author: Davies, J. Hogeboom, J.

text:
    Edward C. Wilcox, Respondent, v. William Hawley and Abram H. Cuyler, Appellants.
    Where there have been two trials of a cause in the Supreme Court, the judgment record upon the second trial should not embrace the case made upon the first.
    An appeal from a judgment entered after a second trial brings up for review only the judgment appealed from. If the record transmitted to this court contains, in addition to the case and exceptions made upon the second trial, the case made upon the first trial, on a motion to set aside a nonsuit, the latter proceedings may, and properly should, be stricken out on motion.
    This court only reviews the questions of law presented by the exceptions stated and taken in the case. If the case, contains no exceptions, it presents no question for review in this court.
    The “team” which the exemption law exempts from sale on execution, when owned by any person being a householder, or having a family for which he provides, to the value of not exceeding $250, includes any team which a householder or head of a family may or can use in and about the business of providing for such family.
    A team may be composed of one or more animals; and whatever number may compose it, if within the limit as to value fixed by statute, it will be exempt.
    It is sufficient for a party claiming the exemption of Ms horse from sale on execution, to show that the horse constitutes Ms team; that he is a householder• and that Ms household furniture, workman’s tools and team do not, in the aggregate, exceed in value the sum of $250. Upon these facts being established, he is entitled to the exemption specified in the statute.
    To meet the objection urged, that a team must necessarily consist of two horses it is proper to ask the owner of the property claimed as exempt, whether one horse can be used alone.
    The exemption provided by the statute is not exclusively for the benefit of the owner of the property. It is intended mainly for the benefit of the family for which he provides.
    Whether the debtor has more or less property, beyond the amount limited by the statute, is wholly immaterial in determining whether a team is necessary to him.
    Hence, evidence to show that the party claiming his horse to be exempt, as being Ms “team,” had, shortly before the same was levied on, owned two other horses, worth $200, and had other property, wMch he had disposed of, and transferred the avails to his wife, which she held at the time of the levy, is improper, and should be excluded.
    Appeal from a judgment entered on an order of the General Term of the Supreme Court, in the Seventh District, denying a new trial npon a case containing exceptions.

      The action was brought to recover the value of a certain horse of the plaintiff, which he claimed as exempt property. The defendants, by their answers, first denied the complaint, secondly, justified the taking under a judgment and execution against the plaintiff. The action was first tried at the Wayne county circuit, on the 22d of April, 1857, and the plaintiff nonsuited. The General Term set aside the nonsuit and ordered a new trial. The action was tried a second time at a Circuit Court in Wayne county, on the 5th of May, 1859, at which time the plaintiff had a verdict for the value of the horse in question, viz: §144.34. The circuit judge allowed an order giving time to the defendants to make a case, the same to be heard in' the first instance at General Term. The defendants made a case, containing exceptions to the rulings of his honor, the circuit judge, as to the admission and rejection of certain evidence on the trial; upon which the General Term, in December, 1859, denied a new trial. The plaintiff entered judgment in his favor against defendants, on the 27th of December, 1859, for $144.34 damages, and $328.96 costs and disbursements; from which the defendants appealed to this court.
    Upon the trial, the taking and value of the horse were admitted, and the judgment and execution were also admitted. The only question tried" was whether the horse was exempt. Upon that issue the following facts are established by the evidence, viz : That the levy was on the 29th day of January, 1857, and the sale on the 7th of February, 1857; that at the time of the levy and sale, the plaintiff was a householder, having a family for which he provided; that this was the only horse plaintiff then had; that he used this horse as a team, to support his family; that he had a one-horse lumber-wagon, and sleigh and harness, which he used with the horse. He used the horse alone sometimes, and sometimes with another horse; that at the time of the levy and sale, the plaintiff resided in the village of Bed Creek, on a piece of land of about two and a half acres; he moved into Bed Creek the latter part of December, 1856, some three weeks before the levy; before that he occupied and cultivated about thirty-nine acres of land, which he had to leave owing to the foreclosure of a mortgage on the premises; that at the time of the levy and sale, the plaintiff had leased a small piece of land to cultivate; that after plaintiff moved to Bed Creek, and during the winter, and before it was time to commence work upon the land he occupied and had leased, he used his horse' in drawing wood for his neighbors, and in doing what teaming he could find to do; that the plaintiff’s only business or means for supporting his family, was using this horse in cultivating land and doing team wprk; that at the time of the taking, the plain-' tiff had no other property not exempt; and his whole property, except the horse, including household furniture and farming tools, did not exceed in value $65 ; that the plaintiff forbade the levy and sale, and claimed on both occasions that the horse was exempt property. The following exceptions were taken:

      First. Question — State if one horse can be used alone ? To this question the defendants’ counsel objected, upon the ground that the question was improper. The court overruled the objection, and the defendants excepted. The witness answered: “He can.”

      Second. On the cross-examination of the plaintiff’s witness, Horace B. Chapman, “ the defendants offered to show that shortly before the horse was taken, the plaintiff in the month of December, 1856, or in January, 1857, owned two other horses worth two hundred dollars, and had other property which he had disposed of; that the avails he had transferred to his wife, and she held those avails when defendants took this horse.” The plaintiff’s counsel objected to the proof offered, and the court sustained the objection. The defendants excepted to the ruling.

      Third. The plaintiff’s counsel put the following question to the plaintiff: “ Had you any other business except in connection with this horse, if so, what was it ? ” The defendants’ counsel objected to the question as leading improper and incompetent. The court overruled the objection, and the defendant excepted. The witness answered: “I had no other business to obtain a livelihood, except by the use of this horse.”

      Fov/rth. The plaintiff’s counsel then put to the plaintiff this question: “ State if you had any arrangement made for the use of this horse in the future, and what use you intended to put him to in the future?” The defendants’ counsel objected to the question, on the ground that he must be confined to what use the horse was put to at the time he was taken; that the arrangements made for the future and the anticipated use of the horse, and the intention of the plaintiff in regard to his future use, were improper, and the evidence was incompetent. The court overruled the objection, and the defendants excepted. The witness answered: “I had made arrangements to draw wood for Gardner; to cultivate land. I intended to plow a piece, and plant to corn and sow buckwheat; the spring is the proper season to break up land.”

      George H. Arnold, for the plaintiff, respondent.

      Jacob B. Decker, for the defendants, appellants.
   Davies, J.

This action is brought by the plaintiff against the defendants to recover the value of a horse taken by the defendants in an execution upon a judgment against him. The plaintiff claimed that the horse was exempt under the act of 1842, he being .a householder, and the horse forming his team, and the whole amount of his personal property being within the sum mentioned in that action. A verdict was rendered for the plaintiff for the sum of $145.34, and the judgment entered thereon was affirmed at General Term. The value of the horse, and the judgment and execution, were admitted upon the trial, and the only question litigated was whether or not the horse was exempt under the act. Two trials have been had on this action. Upon the first trial the plaintiff was nonsuited. Upon a case made, the General Term of the Supreme Court set aside the nonsuit, and ordered a new trial. Upon the second trial, a verdict was rendered for the plaintiff, and exceptions taken by the defendants to several rulings of the judge at the trial, in reference to the admission of evidence which was directed to be heard in the first instance at the General Term. That court overruled the exceptions and gave judgment for the plaintiff, and from that judgment the defendants appealed to this court.

The record contains, in addition to the case and exceptions made upon the second trial, the case made upon the first trial, when the plaintiff was nonsuited. This was improperly incorporated into the judgment record, and should not have been transmitted to this court. The order granting a new trial, made in the first instance, was not appealed from by either party, but was acquiesced in by both, and the present notice of appeal does not indicate that the defendants desired to have it reviewed here. Whether the Supreme Court properly or not granted the new trial, is not a question before this court. It is not an intermediate order involving the merits and necessarily affecting the judgment, contemplated by the first subdivision of the eleventh section of the Code. This court only reviews the questions of law presented by the exceptions stated and taken in the case. (Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y., 321; Dain v. Wyckoff, 18 N. Y., 47.) The case made upon the first trial was made by the plaintiff, and contained no exceptions, and, therefore, presented no question for review in this court. (Magee v. Baker, 14 N. Y., 435.) The appeal from the judgment entered in this case brings up for review only the judgment appealed from, and the case made on the motion to set aside the nonsuit on the first trial might, and properly should have been, stricken out on motion. (Smith v. Grant, 15 N. Y., 590.) We could not proceed to review the order made for the new trial upon the facts contained in the case in the present record, as it may well have been granted for some reason dehors that record. Both parties acquiesced in the order and went down to the new trial, and upon this appeal we only review the proceedings had upon that trial, and the propriety of the judgment entered thereon. In the view we take of the law, upon the facts as presented upon that trial, the plaintiff was entitled to recover. This brings us to an examination of the matters arising on the second trial and the exceptions there taken.

