author: Christiancy J. Campbell J.

text:
    Flint & Pere Marquette Railway Company v. George M. Dewey.

      Assignment of executory contract, effect of. . Agent, duty in letting contract. Fidelity required. Certain bonds, executed by the F. & P. M. Railroad Company, were delivered to certain trustees, to be used in the construction and equipment of the Company’s road. A portion of them were delivered by the trustees to the defendant, then President of the Company, with the expectation that he would deliver them to certain contractors with whom he made a contract on behalf of the Company for the construction of the road. The defendant still retained them after the election of his successor, and suit was brought to compel him to deliver them up. Defendant claimed that he had, directly after the contract was made, become the assignee of a part of the contract, and was now entitled to retain these bonds on account of such interest in them, and on the ground that his copartners were indebted to him.
    It appeared from the evidence that the defendant, the Secretary, and another Director had been appointed a committee by the Company to let a contract for building and equipping the road. This committee entered into a preliminary contract with a certain party, and on the same day that party assigned to the defendant and the Secretary three-eighths of said agreement and four-tenths of a contract to be thereafter entered into; also providing that they should be at three-eighths the expense of negotiating the bonds of the Company, which were to be received by the contractor.

      Afterwards the contract was executed, and three-eighths assigned to said defendant and the Secretary. The Board of Directors afterwards approved of the contract, hut there was no evidence that they had any knowledge of the interest of the defendant or the Secretary in the same. In a suit by complainant against defendant, to compel the delivering up of said bonds, it was held:

    1. Had the contract been valid and binding on the Company, and had the assignment been valid as to the contractor, still the assignment of this executory contract, yet wholly unperformed, and made without the knowledge of the Company, could not create a contract relation between the defendant and the Company, or give him any right to retain the bonds, or interfere in respect to them between the Company and the contractor.

      % If anything was due from the Company to the contractor, the Company would not, by reason of this assignment, become the debtors of the defendant; and for whatever claim he might have under the assignment, he must look to the assignor.
    3. But under the facts as disclosed by the record, the transaction under which the defendant claims is clearly fraudulent and void, as against the complainant. It was his duty, (with the others appointed as a committee,) in letting the contract to use his best efforts and judgment to secure the best terms he could for the Company; butinjoiningwiththe contractor in taking this very contract, which they were employed to let, it became their interest to let the contract for the highest price.
    4. In the assignment of the preliminary contract, the letting of the contract by the Company to the assignor was stated as the sole consideration of the assignment. This is a void and illegal consideration.
    5. The principle of law, applicable to such a contract, renders it immaterial under the circumstances of this case, whether there has been any fraud in fact, or any injury to the Company. “Fidelity in the agent is what is aimed at, and as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal.” — 11 Mich. 222.

      Heard October 3d.

      Decided October 16th.

    Appeal from Genesee Circuit, in Chancery.
    The facts are stated in the opinion.

      Win. L. Webber, for complainant.
    1. The defendant claims a right to hold these seven bonds as Ms own property, basing his claim on the assignment of a three-eighth interest in the contract for building the road, which assignment was made by Paul, the contractor, for the consideration that Dewey, as President, and Hazelton, as Secretary of the company, should, and did give Paul the contract for building the road at $30,000 per mile.
    The defendant was President of the company from its organization, in 1857, to July 1860. ■ He, with Hazelton and Drake, were appointed a committee by the Board of Directors, to let the contract for building the road. He, as President of the company, had the general charge, superintendence and management of the business of the company. It was therefore his duty, while acting in that capacity, to act so as best to promote the interests of the company. In letting the contract for the building of the road, his duty required him to protect the interests of the stockholders by getting the work done as low as possible. But instead of this, he andllazelton seem to have acted on the principle that the higher the price they could get any one to take it at, the better for themselves. They became in fact the contractors. They let themselves the contract.
    Neither a court of equity nor of law can for a moment admit the existence of such a pernicious doctrine. — 2 Mich. 192; 2 Id. 330 ; 11 Id. 222. 1 Lead. Cas. in Eq., Fox v. Macreth, (92) and notes.

    The defendant assumes no responsibility under the contract; he is to be a mere recipient of profit.
    His own testimony shows that he received these bonds, or the ones for which they were exchanged, on his own order as President, and with other bonds for use of the conqpany.
    2. The defendant cannot retain these bonds for any debt he may claim against the company, because 1st, he does not base his claim on that ground; 2d, the proof shows that he is in debt to the company on assessments.
    Holding these bonds as he does, in fact for the company, but denying the right of the company, and fraudulently claiming them as his own property, it is proper that he should be charged in a court of equity as a trustee, and compelled to deliver them over to the proper officer for the benefit of the party for whose use he received them.

      Wm. Newton, for defendant.
    1. The bill cannot be sustained, as it is not necessary to prevent irreparable mischief, and the remedy at law is complete. — Har. Mich. 1; 12 Mich. 45.
    A recovery in damages would be an adequate remedy and if so there is no ground for the relief sought. — 2 Story, Eq. Jur. §§ 703, 708.
    2. The number of bonds shown to be in the actual possession of defendant is six. Three had been delivered to Baldwin or other parties, one to Robert P. Toms, one to Farwell.
    The decree is erroneous and not warranted by the testimony.

      a. In fixing the rights of complainant to bonds in the hands of Toms, as he is not made a party, and defendant is sued jointly with him in another cause where he had a right to be heard.

      b. The six bonds were delivered to and held by defendant individually in lieu of others of former issue surrendered and outstanding, due from the Company to contractors.
    3. If the bill can be sustained at all, it cannot without the addition of parties interested; Farwell and Toms, the former as party contractor to whom first bonds were issued, and the latter holding one of the bonds in controversy.
    All persons materially interested in the subject matter should be made parties. — 7 Cranch, 69, note; 1 Pet. 299; 13 Id. 359; 24 Me. 20; 11 Vt. 290; 3 Id 160; 7 Con. 342; 11 Id. 112; 4 Cow. 717.
    4. Complainant claims that the defense is invalid for the reason that the contract of Dewey and Hazelton with Paul and others, set up in answer, is fraudulent. This we deny.

      a. That question is not in issue.
    A general replication is filed. The alleged fraudulent contract is not set up or avoided, or any relief asked against it in the bill; it is not stated in the bill, nor relief asked on that ground. — 13 Mich. 367; 2 Id. 389, 560.

      b. The rule of law that an agent can not act for himself and principal as laid down, — 11 Mich. 222, — does not apply in this case. But see dissenting opinion of Campbell J., and cases there cited, p. 230.
    c. The testimony shows the contracts were let on regular estimates made by the engineer of the Railway Company, and no harm can ensue by Dewey and Hazelton having an interest in the contract. They did not make the terms of the contract.

      d. The bonds in controversy were issued solely to take the place of others which had already passed into other hands, and were outstanding against the company. Besides, the parties in interest holding stock in the road seem all, or nearly all, to have participated in the contract; and the defendant especially to have negotiated the means to build the road.
    There was no fraud in the contract, and the bill should be dismissed.

      e. The report of Myron H. Clark does not show that the bonds were delivered to Dewey as President, but to him individually.
   Christiancy J.

The bill was filed to procure the surrender and delivery by the defendant to complainant of eleven bonds of one thousand dollars each, executed by coinplainant, with coupons attached, which bonds are a part of a much larger sum executed and intended to be used in the construction and equipment of complainant’s road.

The bonds were secured by a deed of trust executed by the company to Myron H. Clark, Shepherd Knapp and James M. Edmunds. They were countersigned by the trustees, signed by the defendant (then and for some time after President of the company), and attested by Edmund H. Hazelton, Secretary, under the corporate seal, and were transferable by mere delivery from one holder to another.

