author: Peckham, J.

text:
    Elizabeth Griffiths, Resp’t, v. Edward A. Morrison, et al., App’lts.

      (Court of Appeals,

      Filed June 7, 1887.)

    Deed—Description in—House extending over adjoining lot.
    In 1863 plaintiff owned 141 and 143 West Forty-ninth street. In 1880 he conveyed 143 to defendant’s grantor by metes and bounds, as being^ twenty-two feet wide on Forty-ninth street, and 100 feet, four and a half inches deep, “with the buildings and improvements thereon, together with the appurtenances. There was a small structure which covered the rear of lot 143, and extended five feet, eight inches, over the line of 141, the west wall of the extension on 141 forming the east wall of the structure on. 143. The buildings were not keyed together, the beams of 143 resting on piers, and the plastering was placed against the outside of. the wall of 141. Held, that the deed conveyed only that part of the building which is on the land described, and did not convey any easement in that portion of the building extending over the adjoining lot.
    Appeal from supreme court, general term, first department.

      James J. Thompson, for app’lts; S. Jones, for resp’t.

       Affirming 36 Hun, 337.

   Peckham, J.

The deed from plaintiff to defendant’s grantor conveyed the lot No. 143 by metes and bounds, as being twenty-two feet wide on Forty-ninth street, and the same width in the rear, and 100 feet and four and one fourth inches deep. This description confessedly does not embrace the five feet in question, which are within the area of lot 141, on the east. The defendant, however, claims to have the right in the nature of an easement to retain the possession of this strip, although not embraced in the above description, because the house on the rear of his lot was built and extended these five feet on the lot adjoining it on the east, by the person who was at the time the owner of both lots. For this house thus extended towards the east there never was a separate and exterior eastern wall, but its front and rear walls were simply extended five feet over the line, until they met the western wall of a house built' on that adjoining lot, but not up to the western line of the lot, within the said limit of five feet and some inches. The front and rear walls above mentioned were not keyed into this western exterior wall, and the timbers of the house did not rest in such wall, but were supported by piers. This wall was thus made the east wall of the house, the largest part of which was built on the lot now owned by defendant, and the plastering was placed upon or directly against it. The house had a hallway through its center, with rooms on each side, and the eastern rooms, of course, had this wall for their eastern boundary. Under these circumstances the plaintiff sold to defendant’s grantor a piece of land described as above, “with the buildings and improvements thereon,” “together with all and singular the tenements, hereditaments and appurtenances thereto belonging. ”

Unless the defendant has the right to retain the posses • sion of the five feet, and the right to use the exterior wall above described as a wall to his building so long as the wall shall endure, the plaintiff has established her right to the premises, and the judgment awarding her possession thereof must be affirmed. The defendant claims to have established his right under the language of the deed last above quoted. The description in the deed of the amount of the land conveyed is minute and definite, even to a half inch, and the deed conveys “the buddings and improvements thereon.” Does this language include the right to retain possession of the five feet in controversy, while that western extension wall endures, and to use such wall as the eastern extension wall of the defendants’ house? It is the building and improvements on the land which is most accurately and minutely described, that are conveyed. There is no suggestion of mistake of measurement in the amount of land intended to be conveyed, and yet a piece of land five feet in addition to that which was actually conveyed, and out of a total of only twenty-two feet, is thus called for to furnish this easement to defendant’s premises. We think that the language conveys only that part of the building which is on the land described, and that no right such as is claimed by the defendant exists upon or in relation to the land not conveyed, and which belongs to plaintiff. Such, we think, is the clear intention to be deduced from the language used, and from the situation of the parties. The defendant can easily build up a wall, on the easterly side of his premises, which will then keep the building thereon in good condition, although the effect, of course, will be to somewhat diminish the size of the whole building as to width. The defendant will still have all that was conveyed to his grantor, viz., the building and improvements which were on the land actually conveyed.

But the defendant claims that his right can be founded upon the other clause of the deed which conveys the land thus specifically described, “together with all and singular the tenements, hereditaments, and appurtenances thereto belonging, or in anywise appertaining.” It is claimed that this right to use the western extension wall' as long as it endures, and also the space for the front and rear walls, is an easement which is appurtenant to the grant of the twenty-two feet of land, “ with the building and improvements thereon,” which building defendant says cannot exist as a building unless the front and rear walls are permitted to stand, and they cannot stand unless permitted to occupy the land on which they stand. It must be remembered that the parties have respectively granted and received all of the land that was intended. There has been no mistake made about the quantity thereof. The grantee received, and the grantor conveyed, only twenty-two feet in width; each, of course, knowing that five feet of the width of the building ran over and upon land not conveyed. If there had been any thought of conveying that portion of the house which stood on land not conveyed, or of erecting any easement upon the land not conveyed in the nature of a right of support for the walls of the building, I think language would have been used which would have made it plain that such was the intention. By the word “appurtenances,” incorporeal easements or rights or • privileges will alone pass, and of these only such as are necessary to the proper enjoyment of the estate granted. Ogden v. Jennings, 62 N. Y., 526.

I think the estate granted was a lot of land twenty-two feet wide, and such building as was on that lot, but the estate did not extend to any portion of that building which was outside of and beyond such lot. It was not necessary, in order to enjoy the estate granted, that there should exist an' easement in the shape of an appurtenance to such estate, which was not directly necessary to its proper enjoyment, and was no more than a mere convenience, and in effect simply an enlargement of the grant. By building the extension wall on his own land, the defendant can have the full enjoyment of everything that has been conveyed to him. He cites as the main authority for his contention the case of Rogers v. Sinsheimer (50 N. Y., 646). But the cases are clearly distinguishable. In the Rogers Case the original owner had built two houses on two lots, with a party-wall eight inches thick between them, which served as a support, for the beams of each house. On the same day he sold the houses by two deed to two different parties, conveying the easterly lot to A., the plaintiff’s grantor, and the ‘westerly lot to B., the defendant’s grantor; the deed to the latter by a description which located the division line so as to throw the party-wall and two inches of land on the westerly side thereof within the plaintiff’s lot. The plaintiff recovered a judgment, which was reversed at general term, and such reversal affirmed here. It was placed on the ground that as it was a party-wall which, at the time of the conveyance, served as a support for the beams of the house erected on the lot then belonging to defendant, the premises were obviously charged with the servitude of having the beams of the house rest in the wall, and the wall remain as an exterior wall for defendant’s house so long as the building should endure. Thus we have the fact of a party-wall, and an actual existing support therein for the beams of each, house, and the right to the use of it as an exterior wall.