It is provided by the act of 1842 (3 R. S. 5th cd. p. 64f, § 23), as amended, by Laws of 1859, chap. 134, p. 343, that, in addition to the articles then exempt from sale on execution, there shall be thereafter exempted, necessary household furniture, and working tools and team, owned by any person being a householder, or having a family for which he provides, to the value of, not exceeding, two hundred and fifty dollars, and in addition thereto, there shall also be exempted from such levy and sale, the necessary food for said team for a period not exceeding ninety days.” On the trial the plaintiff gave evidence tending to show that he was a householder and had a family for which he provided, and that the household furniture and team, owned and possessed by him, exempted by the act of 1842, did not exceed in value the sum of two hundred and fifty dollars, and the verdict of the jury in his favor, must be deemed to have established these facts. They being established, the legislature have declared that such team was necessary to such householder, a person having a family to provide for, as much as his working tools. The word necessary, as used in the statute, applies to the household furniture, and qualifies the extent of that furniture exempted. There was no motion for a nonsuit, or exception to the judge’s charge, or any request made to charge on the part of the defendants. We therefore assume that the case was properly submitted to the jury, and their verdict on such question is final and conclusive, and cannot be disturbed, if there was no error in the admission or rejection of evidence. Judge Welles, in the case of Hoyt v. Van Alstyne, (15 Barb. 568), took the correct view of the statute, when he said that evidence having been given, tending to show that the plaintiff was a householder, having a family for which he provided, and that his mare was all the team he had, and that it was used in the prosecution of the business in which lie was engaged, this was all that it was necessary for the plaintiff to show to bring him within the statute, and to entitle him to its benefits. Even if it was required of the plaintiff to show that the team was necessary to the support of his family, or in the prosecution of his accustomed business, we should assume on this verdict of the jury, that they so found. If essential to be established, it was a question of fact for the jury, and we assume they resolved it favorably to the plaintiff.

It is now urged on the part of the defendants that one horse does not constitute a team, and that therefore the plaintiff’s horse does not come within the letter or spirit of the statute. It is a sufficient answer to this objection, that it does not appear to have been taken or urged at the trial. But there is no force in the objection. The current of decision, in this State, is uniformly hostile to such a construction. The object and intent of these enactments by the legislature, were correctly stated in the opinion in Kneetle v. Newcomb (22 N. Y., 249.) It was there said by Denio, Ch. J., that these exemption laws apply only to householders who have families, for which they provide. It is a fair inference from this feature that one object of the legislature was to promote the comfort of families and protect them against the improvidence of the head. This was so considered by the Supreme Court in Woodward v. Murray (18 Johns., 400.) “I think it clear,” said Judge Platt, “ that the legislature meant to confer this privilege on each of those little primary communities called families.” Again: “It was designed as a protection for poor and destitute families, and the forlorn and destitute condition of his family, in the absence of the husband and father, gave them a peculiar claim to the benefit of the statute.” Judge Denio further observes, “ that some articles are-now exempt which do not enter into the common use of the family as such, but it was supposed that the protection of the team and the implements of a man’s trade, would be likely to enable him to keep his family together and to preserve the domestic establishment from want and dispersion.” Keeping in view this humane design of the legislature, in what sense are we to construe the word “team” as thus used in the statute? We are to hear in mind that the total exemption of household furniture, working tools and implements of trade cannot, in the aggregate, exceed the sum of two hundred and fifty dollars. If, therefore, we hold that the word “team” as used in this statute, means two or more horses, or two or more oxen, it must be seen that one team, if composed of but two animals, must nearly, if not quite, exhaust the limit of exemption, and if more than two, then it must be wholly exhausted, .unless the animals were of very inferior quality or value, and nothing would be left, within this limit, for exempted household furniture and working tools. It is apparent, from these considerations, that the “ team ” in the mind of the legislature was not of the character thus indicated, but any team which a householder, a head of a family, might or could use in and about the business of providing for such family, whether the number of animals composing the team consisted of one, two, three, four or. more. A team may be formed with either of these numbers, and whichever may compose it, if within the purview of the statute, and the limit as to value fixed by it, it will be exempt. This was the view taken by the Superior Court of Hew 'York in Harthouse v. Rikers (1 Duer, 606), where the question arose, whether a cartman’s horse, used in his dray or cart, was exempt under this statute.

It is familiar to daily observation that carts there are drawn by one, two, three and four horses, but more frequently by the former number. Boswobth, J., pertinently observed, that however inartificial the expression may be, yet the phrase, “ a one-horse team,” is often used, and expresses a clear idea to the common mind. Unless the word “ team,” as used in the act of 1842, includes that, then a single horse, harness and cart would not be exempt, though used together by a householder as a team to do team work. He says: “ I think a team, within the meaning of that act, means horses or oxen harnessed to a vehicle, and includes the three, and that though there be but a horse, harness and cart, instead, of two horses, harness and a wagon, they are exempt from execution if of less value than $250, and are necessary for the owner’s support, he being a householder, or having a family for which he provides. Under a contrary construction, the act, so far as it exempts a team, would have, practically, no application to this city. The ‘team’ of a carman would not be a team within the meaning of the act.” And such a construction would render the act in this respect almost a nullity, as those most generally claiming the exemption secured by the act, have a team consisting of only one animal. Those mainly for whose benefit the act was intended would be thus wholly excluded from its benign provisions. Such is not the construction this provision has received in our courts, as the authorities show. (Wheeler v. Cropsey, 5 How. Pr., 288; Hoyt v. Van Alstyne, supra; Radcliff v. Wood, 25 Barb., 52; Lockwood v. Younglove, 28 Barb., 505.) In the case last cited, Johnson, J., said: “ It is claimed that the horse in question was not and could not be a team. But it has been so repeatedly decided in this court that a single horse is a team within the meaning of the statute, when it is kept and used as such, that the question must be regarded as settled.”

The plaintiff sought to establish, on the trial, that the horse taken by the defendants was necessary to him in procuring the means of living, and for the support of his family. Had you any other business except in connection with this horse ? and if so, what was it ?” This question was objected to by the defendants, and he answered, “ I had no other business to obtain a livelihood except from the use of this horse.” He was then asked, “ State if you had any arrangements made for the use of this horse in the future, and what use you intended to put him to in the future f ’ This question was objected to by the defendants’ counsel, and admitted, and exception taken.

In the view of the law we take, this inquiry was wholly immaterial and unnecessary. It was sufficient for the plaintiff to show that this horse constituted his team; that he was a householder, and that his household furniture, workman’s tools and team did not, in the aggregate, exceed in value the snm of $250. Upon these facts being established, he was entitled to the exemption provided for in the statute. He had shown that this horse was used by him as a means of obtaining a livelihood, and that he had no other means for that purpose, and the inquiry as to the arrangements for the nse of the horse in the future was wholly immaterial. Its admission could work no injury to the defendants, and the answer was equally innoxious. To meet the objection urged, that a team must necessarily consist of two horses, the question put to the plaintiff, and objected to by the defendants, namely, “state if one horse can be used alone,” was manifestly proper. The answer rebutted the theory of the defendants, that a team could only be composed of two or more horses. It only developed a fact patent to all observers, and which might have been assumed if it had not been proved. The proof of the fact was unobjectionable. The defendants offered to show by a witness, that shortly before the horse was taken, the plaintiff, in the months of December, 1856, and January, 1857, owned two other horses worth $200, and had other property which he had disposed of; that he had transferred the avails thereof to his wife, and that she held these avails when the defendants took the horse. This evidence was excluded by the judge, and the defendants excepted. This offer shows a very imperfect appreciation of the intent and object of the statute. The exemption provided for by it, is not exclusively for the benefit of the owner of the team. It is mainly that the family for which he provides may not be stripped of all means of support, and cast as paupers on the community. It was not to be withheld from those who had committed crimes or frauds, or from those who had participated therein. Neither did the statute contemplate that those only should participate in its benefits who had previously owned property beyond the limit fixed by it. The amount of the exemption was fixed. Property to the value named was withdrawn, for reasons deemed wise by the legislature, from the operation of execution creditors. Whether the debtor had more or less beyond that, was and is wholly immaterial. The court, in Wheeler v. Cropsey (supra), gave a correct exposition of the statute in this respect. They say: In determining whether the team was necessary, it is entirely immaterial whether the debtor had or had not other ample means to pay the debt. If the fact that he had money enough to pay the debt is to control this question, then a teamster’s horses and a mechanic’s working tools are not to be exempt if the owner has money enough in his pocket to pay the judgment. This cannot be the test. We think the team of every teamster, and of every other man, when it is necessary to his use, is exempt, although the owner may be worth thousands of dollars, in money or in other property. The exemption is not made in the statute to depend on the pecuniary ability of the debtor. When the debtor has money or other property, the law has provided ample remedies for collection, without resorting to exempted property for the satisfaction of the debt.” The proof offered was, therefore, properly excluded. Ho other question is presented in the record, and the judgment appealed from must be affirmed.

Hogeboom, J.

In this case there was no motion for a non-suit. We must hence assume that there was prima facie evidence sufficient to carry the case to the jury. There were no exceptions to the charge of the court, and but four exceptions to the admission or rejection of evidence, which may be briefly disposed of.

.1. It was proper for the plaintiff to show by men acquainted with the fact that one horse could be used alone, and it has been repeatedly and properly held, under a liberal interpretation of this remedial statute, that one horse may constitute a team.

2. Thd defendants’ offer to show that shortly prior to the levy, the plaintiff owned two other valuable horses, and had other property, which he had disposed of, and transferred the avails to his wife, which she held at the time of the levy, was properly overruled.

■ (1). The object of the offered testimony was not distinctly stated, though it may be inferred it was to show fraud. The fraudulent disposition of other property would not necessarily import a fraudulent claim of exemption, in regard to this property; and the connection between the two, and the inference to be drawn from the supposed fraud, should have been brought to the notice of the court.