The bill alleges that these eleven bonds were, by said Myron H. Clark, one of said trustees, delivered to the defendant, then President of the company; that they were, and still are the property of, and have not been disposed of by said company; that, while these bonds were thus in the hands of the defendant, as President, on the sixth day of July, 1860, Eber B. Ward was elected President of the company, and became entitled to the possession of these bonds; that ■ defendant has been duly requested by said Ward as President, and by the Board of Directors of the company, to deliver over said bonds to said Ward, as President; but that defendant, after having on different occasions promised to do so, finally refused and still refuses thus to deliver them; that he intends to convert them to his own use, and unless restrained by the order of the Court, he will wrongfully and fraudulently deliver over or dispose of the bonds to some other person or persons, to place them beyond the reach of complainant, so as to compel complainant to pay the full amount thereof. The bill also alleges the insolvency of defendant, and that he is indebted to the company to the amount of thirty thousand dollars for unpaid assessments on his stock in the company.

The defendant answers under oath, admitting the execution of the bonds as stated in the bill, and substantially (for it becomes unnecessary to notice all the special matters set forth in the answer) admits that seven of said bonds were delivered to him by said Clark, trustee, while he, defendant, was President, and that he still has six of them in his hands and under his control. But he denies that they were delivered to him as President of the company, or received by him in that capacity, but in his individual and unofficial capacity. And he claims the right to hold them as his own property under and by virtue of an interest in a contract made by the company with one Francis W. Paul, to which Paul, Farwell & Company afterwards became parties, for the construction and equipment of a part of the complainant’s road.

This contract, dated October 23, 1857, with various amendments thereto; a preliminary agreement between the same parties, dated Sept. 8, 1857, and the assignment (or rather several assignments) by Paul to the defendant and E. H. Hazelton, of three-eighths of his interest in the contract, are referred to and attached to the answer. From these and the evidence in the case it appears that the defendant (then President), Edmund H. Hazelton, Secretary, and Morgan L. Drake, another Director of the company, were appointed a committee to let a contract for building and equipping' the road; and afterwards, on the eighth day of September, 1857, they, in the name and on behalf of the company, entered into a preliminary written agreement for that purpose with one Francis Wilson Paul, in which, among other things, it was provided that if said Paul should desire it, said company should within sixty days let to him by contract the construction and equipment of the road on the terms and conditions therein stated, as the basis of the contract. This preliminary agreement is signed by Paul individually, and by Dewey (the defendant), Hazelton and Drake officially, as “Directors and Committee.”

On the same day said Paul, by a written instrument, assigns to said George M. Dewey (the defendant), and said Hazelton “three-eighths of said” (preliminary) “agreement and four-tenths of a contract to be hereafter entered into,” “said Dewey and Hazelton to be at three-eighths of the exjjense of negotiating said bonds,” (referring to certain bonds of the company, which the agreement provided said Paul should receive, and which were to be negotiated by him).

On the same day, also, but-whether before or after the assignment just mentioned does not appear, another instrument of assignment is executed in the same words, and identical with the first, except that it assigns but three-eighths instead of four-tenths of the “ contract to be hereafter entered into,” and is signed by said Dewey and Hazelton, as well as said Paul.

Both these assignments refer to and describe this preliminary agreement, and both on their face expressly state that agreement as the consideration of the assignment of it by Paul. No other consideration is stated, nor does any other appear by the evidence.

On the 23d day of October, 1857, the formal contract between Paul and the company, (contemplated by the preliminary agreement,) fqr the construction and equipment of the road, is executed by Paul in person under his seal, of the one part, and by the defendant, as President, and Hazelton, as Secretary, on behalf oí the company, and under its corporate seal. This contract, among other things, provides for seeming and paying Paul by the issue of bonds, to be secured by a mortgage of lands; Paul to have the right to hypothecate the bonds and mortgage for the purpose of raising money; such hypothecation to be subject to approval and ratification of the Board of Directors.

This contract was amended on the same day of its date, by a supplemental agreement, executed by the same parties and in the same manner. On the same day also, Paul, by an instrument in writing, for the expressed consideration of one dollar, assigns three-eighths of the contract to said Dewey & Hazelton, they “ to have three-eighths of the profit and loss, and to be at three-eighths of the expense of negotiating the sale of the bonds.” This would seem to have been executed to remove any doubt which might otherwise have arisen, whether the former assignments, made before the formal contract, could have the effect to transfer an interest in the contract not yet in- esse.

On the fifth day of April, 1859, the firm of Paul, Farwell & Co. seem to have joined with Paul in this contract, and a supplemental agreement of that date was executed by Paul individually, and Paul, Farwell & Co., of the one part, and the complainant on the other; the defendant as President, and Morgan L. Drake, as Secretary, executing on the part of the company, under the corporate seal.

Though the Board of Directors had estimates made by their engineer of the probable cost of building and equipping the road, and approved the contract after it was made, there is nothing in the evidence tending to show that at the time of their approval they had any knowledge or notice of the personal interest of the defendant, and Hazelton, or either of them, in the contract. The only directors who testify on this point (Boss and Pierson), say they were ignorant of it, until a long time after. Dewey and Hazelton (being President and Secretary), were the most prominent, and, therefore, probably the most influential members of the board.

These bonds, (or rather the bonds of a former issue, which were surrendered by the defendant, and for which these were substituted, and stood in all respects upon the same footing as regards the rights of the defendant,) were, as shown by the evidence, and as the defendant himself testifies, issued and put into the hands of the defendant, then President, for the purpose of being delivered to the contractors, Paul, Farwell, & Go., from time to time, upon the order and direction of the President, and for which said contractors were to account to the company. It appears also that he received the bonds upon his own order, as President-. There is no proof that Paul, Farwell, & Co., the contractors, requested him to hold the bonds for'them, or against the company, or its subsequently elected President, nor that they ever assented to his thus holding them. The contrary is inferrible from the testimony. He does not claim to hold the bonds in their right, but in his own, as a party in interest in the contract, and “ retained by him as a part of his interest under said contract, and the property of which became vested in him.”

The defendant, at the time he refused to deliver these bonds to his successor, was, and so far as the evidence shows, still is, indebted to the company in a considerable amount for unpaid assessments on his stock.

The record contains a mass of other matters, but the facts above stated are all which are essential to the decision of the case, and the effect of these is in no way changed or modified by the other matters not included in the above statement.

To state such a case, is, it seems to us, to decide it. The claim of the defendant to hold these bonds as against the company cannot be sustained, for several reasons. Had the contract in question been valid and binding upon the company, and the assignment of the undivided interest to defendant and Hazelton valid, as between them and Paul, still we do not see how the assignment to them of an undivided interest in this executory contract, yet wholly unperformed, and upon which nothing had become due, to which the complainant did not assent, and of which it was ignorant, could create any contract relation between the defendant and the conqdainant, or give him any right of action, or of offset as against the company, or any right to retain the bonds, or to interfere in respect to them in any manner between the company and the contractors, under the facts presented by the present case.

If any thing was due from the company to the contractors, the company would not, by reason of this assignment, become the debtors of the defendant, and for whatever claim he might have under the assignment, he must look to the assignor.

But, judging of this case only from the record, the contract and the assignment, under which the defendant claims, were, under the circumstances disclosed by 'the case, so clearly fraudulent and void, as against the complainant, that it seems almost a waste of words to comment upon them. Nothing could render this clearer than a bald statement of the facts upon which the defendant relies for a defense, the only merit of which consists in the frankness with which the vicious transaction is avowed and relied upon.