Again, there was a space of but two inches beyond the party-wall which plaintiff claimed, and that space was so short as to prevent the idea being formed that there was an intention by such conveyance to terminate the character of the wall, and the right of defendant to rest his beams, upon it. Such right of support existing, carried with it, of' course, the right to occupy this space of two inches between the easterly boundary of defendant’s lot and the wall, with the timbers which were to be supported in the wall. In the case at bar there was no party-wall, and no support, and no right of support, for the beams of defendant’s house. The exterior wall of an existing house had simply been utilized as being partition enough between the houses, and no part of it was used for a support of any of the timbers of the house in question, and this wall was five feet from the line of the premises which were actually conveyed to the defendant.

The character of the easement claimed by the defendant, in effect does not differ from the claim of the fee to the five feet; for the right to occupy the space with the front and rear walls, and to have the western wall of the other building serve as the eastern exterior wall of defendant, requires in its exercise the actual and exclusive possession of that amount of land, although it was never conveyed to defendant. There is no intention to make a conveyance of any such right expressed in the deed, and there is nothing in the Rogers Case which compels or authorizes us to imply such an intention. We have looked at the other cases cited by defendant’s counsel, but they plainly have no application.

What has been said in regard to the claim of defendant as to the five feet applies with stronger force to the alleged easement for the maintenance of the privy, hydrant, etc. This alleged claim is plainly untenable, as not being in any sense an appurtenant to the land conveyed, not necessary to its enjoyment, and scarcely even more convenient.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Ruger, Ch. J.

license: Public Domain

text:
    William B. Holdsworth, as Master of the Bark “Bessie,” App’lt, v. P. A. De Belamzaran and Raphael De Florez, Resp’t.

      (Court of Appeals,

      Filed June 7, 1887.)

    -Charter party—Principal and agent.
    Defendant chartered a vessel from New York to Gibraltar and Cadiz, and to return to New York or some other port to be named at Cadiz. Plaintiff was to be paid £620 at Cadiz, and bore a letter of instruction to Poggio Hermanos at that place, who had “full instructions to serve the master in any matter concerning his vessel.” Poggio asked him if he wished to remit a portion of his charter money to his principals, and on his assenting offered to purchase a bill of exchange and remit it to Baring Bros., but, instead, he made his own draft on defendants, which was after-wards dishonored, and in settling with plaintiff he deducted the amount which he represented he had sent to Baring Bros. Held, that plaintiff was not in a position to dispute the assertion of the agent, to whose kind offices defendants had commended him, and when plaintiff has shown that he afforded defendant’s agent at Cadiz an opportunity to pay the £620 and they declined to do so, it constituted a breach of the contract by defendants, rendering them liable for the sum unpaid.

      Appeal from judgment of supreme court, general term, first department, reversing judgment in favor of plaintiff-

      Joseph A. Shoudy, for app’lt; George L. Rives, for resp’t.

       Reversing 34 Hun, 382.

   Ruger, Ch. J.

In November, 1881, the defendants chartered the British bark Bessie for a voyage from New York to Gibraltar and Cadiz, and for its return to New York, or some other port in the United States, to be named by the charterers at Cadiz. The charter party provided that the defendants should pay the plaintiff £1,100' for the round trip, of which sum £620 were made due and payable upon proper delivery of the cargo at Cadiz ‘£ in Spanish gold coin at the rate of $4.80 to the pound sterling;” “allpayments to be made in cash, without credit, discount or commission.” Other portions of the stipulated sum of £1,100 were made payable at Gibraltar and the home port, but no question arises in the case over the performance by the defendants, in that respect, of their contract obligations. The defendants loaded the bark at the port of New York with a general cargo, consigned to various persons at Gibraltar and Cadiz, under bills of lading in the usual form, specifying the amount of freight payable by the consignees on each parcel of goods. The full performance by the plaintiff of the obligations of the charter party is admitted by the defendants; and their liability for the payment of the full amount stipulated according to the provisions of the charter party follows as the necessary consequence of this performance by the plaintiff.

The only question in the case is, therefore, whether the defendants have performed their obligation by causing payment of the sum of £620 to the plaintiff at Cadiz, according to the terms of the charter party. Before leaving New York, the defendants handed to the plaintiff a letter of instruction by which he was directed to proceed directly to Gibraltar, consigning himself to one Gomez, and, after discharging the consignments at that place, to proceed to Cadiz, consigning himself to Poggio Hermanos, who, it was stated, had full instructions to serve the master in any matter concerning his vessel. It was shown by the evidence that Poggio Hermanos paid to the plaintiff at Cadiz the sum of $528.40 of the sum of £620, leaving apparently unpaid thereon £509 18s. 4-d., or $2,441.60, and this is the sum in dispute in this action.

As to the transactions at Cadiz between the plaintiff and Poggio, the referee has found as follows: “That, while discharging the cargo of said vessel at the port of Cadiz, the said Salvador Poggio inquired of the plaintiff whether he wished to remit any portion of his charter money to his principals, and the master rephed that he did wish to remit to his principals through the firm of Baring Brothers, of London: that thereupon the said Poggio said to the plaintiff that he would purchase a bill of exchange, and remit the same to the said firm of Baring Brothers; and a few days thereafter when the cargo was about half unloaded, he represented to the plaintiff that he had purchased a bill for £509 18s. 4d. at 47d. to the dollar, and had remitted the same to Baring Brothers for the account of the master and agent of the said vessel; that said master believed the said statement and representation of said Poggio, and relied thereon, and had the accounting hereinafter referred to, and settled with the said Poggio upon the faith of said representation being true; that the statement and representation of the said Poggio that he had made such remittance to Baring Brothers, was false and untrue, but, on the contrary, the said Poggio, on or about the sixteenth day of February, 1882, drew his draft in the firm name of Poggio Hermanos upon the defendants by their firm name for the sum of £509 18s. 4d., payable at sixty days after sight to the order of Baring Brothers, and transmitted the same to Baring Brothers; that Baring Brothers received the same, and presented it to the defendants on or about the first day of March, 1882, for acceptance, and thereafter, when the same became due, presented it for payment, and the said bill was neither accepted nor paid, but was protested for non-payment, and has never been paid;” that the firm of Poggio Hermanos had no funds with the defendants, and had no authority to draw upon them; “that the master of said vessel received no more than $2,833.40 on account of said charter party, leaving a balance of $2,447.60, which was due and payable at Cadiz (aforesaid, according to the terms of the charter-party; no part of this sum has been paid;” that “the plaintiff never agreed to receive the said draft in payment thereof, and did not know that the same had been drawn until long after he left the port of Cadiz, but supposed that a remittance had been made as agreed by the said agent.”