(2). The question of exemption is one, of fad, depending upon the necessity of the horse to the party claiming the exemption, and not of fraud towards creditors in so arranging the residue of his property as to require such exemption. If it was designed to show the pretense of exemption was fraudulent and a sham, such point should have been stated. The evidence was not directly calculated to show it, and it may well be doubted whether the necessity for the exemption or the contrary could be pertinently illustrated by evidence of this description. I think it was too remote to be admissible, at least without a direct offer of its object and intent. In • addition to this, the defendants had the benefit of the inference which could be drawn from the plaintiff’s disposition of other property, by evidence of such disposition, elsewhere admitted without objection.

3. The third objection was to the question whether the plaintiff had any other business except in connection with this horse, a question directly calculated to show the necessity of the horse to the plaintiff in his business, and thus its exemption from sale and levy under execution.

4. The fourth objection raises perhaps the only serious question in the case. The plaintiff was asked whether he had made any arrangement for the use of the horse in future, and what use he intended to put him to. This was objected to by the defendants, the objection overruled, and an exception taken. Taken in connection with the context I do not think the question was improper. He had just been asked his actual and present business, and it was not improper to show that the necessity for the use of the horse would continue ; that it was not a mere temporary, but a permanent or continued use of the horse which the plaintiff required; that it was not a mere fictitious expedient to which the plaintiff resorted, but a bona fide and substantial use of the horse which he required and had in contemplation. Regarded, therefore, as designed to show perfected arrangements and matured intentions in reference to the use of the horse, and to strengthen the impression of the necessity of the horse to the plaintiff’s business, and to rebut any idea of bad faith, I do not think the testimony was objectionable.

These present all the exceptions taken at the trial, and are the whole case. I see no reason for disturbing the judgment of the Supreme Court, and am of opinion it should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Wright, J. Mullin, J.

license: Public Domain

text:
    Thomas Van Buskirk v. Marshall O. Roberts.
    The ticket issued to a passenger for his passage from New York to San Francisco, does not preclude the party from showing by parol testimony a contract for such transportation.
    And though two tickets — one from New York to Ohagres in one steamer, and one. from Panama to San Francisco in another—be issued, it does not show thereby more than one contract of transportation from New York to San Francisco.
    A party being a part owner of the line of steamers from New York to San Francisco, can bind himself as principal in a contract for the transportation of passengers over such line; and such contract may be proved by circumstances, notwithstanding the passenger received separate tickets for separate vehicles in the line.
    A contract independent of that expressed in the ticket, may be proved and submitted to the jury.
    The party contracting for the transportation of passengers is liable for damages arising from unreasonable delay along the route, occasioned by the fault or neglect of those legitimately engaged in the line of transportation.
    Thus, a party who has engaged transportation over the line from New York to San Francisco, and who is unreasonably detained at Panama by the default of the transportation company, and is thereby specially damaged, as by sickness, loss of journey, &c., may maintain his action for damages consequentially sustained.
    Appeal from a judgment of the Supreme Court.
    The complaint alleged for cause of action, that on the 24th May, 1850, the defendant being a carrier of passengers for hire, between Rew York and California, for a reasonable reward paid him by the plaintiff, contracted and agreed to and with the plaintiff to carry and convey the plaintiff and his two men, Moses Miller and Stephen Shackell, from the city of Rew York to the city of San Francisco (except across the isthmus from Chagres to Panama), and to provide suitable boats and accommodations, and comfortable and wholesome food and fare for the plaintiff and his men, and to carry and convey them with safety and speed, and without unreasonable delay; but that the defendant neglected and refused to carry them with reasonable diligence and speed, and to provide them with suitable accommodations and wholesome and sufficient food, by means whereof the plaintiff and his men were detained at Panama for the space of six weeks, and the plaintiff was made sick and diseased, so that he was obliged tc abandon his journey and return to New York; that his men, aforesaid, were detained and made sick, in consequence of which the plaintiff lost his time and the money he paid, so as aforesaid, that is to say: The sum of $200 paid by the plaintiff to the defendant for his passage, the sum of $50 for his passage from Panama back to New York, and also the time and services of his men for-the space of about two months, to the value of $1,000, and was put to great expense .and charges by reason of his sickness, aforesaid, and hath wholly lost his time and greatly suffered, by reason of his .said sickness, to his damage in all of $2,000.
    • The defendant answered: That he was a part .owner and agent of the steamship Ohio, and other steamships which were engaged in the business of carrying passengers and freight between the ports of New York and Chagres, and that he was also, at the same time, agent of the steamship Repub • lie, and other steamships which.were engaged in the business of carrying passengers and freight between the ports of Panama and San Francisco; and denied that he was a common carrier of passengers for hire, except as expressly stated. And as to each and every other allegation in the complaint, the defendant says he has no knowledge or information sufficient to form a belief.
    The cause came on for trial before Mr. Justice Emott and a jury, at the Dutchess Circuit Court in March, 1858. The plaintiff gave evidence tending to prove that in May, 1850, one James R. Birdseye, as his agent, contracted with the defendant to transport the plaintiff and his two men from New York to San Francisco at the price of $200 each. The defendant agreed that there should not be over five or ten days delay at the Isthmus, and that the accommodations on board the vessel should be “ good farmer’s fare.” The price of the passage was paid in advance, and two tickets were issued to each of the three persons, one for $50 passage on the steamship Ohio from New York, and the other $150 for passage in the steamship Republic from Panama to San' Francisco. . The parties sailed from Hew York in the Ohio, on the 28th May, 1850, she having about 450 passengers. The vessel reached Havana on the 6th June, 1850, and there certain of the passengers, including the plaintiff and his men, were transferred to the steamship Falcon, a much smaller vessel than the Ohio, and having about double the number of passengers. The plaintiff’s evidence tended to show that the board and fare on the Ohio were not according to the agreement. That the provisions were bad, not well or regularly served, and cooked in sea water. The lodging was not. good. On the Falcon it was still worse. On the part of the defendant there was evidence tending to show that the accommodations for passengers in both vessels were good.
    It apeared that the Falcon arrived at Chagres on the 12th June, 1850, and on the 17th June the plaintiff and his men arrived at Panama. The plaintiff was then in good health. He remained at Panama from the 17th of June to the 25th or 27th July, 1850, when, under the advice of a physician, he started for home. After he had been at Panama about two weeks -he was taken with the Panama fever, and continued ill when he started for Hew York, and was ill on the return passage. He was so ill when he started from Panama home, that he could not get upon the back of a mule without assistance, and required an attendant as far back as Cruces He was unable to go on to California on this account.
    When the plaintiff was at Panama, the Columbus, a vessel of the line, ran from there to San Francisco, but the plaintiff was then sick, and his ticket being for the Republic he could not get passage. The plaintiff left Panama, to return home, about the 25th July. Ho steamers of the line arrived at Panama within ten days after the plaintiff reached there.
    The Republic sailed for San Francisco on the 27th July. The plaintiff paid all his expenses on the Isthmus, his fare back to Hew York, besides losing his time, and the $200 for his passage out.
    At the close of the plaintiff’s testimony the defendant moved for a nonsuit, which was denied.

      The defendant claimed on the trial that he made no contract whatever with the plaintiff, but that the contract made was with Birdseye, and by him assigned to the plaintiff, and that if any was made with the plaintiff, it was not a single contract for a passage from New York to San Francisco, but that two separate contracts were made, one to carry from New York to Ghagres in the Ohio, and the other to carry from Panama to San Francisco in the Republic, and this was mainly rested on the fact that separate tickets were issued for the passage in the Ohio and in the Republic, which was claimed to be the only legitimate evidence of the contract between the parties.
    The judge submitted these questions as questions of fact to the jury, and the defendant excepted.
    The jury were also instructed that if they found the contract to have been as the plaintiff alleged, they must determine whether it had been broken by the neglect to furnish proper fare and accommodations on the Ohio and the Falcon, and by the detention of the plaintiff at Panama; and it was left to the jury to say whether the detention of six weeks at Panama was reasonable or not; and if unreasonable then the contract had been broken. If they find the contract broken, then the plaintiff was entitled to recover as damages the §200 paid for passage money, the expenses of returning from Panama, and his expenses while at Panama.
    The jury was also instructed that if the plaintiff’s sickness was caused wholly by his wrongful detention at Panama the plaintiff was entitled to damages on that account.
    To these instructions the defendant excepted.
    Tire counsel for the defendant then submitted twenty-one separate propositions, upon which the judge was requested to charge; some of which were charged, and as to some the request was refused. Of those which the judge refused to charge, but three are now insisted on, viz.:
    16. If the owners and officers of the Republic were guilty of no negligence or laches in their efforts to bring that steamer to Panama in season to meet the passengers of the Ohio on her voyage on the 28th Hay, 1850, and lost no time voluntarily or by their own fault on the way, the defendant is excused from liability for the delay on her arrival in Panama.
    17. That the defendant is not liable for any loss or suffering sustained by the plaintiff in consequence of his illness at Panama.
    18. If the jury believe that, at the time the plaintiff abandoned his journey and started on his return to ¡New York, the Republic was at Panama ready tó convey him in the ordinary course of her voyage thence to San Francisco, the abandonment of the journey was voluntary on his part, and excused any further performance by the defendant.
    On the trial, after giving evidence to show that the defendant was not part owner of the steamers on the Pacific side, it. was proposed to prove in what capacity the defendant was acting in selling tickets for the Republic, and the evidence was rejected.
    The jury found a verdict for the plaintiff for $950 damages, and, from the judgment entered on this verdict, the defendant appealed.