The defendant and Hazelton, President and Secretary of the company, with Drake, another Director, are appointed a committee for the purpose of letting a contract for the construction and equipment of the road. It was their duty in letting the contract, to use their best efforts and their best judgment to promote the interests of the company by securing the best terms they could obtain for the company. But they (the defendant and "Hazelton, for it does not appear that Drake was aware of their personal interest), at once, and in the very act of letting the contract, put themselves in the interest of the other contracting party by clandestinely joining with him in taking the very contract they were employed to let, and pretended to be letting for the company; a position in which it became their interest to let the contract for the highest price they could get it taken at, and on the best terms for themselves and their confederate. While they are pretending to let the contract to another, they are surreptitiously taking it, or a large part of it, in the name of another party. In the making of such a contract it may well be supposed there would not be likely to be any serious difficulty in agreeing upon the terms. They would clearly have it in their power to afford to the party nominally taking the contract advantages of considerable value, as well to him, as to themselves. Accordingly, we find both instruments of assignment, executed to them by Paul at the time of the preliminary agreement, state that agreement itself as the consideration received by Paul for the assignment of three-eighths of it to Dewey and Hazelton, as well as of a like interest in the contract afterwards to be made.

It is not easy to see how the letting of the contract by the company could be any consideration to Paul for its assignment to Dewey and Hazelton, if the letting were an honest one; but if, through their influence, Paul had been allowed to obtain the contract on better terms than he otherwise could, then the mystery is solved, and the value of the consideration moving from Dewey and Hazelton becomes apparent. If this was the consideration (and no other is stated or proved), it was void and illegal.

But it is idle to multiply words upon such a defense; eer- \ tainly nothing short of a ratification by the board, after a full explanation and knowledge of their interest and of all the circumstances, could render such a contract binding upon the company. And I think it at least questionable whether a ratification by the board with such knowledge could render it valid, while Dewey and Hazelton remained influential members of the board, especially if they took any part in such ratification. But, as there does not appear to have been any such j ratification, we need not discuss this question. *

It is possible there may have been no actual fraud, and that the contract could not have been let on better terms, but the principle of law applicable to such a contract renders it immaterial, under the circumstances of this case, whether there has been any fraud in fact, or any injury to the. company. “Fidelity in the agent is what is aimed at, and as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal.” — Per Manning J. in People v. Township Bd. of Overyssel, 11 Mich. 225. And if such contracts were held valid until shown to be fraudulent and corrupt, the result, as a general rule, would be that they must be enforced in spite of fraud and corruption.”— S. C. p. 228. — See, also, Clute v. Barron, 2 Mich. 192; Dwight, et al. v. Blackmar, 2 Id. 330; 1 L. Cas. in Eg. (Fox v. Mackreth,) 92, and notes.

From the evidence in the case we think all the eleven bonds in question were, as between the complainant and defendant, the property of the complainant. That he holds six of these bonds, which the evidence and his own admission show to be still in his possession and under Ms control, as a mere naked trustee for the complainant; and these bonds being in effect negotiable, transferable by mere delivery, and the defendant seeking, and claiming the right to hold and dispose of them as his own, the complainant is clearly entitled to a decree for their surrender and delivery, according to the prayer of the bill.

The decree of the court below to this effect must, therefore, be affirmed, with costs.

Cooley J. concurred. The Chief Justice was absent.

Campbell J.

Whether the contract and assignment referred to were good or bad, I think Dewey was not in a position to retain the bonds for Ms own use. I express no ojfinion ujion the validity of the transactions referred to by my brother Christiancy, but concur upon the first ground stated.


source: Caselaw Access Project

author: Cooley J.

license: Public Domain

text:
    Horatio B. Sisson and another v. The Cleveland and Toledo Railroad Company and others.

      When nominal parties to sue upon contract. A written contract for the transportation of goods, entered into by the real owner of the property in the name of those from whom he purchased, — they having been the original shippers by another line, from which the defendants received them, and required by the defendants to he thus made in the name of such original shippers — may be sued upon by said real owner of the property in their names.

      Evidence; statements of conductor of train. Where the question, whether the engine employed in drawing a train was of sufficient capacity for the purpose, was material to the issue, the statements made by the conductor, while he was engaged in the defendant’s business, in respect to the contract in question, and relating to the delay complained of and in issue in the suit, and while he had control of the train, were held to bo competent and proper evidence, as a part of the res gestae.

    The defendant would not be absolutely bound by such statements, hut they are admissible on general principles of agency.

      Expert. Whether the witness could judge, from the appearance, as to the capacity of an engine to draw a train, is a question as to which none but an expert is competent to testify. Such a question put to a witness, not claimed, or in any way shown to be an expert, was properly overruled.

      Evidence of market pi'ice. Market reports in newspapers. Evidence of the state of the markets, as derived from the market reports in the newspapers, is competent. Such reports, which are based upon a general survey of the whole market, and are constantly received and acted upon hy dealers, are far more satisfactory and reliable than individual entries, or individual sales or inquiries.

      Immaterial which of two joint defendants committed the default. Where two railroads are sued on a joint contract for transportation, evidence offered by one of them to prove that the other neglected to furnish cars, is immaterial.
    Carrier, when liable for damage occwring beyond his line of transportation. Where a carrier agrees to carry goods from Toledo to Buffalo, known to be destined to an Albany or New York market, if his default hy delay causes damage to the shipper from the non-arrival of the goods in a reasonable time at Albany, he is responsible for such damage as much as if it had actually occurred at Buffalo.

      Fall in market value may be recovered as damages. In an action against a carrier for a failure to deliver goods, shipped to a market, in a reasonable time, the fall in the market value of the property, between the time when it should have been delivered, and the time of its actual delivery, may be recovered as damages.

      Consti'uction of contract. The agreement with a carrier contained the following provision on the part of the shipper: does hereby agree to take, and hereby does assume all and every risk of injuries which the animals, or either of them, may receive in consequence of any of them being wild, unruly, vicious, weak, escaping, maiming or killing tbemselv.es or each other, or from delays,” &c., “and risk of any loss or damage which may be sustained by reason of any delay, or from any other cause or thing in, or incident to, or from or in the loading or unloading the stock.” Held, that this agreement refers to injuries to the animals caused hy delay, &c., and to loss or damage by reason of delay in loading or unloading; and has no reference to other losses which the delays of the carrier may cause to the shipper

      Heard July 9th.

      Decided October 16th.

      Error to Lenawee Circuit.
    This was an action of assumpsit, brought in the Court below against the defendants as common carriers, upon a special contract for the transportation of a lot of beef cattle from Toledo to Buffalo, on their way to the market at Albany or New York.
    The evidence showed that the defendants were several Railroad Companies, owning severally different portions of the continuous line of transportation from Toledo to Buffalo. The contract sued upon was in writing, and signed by the defendants jointly.
    Evidence was given to prove that the cattle were shipped by the plaintiffs on the railroad at Adrian, Michigan, to go to Albany or New York, and were then the property of the plaintiffs. On the route, and before their arrival at Toledo, the cattle were sold by the plaintiffs to John L. Perkins, who was the sole owner at the time the contract in suit was executed, and continued to be such owner, and was the real plaintiff in interest, bringing the suit in the name of the original parties to the contract.
    On their arrival at Toledo, the cattle were re-shipped, or transferred to the cars and the road of one of the defendants; and, just before their starting, the agent of the defendants brought to Mr. Perkins the contract sued upon, in duplicate, and required him to sign the same, which he did. This was shown to be according to the usual custom of defendants, — to ship freight received from other roads through in the same name in which it is billed to them, and they would not make a change unless the shipper or consignee were present to direct it.
    There was evidence also given, tending to show that the cattle were detained a long time on the way, by the fault of the defendants, and that the ¡plaintiff suffered damage in consequence thereof, both by the depreciation of the quality of the cattle, and the fall of the market before they reached Albany.
    The points of law made on the trial, and the exceptions taken to the rulings of the Judge and his charge to the jury, are sufficiently stated in the opinion of the Court.
    The jury rendered a verdict in favor of the defendants, and judgment was entered accordingly. The cause was brought into this Court by writ of error and bill of exceptions.