Shortly before leaving Cadiz, the master applied to Poggio for a final settlement of the money payable to him at that place, and Poggio rendered an account in which he charged the master with the sum of £509 18s. 4d. sent to Baring Brothers, February 14, 1882, and various other items of account, together with a sum paid in cash, February 28, 1882, sufficient to make up the whole amount of £620. The plaintiff first learned of the mode of remittance attempted by Poggio when he was at Gloucester, after his voyage was completed, and never, at Cadiz or elsewhere, approved of or accepted the method of remittance adopted by Poggio.

We have also carefully read the evidence upon which the findings were based, and are of the opinion that they were quite as favorable to the defendants as the proof would warrant. Upon these facts the referee made a report in favor of the plaintiff, upon which judgment was entered. The general term, upon appeal to that court, reversed the judgment, and ordered a new trial. From that order the plaintiff appealed to this court upon the usual stipulation .for judgment absolute in case of an affirmance here. The ground upon which the defense to the action was based, is stated in the answer to be as follows: “The said firm of Poggio Brothers offered to give the plaintiff, instead of cash, their draft or bill of exchange for the said last-mentioned amount ($2,447.60), to which the plaintiff assented, and requested the said Poggio Brothers to' draw the said bill of exchange to the order of Baring Brothers & Co., of .London; that the plaintiff accepted the said draft voluntarily, and for his own convenience, and did not insist upon payment in cash of the said balance of $2,447.60.”

_ It is quite unnecessary to discuss the question of the validity of such a defense if it had been established by proof, because in all of its material allegations it was in direct conflict with the findings of the referee, and the fair and reasonable deductions to be made therefrom. The general term, however, seems to have become impressed with the idea,* notwithstanding the express findings of the referee, and the positive character of the testimony of the plaintiff, that the personal draft of the Poggios, payable sixty days after sight by the defendants in New York, had in some manner been accepted by the plaintiff in satisfaction of the sum payable by the terms of the charter-party at Cadiz.

■■ The discussion of the case in the courts below has elicited, not only an able opinion from the referee, but also one from each of the judges of the general term of the supreme court, in which a radical difference of views, as to the merits of the case, has been shown to exist; two of the judges favoring a reversal of the judgment for the plaintff ordered by the referee, and one favoring an affirmance. The theory upon which the majority of that court proceeded will best be presented by brief extracts from their respective opinions.

Judge Brady says: “According to the charter-party, payment was to be made at Cadiz by the agent of the defendants, and the draft, which was taken by the plaintiff in lieu of money, was drawn at his request, that he might make remittances, and of course without the knowledge of the defendants; and it is to be further noted that the plaintiff, relying upon the statement of the agent that the bill was drawn upon Baring Bros., made no personal inspection of it, and thus enabled the defendant’s agent to practice what appears to have been a fraud.”

Judge Davis, also writing for reversal, says: “The freight, to an amount exceeding the sum due to the plaintiff, was collected by Poggio Brothers, and was known to the plaintiff to be in their hands. The plaintiff had only to demand and receive them. He did receive a portion of them, but the residue he desired, for his own purposes, to remit to Baring Brothers as soon as possible.” “ The defendants were under no obligation to do that for him, and Poggio Brothers were not their agents to make such remission. The act of leaving the money due him in the hands of Poggio Brothers to purchase such draft was solely that of the plaintiff.”

We think the conclusions were not warranted by the findings of the referee; and, as the reversal must be deemed by us to have been based altogether upon questions of law and not upon the facts, we conclude that the order of reversal was erroneous. The argument of the learned judge writing for reversal ignores the referee’s finding that the plaintiff never agreed to accept the draft of Poggio, and seems to us to have proceeded upon a misapprehension of the facts of the case, and the nature of the relations existing between the defendants and Poggio Hermanos. It should be borne in mind that the Poggios were, for all purposes, connected with the vessel and its cargo, the agents of the defendants, and, as is now claimed by the defendants, were also agents to make payment to the plaintiff of the sum due him upon the charter-party at Cadiz. The provision of the charter-party for partial payment at Cadiz was for the benefit of the plaintiff, and he could waive performance of that stipulation, or any of its conditions, without injury to the defendants. Thus he could receive payment in other funds than Spanish gold coin, or could allow discount or commission, or extend credit to the agent without prejudicing the interests of the defendants. If, however, he dealt with the agent, and accepted payment in any other form that provided by the charter-party, he would act on his own responsibility, and would thereby take the risk of any loss arising out of the change in the mode of performing the contract. By the performance of the stipulations of the charter-party by the plaintiff, the defendants became indebted to him in the full sum of the compensation earned by the vessel. They then rested under an active obligation to make this payment, and could be relieved from it only by showing payment, or a readiness and ability to pay by themselves or their agents at the time and place of performance. By consigning the.vessel and cargo to Poggio Hermanos, with authority to collect the freight payable at Cadiz, they had, indeed, placed their agents in funds to meet their obligations, but it was also their duty to pay, or offer to pay, the stipulated sum when opportunity offered to the plaintiff. The charter-money was not payable to the plaintiff until after delivery of the-cargo, and he had no control over the collections for freight made by Poggio, or the defendants’ funds in their hands. Although the defendants consigned the bark and its cargo to the Poggios, and authorized them to collect the freight-payable by its different consignees at that place, there is no express language, either in the charter-party or the defendants’ letter of instructions to plaintiff, making them his-agents to pay the plaintiff, or requiring him to call upon Poggio Hermanos, or any other person for the amount due him at Cadiz, or directing him to make demand of that-sum of any person. If there was any duty resting upon the plaintiff to make demand from any one, it arises from the fact that Poggios Hermanos were the defendants’ agents and consignees at Cadiz, and the usual course of trade pointed to them as, the persons through whom the defendants had elected to perform their obligation of making payment at that place. The plaintiff had no lien upon the cargo for his charter-money, and no means of compelling payment of the amount due him at Cadiz, for it was payable only after delivery of the cargo, and in the natural course of things there would be no one in funds to make payment until the defendants’ agents had collected freight from the various consignees of the cargo. This could take place only by the delivery of the cargo, from time to time, to its consignees, and the collection of the freight money due thereon by defendants’ agents. The plaintiff had no control over the collection of this freight, or the defendants’ money, in the hands of Poggio Plermanos. He had no other means of obtaining money of the Poggios except by asking for it; and when he had done this, and had been refused, or his request had been ignored or evaded, he had done all that was required of him to fix the defendants’ liability. The defendants’ contract was that the agents at Cadiz would pay the plaintiff £620.