      J. H. Reynolds, for the plaintiff.

      E. Pierrepont, for the defendant.
   Wright, J.

The complaint alleged a contract with the .defendant to carry the plaintiff from ¡New York to San Francisco, in California, with diligence and without unreasonable delay, and in the transit (except across the isthmus from Chagres to Panama) to provide suitable boats and accommodations, and comfortable and wholesome food and fare. The judge refused to nonsuit at the close of the plaintiff’s case, and upon the evidence adduced, submitted the question to the jury, whether such a contract had been made, and if made as alleged, whether it had been broken by defendant, It is upon this refusal to nonsuit that the principal questions in the case arise.

. I think it was not error to refuse the nonsuit. It is not claimed, if there was evidence of an agreement to transport the plaintiff as a passenger from ¡New York to San ¡Francisco, proper to be submitted to the jury. The defendant contends that there was no evidence of any contract whatever between the defendant and the plaintiff, but that if any was made with the latter, it was not a single contract for a passage from ¡New York to San Francisco, but two separate contracts; one to carry from Hew York to Chagres, in the steamer Ohio, and the other to carry from Panama to San Francisco, in the steamer Republic. The first of these grounds rests upon .the assumption that whatever verbal con-' tract was proven, was between the defendant and James R. Birdseye; the second, upon the ground that two tickets were issued for passage in the Ohio and the Republic, which were the only legitimate evidence of any contract between the plaintiff and defendant. ¡Neither of these grounds are maintainable. It is entirely certain from the evidence, that the contract of the defendant was not made with Birdseye in any other way than as the agent of the plaintiff, and this the defendant knew; and the tickets received for the passage were not the only proper evidence of the defendant’s agreement; nor did they preclude" the plaintiff from showing, by parol testimony, a contract with him to carry for the entire route. This point was distinctly adjudged in Quimby v. Vanderbilt, (17 N. Y., 306.)

¡Now, what was the evidence bearing on the question of an agreement to carry the plaintiff through to San Francisco % In May, 1850, the defendant was engaged in the transportation of passengers and the United States mail, through from ¡New York, by way of Chagres, to San Francisco. He advertised his line as the through line to California via Chagres, carrying the U. S. mail.” And the advertisement announced to the public that the steamship Ohio would sail on the 28th of May, and that the books were open for passage to Charleston, Savannah, Havana, ¡New Orleans and Chagres, and for through tickets to San Francisco. The plaintiff resided in Ontario county. In May, and some days before the Ohio was to sail, James R. Birdseye (who was also a resident of Ontario county), called upon the defendant at his office, in New York, to purchase tickets to California for ‘'himself, the plaintiff, and others of his neighbors.

Birdseye had the money of the plaintiff in his hands, and was instructed by the latter to buy three tickets for him, if he would not be detained on the isthmus. He stated to the defendant, that the ,party did not wish to be detained on the isthmus, and would rather wait until they could go direct through. The defendant replied, that they would not be detained over five or ten days; that he expected two vessels to meet them at Panama; but did not mention the names of the vessels, nor where he expected them to come from. He said that the accommodations on board the vessels should be good farmer’s fare. The steerage passage to California, in vessels on the Atlantic and Pacific sides, was $200 for each person, and Birdseye procured tickets from the defendant for eight persons — one for himself, three for the plaintiff and four for other neighbors. The price of the passage was paid in advance, and two tickets were issued to each of the persons, one for $50 passage in the Ohio from New York to Chagres, and the other $150 for passage in the Republic from Panama to San Francisco. These tickets were in the form of receipts for passage, and were drawn by the defendant, or under his immediate direction. The defendant stated that .he would draw them all to Birdseye, although the latter told him they were for other persons. He attempted to give him the names of the persons for whom he contracted, that they might be put in the tickets, when the defendant suggested that he should take "them all in his own name and transfer them to the several persons for whom he received them, and they were filled up accordingly in his own name. The ticket for the Atlantic side of the route was in this form: “ H. S. Mail Steamship Ohio, New York, May 24, 1850. Received fifty dollars for the passage of Mr. Birdseye, or bearer, to Chagres, in steerage berth, No. 292. Sails May 28, at 8 p. m. from pier, foot of Warren street, N. R.” The defendant’s office was No. 118 West street, New York. The ticket for the Pacific side of the route was as follows: “ Steamship Republic, office 118 Weststeet, New York. New York, May 24,1850. Received one hundred and fifty dollars for the passage of J. R. B., or” order, from Panama to San Francisco, in steerage berth No. 333. Grood for the first voyage.” The plaintiff, with two of his men, for whose passages to California he had furnished the money, sailed in the Ohio on the 28th of May, and reached Chagres on the 12th June, and Panama on the 17th June. The three tickets, procured for him by Birdseye, secured them admission on board of the Ohio and Falcon, two of the vessels, on the Atlantic side, of the defendant’s line. No steamers of the line arrived at Panama for more than two weeks after the plaintiff reached there, and the Republic did not arrive there before the 15th July, nor was she ready to sail to San Francisco before the 27th of that month. After the plaintiff had been at Panama about two weeks he was attacked with the Panama fever, which illness continued until he left for home on the 25th July. Whilst he was at Panama the Columbus, a vessel of the line, ran from there to San Francisco, but the plaintiff was then sick, and his ticket being for the Republic he could not get passage.

These were the leading features of the case, and the evidence was mainly undisputed. It was quite enough to render it proper to submit it to the jury to say whether the contract was entire to convey the plaintiff from New York to San Francisco, or whether there were two separate contracts as the defendant contended. Indeed, I think the proof showed clearly that the contract was entire for the whole route. The payment of the passage money through, was of itself strong, if not conclusive evidence. The plaintiff, through his agent, applied to the defendant, who was engaged in the business of carrying passengers from New York to San Francisco, to obtain such passage, and he was promised it for $200 ; fifty dollars for steerage berth and fare on the Atlantic side, and $150 for steerage berth and fare on the Pacific side. He paid, and the defendant received $200 from him, to be transported over the entire route. This price of passage was paid in advance, and corresponded with the defendant’s advertised rates of steerage passage in his line upon the Atlantic and Pacific. The giving of two tickets was not a circumstance to raise a doubt of the entirety of the contract, but if it did, it was for the jury to solve the doubt.

tinder a charge that was unobjectionable, the jury found that the defendant contracted, as alleged by the plaintiff, to carry the latter from Hew York to San Francisco, except across the isthmus from Chagres to Panama. The defendant could make such a contract as principal, though he may have been but part owner of the line, and such contract could be established by the circumstances, notwithstanding the passenger received separate tickets for separate vehicles in the line. These passage tickets are generally to be regarded as tokens rather than contracts, and are not within the rule excluding parol evidence to vary a written agreement. (Quimby v. Vanderbilt, 17 N. Y. 306.) The circuit judge was entirely right in his charge, that if there were, besides the tickets, a substantial independent contract, the jury might find their verdict on that, notwithstanding it was not expressed in the tickets ; that they were not confined to the tickets as evidence, but might find a separate contract, or a contract partly evidenced by the tickets.

The defendant having undertaken to carry the plaintiff from Hew York to San Francisco, the law imposed upon the former, independent of any special agreement, the duty of carrying the latter through without unreasonable detention, and to furnish him fare, such as was usual and proper for a steerage passenger on the voyage. At the time of the negotiation for passage, and when the contract was made, the defendant represented that the delay at Panama would not exceed five or ten days, yet the plaintiff was detained there about six weeks, without any means being provided for his conveyance to San Francisco. Upon the whole proof, and under instructions to which there was no exception, and of which the defendant certainly had no reason to complain, the judge submitted to the jury the question whether this detention was not without excuse, and constituted a breach of the contract. The jury found the delay without any excuse. There was no evidence whatever that the position of the steamer Republic was communicated to Birdseye the agent of the plaintiff, or to the plaintiff himself, when the contract was made, or that either knew that the vessel had been sent around from ¡New York to Panama to take her place on the Pacific portion of the line; yet the judge submitted to the jury to say whether that fact had been communicated to the plaintiff when the contract was made, and whether the contract was to use due diligence in bringing her to Panama, intimating that if that was the contract the defendant had used due diligence in bringing the vessel to Panama, and the detention of the plaintiff at that place, under such circumstances, was excused. If either party had reason to complain of these instructions it was the plaintiff. He knew nothing of the Republic having been sent around to take her place in the line. The defendant undertook to carry him with.the ordinary speed of transit, and within a reasonable time, and failing to do so, the contract was broken. If the Republic was not at Panama in season, the defendant should have provided another conveyance in her place. This idea of excusing the delay by the non-arrival of the Republic is based exclusively upon the position that the ticket for that vessel expressed the only contract for transit on the Pacific portion of the route.