      A. L. Mittercl, for plaintiff in error.
    1. The testimony of the witness, John L. Perkins, as to what the conductor of the train told him about the capacity of the engine, and also as to whether the witness could form an opinion from the appearance, as to the capacity of the engine, was competent, and ought to have been received.
    2. The evidence offered to prove the state of the market in Albany and New York at the time the plaintiffs’ cattle should have arrived there, was competent, and should have been received.
    The evidence consisted of the knowledge the witnesses had of the state of the market, as a matter of general notoriety, derived from newspapers (in which the state of the market is published daily), and telegraph reports, and from the statements of those engaged in the business.
    These are the sources of general information to which men throughout the country look, and upon which they act.
    The state of the market was a matter of public and general interest, and therefore within a well established exception to the rule which excludes hearsay evidence. — 1 Greenl. Ev. §§ 127-40; 4 Wend. 313; 1 C. & H. & Edwards' Notes, 200; Am. Law Reg. (June, 1866,) 464.
    3. The evidence of the witness, Isaac Reynolds, as to what the custom between the defendants was when cattle were to be forwarded from their stock yard, at Cleveland to Buffalo,— as to which company furnished the cars, ought to have been excluded.
    It was wholly immaterial which of the companies ought, as between themselves, to furnish the cars. It was no excuse for the breach of the contract, that it occurred by the default of one of the companies rather than another.
    4. The court erred in charging that the plaintiffs could not recover damages for loss by dej^reoiation of cattle in the market, except at Buffalo.
    The cattle were intended for the market at Albany or New York, and were shipped over the road of the defendants, on their way to such market. The defendants knew this. It was communicated to Mr. Stratton, the agent, by Mr. Perkins, at the time of their shipment on the defendants’ road.
    The fall in the market at the place of their destination, during the time they were delayed in reaching it, by the fault of the defendants, and in violation of their contract, was a proper element of damages. — 22 Barb. 278.
    5. The suit was properly brought in the names of the plaintiffs. The contract being in their names, they were the proper and necessary parties to an action upon it, in a court of law. John L. Perkins could not sustain an action upon it, in his own name.
    No assignment was necessary to enable him to bring a suit in the names of the parties to the contract. It was only necessary that he should have their authority to do so. The contract with the plaintiffs was a valid one. It was not void because they had no interest in the cattle which were the subject of it. They might lawfully make a contract for the transportation of the cattle for the benefit of their vendee, in pursuance of the understanding between him and them, and might sustain an action for the breach of it, also for his benefit.
    The want of a beneficial interest in the subject matter of the contract, on the part of the plaintiffs, is no defense to an action upon it. — 2 C. & P. 49; 4 Bing. 2; 1 Chit. Pl. 2, 3.
    It is not at all necessary that the nominal plaintiff in an action upon a contract should have any beneficial interest in the contract at the time the action is brought, nor is it necessary that he should have such interest at the time the contract is made. He may be a mere agent or trustee for another, and yet make a contract in his own name, which would be binding on both parties, and may sustain an action upon it in his own name.
    The contract in this case was made by the defendants with the nominal plaintiffs, with the privity and consent of John L. Perkins, the person beneficially interested. It was in fact made by him, in their names, in pursuance of an understanding with them when he bought the cattle, and because the defendants, according to their usual course of business, would not make it in any other name.

      C. A. Stacy, for defendants.
    1. The question put to John L. Perkins, the ruling out of which was assigned for error, was clearly hearsay. The engineer was not a competent witness. His admission could not bind the company. — 1 Greenl. Ev. §§ 99, 114; 37 Me. 519; 11 Cush. 205; 13 Barb. 246.
    2. The court was correct in not permitting- said Perkins to swear to his opinion as to the capacity of the engine. There was no evidence that he was an expert. The general rule is that none hut' persons shown to be experts can swear to matters of opinion. — 1 Greenl. Ev. § 440, note 3.
    3. The fourth, fifth, sixth and seventh assignment of errors cover the same principle. The question in all is, can the markets in New York or in any other city be proved by newspaper reports or by statements of individuals made not on the market day or at the market place ? — or, must they be proved by the sworn testimony of the persons who know the facts ?
    The former rule would violate the principles of law.

      a. Forbidding hearsay testimony.

      b. Requiring the presence of the witness and allowing cross-examination.

      c. Allowing res inter alios acta to bind the party. — 1 Greenl. Ev. §§ 99-124; 9 Cush. 36, 40.

      d. As being a narrative of a past occurrence. — 1 Greenl. Ev. § 110; 8 Metc. 436; 3 Gray, 374; 16 Ill. 558.

      4. The proof objected to, of custom, by Mr. Reynolds, in the eighth assignment of errors, was preceded by proof on the part of the plaintiff of the custom of the company in receiving and forwarding stock, and the rules which governed such reception. In reply to this proof by the plaintiff, this proof was offered and received by the court. We contend that under these circumstances it was admissible, both to rebut the presumption of negligence, and to show the nature of the contract entered into by the defendants.
    5. The contract shown was for the conveyance of the cattle from Toledo to Buffalo. There is no proof that the defendants ever agreed to transport the cattle further than Buffalo. There was no proof that by the terms of the contract they were to be held responsible for any damage at any other point. If the plaintiff had desired any damages elsewhere, he should have provided for it by the terms of the contract.
    Fall in market cannot be recovered by way of damages.— 19 Barb. 36 ; 3 Hill, 333 ; 6 Duer, 375.