The plaintiff frequently made .application for payment of the charter money to the Poggios; and, when he asked for a final settlement, the agent’s reply was substantially an allegation that they had already paid such moneys to the plaintiff’s principals. It is true that the plaintiff might have denied this statement, or still insisted upon receiving his freight money, but there is no reason to suppose that the Poggios would have retracted their statement, or have repaid money which they falsely, but yet deliberately, asserted they had already paid. It would have been quite ungenerous in the plaintiff to have disputed the assertion of the agents, to whose kind offices the defendants had commended him, and it would have been quite ineffectual if he had done so. He had no power to make them pay money, payment of which they had avoided by falsehood, and no means, except persuasion, to induce them to fulfill the obligations they owed to the defendants.

It was impossible for plaintiff then to determine whether Poggio’s statement was true or not. He never had an opportunity to inspect the bill said to have been remitted,:, or to elect between the reception of the gold coin by himself, or the remittance of the bill. The allegation that they had remitted was the excuse given by defendants’ agents for not making payment according to the terms of the charter-party, and, therefore, he had no alternative except to rely upon it, and, in case it proved untrue, to look to his charter-party for indemnity. The plaintiff had no legal, enforceable demand or claim against the Poggios, and to require him now to accept them as his debtors, and to prosecute the Poggios upon their draft, would make a contract for him to which he has never assented. The defendants’ contract was to pay the plaintiff at Cadiz £620 ; and when the plaintiff has shown that he afforded the defendants’ agents at that place an opportunity to make such payment, and they declined to do so, it constitutes a breach of the contract by the defendants, rendering them liable for the sum unpaid.

The case is simply that the defendants’ agents converted the money intrusted to them by their principal to their own use; and, when called upon to discharge their principal’s obligation, falsely alleged that they had applied it to that purpose. The plaintiff had no power to prevent the fraudulent conversion of the money by the agents, or to compel its lawful application. All that he did was to acquiesce in its remittance to the ship’s owners after it was claimed that that had been done; and, if it had actually been remitted, it would have discharged the charterer’s debt. Tile plaintiff simply assented to a mode of payment which was not pursued, and the condition upon which this assent ■was given was never performed. This did not constitute in any sense a payment of the principal’s debt. It cannot be disputed that if the plaintiff had, at Cadiz, accepted the personal draft of the Poggios for the amount due to him, or had extended a credit to them for such sum in satisfaction of the defendants’ obligation, it would have operated as a discharge to the defendants; but it is indisputable that the plaintiff never did so, and in fact never knew the mode of the pretended payment until after such knowledge was of no benefit to him. The legal principles applicable to this case are so elementary and familiar that it needs no citation to illustrate them. In truth, the main cause of difference in this- case arises over the different views of the facts taken by the learned judges writing in the court below, and not over any question of law.

The order of the general term should be reversed, and the ■judgment entered on the report of the referee affirmed.

All concur, except Earl and Peckham, JJ.. dissenting.


author: Earl, J

text:
    Alice Lafflin, Resp’t, v. Buffalo and Southwestern Railroad Company, App'lt.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Common carrier — Only bound to furnish safe and convenient APPLIANCES
    When an appliance, or machine, or structure not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of culpable imprudence or carelessness.
    2. Same—Railroad station—Platform.
    Plaintiff reached the station of defendant at 8 p. m., and in stepping from the car to the platform, fell, receiving severe injuries. The platform was two and one-half feet higher than the rail, and three feet from the ground and eleven inches from the outer line of the car. There were three steps at the end of the car, the lower one eight inches below the top of the platform, and one foot and seven inches from the side thereof. Plaintiff stepped from the second step, and not having hold of the iron railing, and without looking to see the platform, failed to reach it and fell. Reid, that the defendant was not liable
    Appeal from supreme court, general term, fifth department.

      George G. Greene, for app’lt; W. S. Oliver, for resp’t.

       Reversing 86 Hun, 638, mem.

   Earl, J

This action was brought to recover damages for injuries sustained by the plaintiff in alighting from one of the defendant’s cars, and the circumstances of the accident are as follows: The train in which she was a passenger reached the station at Dayton, in this state, on the 20th day of January, 1880, at 8 o’clock in the evening, and she left the car for the purpose of changing to another train at that' place, and, in her effort to step from the car to the station platform, she fell between it and the car and sustained the injuries of which she complains. She alleges that the space between the platform and the car was too great, and that in consequence thereof, when she stepped off from the car, she failed to reach the platform, and was thus caused to fall. There is no complaint that the platform was out of repair, or that it was improperly constructed. The only complaint is that it was too far from the car. The platform was two and one-half feet higher than the top of the iron rail, and above three feet above the top of the ground. The distance between the outer line of the car and the platform. was eleven inches. There were three steps at the end of the car, and the lower one was eight inches below the top of the platform, and one foot and seven inches from the side thereof. The second step was two feet and two inches from the side of the platform, and about four inches lower than the top thereof. The height of the platform of the car above the iron rails was about four feet. The plaintiff passed out of the car onto the car platform, and then to the second step, and without having hold of the iron railing on either side, and without looking to see the station platform, she stepped out, and, failing to reach it, fell.

There was no proof that the platform was not constructed in the ordinary way, nor that the space between it and the car was any greater than the exigencies of the business and the operations of the railroad required. There was no evidence that any accident had ever happened at that station before on account of the construction of the platform, or that there had ever been any complaint in reference to it. On the contrary the evidence shows that the platform had been used for many years by men, women and children, and that no one but the plaintiff had ever been injured, or had suffered any inconvenience, on account of the distance of the platform from the cars. Thousands of men, women and children must have passed from the cars to this platform in entire safety. Under such circumstances, how can it be properly said that the defendant was guilty of any carelessness in its construction and maintenance ? It was not bound so to construct this platform as to make accidents to passengers using_ the same impossible, or to use the highest degree of diligence to make it safe, convenient and useful. It was bound simply to exercise ordinary care, in view of the dangers attending its use; to make it reasonably adequate for the purposes to which it was devoted. In the case of a platform which had always been safe, and answered its purpose for men, women and children, in all kinds of weather, by night and by day, for many years, what was there to suggest to any prudent person any change or improvement for the purpose of making it more safe or convenient ?

In the case of Dougan v. Champlain Transportation Co. (56 N. Y., 1) the plaintiff’s intestate, a passenger, slipped under the gangway rail of a steamboat, fell overboard and was drowned; and it appeared that all the boats upon Lake Champlain was constructed in the same manner; that they had been so run for many years, and there was no proof tending to show that anyone had ever before gone overboard in that way; and it was held that the plaintiff was properly nonsuited. Grover, J., writing the opinion, said: “It will be seen that the only proof of negligence was the omission to inclose the space between the railing and deck so as to preclude the possibility of slipping under it. Had there been any proof tending to show that any such danger would be apprehended by a reasonably prudent person, the evidence should have been submitted to the jury. But the evidence showed that all the passenger boats upon the lake had been constructed and run in the same way in this respect; that boats had so been run for a great number of years; and there was no proof tending to show that anyone had ever before fell and gone overboard under the railing, or that any such danger had been apprehended by anyone. It is obvious that no such thing was likely to occur.”