The jury having found that the defendant contracted to carry over the entire route, and that -he had broken his contract, the only remaining question was one of damages. On this subject, the instructions were that the plaintiff was entitled' to recover the §200 paid for passage money, the expense of returning from Panama to ¡New York, and his expenses while at Panama. To this extent no objection could be urged, as it was a damage necessarily resulting from a breach of the contract. Indeed, it is not contended that if the plaintiff had, under the circumstances, a right to abandon the contract, these were not proper items of damage. The jury were also further instructed .that if, by the misconduct of the defendant, the plaintiff’s voyage was broken up, and he was detained at a sort of pest house, so that merely from that cause he took sick, damages on that account might also be recovered. That the jury must be satisfied that the sickness was caused wholly by the unreasonable detention, and in that case they might compensate the plaintiff for his suffering and expense. The defendant excepted generally to so much of the charge as allowed the jury to award damages for the plaintiff’s sickness; and sub'sequently requested the judge to instruct them, which request was refused, “ that the defendant was not liable for any loss or suffering sustained by the plaintiff -in consequence of his illness at Panama.” This branch of the charge was unobjectionable, cautiously limited as it was. The jury were distinctly told that they could allow nothing for' sickness and expenses, except that which directly and immediately resulted from the breach of the contract by the defendant. The evidence was sufficient to authorize the jury to find that the illness of the plaintiff was caused wholly by his detention at Panama; but had there not been evidence in the case to justify the submission of the question to them, no objection of that kind was taken.

Among the numerous propositions submitted to the judge to charge, was the following: “ That if the jury believed that at the time the plaintiff abandoned his journey, and started on his return to Hew York, the Republic was at Panama, ready to convey him, in the ordinary course of her voyage, thence to-San Francisco, the abandonment of the journey was voluntary on his part, and excused any further performance by the defendant.” The judge had, substantially, charged the converse of this proposition, to which no exception was taken. The Republic reached Panama about the middle of July, but was not ready to sail to San Francisco until the 27th of that month. A fortnight before she arrived, the plaintiff was prostrated by fever, and he continued ill until, on the 25th of July, under the advice of a physician, he left for home. He was so ill when he started from Panama, that he could not get upon the back of a mule without assistance, and required an attendant as far back as Cruces. He was unable to go on to California on this account, and his physician so advised. The judge’s instructions were, that if he had not been unreasonably detained, and he abandoned his journey and started for home after the Republic reached Panama, his abandonment was against him; but after a breach of the contract by the defendant, and an unreasonable detention at Panama, the plaintiff had a right to abandon the contract, and especially, if by the defendant’s unreasonable detention his health had been impaired. This was strictly correct. After the defendant had broken the contract, the plaintiff had the right to abandon it; especially, if by such breach the objects of the plaintiff’s journey was frustrated, and he disabled by sickness, occasioned by the defendant’s wrongful detention, from proceeding. The abandonment of his journey under such circumstances, though the Republic was at the time at Panama, ready to convey him, in the ordinary course of her voyage thence to San Francisco, would be no excuse for the defendant’s breach of duty.

On the trial, after giving evidence to show that the defendant was not interested as owner of the steamer Republic, it was proposed "to prove in what capacity he was acting in selling tickets for that vessel. The evidence was properly rejected. It was not material, for the defendant was liable for the damages on his contract whether he had any interest as owner in the steamer or not.

I am of the opinion that the judgment should be affirmed. The principal questions in the case are identical with those raised in Quimby v. Vanderbilt (supra), and were disposed of at the Circuit in accordance with the principles of that case. The evidence in that case which was held sufficient to authorize a jury to find that the defendant’s contract was a single and entire one to carry through, was no stronger than in the present; and there, as here, it was claimed, though ineffectually, that the tickets which the plaintiff received and held for the passage over the several routes, were, in themselves, written evidence of the bargains by which he engaged his passage, and that he was precluded from contradicting them by parol testimony of an entire contract with the defendant.

Mullin, J.

The first error relied on by the appellant’s counsel to reverse the judgment, is that the plaintiff should have been nonsuited, because, he says, the plaintiff had no claims against the defendant except such as the law implies from the fact that he held a ticket. This is a great mistake. The tickets would be evidence in the absence of any other proof of a contract to carry the plaintiff. But the plaintiff alleged in his complaint, and has satisfied the jury, and they, by theh verdict, have found, an express agreement by the defendant to carry the plaintiff from blew York to San Francisco for a consideration paid to the defendant therefor. It was competent for the plaintiff to allege and prove such a contract, and the tickets furnished no evidence inconsistent with it. A check for a trunk, delivered by a railroad or steamboat company to a passenger, is evidence of the receipt of the trunk, and of an agreement to carry it from the place where the trunk is delivered to the place to which the company has agreed to carry the passenger. But the real contract is the one made with the passenger^ by which the company bound itself to carry him and his baggage, from some place on its line, to some other place on or beyond its line.

Some stress is laid by the counsel on the fact that the arrangement for the tickets was made with Birdseye, and not with the plaintiff personally. Birdseye says he acted for the plaintiff, and so informed* the defendant, who refused to insert the names of the several persons for whom Birdseye acted, because he, (defendant) said it was unnecessary; he, (B.) could transfer them; those for the steamship Ohio ran to B. or bearer, and those by the Republic to B. or order. I am not aware of any law that forbids a passenger to make a contract with a carrier for his carriage to San Francisco or elsewhere through an agent.

The next error complained of, is that there was no breach .of the agreement. The jury has found there was, upon conflicting evidence, and that finding must be deemed conclusive. But if it was an open question, I should be constrained to find on the evidence in this case precisely as the jury has found—that the passengers on the Ohio and Falcon were most shamefully imposed upon, not only in the treatment they received on board such vessels, but in being induced to go to Panama under the assurance that they would not be compelled to wait more -than ten days when they were compelled to wait some five weeks—the defendant knowing, when this representation was made, that it was impossible for the Republic to reach Panama within much less time than she actually reached there. It is proved beyond dispute, that the vessel made a rapid passage in view of the delays incident to a voyage round Cape Horn. If the defendant did not know the length of time required to make this voyage, he had the means of informing himself, or failing to do that, he should have disclosed the time of sailing of the Republic from Hew York and left the passengers to form their' own conclusions as to the time of her probable arrival. By the representations made, and by omitting from the contract a-provision which should relieve him from liability for the detention of the passengers at Panama, the law holds him bound to carry the passengers through with reasonable diligence and dispatch, and that they would not be detained at Panama, waiting for the Republic, beyond a reasonable time; and what would be a reasonable time to wait for her, the jury must determine, having reference to the representations on that subject made by the defendant.

Considering that the length of time the plaintiff and others would be detained at Panama was matter of opinion merely. Yet the plaintiff’s agent made the time of detention at Panama the subject of discussion with the defendant, saying to him, that if those for whom he acted were to be detained any considerable length of time' they would wait until the next steamer. It was in answer to this suggestion that the assurance was given, and it was then that good faith demanded that if the defendant meant to impose the consequences of delay on the passengers, he should have informed them the time was matter of opinion merely, and they must wait whatever the length of time might be, for the arrival of the Republic. Under these circumstances he became bound for the consequences of unreasonable delay, and he deemed ten days a reasonable detention at Panama. The jury was justified in adopting that length of time as a criterion by which to determine what would constitute an unreasonable , detention.

It is said the delay of the Republic was caused by the act of God, and was not the fault of the defendant. The defendant should have provided for the contingency in his contract, and not having done it he cannot be excused. If. the contract had been to carry by the Republic and in no other way, then it is probable the doctrine contended for might apply. But the contract was to carry in a reasonable time, and by the Republic, from Panama if she arrived there in a reasonable time after the plaintiff arrived, if not, then by some other vessel.

This was not a case in which the act of God can be resorted to as an excuse for a neglect to perform a contract. (2 Parsons on Contracts, 184; Barber v. Johnson, 19 Wend. 500 ; Harmony v. Bingham, 2 Kern. 99.)

These are the only points amongst the multitude raised on the trial deserving of consideration. And as they were properly disposed of, the judgment should be affirmed with costs.

Judgment affirmed.


author: Hogeboom, J.

text:
    Martin B. Scott, Respondent, v. Wm. T. Rogers, impleaded with George W. Rogers, Appellant.

