denied that the goods were
ii^ured while in their custody, or while they were- responsible, or by their
fault, and alleged that the defendants had taken reasonable care of the- goods
while in their custody, and that they were not responsible for the injury, if any,
because, by special contract, the risk^of injury had been assumed by the plain-
tifflk EM, that upon the pleadings actual negligence of the defendants might
be given In evidence; and that the special contract, if alleged, would not
exempt the defendants from liability for Injuries caused by their own negll
9



Digitized by



Google



66 OABEEBB.

genoe. 18(N^. /Mod Dittrki y. BcHon, Eartford and Brie B, B. Oo. (101
Maa8.S68),m«502.

30. ZiOii by fin— burdMi ci proo£ A bill of lading giyen bj a nalioad
oompanj on receipt of goods for transportation contained the following danse
" The dangers incident to railroad transportation, ftn and all o^er onaToidable
accidents, excepted." The goods were destroyed by fire, and, in an action against
the company to recorer their value, held (1), that the exception of loss by " fire'
was a limitation npon the common-law responsibility of the company ; (2) that
the exception was of "fbn," whether wuncidable or not, proyided it was not
by the negligence of the company ; and (8) that the burden of proof of negli
gence was upon the plaintiff, the common-law liability being thus changed.
1871. OoUon y. Ol&veland and PUUburg B. R Go. (67 Penn. St. 211), V . 424.

31. — ^ When common carriers by water, in their bill of lading made at
Toledo, Ohio, stipulate to deliyer goods to consignees at Concord, N. H., the
dangers of naylgation, fire and collisions on the lakes and riyers and the We^
land canal excepted, it was held, that this limitation did not extend to losses by
fireonthe railroads. Barter y. Wheeler (49 N. H. 9), VL 481

32. Bzooptioiis aiyplyto oonneoting companies - "aU rail'' route— devi^
tion. Defendants receiyed goods as the last of a series of connecting railroads,
the first of which had contract^ with plaintiff to transport the goods "all
rail," and to deliyer them, "unayoidable accidents of the railroad and fire in
depot excepted." Seld (1), that thf terms of the contract permitted all neces-
sary transportation by water, as by ferries, and that the connecting companies
were entitled to the benefit of the exception in case of loss ; but (2) that as
defendants' line was out of the usual " all rail " route to destination, and
required extended transportation by water, some twenty miles, they were not
entitled to the benefit of the exceptions, but were liable as insurers in case of
loss by one of the perils excepted. 1871. Maghee y. The Camden and Ambog
ELB.Oo,(4R N. T. 614), VI, 124, and noU, 182.

4 DeUo&ry by carrier,

33. ZMivery to any psnoo. Common carriers deliyer property at their
peril, and must take care that it is deliyered to the right person, for if the
deliyery be to the wrong person, either by an innocent mistake or through
fraud of third persons, as upon a forged order, they will be responsible, and
the wrongful deliyery will be treated as a conyersion. A qualified refusal, by
a common carrier, to deliyer goods on demand of one entitled to them, does not
constitute a conyendon if the qualification is reasonable and in good faith ; and
where the person making demand omits to produce any eyidence of title to or



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 9 of 51)