In Loftus v. Union Ferry Co. (84 N. Y., 455) plaintiff’s intestate, a child six years old, while leaving one of defendant’s boats, fell through one of the openings in the guardrails into the water and was drowned. The plaintiff recovered, and it was held that the verdict was properly set aside. Andrews, J., writing the opinion of the court, said: “The law does not impose upon the defendant the duty of so providing for the safety of passengers that they shall encounter no possible danger and meet with no casualty in the use of appliances provided for it. It was possible for the defendant so to have constructed the guard that such an accident as this could not have happened, and this, so far as appears, could have been done without unreasonable expense or trouble. If the defendant ought to have foreseen that such an accident might happen, or if such an accident could have reasonably been anticipated, the omission to provide against it would be actionable negligence. But the facts rebut any inference of negligence on this ground. The company had the experience of years certifying to the sufficiency of the guard. That it was possible for a child, even a man, to get through the opening, was apparent enough; but that this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty.

In Burke v. Witherbee (98 N. Y., 562), while an empty car was descending a mine, the hook which fastened it to the cable became detached from the car, and it ran down the mine, and killed plaintiff’s intestate. The judgment for plaintiff was reversed, because there was not sufficient proof of actionable negligence on the part of the defendants. The judge writing the opinion said: “ In this mine alone, cars drawn by a hook must have made several hundred thousand passages without a single accident. What more could any reasonable or prudent man have to justify him in believing that this convenient appliance was also a safe and proper one? What greater or different test could it have been sub-' jected to before a mine-owner could use it without the imputation of negligence ? It seems to us quite inadmissible, if not preposterous, to attribute negligence to a mine-owner tor using an implement which had been employed in different mines, and which under varying conditions, upon countless -occasions, uniformly answered its purpose without injury to any one.”

The application of these authorities to this_ case is quite obvious. Ho structure is ever so made that it may not be made safer; but, as a general rule, when an appliance, or machine, or structure not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe, and convenient, its use may be continued without the imputation of culpable imprudence or carelessness.

On the evening when this accident happened the evidence tends to show that it was dark, and that the platform was not plainly visible. It was somewhat lighted by light which came from the car windows, the depot windows, and a lantern in the hands of the conductor; and it does not appear that it was ever lighted in any other way, or that it was usual to light such platforms in any other way. The fact that it was dark made it incumbent upon the plaintiff to take the greater care. She could have kept hold of the iron railing until her foot touched the platform, and then she would have been safe. It was not the duty of the defendant to furnish some one to aid her in alighting from the car. There was some proof that about the time the plaintiff attempted to step from the car upon the platform there was a slight jerk or jar of the car; but it does not appear that that had anything whatever to do with the accident. A careful consideration, therefore, of the whole case as it appears in this record, has led us to the conclusion that the defendant is not legally responsible for the accident which befell the plaintiff. It was a misadventure, and no rule of law will permit her to charge the misfortune in whole or in part to the defendant.

The judgment should therefore be reversed, and a new trial ordered, costs to abide event.

All concur.


author: Finch, J.

text:
    Ephraim Drucker, Resp’t, v. Manhattan R. Co. and Metropolitan El. R. Co., App’lts.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Elevated railroads—Action against—Lack of title in plaintiff MUST BE RAISED ON TRIAL.
    Where, in an action against an elevated railroad, the point that the plaintiff did not own the fee to the middle of the street, was not taken upon the trial, it is too late to raise or discuss it in the court of appeals.
    2. Same—Damages—Proof of.
    The damages recoverable from an elevated railroad for trespassing upon abutting owners, by its use of the street, includes whatever of injury or inconvenience results from the structure itself, or is incidental to its use.
    3. Same—Elements of damage.
    Smoke and gasses, ashes and cinders, the drippings of oil and water and the frequent columns are elements of damage even though the necessary concomitants of the construction and operation of the road, and not the product of negligence.

      4. Same—Lessening op business.
    Proof was made that since the building of the railroad, trade and business in the street had fallen off and the current of custom lessened in volume and changed in character. Meld, admissible, that to ascertain how much the plaintiff was harmed by the impairment of his easement required a survey of the general facts, and a deduction from them of the particular and special damage to be estimated.
    Appeal from judgment of general term of superior court of the city of New York, affirming a judgment of the trial term in favor of plaintiff. The action was for the impairment of an easement of light, air and access, appurtenant to four buildings belonging to plaintiff, in Division street, in New York city, caused by the erection and operation of defendents railroad.

      Julien T. Davies, Edward S. Rapallo, and Charles A. Gardiner, for app’lts; Roger Foster, for resp’t.

       Affirming 19 J. & S , 49.

   Finch, J.

This case was tried upon the assumption that plaintiff owned the fee to the center of Division street; or if not, that he had in it, as abutting owner, an easement of light, air, and convenience of access. The point now made— that plaintiff did not own the fee because Division street was not shown to be identical with that laid out by Rutgers and De Lancey, and was not the owner of an easement, because the title to the street presumptively, from its age, came to the city from a Dutch ground brief, or an English grant, and was an absolute fee, unclouded by any trust—was not taken upon the trial either by objection to evidence, or a motion for a nonsuit, or by requests to charge or exceptions to charge as made. It seems to have been conceded all through the trial that plaintiff had either a fee or an easement in the street, and that for the purposes of the action it was immaterial which, and so the litigation was confined to the question of damages and its true measure. It is too late now to raise or discuss in the case the point suggested. If it had been raised on the trial, the identity of the street with that of Rutgers and De Lancey might have been clearly shown, or the facts of its origin accurately developed.