      (''Where a factor was instructed by his principal to sell wheat on consignment at a specified price on a given day, and, if not sold on that day, to ship the same / to Hew York, the factor must obey instructions, or he will be liable as for a conversion of the wheat.
    If, on the day lie is required to sell, he give a refusal until the morning of the day following, and accordingly perfects the sale on that day, he will be liable fór disobeying the instructions of his principal, and maybe treated as having ' converted the wheat to his own use.
    Where the gist of the action is for such breach of duty, the rule of damages applicable is to allow the plaintiff the highest market price of the property prevailing between the time of the conversion, and a reasonable time thereafter within which to commence the action.
    Where the conversion took place at Buffalo, $1. Y., July 13, and navigation between Buffalo and New York closed about the 29th of November of the same year, it was held, that a reasonable time within which to commence the action extended to said 29th of November.
    Where the intention of the party to sell the property at a definite time can be ascertained, that intention should be considered in determining the time within which to limit the inquiry as to the market price of the property converted, etc.
    The plaintiff may restrict the time within which to determine-the measure of damages, by signifying in any manner Ms election to treat the property converted as having vested in another.
    But, it seems, the plaintiff will not be permitted to prosecute his inquiries through the entire period between the conversion and the time when the statute of limitations would attach, for the purpose of discovering the highest price at which such property sold in market.
    This is an appeal from a judgment rendered by the Superior Court of Buffalo, in favor of the plaintiff against the defendants.
    i The action was to recover damages resulting from an omisI sion by the defendants to sell or ship the plaintiff’s wheat, in I accordance with his instructions, and was tried by the court [ without a jury. The plaintiff resided in Cleveland, Ohio, and the defendants were commission merchants, and, as such, engaged in business at Buffalo. They acted as the factors and agents of the plaintiff in receiving and selling at Buffalo, and in. shipping thence to Yew York, property consigned to them by the plaintiff.
    On the 12th of July, 1853, the defendants had in store 5,558 bushels of Ohio white wheat, belonging to the plaintiff. On that day the plaintiff telegraphed to the defendants to sell on that day this wheat for one dollar and eight cents per bushel, or, if not sold on that day, to ship it to Messrs. Wright, Gillett & Rawson, in Yew York.
    After the receipt of this dispatch, on the 12th of July, the defendants gave to John T. Yoye a sample of the wheat, and offered to sell it to him at one dollar and eight cents per bushel. Mr. Yoye desired to look at the wheat, and to have till the morning of the 13th of July to determine whether he would take it at that price. The defendants gave him this privilege, provided no news was received to change the value of the wheat.
    . On the morning of the 13th of July, and at about 8 o’clock, Mr. Yoye came to the defendants’ office and took the wheat, paying the defendants one dollar and eight cents per bushel for it. The plaintiff never ratified this sale, but repudiated it at once, by telegraph, under date of July 13th. Some' correspondence ensued between the parties, which failed to result in an adjustment of the controversy, and this suit was brought to recover the plaintiff’s damages. The court found, in substance, that the sale was in good faith, and because the defendants supposed they were promoting the interests of-the plaintiff; that if the wheat had been shipped on the 13th, it would have reached Yew York between July 27th and 31st, and that the highest price-down to August 4th was $1.31 — the espíense of transportation, aside from insurance, storage, and other charges, being 15£ cents per bushel. The value of the wheat in the Yew York market, between July 25th and Yovember 29th, fluctuated between $1,25 and $1.65; being at the last named sum at the last named date.
    The court decided that the sale of the wheat was unauthorized and' illegal, and that the measure of damages was the difference between the price for which the wheat was sold and what it was worth at a reasonable time after the sale, within which to commence the action. ■ The court fixed the 29th of November, 1853, as such reasonable time. The wheat was then worth, in the city of New York, one dollar and sixty-five cents per bushel. The court took this value, and deducted therefrom the cost of transportation of the wheat from Buffalo to New York, and the storage and keeping of the property till the 29th of November, making twenty cents and one-quarter of a cent per bushel. The difference between the price at which the wheat sold, and its value on the day fixed by the court, was thirty-six cents and threeqxxarters of a cent per bushel, for which, with interest, the court gave judgment, making in the aggregate the sum of $2,764.44, and the costs of the action.
    The defendants excepted to the decision of the court,

    First. As being contrary to evidence, and as to the measure of damages, and also to that part of the finding which held that the sale was unauthorized and illegal; they contended they substantially complied with the plaintiff’s instructions.
    Second. They excepted to the decision relative to the measure of damages prescribed by the court; they claimed the damages were merely nominal, at least that the plaintiff ought not to recover more than the difference between the price received and what it would have been when the wheat could have been transported to and sold in the city of New York, fixing, as that time, August 2d.
    Third. They excepted to the decision that a reasonable time after the sale, within which to commence the action, was the 29th of November.

      H. W. Rogers, for the appellant.

      John Ganson, for the respondent.
   Hogeboom, J.

This is an action by a principal against his factors, to recover damages for an unauthorized and illegal sale of his property; and the question in the case is as to the proper rule of damages.

The complaint contains two counts. The first is for a neglect and refusal to obey plaintiff’s instructions to sell his wheat at Buffalo, at a particular date, at §1.08 per bushel, or, in the event of their not- doing so on such day, to ship same to Yew York; and for a violation of his instructions in selling the same at Buffalo for the price mentioned at a subsequent date, whereby plaintiff was deprived of large gains and profits in the sale thereof.

The second count is for a neglect and refusal to ship the wheat to Yew York, pursuant to instructions, and for shipping, using and disposing of the same in their own name and behalf, contrary to the plaintiff’s instructions, whereby plaintiff lost the wheat and large gains and profits in the sale thereof.

The damages claimed in the complaint are, under the first count, the difference in price between the wheat as sold andi what it would have sold for in Yew York; and, under the second count, the - value of the wheat in the city of Yew' York, deducting in each case the expense of transportation. There is also a claim for general relief.

The gist of the action, therefore, is for a breach of duty in making sale of the wheat in violation of the instructions of the plaintiff, and in converting the same to the defendants’ use, resulting in the loss of the wheat to the plaintiff, and in the loss by him of large gains and profits in the sale thereof.

This embraces essentially a cause of action in case and in trover, and entitles the plaintiff to the damages recoverable in those actions. I am not aware that, in the absence of\ fraud or misrepresentation, or willful misconduct, there is any difference in the rule of damages applicable to this ease, whether the action be for a breach of contract or for a .violation of duty; and I agree with one of the judges who delivered opinions on the former argument, and with the Superior Court of New York in Suydam v. Jenkins (3 Sandf. S. C., 614), that there should be none. The question is one of complete indemnity to the party injured. It is not stated in terms, and perhaps not in effect, that the sale by the defendants was framdulmt or m bad faith; and, therefore, no damages, founded - specially on that ground, ought to be recovered. But it is stated that the sale was without'authority and in violation of instructions, and, therefore, every damage -consequent upon such a sale should be allowed. It is not stated that the instructions to ship to Hew York were with a view to the immediate sale of the wheat on its arrival at Hew York, and, therefore, the plaintiff should not be limited to the price zof the wheat immediately after it would have arrived in Hew York, if forwarded according to the plaintiff’s instructions. But it is stated, inferentially at least, that the order to ship to Hew York was with a view to an ultimate sale there, inasmuch as it is stated that, by the act of the defendants, the plaintiff lost large gains and profits in the sale of the wheat; and hence we may, perhaps, safely infer that the object of the plaintiff was eventually to make sale of the wheat. Perhaps, if this would involve a more restricted rule of damages than would otherwise obtain, the plaintiff is not limited to it, inasmuch as there is in the complaint substantially an allegation .of an illegal conversion of the property by the defendants, entitling the plaintiff to such damages as belong to such a cause of action.

The causes of action in the complaint were sustained by the evidence. There was a plain violation of instructions by the defendants, though probably not in bad faith, and a sale by them at Buffalo or Tonawanda at a date when they were expressly ordered to ship to Hew York. This was a clear breach of duty, and, in effect, a conversion of the property; and the question returns, what damages was the plaintiff .entitled to recover %

If the plaintiff’s orders had been obeyed, he would have retained his property, and might, if he had so chosen, have kept the same up to the time of the trial, when a recovery for the value thereof would, in effect, and by operation, of law, have transferred the title thereto to the defendants; or he might have elected his own time and place for the sale thereof. Of both of these rights he was deprived by the act of the defendants; and the defendants must make the plaintiff good. There is nothing in the case or in the evidence by which we can precisely ascertain what' the plaintiff would have done with the property if he had retained it; and this presents one of the chief difficulties in ascertaining, in point of fact, the damages which the plaintiff has sustained. If he designed an immediate sale thereof, on its arrival in Hew York, the price at which he could have sold it at that time, as compared with the price which the defendants got for it, and which, from a stipulation in the case, we are authorized to infer, has been paid over to the plaintiff, would show the loss sustained by him. But, as before stated, neither the allegations in the complaint nor the evidence in the case discloses any clear proof of an intent to make an immediate sale; and I think, as well under well-settled rules of law as the reason and spirit of the case, the plaintiff ought not to be limited to such damages. He may be supposed to have been reasonably conversant with the market and with the prospects of a rise in price, and to have anticipated, to some extent, the results as to such rise, which subsequent events verified. What precisely he would have done is, as before stated, a question of difficult solution. If, at some subsequent time within a reasonable period after the conversion, he had notified the defendants of his election to adopt the price at that period, I think that would have fixed a reasonable and ' lawful standard for the estimate of damages. It would have been saying, in substance, I elect to consider the property as mine up to this period; I now elect to make sale of it, and I hold you responsible for the present value of the property. But no such course was taken. Ho notice was ever given, otherwise than such as is to be inferred from the commencement of the suit. Ho suit was commenced until years after-wards ; and it is now claimed to be the legal rule that the aggrieved party may make price at any time after the conversion and before the trial of the cause, or, at least, that he may do so provided the suit is commenced within a reasonable time after the conversion. This was the rule adopted at the trial, with this qualification, that the price at the commencement of a suit, commenced within a reasonable time after the conversion, instead of the price at the time of the trial, furnished the criterion for estimating the damages.