    Even in those cases where difference in the max-ket price has been recovered, the rule has always been confined to difference at the place of delivery. — 2 Kern. 245.
    6. The question presented by the last assignment of errors is, whether a plaintiff having no interest in the property, either as owner or consignee can recover for damages which he never, either directly or indirectly sustained, or for losses or expenses which he never was liable to pay.
    The declaration alleges that the plaintiffs, then and there, had cattle which they intended for, and were desirous of transporting to the market. The proof shows that the plaintiffs did not have the cattle. The declaration alleges loss to plaintiffs by fall in prices. The proof shows the plaintiffs suffered no loss. The declaration alleges that the plaintiffs were put to and suffered great cost and expense in taking care of, feeding, and watering the said cattle. The proof shows they suffered and were put to no cost and expense whatever.
    These and all the other matexial allegations of the declaration, instead of being proved true, are shown to be false. This record would not protect the defendants, should they be sued by John L. Perkins. Under the showing in this case the defendants could not have recovered the freight of the plaintiffs, had the property been delivered before payment. As a general rule the action must be brought in the name, of the consignee. — Edwards on Bailments, 561. Neither the consignor nor consignee, as such, is to bring the action, but the owner of the goods. Whenever it appears that the person suing is the real owner, there is an end to the objection. — 1 Johns. 223; 6 Wend. 603 ; 15 Id. 474; 13 Barb. 57; 8 Term R. 130; 3 Comst. 322.
    7. This contract should be construed like every other contract. The modern English and American authorities recognize the right of carriers and persons employing them to make just such contracts as they please in regard to terms, including priee5 liability of carrier, and every other matter. — 6 Howard, U. S. R. 355; 1 Kern. 49; 14 Barb. 524; 13 Id. 253; 1 Am. Railway Cases, 171; Edwards on Bailment, 572, 573, 576.
    This doctrine is recognized to the fullest extent in our own State, as a doctrine which benefits the person employing the •carrier, fully as much as -the carrier himself. — 6 Mich. 245; Id. 267.
    .8. What was the contract proved in this case ? The counsel for the plaintiffs in error contends that its legal effect was as alleged in his declaration. We, on the contrary, claim that the terms of the contract exclude all damages caused by delays, even though such .delays were caused by the negligence of defendants’ servants; and we claim, that the case of New Jersey Steam Navigation Co. v. Merchants’ Bank, in 6 How. U. S. 335, sustained this view.
    At common law the carrier was liable as an insurer of the goods against loss, except from the act of God or the public enemy; but in case of damages occasioned by delay,, where the goods were actually carried and delivered to the owner, he was liable only for negligence, and the contract was uniformly held only to require reasonable diligence. — 1 Pars. Con. 659 ; 2 Id. 183; 14 Wend. 215 ; 12 Id. 310, 320; 2 Kern. 245, 251 ; 12 N. Y. 245, 251; 2 Id. 509, 514; 8 Term R. 259.
   Cooley J.

The Circuit Judge erred in charging that the action could not be brought in the name of the plaintiffs, but should have been in that of John L. Perkins. The written contract was made with these plaintiffs, and a court of law can only look at the promissors and promissees as the parties in legal interest, and is not at liberty to govern its action by questions of equitable right. — Litchfield v. Garratt, 10 Mich. 426; United States v. Parmele, 1 Paine, C. C. Rep. 252. The case is analogous to that where an agent enters into a written contract for his principal in his own name, and which the principal must enforce in the name of the nominal contracting party.- — Newcomb v. Clark, 1 Denio, 226. The assignment of the contract to the party in interest would not affect this rule. The Court would take notice of the assignment for the purpose of protecting the interest of the assignee; but the assignment of a non-negotiable demand does not, at the common law, entitle the assignee to pursue remedies in his own name upon the contract. The statute which allows it — Laws of 1863, p. 102— is only permissive in its provisions, and the assignee is still at liberty to sue in the name of the contracting party.

We think the Judge also erred in excluding evidence of the conductor’s statements as to the capacity of the engine. The statements offered to be shown were made while the conductor was engaged in the business of the defendants, iu respect to the contract in question, and had control of the train, and they related to the delay complained of, which was the res gestae of the case. See Baring v. Clark, 19 Pick. 220; Price v. Marsh, 1 C. & P. 60; Peyton v. The Governor of St. Thomas Hospital, 3 C. & P. 363. The defendants would not be absolutely bound by such statements, but they are admissible evidence on general principles of agency. — Dunlap’s Paley on Agency, 272, et. seq. and notes.

The question put to the witness Perlrins, whether he could form an opinion, from the appearance, as to the capacity of the engine to draw the train, might have been proper for the purpose of showing him to be an expert; but as it does not appear to have been ¡jut by the plaintiffs on this ground, we cannot say that it was improperly overruled. The fact sought to be proved was one to which none but an expert could, from mere appearance, testify; and it does not appear to have been claimed that Perkins was an expert. '

We also think that the court erred in excluding evidence of the state of tlie markets as derived from the market reports in' the newspapers. The precise question involved does not appear to have been passed upon by the courts; but we are aware of no reason and no authority which would exclude the evidence. In Lush v. Druse, 4 Wend. 317, the value of wheat at a certain point was allowed to be proved by a witness who had derived his knowledge solely from the books of large dealers in wheat at that place; and in Re Fennerstein’s Champagne, recently decided by the Supreme Court of the United States—5 Am. Law Reg. N. S. 464—the market value of articles of merchandise at a particular place in a foreign country was held provable by letters written by third persons abroad, in the ordinary course of business, to other third persons, offering to sell at specified rates. The principle which supports these cases will allow the market reports of such newspapers as the commercial world rely upon, to be given in evidence. As a matter of fact, such reports, which are based upon a general survey of the whole market, and are constantly received and acted upon by dealers, are far more satisfactory and reliable than individual entries, or individual sales or inquiries; and courts would justly be the subject of ridicule, if they should deliberately shut their eyes to the sources of information which the rest of the world relies upon, and demand evidence of a less certain and satisfactory character.

We do not perceive the importance of the evidence introduced by the defendants as to which of the railroad companies should have furnished the cars to continue the transportation from Cleveland. The companies had jointly undertaken to transport the cattle to Buffalo; and they were jointly liable for a failure to fulfill the contract. The plaintiff had no com cern with the arrangements of the defendants among themselves, and no right in any way to control them. It was not competent for them to make any rules, or to enter into any arrangements, or to enforce any previously made, which would npodify the contract entered into with the plaintiffs; and proof that one of the defendants, instead of another, was th.e cause of the injury complained of, is wholly immaterial in a suit against all. If the plaintiffs could be held bound to know what the course of the companies was as to furnishing cars, they would still have th'e right to suppose that the company who was to furnish them would do so without unnecessary delay, inasmuch as all had entered into a joint contract which would require it.

The contract of the defendants was to transport the cattle from Toledo to Buffalo. Their ultimate destination was Albany or New York, but this fact was not stated in the contract, and the court charged the jury that the plaintiffs could not recover damages for loss by depreciation of cattle in the market, except at Buffalo. If the Judge meant the jury to understand by this charge, that the damages which plaintiffs could recover must be confined to the fall in the market at Buffalo, between the time when the cattle should have reached that point, and that of their actual arrival, we think he erred. The defendants were informed when they entered into the contract that the ultimate destination was to an Albany or a New York market; and they must be held to have assumed their obligations in reference to that fact. If in fact there was no fall in prices before the cattle had reached Buffalo, but afterwards, and before they could be delivered at Albany, a loss had occured as the direct consequence of defendants’ delay, it would be both illogical and unjust to hold that defendants shall be discharged, because the injurious consequences of their act did not result until the cattle were out of their own hands. The consequences of delay would attend the cattle to their final destination, just as the consequences of a fatal injury to one of them would attend the animal until his death; and in-neither case could the party responsible excuse himself by showing that the actual loss, or the death, did not occur while the property was retained in his possession.