The further questions raised respected the proof of damages. The action shaped itself into one of trespass for the occupation and impairment of plaintiff’s easement for the period beginning with the construction of the road, and ending with the commencement of the suit. In the case of Lahr v. Metropolitan Elevated Ry. Co. (104 N. Y., 268; 4 N. Y. St. Rep., 340), three out of five members of the court, voting in the case, put the rule of damages upon the proposition that the road, and its operation, imposed upon the street an unauthorized use, and were illegal and wholly a trespass as against abutting owners not duly compensated. As a logical consequence, the majority held that the damages recoverable included whatever of injury or inconvenience resulted from the structure itself, or were incidental to its use. This rule- opened the door to proof of every injury traceable to the road or its operation, and was said to be that, “however the damage may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass, rendering the wrong-doer liable for the consequences of his acts. Under that rule none of the evidence offered was inadmissible; for it all tended to show how far and in what manner the plaintiff had been injured by the trespass. But the then minority of the court favored a narrower rule of damages. Yielding, as in duty bound, to the. authority of the Story Case, they admitted that, as far as the road, by its construction or use, took or destroyed or impaired the abutter’s easement of light, air and access, it was a trespasser; but maintained that beyond that, and for consequential damages which did not touch the easement, or invade its enjoyment, it was not a trespasser, but stood under the protection of the general rule freeing it from liability for any incidental injury or annoyance resulting from its. careful and lawful operation. But even that restricted rule, which has not, as yet, received the sanction of the court, appears not to have been violated upon the trial of this action. The judge charged “that nothing is recoverable-except for interference with and occupation of plaintiff’s light, air and access;” that no damages could be recovered for negligence in the construction or operation of the road, since no such cause of action was pleaded; and that it made-no difference in the measure of damages that the defendant had not acquired title by condemnation proceedings. The appellant does not complain of this charge, or the measure of damages applied, but does complain that evidence was admitted going quite beyond its boundaries. We are of a. different opinion.

Objection was made to the proof that, since the building of the elevated road, the trade and business of Division street had fallen off, and the current of custom had largely lessened in volume, and changed in character; and upon the ground that injury to the plaintiff, and not to his neighbors, was alone material. But, to measure and appreciate that individual loss, the nature and extent of the general injury was necessarily to be considered. To ascertain how much the plaintiff was harmed by the impairment of his easement, required a survey of the general facts, and a deduction from them of the particular and special damage to be estimated. The evidence tended to show that, by reason of the falling off of business, rental values on the street had seriously diminished; but also established that this result was due, in part, to a tendency of business to move up town, with which the elevated roads had nothing to do. How much of the-diminution of rental values was due to the construction and. operation of the elevated roads, and what part of that por tion was caused by the impairment of plaintiff’s easement, was the problem of damages, and could only be solved by taking into view the general loss, and its nature and extent, and then estimating out of it the part or share suffered by the plaintiff from the taking or impairment of his easement. But that, it is said, could not be done with any certainty or precision, and left the jury to guess and speculate in reaching a result. It is often the case that damages cannot be estimated with precision, and the basis of accurate calculation is wanting and inadequate. That is notably true in many cases of personal injuries. Such evidence as can be .given should be given, and facts naturally tending to elucidate the extent of loss should not be withheld. But when all the proof which, in the nature of the case, is fairly possible, has been given, the good sense of a jury must provide the answer; and it is no defense that such judgment involves more or less of estimate and opinion having very little to guide it. That criticism has no force in the mouth of the wrong-doer when all reasonable data have been furnished for consideration.

If we inquire further into the details of the injury suffered, we shall find that no proof was obiected to which should have been rejected, even under the narrower and more restricted rule above suggested. Smoke and gases, ashes and cinders, affect and impair the easement of air. The structure itself, and the passage of cars, lessen the easement of light. The drippings of oil and water, and possibly the frequent columns, interfere with convenience of access. These are elements of damage, even though the necessary concomitants of the construction and operation of the road, and not the product of negligence; for they abridge the landowner’s easement, and to that extent, at least, are subjects for redress in an action for damages. There remains but the annoyance of noise and vibration of the buildings among the specific injuries mentioned on the trial. But no objection or exception selected these out as improper elements in the proof of damage, and the question which might involve the difference of opinion among us is not here presented.

The judgment should be affirmed, with costs.

All concur, except Rapallo, and Peckham, JJ., not voting.


author: Earl, J.

text:
    William C. W. Swift et al., Res’pts, v. Pacific Mail Steamship Company and Panama Railroad Company, Appl’ts.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Common carriers—Necessary parties in action against—Seamen INTERESTED IN CARGO IN OIL.
    Where plaintiffs who were both consignors and consignees of a large amount of oil made a contract in their own names for its carriage from Panama to New York, they can maintain an action for its loss in their own name, although the seamen of the vessels “were interested in the oil" under the common arrangement between the owners of whaling vessels and their seamen.

      2. Same—Right of cabbiebs to go beyond terminus fob freight and passengers.
    The right to go beyond its terminus to procure passengers and freight for transportion over its route by a corporate carrier must be exercised within reasonable limits, and under such circumstances may fairly be said to be incident to its legitimate business, therefore: Held, that the Pacific Mail Steamship Company, engaged in transportation upon both the Pacific and Atlantic oceans, did not go beyond reasonable limits in contracting to take freight at Panama and transport it over the Panama railroad for delivery to its steamships at Aspinwall, its main business being to take freight coming to it over that railroad.
    3. Same—Separate cabbiebs jointly liable—Principal and agent.
    The jury found that plaintiffs made their contract at New York by correspondence with one Bellows, the vice-president and general agent of both defendants. Plaintiffs were to deliver the oil at Panama, the principals of Bellows were to receive the oil from plaintiffs’ vessels, take it upon lighters to the docks, carry it to Aspinwall without delay, care for it on the isthmus, see to the coopering so that there would be no leakage, and transport it from Aspinwall to New York; all for a single price. Held, that in spite of separate bills of lading having been rendered, showing that they were not jointly liable, the jury were justified in finding that plaintiffs made a single contract for the entire route, also, that if they were not jointly liable they were severally liable.
    This action was brought by the plaintiff’s as shippers' against the defendants, as common carriers, to recover damages for breach of a joint contract for the carriage of of whale oil from Panama to New York. The complaint alleged that the plaintiffs were copartners, and that the defendants were corporations organized under the laws of this state; that the business of the Panama Railroad Company, among other things, was the transportation of freight from Panama by rail to Aspinwall, and there to deliver the same to the Pacific Mail Steamship Company, whose business it was, among other things, to transport the freight so received by vessel to New York; that the defendants, for a single price named, entered into a joint contract to carry the oil from Panama to New York; that they entered upon the performance .of their contract in the months of January and February, 1873, and delivered a portion of the oil received by them from the plaintiffs, in the city of New ■York, about the 23d of April, 1873; that owing to the negligence, delay, and improper handling of the oil, and the .casks containing the same, by the defendants, the oil was greatly damaged and injured, and a large part of it was lost by leakage while at Panama, on its way across the isthmus, at Aspinwall, and also on the passage from Aspinwall to New York; and that by reason of negligence, improper conduct, and mismanagement of the defendants, the plaintiffs suffered damages in the sum of #20,000, besides interest. Each of the defendants by a separate answer, among other things, denied the joint contract, and the joint liability alleged in the complaint; alleged that the oil was delivered and carried under a special contract printed and in writing, copies of which were delivered to plaintiffs, wherein the several rights and liabilities of plaintiffs and defendants, and each|of them, with respect to plaintiffs and and to each other, relative to the subject-matter of the complaint, were limited, defined and determined, and that its undertaking in regard to the oil was only under such contract, which it had fully performed; that it was not liable for losses accruing upon the route of the other defendant; and each defendant also alleged, as a separate defense, that there was a defect of parties plaintiff, and that several other persons named were then, and also at the time of the making of the contract and the transportation of the oil, jointly interested with the plaintiffs in the oil. The action was brought to trial at a circuit, and the jury rendered a verdict in favor of the plaintiffs for upwards of $23,000. From the judgment entered upon that verdict the defendants appealed to the general term,[and from affirmance there to this court.