. In the absence of any definite means for ascertaining the period when the owner of the property would have disposed of it, we are necessarily more or less in the dark as to the amount of injury which he has sustained by the illegal act of the defendants, and are driven to resort more or less to conjecture, or to fix upon some arbitrary period for determining the price of the property. It is obviously a rule of doubtful justice to give to the plaintiff the whole period until the statute of limitations would attach for the commencement of Ms action, and the whole period intervening between the conversion and the trial to select his standard of price, without ever having given notice of his intention to adopt the price of any particular period. A much more just and equitable rule, independent of adjudications upon this question, would seem to be, to allow to the plaintiff some reason- . able period within the statute of limitations for fixing the price of the property, provided he notifies the adverse party at the tíme of such act on his part; but never to allow him j unlimited liberty of selection as to the price of which he will avail himself at the trial of the cause.vTf he does not make and notify his election of time, then to fix the time by ; the day of commencing the action, provided the action be j commenced within a reasonable time after the conversion. This is an election to hold the defendant liable for the conversion, and in effect to treat the property as his. The time of the trial and verdict' is, it is true, the time of the actoal transfer of the property to the defendant by operation of law, or, rather, the payment or collection of the sum recovered completes and perfects the legal transfer to the defendant. ¡But the commencement of the suit is the election to hold j the defendant liable from and after that date for the value j of the property. This, as it appears to me, is justice done ! to both parties. The defendant, by converting the property, becomes liable for its value. If the plaintiff elects to take its value as of that date, the defendant has had the benefit of that precise sum. If the plaintiff at any time makes price, and notifies the defendant, whether it be by a specific notice before the commencement of the suit, or by the actual commencement of the action, the defendant can go into the market and sell the property of the plaintiff which he has theretofore converted to his use and realize its market value, or, if he has disposed of it, sell the property which, at the time of the illegal conversion, if he wishes to protect himself from loss, he is legally bound to provide himself with as a substitute for it, to meet the plaintiff’s demands. Thus the defendant can substantially indemnify himself against loss; and if he fails to take measures to do it, is justly responsible in damages for his unwarranted aggression upon the rights of the plaintiff. This seems to me the just and equitable rule.

It is not, however, perhaps quite the rule which has obtained in the law for settling the question of damages in the case of an illegal conversion of property. I think that rule is too well settled now to be shaken, whatever we may think of its intrinsic justice and propriety; and there are strong reasons to be urged in its favor in these respects. The defendants’ counsel wish to unsettle it; but it is better to abide by a rule of law that is firmly established in repeated adjudications of the courts, than to have a fluctuating rule which is constantly varying according to the caprice or the fallible judgment of judges and juries.

I think the rule of damages applicable to cases of this description is reasonably welljettled to be as liberal as this in favor of the plaintiff, to wit: to allow to the plaintiff the | highest price for the property prevailing between the time of I conversion and a reasonable time afterwards for the com- < mencement of the action.' Some of the cases carry the period up to the time of trial of a suit commenced within a reasonable time; and as between these two periods—the time of commencing the suit and the time of trial—the rule is somewhat fluctuating. What this reasonable time shall be, has never been definitely settled, and may, perhaps, fluctuate to some extent according to the circumstances of the particular case. In the case at bar, it was held to be four months after the conversion, which terminated before the close of navigation in that year; which latter circumstance might perhaps be supposed to have some probable influence in raising the market price of the property in Hew York, and therefore as not unlikely to induce the plaintiff to retain the property until that time. I think the adjudications allow at least so much latitude in cases similarly circumstanced. For reasons before stated, the limit of time is necessarily to some extent arbitrary, for the want of available means to determine when the plaintiff would have sold his property, and, by consequence, the damages he has sustained. But it has been supposed, and I think reasonably, that a liberal allowance of time should be made in favor of the plaintiff, and against the defendant, inasmuch as the latter is the defaulting party.

It has been held in cases where damages are sought .for the. breach of a contract for the sale of personal property, wholly executory on both sides, that the true rule of damages is the difference between the purchase price named in the contract and the price • of the property at the time fixed for performance ; that, as nothing had been paid upon the property, if the plaintiff still wished to obtain the property, he could go into the market and procure it with the sum named in the contract, with the addition of its rise in value, or, if he chose simply to pocket the damages, he could do so by receiving a sum equal to the difference in value between the two periods, and thus obtain complete indemnity.

But that, where the executory contract had been performed on the part of the plaintiff by the payment of the price, and was broken by the defendant by the non-delivery of the property, the true rule of damages was to allow to the plaintiff the highest market price intervening between the time of conversion and the time of the commencement of the action or of the trial when the action was commenced within a reasonable time after the conversion, upon the principle that it might he inconvenient or impossible and was unjust to require the plaintiff, in order to procure a similar article to that illegally converted, to pay the contract price a second time, with the added value prevailing at the period of performance ; and that it was more equitable to hold the defendant responsible for the fluctuations of the market, so long as he continued to deprive the plaintiff of the article purchased, up to the period when, by operation of law and the effect of a verdict, the title was transferred from the plaintiff to the defendant.

It is farther stated, in one of the opinions delivered in this case at a former term of this court, that the present case is in principle analogous to that of an executory contract for the purchase of the property where the purchase-money is prepaid, inasmuch as the plaintiff, owning the property, has paid its price and acquired an absolute title to it, and cannot with justice be called upon to advance again the purchase-money to buy a similar article. I concur in this reasoning, and think the same principle governs both cases. The plaintiff has, in effect, advanced the price of the article; he has done more; he has become its absolute owner. He is not to be required to purchase similar property anew, for he may not be in a condition to do so, and he has lost his property, not by any fault of his own, but by an unjustifiable appropriation of it by another party. On the other hand, his adversary has, without legal right, possessed himself of another’s property, and placed himself in a situation where he may possibly realize large gains from property thus arbitrarily acquired.

The difficulty lies in fixing the precise period when the value of the property should be estimated. I think it must, in all cases, be a reasonable time after the conversion. Even if the evidence is satisfactory that the plaintiff intended to retain the property, I do not think he should be permitted to roam through the entire period between the conversion and the time when the statute of limitations would attach, for the purpose of discovering the highest price at which the property sold in market. This gives to the transaction the color of a mere speculation, and not of a just ascertainment of damages actually sustained. The plaintiff might repossess himself of the article lost, if not restored to him by the act of the offending party within a reasonable time after he has been deprived of it, and this would make him good. The defendant, in default of a restoration of the property or an article of similar quality, should be held to answer for its value within a reasonable period. To compel him to respond for a succession of years for fluctuations in value, would seem unjust and oppressive.

Where the party, as in this case, holds the property for the purpose of traffic and sale, a reasonable period, according to the course of trade, should be allowed for the purpose of making such sale. j[f it be clear upon the evidence that an immediate or speedy sale were contemplated, I think suph a fact would contract the limits of this reasonable period. If it were clear that months were expected to intervene before a sale should take place, I see no objection to extending this reasonable period to a similar length. If the evidence reflected no light on the subject, then a reasonable period would probably be a question of law, or, if some evidence were introduced, might be a mixed question of law and fact.

I am unable to see that, on this question of reasonable time, the judge at the circuit committed any error which the facts in the case enable us to pronounce such, or of which the defendant is in a situation to avail himself. The judge charged—or held, for the trial was before the-judge without a jury—that the measure of damages was the difference in price of the wheat at the time of the conversion and a reasonable time afterwards within which to commence the action; and in the light of what has been already said, I think the rule of law is therein well expressed. He further held, that such reasonable period was four months after the time when the wheat, if duly forwarded, would have reached its destination in the city of Hew York. This is supposed to have been error. By what legal rule are we entitled to pronounce this to be error? "What is there in the evidence to show that this was an unreasonable time? The party alleging error must show it—the presumption being in favor of the correctness of the ruling. Is it claimed that the reasonableness of the time depended on the circumstances of the case, and was a question of fact ? Then the judge has found the fact against the defendants, and they are remediless. Ho request was made to find any specific time as the reasonable time, nor objection made to the decision of the question of reasonable time as a question of fact by the judge, so far as there was a question of fact involved in it. An exception was taken, it is true, to the determination of the judge, that the 29th of November was a proper date to make the valuation of the wheat; but there is no evidence to show that that time was unreasonable, and, therefore, the only question presented is one of law, whether the defendant was liable to have the damages estimated by the price of the wheat at a reasonable time after the conversion.

I have not thought it necessary, after the copious citation and searching analysis of adjudicated cases contained in the opinions delivered on the former argument of this cause, to refer to them again or discuss them in detail. I have referred to the principles which are involved in them, and also to those which pertain to an equitable view of the subject. The result of my reflections and examination of the cases is, that the rule laid down at the trial is sustained by the course of decision on this vexed question.

I am of opinion that the judgment of the court below should be affirmed.

Denio, Ch. J., Davies, Wright, Selden and Ingraham:, JJ., concurred in affirming the judgment; Mullin, J., for reversal.

Judgment affirmed.


author: Mr. Presiding Justice Baume

text:
    Christian B. Schlapp v. McLean County Coal Company.
    Mines and Miners Act—clause 6, section 21 construed. Held, that clause b of section 21 of the Mines and Miners Act requires that all hauling roads in mines shall be furnished with places of refuge.
    Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    Livingston & Bach, for plaintiff in error.
    Spencer Ewing, for defendant in error; James S. Ewing, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Plaintiff in error, Christian B. Schlapp, brought his action on the case in the Circuit Court of McLean county to recover damages for personal injuries alleged to have been sustained on account of the wilful failure of defendant in error, the McLean County Coal Co., to comply with certain provisions of the act relating to Mines and Miners. Upon the trial the court refused to instruct the jury peremptorily as requested by defendant at the close of plaintiff’s evidence, but upon a like request at the close of all the evidence a peremptory instruction was given by the court and a verdict returned finding defendant not guilty. Judgment was entered against plaintiff in error in bar of his action and for costs, and this writ of error is prosecuted to reverse such judgment.