We are referred to several authorities which are supposed to hold that a fall in market value cannot be recovered by way of damages. The first of these is Smith v. Griffith, 3 Hill, 333, where it was held that the damages recoverable against carriers for the negligent loss or injury of goods entrusted to them for transportation are to be ascertained by resorting to the price which goods of the same kind and quality bore in market at the time the injury occurred; and not to the price at a subsequent period. The decision has obviously no bearing upon the question before us, but is based upon the principle that when a party is deprived of his property by the wrongful act of another, he should be compensated with such damages as would at the time enable him to procure a similar article of equal value in the market. The question in Conger v. The Hudson River Railroad Co. 6 Duer, 375, was whether the shipper could recover from the carrier damages occasioned by a loss of market through delay; and the court intimated that such damages are too speculative in their character to form the basis of legal action. The only case in point is that of Wiber v. The New York and Erie R. R. Co. 19 Barb. 36, where it was held, in an action against a carrier for failure to deliver butter in a reasonable time, that the difference between the value of butter at the time it should have been delivered, and its value at the time of actual delivery could not be recovered as damages, because the loss was not the actual and proximate result of the act complained of. The reasoning of the court is, that the fall in price was n.ot in consequence of the delay, and, therefore, the carrier was not liable for the resulting loss. It is to be regretted that this point was not passed upon by the Court of Appeals when the case reached that tribunal,— 2 Kern. 245 — , as the case seems to us to lay down a rule of damages wholly unwarranted by reason or authority. To apply a similar principle to other cases, we should be required to hold that one who had unroofed the house of another, in consequence of which it became deluged with rain, would not be liable for the damages, because unroofing the building did not cause the rain. There is a great deal of refining in the case as to what are natural and proximate causes of damage; but refinement of reasoning that goes to the extent of shocking the common understanding cannot possibly establish good law. All legal damages result from the action of the party in fault, in connection with existing circumstances; and to exclude proof of those circumstances, because they were not caused by the wrongful act, would deprive the injured party in many cases of all remedy. If a loss by depreciation in the market is not a necessary and proximate result of delay in transportation, it is difficult to conceive of any rule by which a carrier can be made to compensate the party injured.

The defendants claim in this Court that the action cannot be sustained in any event, because, by the express terms of the contract, they are not to be liable for delays. iy"e do not so read the contract. It provides that Sisson & Perkins “ does hereby agree to take, and hereby does assume, all and every risk of injuries which the animals or either of them may receive in consequence of any of them being wild, unruly, vicious, weak, escaping, maiming or killing themselves or each other, or from delays,” &c., “ and risk of any loss or damage which may be sustained by reason of any delay, or from any other cause or thing in, or incident to, or from or in the loading or unloading the stock.” As we read this agreement, it refers to loss or damage to the party by reason of injuries to the stock, caused by delay, &c., upon the cars, and to loss or damage by reason of delay in loading or unloading; and has no reference to other losses which the delays of the carriers may cause to the shipper. There are good reasons for an agreement of this description growing out of the manner in which cattle are usually transported; the owner or his agent accompanying and taking charge of them, and being on hand to prevent injuries of the kinds specified, while no care of the owner could prevent other delays, o.r protect against losses which might follow incidentally from other delays. The stipulation appears to us carefully worded to cover such injuries 'and losses as the owner might guard against, while it studiously avoids including losses like the one complained of here.

The judgment must be reversed, with costs, and a new trial ordered.

The other Justices concurred.


author: Campbell J.

text:
    The Merrimac Mining Co. of Lake Superior v. George F. Bagley.

      Stockholder — Liability. A Stockholder, who was not one of the original subscribers to a Mining Corporation organized under the general mining law, is liable for any balance due upon assessments, after applying the proceeds of stock sold for default. — Carson v. Arctic Mining Co. 5 Mich. 288.

      Heard October 16th.

      Decided October 23d.

    Error to Wayne Circuit.
    This was an action of assumpsit, brought by plaintiffs to recover of defendant, who was a stockholder by purchase, the balance of certain assessments claimed by said plaintiffs after the sale, on default, of defendant’s stock.
    The cause was tried without a jury, on the following stipulation :
    “In Circuit Court for the County of Wayne, State of Michigan. The Merrimac Mining Company of Lake Superior’, Plaintiffs, v. George F. Bagley, Defendant.
    It is hereby stipulated by the parties plaintiff and defendant in the above entitled cause, that on the trial thereof the following facts shall be admitted without proof:
    That the plaintiffs are a corporation duly organized and established under the manufacturing and mining laws of the State of Michigan, with .a capital of §500,000, divided into shares of §25 each;
    That the statutes of this State and the by-laws of said company, so far as is necessary to authorize said company to make and collect assessments upon stock, have been complied with;
    That at a meeting of the directors of said company, on the 27th day of March,’1865, an assessment of one dollar on each share of stock was duly and legally laid, and due notice thereof was given to the defendant, in accordance with the laws of this State and the by-laws of said company, and that said 'defendant was not one of said directors;
    That before and at the time of laying said assessment, and up to the time of sale hereinafter mentioned, said defendant was the owner of three hundred shares of said stock, which had been sold, assigned and transferred to him by stockholders of said company, after the payment on each of said shares of five dollars and fifty cents, and held two certificates of said stock in the form set forth in the first count of the plaintiffs’ declaration, which had been issued and delivered to him by said corporation after said assignment, one of said certificates being for two hundred shares, and one for one hundred shares of said stock; and that he, thereafter, and up to the.time of said sale, continued to hold the same;
    That after due and legal notice of the laying of said assessment, the defendant refused to pay the amount assessed upon his stock, and that thereupon the said stock of said defendant was duly forfeited and sold in the manner set forth in the plaintiffs’ declaration, and that said sale was in all respects legal and valid;
    That the amount realized from said sale was one hundred and fifty dollars, and that the defendant has never paid the remainder, nor any part of said assessment;

      That if said plaintiffs are entitled to recover against said defendant, judgment shall be entered against him for the balance remaining unpaid of said assessment, after deducting said one hundred and fifty dollars.
    April '¡'th, 1866.
    Matnard, Meddaugh & Swift,

      Attorneys for Defendant.”

    D. B. & H. M. Duffield,

      Attorneys for Plaintiffs.

    It was also further stipulated, that a copy of the by-laws and articles of association of said corporation should be used on the trial, in all respects as if they had been duly and properly proven.
    The Court found for the defendant.

      D. B. & H. M. Duffield, for plaintiffs.
    1. If the defendant was an original subscriber, there could be no question as to his liability. — 3 Mich. 91; 5 Id. 288.
    . If the original subscriber is liable, a purchaser from him or from his assignee must be equally liable, for he stands in his place. He buys the original subscriber’s stock, entitled to all its benefits, and subject to all its liabilities.
    There is no distinction made by statute between original subscribers, and stockholders by purchase, and there certainly can be none at common law. — 12 Conn. 532; 6 Harr. & Johns. 128; 6 Hill, 628.
    2. If the company has this right of action against the original subscribers and not against their assignees, what becomes of it ? Does it survive, and if so, against whom ?
    The original subscriber is clearly not liable for calls made after a transfer of his stock. — 7 Term R. 36; 12 Conn. 582; 10 Allen, 245. This liability must exist somewhere, or the corporation is exposed to dissolution in its first efforts at active operations. The original subscriber being discharged, it must survive against his assignee.
    3. But we think the whole case is disposed of by the scrip expressing Ms interest in the corporation, ancl the terms and conditions by which he holds it. The certificate of stock which the defendant received from the plaintiffs expressly states that the defendant receives the stock, “ subject to the payment of such additional assessments as the directors may impose, until the full amount-, of twenty-five dollars per share shall have been paid, agreeably to the charter and by-laws.”
    This, of itself, with a delivery and acceptance of the scrip, seems to us to be sufficient to raise an assumpsit on the part of the defendant to pay such assessments, and to justify this action.
    Maynard, Meddaugh & Swift, for defendant.
    1. The only question to be decided is, whether defendant is liable to be sued for such balance.
    Personal liability to pay for assessments upon stock, in all cases where the matter has come up for decision, has been made to depend either upon an express promise to pay them, or upon the fact that the charter, either in express terms, or by necessary implication, makes every subscriber liable to pay assessments; and as every subscription is held equivalent to an assent to take stock, upon the terms prescribed by the charter, the charter itself becomes as much a part of the agreement as if actually incorporated into the paper signed by the subscriber.— 17 Barb. 567; 16 N. Y. 457; 12 Conn. 500; 2 Met. (Ky.) 314; 3 Ala. 660; 3 Mich. 91; 5 Id. 288.
    So, in some cases, the charters have provided that assignees should be liable to suit. — 7 Term, R. 36.
    So, also, there are cases against assignees, based upon statutes, making stockholders liable, to the amount of stock, to creditors of incorporations. — 2 Sandf. Ch. 258; 2 Barb. 294.
    Without some express agreement, or some provision in the charter requiring it, it is difficult to understand upon what legal principle an original subscriber, much more his assignee, can be held liable personally for assessments.
    By the statute under which the plaintiffs were organized, they not only had a right of action against a subscriber, but a lien upon his stock, with th„e right of sale.
    In the 5th of Michigan this lien is treated like a mortgage. If so, why should a sale of the stock, any more than a sale of mortgaged premises, create any personal liability upon the part of the assignee ? And why should not the original subscriber still continue liable upon his agreement? — 11 N. Y. 113; 29 Penn. 146; 31 Id. 489 ; 7 Bosw. 115.
    And why should the assignee be considered liable to anything except a sale of his stock, in case of non-payment of assessments? — 26 N. Y. 134; 31 Me. 573; 1 Binn. 70; 34 Penn. 288.
   Campbell J.