      George Hoadley and Wm. G. Choate, for app’lts; Austen G. Fox, for resp’ts.

       Affirming 36 Hun, 643, mem.

   Earl, J.

A point is made on behalf of the defendants that the plaintiffs cannot maintain this action on the ground that some of the seaman on the whaling vessels were, to some extent, joint owners with them of the oil. It is undoubtedly the general rule in this state that an action against a common carrier for the breach of his contract, or of his duty to carry, must be brought in the name of the owner of the goods, although the contract may have been made or the goods shipped by another. Green v. Clarke, 12 N. Y., 343; Krulder v. Ellison, 47 id., 36. The rule has, however, been much questioned, and has some exceptions.. Blanchard v. Page, 8 Gray, 281; Finn v. Western R. Corp., 112 Mass., 524; Arbuckle v. Thompson, 37 Pa. St., 170. Where the consignor, although not the general owner, has a. lien upon or a special interest in the goods, and makes the contract and pays the consideration for the carriage, he may bring an action for the breach of their contract in his. own name in order that he may protect his rights. Here these plaintiffs made this contract in their own names, and with their own money paid the agreed freight, and they were both consignors and consignees It does not appear what ownership, if any, in the oil, the seamen had, nor does it appear what the relations between the plaintiffs and them were. For aught that appears, the plaintiffs were under a special duty to deliver this oil in the city of New York, and had a special interest in the whole of the oil to protect. As they were in control of the oil, and made the contract for its transportation, being both consignors and consignees, in the absence of proof to the contrary, it must be assumed that they had sufficient title and right to maintain this action and enforce their contract with the defendants;, and, in so holding, it is believed that we are in conflict with, no authority.

But the evidence does not show that the seamen were joint owners with the plaintiffs of the oil. It was simply testified that “they were interested in the oil,” and that evidence was not sufficient to establish that they were either partners or joint owners with the plaintiffs. It is more reasonable to suppose from such evidence that they were simply interested in the proceeds of the oil, and such is believed to be the common arrangement between the owners of whaling vessels and their seamen when the latter have an interest in the product of the whaling voyage. Baxter v. Rodman, 3 Pick., 436; Grozier v. Atwood, 4 id., 234; Bishop v. Shepherd, 23 id.,492. We are therefore of opinion that the seamen were not necessary parties to the action.

The Panama Railroad Company was organized to construct, maintain and operate a railroad across the isthmus from Panama to Aspinwall and the Pacific Mail Steamship Company was organized to navigate steamships on the Pacific and Atlantic oceans. Laws 1848, chap. 266; Laws 1850, chap. 207. It is not disputed that the Panama Railroad Company could receive freight at Panama, and contract to carry it, beyond its terminus, through to the city of New York, and that the Pacific Mail Steamship Company could receive freight at the city of New Nork, and contract to carry it to Aspinwall, and thence by the railroad to Panama. It is the well settled law in this state that a carrying corporation over a portion of a continuous line of transportation may contract to carry beyond the terminus of its route, and that such a contract is not ultra vires. Weed v. Saratoga and S. Ry. Co., 19 Wend., 534; Wylde v. Northern R. R. Co, 53 N. Y., 156; Root v. Great Western R. R. Co., 45 id., 524; Condict v. Grand Trunk R. R. Co., 54 id., 500. Such contracts have been upheld sometimes upon the ground of estoppel, and sometimes upon the ground that they were incident to the business for which the contracting corporation was organized. While the defendants admit that such contracts could be made, they contend that the Pacific Mail Steamship Company could not contract to receive goods away from its terminus, and to transport them to such terminus over the route of another carrier, and thence transport them over its own route to their destination; that is, while they admit that the steamship company could receive goods at the city of New York, and contract to carry them to Panama on the Pacific coast, they deny that it could receive goods at Panama and agree to transport them to the city of New York. We see no reason for distinguishing between the two kinds of contracts, and for holding that the company could make the one kind and not the other. If, when it receives goods at New York for transportation to Panama, it is engaged in business authorized by its charter, or incident to such business, then, when it procures freight at Panama for transportation to Aspinwall, and thence to New York, it is also engaged in promoting the legitimate business for which it was organized. It thus procures freight for transportation upon its steamships, and' the business it thus does at Panama and across the isthmus is just as legitimate as it would be to establish agencies on the Pacific coast to solicit freight for transportation from Aspinwall to New York or to contract with newspapers there to advertise the carrying of such freight. Cannot a railroad company take freight for transportation at a point a few rods from its depot? And, if it may a few rods, why not a few miles? If it may have a depot for the receipt of freight one mile from its terminus, why may it not have a depot fifteen or twenty miles therefrom, and transport the freight thence to its road by any means that it chooses to adopt? The Panama Railroad Company terminated on the Pacific coast at Panama, and there it owned lighters to go out into the ocean to take freight from vessels. If it could send its lighters out one mile, why could it not send them out several miles, for the same purpose, to some convenient port or roadstead? The main business of the steamboat company between Aspinwall and New York was to transport passengers and freight which came from the Pacific coast, and, instead of taking the passengers and freight at Aspinwall, why could it not take them at Panama?

We see no reason for holding that it might not do so in the prosecution of its corporate business, and as incident thereto. Then, again, if, when the steamship company receives goods at New York under contract to carry them to Panama, it is estopped from denying its authority and power to make the contract, why, when it receives goods at Panama under contract to be carried to New York, should it not be equally bound by estoppel ?