The declaration counts upon the wilful failure of defendant in error to comply with the provisions of clause b, section 21, chapter 93, Revised Statutes, as follows :

“On all hauling roads or gangways on which the hauling is done by draft animals, or gangways whereon men have to pass to and from their work, places of refuge must be cut in the side-wall at least two and one-half feet deep, and not more than twenty yards apart; but such places shall not be required in entries from which rooms are driven at regular intervals not exceeding twenty yards, and wherever there is a clear space of two and one-half feet between the car and the rib, such space shall be deemed sufficient for the safe passage of men. All places of refuge must he kept clear of obstruction, and no material shall be stored nor allowed to accumulate therein.”

From entry “No. 2 south” in the mine operated by defendant in error fifty-one rooms are driven to the west at regular intervals of forty-four feet.

The entrance to room “No. 19x” from entry “No. 2 south” was cut seven feet high, six feet wide and twelve feet long by employes of defendant in error. Thereafter, that room was assigned to two miners as a working place to take out the coal and in prosecuting their mining they worked west on the face of the coal to the width of forty-four feet. As the coal was removed and the distance was thereby increased from the face of the coal to the mouth of the room a track was laid whereon the coal was hauled in cars drawn by mules to the main track entry “No. 2 south,” and the debris, slack, slate and rock was thrown on each side of the track and piled to the roof of the room— thus a hauling road or gangway was constructed from a point near the face of the coal in the room to entry “No. 2 south.” On the day of the accident, February 16, 1906, the hauling road or gangway in question was from five to six feet in width and about 200 feet in length. For 125 feet there was a sharp descent in the roadway to the east and from that point to the main track in entry “No. 2 south” the roadway ascended slightly or was substantially level. No places of refuge were cut in the side wall, no rooms were driven therefrom and there was not a clear space of two and one-half feet between a car on the track and the rib. On that day plaintiff in error, a mule driver in the employ of defendant in error, drove his mule over the roadway into room “No. 19x” for the purpose of hauling out a loaded car of coal. After hitching’ the mule to the car he spragged the wheels of the car, as he was required to do, to prevent the car running upon the mule, and proceeded to the bottom of the incline where he stopped the car for the purpose of removing the sprags. As he was removing the sprag from the front wheel of the car the mule started forward and plaintiff in error was caught and crushed in the narrow space between the side of the car and the rib of the roadway, and received the injuries complained of. It is clear that if there had been sufficient space between the side of the car and the rib of the roadway at the place where the car stopped, to enable plaintiff in error to get between the car and the rib and remove the sprag, no injury-would have resulted.

The record does not disclose the specific ground upon which the trial court gave the peremptory instruction, but the argument of counsel for plaintiff in error suggests that it was held by the trial court that the section of the statute relied upon by plaintiff in error was inapplicable to the roadway where the accident occurred, and that no duty was thereby imposed upon defendant in error with reference to such roadway to cut places of refuge, or drive rooms at regular intervals, or maintain a clear space of two and one-half feet between a car and the rib. It is urged on behalf of defendant in error that even if said section of the statute be held to be applicable to the roadway in question, the peremptory instruction was properly given because there is no evidence in the record tending to show that the failure of defendant in error to observe the requirements of the statute was the proximate cause of the injury to plaintiff in error.

Counsel for defendant in error insist that the statute does not require that all hauling roads in a mine shall be furnished with places of refuge, but only such hauling road whereon men, other than the two miners engaged in working in a room, have to pass to and from their work. ■ We do not so construe the statute. The language of the statute is clear and explicit and leaves no room for doubt as to its construction. It says, “On all hauling roads or gangways on which the hauling is done by draft animals, or gangways whereon men have to pass to and from their work, places of refuge must be cut,” etc. The roadway in question was constructed and maintained for the purpose of hauling coal in cars, as well as for the passage of men to and from their work, and the only method provided and in use for hauling on such roadway was by draft animals. If hauling is done by draft animals upon a roadway of sufficient length to permit places of refuge to be cut in the side wall the statute imposes the duty upon the operator to provide such places of refuge, and this notwithstanding men may not be required to pass thereon to and from their work. The statute in that regard is in the disjunctive and not conjunctive. However, the legislature must have appreciated the fact that draft animals do not work automatically and independently of human agency, and that in all hauling roads and gangways whereon draft animals are used men are also necessarily required to pass and repass in performing the several duties of driving, timbering, removing falls, inspection, etc.

The record, however, is barren of any proof even tending to show that the failure of defendant in error to provide places of refuge in the roadway was the proximate cause of the injury. The statute does not require the mine operator to maintain a clear space of two and one-half feet between the car and the rib the entire length of a roadway. In this regard it is also in the disjunctive. If there is such a clear space the entire length of the roadway, or its rooms are driven therefrom at regular intervals not exceeding twenty yards, no places of refuge are required. Places of refuge are only required where both of the other avenues for the safe passage of men are absent.

Defendant in error was not required to provide. a place of refuge in the side wall of the roadway at the identical place where the car was stopped upon the occasion when plaintiff in error was injured, or at any other particular place in the roadway. Its duty in that regard would have been fully discharged if places of refuge had been provided at any points in the side wall not more than twenty yards apart, and it is manifest that unless a place of refuge was provided in the immediate vicinity of the place where the car was stopped, so that plaintiff in error could have made use of the same when he attempted to remove the sprag from the wheel, it would have availed him nothing. The proximate cause of the injury, therefore, was not the failure of defendant in error to provide places of refuge in the side wall of the roadway, as required by the statute, but rather the absence of a place of refuge, or of sufficient space between the car and the rib, at a particular place or point where the statute imposed no duty upon defendant in error to provide such place of refuge or sufficient place. In the absence of any evidence tending to show that the violation by defendant in error of the provisions of the statute' relied upon, was the proximate cause of the injury sustained by plaintiff in error, the peremptory instruction was properly given to the jury, and the judgment will be affirmed.

Affirmed.


author: Mr. Justice Baume

text:
    Maggie Seass et al. v. S. W. Wright, Jr., Administrator.

      Witnesses—when not disqualified by virtue of interest. A financial interest in the result of a suit does not disqualify a witness unless the adverse party sues or defends in a representative capacity.
    Assumpsit. Appeal from the Circuit Court of' Moultrie county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    John E. Jennings, for appellant.
    W. K. Whitfield, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee, as administrator of the estate of Andrew J. Patterson, deceased, against appellants to recover the amount of a promissory note bearing date March 22, 1901, for the sum of $375.50, payable to the order of A. J. Patterson twelve months after date, with interest at the rate of seven per cent, per annum from date. Appellants pleaded the general issue and payment. A jury being waived, a trial by the court resulted in a finding and judgment against appellants for $447.87.

To sustain their plea of payment appellants offered in evidence two checks payable to the order of A. J. Patterson, one for the sum of $200, dated September 18, 1902, and one for the sum of $78.85, dated March 16, 1904, and also offered evidence of the payment to A. J. Patterson in April or May, 1903, of the sum of $90. Under their plea of payment the burden was upon appellants to show that the several payments were made upon the note in question. Robison v. Bailey, 113 Ill. App. 123; Idem, 123 Ill. App. 611. There is some evidence tending to show that appellants directed the proceeds of the check for $200 to be applied as a payment upon the note, but it is not of a satisfactory character, and in view of all the circumstances disclosed by the evidence we think the court was warranted in finding that the $200 was paid upon another debt or for some other purpose. The check for $78.85, dated March 16, 1904, is the exact amount of interest then due upon the entire principal of the note and was manifestly given in payment of such accrued interest. If the payment of $200 on September 18, 1902, and of $90 in April, or May,. 1903, had been made upon the note as claimed by appellants, it is quite improbable that they would have paid the accrued interest on the face of the note up to March 22, 1904.

It is insisted that a son and son-in-law of the deceased payee of the note were improperly permitted to testify as witnesses on behalf of appellee, the administrator.

The adverse parties, appellants, against whom the witnesses were called were defending in their own right and hot in any representative capacity, and the witnesses were not, therefore, incompetent under the second section of the act relating to Evidence and Depositions. Freeman v. Freeman, 62 Ill. 189; Byers v. Thompson, 66 Ill. 421; Patterson v. Collar, 34 Ill. App. 632.

The record is free from error and the judgment will be affirmed.

Affirmed.


author: Per Curiam :

text:
    Bernard Gordon v. Joseph Bell et al. Habbe Sage v. Joseph Bell et al. Claas Hoveln v. Joseph Bell et al. William G. Flessner v. Joseph Bell et al. Henry Bartell, Jr., v. Joseph Bell et al. John Connor et al. v. Joseph Bell et al.
    These cases are controlled by the decision in Benting v. Bell, 137 Ill. App. 600.
    Bills in equity. Appeals from the Circuit Court of Champaign county; the Hon. Souojst Phubrick, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    John J. Rea and Albert E. Bergland, for appellants.
    Ray & Dobbins, for appellees.
   Per Curiam :

The questions involved in these cases, as the same are presented for onr determination by the briefs and arguments filed by counsel for appellants, are identical with those involved in the case of R. G. Benting, appellant, against the same parties, appellees, 137 Ill. App. 600. For the reasons stated in the opinion filed in the Benting case, the decrees of the Circuit Court in these respective cases, dismissing appellants’ bills for want of'equity, will be affirmed.

Affirmed.