The only question presented for decision in this case is, whether a stockholder, who was not one of the original subscribers to a mining corporation, organized under the general mining law, is liable for the balance due upon assessments, after applying the proceeds of stock sold for default.

It was held by this Court, in Carson v. The Arctic Mining Company, 5 Mich. 288, that an original subscriber was liable for such deficiency, after his stock had failed to bring enough to clear off the assessment for which it was sold. There was nothing in his subscription beyond the single act of taking so much stock in the company when it was formed.

Subscribing, then, meant nothing more than becoming an original stockholder; and the duty to pay, which was held by the Court to rest upon him, sprang solely from that relationship.

There is no principle of law which can establish any difference among stockholders, in the duties which are implied from that relation. The very essence of a corporation consists in its corporate succession, which, in stock companies, is kept up by the substitution of one owner for another in the proprietorship of shares. If the original stockholders stand under different relations to the company from their assigns, the corporation itself loses some of its attributes by the substitution, or else becomes introduced into, more complicated relations. It seems to be an unavoidable conclusion, that every liability which attaches to a stockholder, as such, is inseparable from the ownership of the stock.

There is nothing in any of our statutes from which any different rule can be deduced. The stockholders, whose rights are recognized in fixing upon the sale of stock for assessments, are always the owners of the shares involved. In the section of the general mining law, providing for such sales, there is no reference Avhatever made to original subscribers who have sold their stock, although, if they were liable to respond, they would be especially interested in a matte)’ Avhere a want of notice might involve them in serious loss. — See Comp. L. § 1809.

The case of Carson v. The Arctic Mining Company, having been decided with reference to the law under which the plaintiff was incorporated, and having established the responsibility of original stockholders, must, upon the grounds stated, govern this controversy also, as the questions, as we view them, are identical in both suits.

The judgment, upon the agreed state of facts, must be reversed, and a new judgment entered in this Court for one hundred and fifty dollars damages, with costs of both courts.

The other Justices concurred.


author: Cxiristiancy J.

text:
    George E. Curtis v. Michael Martz.

      Replevin. Admissibility of evidence. Chattel mortgage, construction of. In an action of replevin the declaration described certain property as “one wooden statue of an elephant.” To sustain the averment two chattel mortgages covering a certain stock of goods, in a store in which said statue was kept, and containing the words “furniture,” and “signs,” were offered in evidence,under objection. Evidence was also offered, without objection, that said statue was used as a sign in front of the store during the day, and taken in at night.

      Heidi That the mortgages were properly admitted in evidence, and that the question as tó tlieir admissibility was one of construction, for tbe court only, though it depended upon extrinsic facts to be found by the jury. It was a proper case for a hypothetical charge, in which the jury should be told what would be the true construction, upon the different states of fact which might be found by them.

      Held, further, that if said mortgages had been introduced without extrinsic evidence, but with an offer to follow them with such evidence as would tend to show the said property was included in said mortgages, the court would have been bound to admit them.

      Held, further, that the property was clearly included under the word “furniture,” in the first mortgage, and under the words “ signs and furniture,” in the second.

      Heard October 18th.

      Decided October 23d.
    Error to Wayne Circuit.
    This was an action of replevin. The facts were as follows:— September 30th, 1865, the firm of Holly Bros, executed a chattel mortgage to plaintiff (Martz) for $2,400. Holly Bros, having subsequently sold out to S. B. Holly, one of the Bros., he — March 7th, 1866 — mortgaged again to Martz for $1,000 ; possession under both mortgages remaining in mortgagors. March 9th, 1866, Curtis attached the property in question, being a wooden elephant, to secure a debt due him from the Holly Bros., he claiming it was not covered by .either of the mortgages. March 10th, 1866, Martz replevied the elephant, claiming it was covered by both said mortgages. Curtis proceeded to judgment in his attachment, and Martz recovered judgment in his replevin suit.
    The declaration described the property as “ one wooden carved statue of an elephant.” . _,
    On the trial evidence was offered, without objection, that the said statue was used as a sign in front of the elephantine boot and shoe store of Holly Bros., that it was taken into .the store every night, and that boots and shoes were hung upon it.
    A chattel mortgage executed by said Holly Bros, to plaintiff, covering the stock of goods in said store, together with the fixtures, “furniture,” &c., was then introduced, and admitted under objection.
    A second mortgage, executed by S. B. Holly (who .had purchased his brother’s interest), covering said stock, together with the “signs, furniture,” &c., was then introduced, and admitted under objection.
    The defendant then requested the Court to charge the jury, that the question whether the property replevied was included in either of the mortgages was one of intent in the mortgagors, and for the jury to determine.
    The Court declined so to do, but charged that the property replevied might be included in the word “ furniture,” in the first mortgage, and in the words “ signs and furniture,” in the second mortgage; and to which exception was taken.
    The following are the errors assigned in this court:
    1st. The court erred in admitting in evidence the mortgage of September 30th, 1865 (for $2,400), and in holding that the property replevied did come within the meaning of the word “ furniture,” in said mortgage.
    2d. The court erred in admitting in evidence the mortgage of March 'Zth, 1866, for $1,000, and in holding that the property replevied did come within the meaning of the words “ signs and furniture,” in said mortgage.
    3d. The court erred in refusing to charge the jury, as requested by defendant’s counsel, “ that the question, whether the property replevied was included in either of the mortgages, was one of intent in the mortgagors, and for the jury to determine.” .
    4th. The court erred in charging the jury that the property replevied, was included in the word “furniture,” or other description of the first mortgage, and in the words “ signs and furniture,” in the second mortgage.

      H. M. Cheever, for plaintiff in error.
    1. Neither of the mortgages covered the replevied property by name, — “ one wooden statue of an elephant.” It was not clearly designated, so that there could be no question of its being included. If it was covered by the mortgages, or either of them, it was embraced under some other term or name than that by which it was commonly known. Whether it was included or not was a question of fact, and for the jury to determine. We submit the court had no right to withdraw this question of fact from their consideration. It was not such an admitted or undisputed fact as to make the question one of law, upon which direct instruction ought to have been given. Only on admitted facts, or where no conflict of evidence exists, is such a charge proper. It was an invasion of the province of the jury for the court to assume to decide upon the sufficiency of the evidence. — 5 Mich. 501.
    The court admitted the mortgage of Sept. 30, 1865, and in admitting it held that the word “ furniture ” included the elephant.
    The court also admitted the mortgage of March 7, 1866, and held that the words “ signs and furniture ” covered the elephant.
    We submit it was error thus to hand over to the jury a disputed fact, with a judicial endorsement. If admitted at all, it should have been that the jury might pass upon the question, and say whether the mortgages, or either of them, covered the property in question.
    2. We contend that “the question, whether the property replevied was included in either of the mortgages, was one of intent in the mortgagors, and for the jury to determine,” and that the court erred in refusing so to charge, as well as in charging the reverse of this proposition.
    In a case where the question arose, whether a chattel mortgage embraced a certain article not mentioned by name, this Court sustains the position we take, and says it is a question of intent in the mortgagor. — 5 Mich. 113.
    The fact that the replevied property was not mentioned in either mortgage may have been indicative of fraud in the mortgagors. The question of intent is closely connected with the question of fraud. If a mortgage contain'illegal provisions, the court might declare it void upon its face, because no amount of evidence could change it. In other cases the statute might make it prima facie fraudulent; and again, if it have no intrinsic infirmity, it is a question of fact whether it was fraudulent or not. In both the latter instances intent is a fact to be left to the jury. — 12 Barb. 530 ; 23 Wend. 653; 4 Hill, 271; 1 N. Y. 499; 1 Doug. Mich. 523; 7 Mich. 108.
    The statute' concerning conveyances “ made with intent to hinder, delay or defraud creditors,” which provides that “ the question of fraudulent intent, in all cases, shall be deemed a question of fact and not of law,” has received an unequivocal construction, and been held to mean that “the question of intent, and not merely of the facts from which it may be inferred, is a 'question for the jury.”
    This is one 'of those cases where it is especially necessary that the jury should have the utmost freedom of action, unbiased by any suggestions, and unfettered by any instructions, unless clearly within the province of the court. Chattel mortgages are notorious as cloaks of fraud, and too often are drawn in ambiguous terms, to delude honest creditors. The question we desired the jury to determine was a fair one, and fully within their province. By directly instructing them that the mortgages did cover the property in dispute, the court virtually terminated the case.

      Moore & Griffin, for defendant in error.
    The admission of the mortgage in evidence is assigned as error, on the ground that the description of the property therein contained does not include the property described in the declaration. This is a question of intent on the part of the mortgagors.
    Such intent is to be discovered from the language used in the mortgage, taken in connection with the facts found. — 5 Mich. 112.
    Taken in connection with the facts found, it is clear that the mortgagor intended to cover by his mortgage the property described in the declaration.
    The frequent use of the word all, and other comprehensive language, indicate that it was the intention of the mortgagor to include everything which he owned, in and about the store, and which was in any way connected with his business.
    The word “ furniture,” in its ordinary acceptation, is broad enough to cover all chattels, movables and effects. Used with reference to any employment, trade or bxxsiness, it includes all the necessary or customary appendages to such trade or business. Such is the definition of Mr. Webster, as given in his dictionary.
    This statue of an elephant, though not a customary appendage to boot and shoe stores generally, was a necessary article of furniture in this case to designate this store as the “ Elephantine Boot and Shoe store.”
    It would not be an uncommon use of language in this particular case to speak of this wooden statue as part of the “ stock in trade.”
    There being no dispute as to the facts, whether the property replevied was included in either of the mortgages was a question for the court, and not for the jury, to determine. This is the rule with reference to the construction of all contracts.
   Cxiristiancy J.

The first error assigned is upon the admission of the chattel mortgages. They were objected to on the gTound that they did not cover the property replevied, described in the declaration as “ one wooden statue of an elephant.”

This, as regarded the first mortgage, depended upon the question whether it was included in the term “ fxxrniture ; ” and as to the second moitgage, whether it came under the designation of “ signs and furniture.” Whether it was so included was a question depending partly upon the written instruments, and partly upon extrinsic evidence, showing the subject matter to which the instrument applied, and the nature and uses of the property hei-e in question. The question of the admissibility of the mortgages was one of construction, for the court only. Had the terms used been such that no extrinsic evidence could possibly bring the property within them, the court should have excluded the instruments. But we do not think this was' the case; nor do we think the court could, without extrinsic evidence, determine by the instruments alone whether the property was intended to be included, or not. And if offered before any extrinsic evidence had been given, the court would have been bound to admit them, if the plaintiff should offer to follow their introduction with such evidence as might tend to show the property was included. But here, the plaintiff had produced that evidence without objection, before the mortgages were offered; and from this it appeared that the property in question was used as a sign in front of the “ Elephantine Boot and Shoe store ” of the mortgagors ; that it was taken into the store every night, and pushed out again in the morning, “ boots and shoes being hung o^ver its back and on its tusks and trunk,” and having for the extremities of its legs a representation of red top boots.

Construing the mortgages in the light of this evidence, we think they were clearly admissible. If that evidence was true — and on the mere question of the admissibility of the instruments, the court did not err in assuming its truth, as this was no more than deciding upon its tendency — the property we think was clearly included under the word “ furniture ” in the first mortgage, and “ signs and furniture ” in the second. There can be no possible doubt that it was included in the word “ signs,” as that was its principal use; but it was a peculiar kind of sign, and the peculiar manner in which it was used brought it properly within the more general designation of “furniture” of the store. There was, therefore, no error in admitting the mortgages.

The court was x-equested to chax-ge that the question, whether the pi-operty replevied was included in either of the mortgages, was one of intent in the mortgagors, and for the jury to determine. This we think was properly refused. A charge in this general form would have been objectionable, if not clearly erroneous; for, though the question was, in one sense, one of intent, it was the intent of the contract, the construction of which belonged to the court, and not to the jury.

If all the facts the parol evidence tended to prove, in reference to the nature and use of the property, had been apparent on the face of the instruments, it would have been the duty of the court to instruct the jury, directly and positively, as to the effect or intent of the instruments, and the duty of the jury to follow that instruction. But such facts did not appear upon the face of the instruments, and it became necessary to resort to the extrinsic evidence to show the subject matter to which they applied, and the uses made of the property, in order to give the instruments their true construction; in other words, to ascertain their intent. Had these facts been ascertained, by special verdict or otherwise, it would have been the duty of the court to construe the instruments in connection with, and in the light of such facts, in the same manner as if expressed upon their face. As they had not been thus ascertained, they could only be ascertained by the jury on the trial; and, when thus ascertained, they were to have their due weight upon the construction of the instruments. But this construction still belonged to the court. The court could not find the facts, nor could the jury construe the instruments, even in the light of the extrinsic facts they should find, except according to the instructions of the court.

It was, therefore, a proper case fora conditional or hypothetical charge. The jury should have been told (in substance) what would be the proper construction of the mortgages upon the different states of facts which might be found by them.— Neilson and others v. Harford, 8 M. & W. 806-823; Wason v. Rowe, 16 Vt. 525; Chitty on Cont. 73. The case of Curtis v. Phillips, 5 Mich. 112, cited by plaintiff in error, is not in opposition to this view. That was a case, under the statute, referred to the decision of this court upon both the facts and the law.

The court in the present case did not assume to decide the facts nor to withdraw them from, the jury, but, in answer to the erroneous request just mentioned, charged that in his judgment the property replevied might be included in the word “furniture,” or other description of the first mortgage, and “ signs and furniture ” in the second. This properly left the facts to the jury. The charge was strictly correct so far as it is set forth upon the record; and, as the whole charge does not purport to be given, we must assume that the rest of the charge was unexceptionable, and in accordance with the law as above explained.

The judgment of the court below must be affirmed, with costs, to the defendant in error.

The other Justices concurred.