We think, therefore, that it is clear, upon principle and authority, that both defendants were competent to enter into contract to carry this oil from Panama to New York; and, as each was competent to contract alone, it cannot be doubted that they were competent to make a joint contract to do it. They could even become partners in the transportation business between Panama and New York, and, so far as we have discovered, the power of corporations thus to become joint carriers has never been denied, but has frequently been recognized. Aigen v. Boston and M. R. Co., 132 Mass., 423; Block v. Fitchburg R. Co., 139 Mass., 308; Gass v. New York, P. and B. Railroad Co., 99 Mass., 220; Hot Springs R. Co. v. Trippe, 42 Ark., 465; Insurance Co. v. Railroad Co., 104 U. S., 146; Barter v. Wheeler, 49 N. H., 9; Wylde v. Northern R. Co., supra; Hutch. Carr. § 160. The right of a corporate carrier to go beyond its terminus to procure freight and passengers, and to transport them to its terminus for carriage over its route, is not absolute and unqualified, but has some limitations. What those limitations are it is not possible, in a general way, to define. The New York Central and Hudson River Railroad Company could not establish a line of steamers between Liverpool and. New York to carry passengers and freight from Liverpool to New York in order that it might secure the business of transporting such passengers and freight over its route to Buffalo; but it might run ferry-boats from Staten Island, or from the New Jersey shore, for the purpose of securing passengers and freight for transportation over its route. The right to go beyond its terminus to procure passengers and freight for transportation over its route by a corporate carrier must be exercised within reasonable limits, and under such circumstances that it may fairly be said to be incident to its legitimate corporate business; and our holding is that the Pacific Mail Steamship Company, engaged in transportation upon both the Pacific and Atlantic oceans, did not go beyond reasonable limits in contracting to take freight at Panama, and transport it over the Panama railroad for delivery to its steamships at Aspinwall, its main business being to take freight coming to it over that railroad.

The plaintiffs claim that the contract for the carriage of this oil was made in the city of New York between them and one Bellows, who was the vice-president and general agent of both defendants at that place, and that it was made by correspondence with Bellows, and a personal interview had with him. On the other hand, the defendants claim that the contract was contained in and evidenced by the bills of lading signed at Panama by one Corwin who was the agent of both defendants at that point, which bills of lading expressly stipulated that the defendants should not be jointly liable for an loss or damage to the oil; that neither of them should be liable, in any event, for any loss or damage accruing upon the route of the other, nor accountable for leakage arising from improper or defective casks, nor for damages of any kind to articles perishable in their nature, nor for unavoidable detention or delay. The trial judge submited all the evidence bearing upon the contract to the jury, and instructed them to find whether it was made with Bellows, as claimed by the plaintiffs, or whether it existed in the bills of lading, as claimed by the defendants; and he also instructed them to find whether the contract was the joint contract of the defendants, or the individual contract of the Pacific Mail Steamship Company; and he charged them that, if they found the contract existed in the bills of lading, they should render a verdict in favor of the defendants; but that if they found it was made with Bellows, as claimed by the plaintiffs, and that it was the joint contract of both defendants, they should then render a verdict in favor of the plaintiffs against both defendants. The jury must therefore have found that the contract was made with Bellows, as claimed by the plaintiffs, and that it was joint; and the only further inquiry is whether there was any evidence to authorize their finding.

There was no proof that Bellows was not authorized to contract for both defendants. Nor was there any positive proof that the defendants were not engaged jointly in the business of transportation between New York and Panama. Both defendants had the same agents at Panama and Aspinwall. Bellows was vice-president of both, and appears to have acted for both in the city of New York. Both had officers there in the same building, and the interview between Bellows and the plaintiffs took place in the office of the steamship company. He corresponded and held the interview with the plaintiffs, in reference to through freight from Panama to New York, and the receipt of the oil at Panama, and the care to be taken of it while upon the isthmus, without so far as appears, consulting with any other agent or officer of either company. It does not appear that any other person acted, or was authorized to act, for either company at that time and place in making special contracts for the transportation of goods between New York and San Francisco across the isthmus. It is not disputed that he was authorized to act for and to represent the .steamship company, whose office for the transaction of its business he occupied, and he was in the habit of making .special contracts for the carriage of freight through between New York and San Francisco.

One of the by-laws of the steamship company provided that the vice-president should be the assistant executive officer of the company, and, together with the president, should exercise a general superintendence over each department of business in the company’s office. Goods on the Pacific coast were brought in vessels, and were taken by lighters from the vessels, and carried to the docks of the Panama Railroad Company, and the through freight was divided between the two companies, as follows: Compensation for the lighterage was first deducted for the railroad company, and the balance was equally divided, although the transportation from Panama to Aspinwall took but four hours, while the voyage from Aspinwall to New York took more than twice as many days. The first letter written by Bellows to the plaintiffs was one dated September 18, 1871, in which he stated to them that “we will make the rate on whale oil, Panama to N. Y., 5 and | cts. gold, per gal; Should you decide to send any ships to Panama with oil or bone for N. Y., you will please to give us early notice that we_may be prepared to receive it.” In August, 1872, the plaintiffs wrote Bellows, referring to his letter, and stating that their whaling vessels on their way from the Arctic ocean to. Panama would be due in San Francisco early in November, and inquiring whether there would be facilities for landing five or six thousand barrels of oil without delay at Panama. To this letter, on the 24th of August, 1872, Bellows replied by letter, in which he renewed his offer to carry the oil at the rate previously stated in his letter of September, 1871, and stated that there would be no delay in landing at Panama, and closed as follows. “We feel very sure, if you once try this route for your oil shipment, you will ever after have all your shipments made over it.” In the same or the following month, Swift, one of the plaintiffs, went from New Bedford, Massachusetts, where he resided, to New York, and there had the interview with Bellows at the office of the steamship company in which he alluded to the letter which he had received from him, told him the plaintiffs accepted his proposition, and had concluded to order their ships to go to Panama to land their oil, and informed him that, if there was any delay in the oil on the isthmus, there would be a great deal of leakage unless it was in charge of competent coopers. Bellows said they had good coopers on the isthmus. Swift proposed to send out to Panama some coopers from New Bedford who were very competent, and said that there would be no leakage if they went out. Bellows replied that he could send coopers to Panama, but they would not be allowed to do anything there; that the company had competent workmen to take care of the oil; the plaintiffs’ coopers would only be surplus-age and entirely unnecessary. Swift also told Bellows that, if loss occurred on the isthmus from delay there on account of the casks not being properly coopered and taken care of, the plaintiffs would hold the company liable for such loss, and Bellows replied that there would be no loss by fault of the company.

Thereafter, on the fourteenth of October, 1873, the plaintiffs addressed a letter to Bellows, in which they acknowledged the receipt of the letter dated August 34th, and stated that their three ships might get from five to six thousand barrels of oil, and that they would be due at Panama before the first of December, and further stated: “We shall depend upon our cargoes having the first chance, and that they will not be crowded out or delayed by oil from other ships whose freight has been engaged subsequently to ours. Please be good enough to write to us upon this point, and assure us that there will be no delay at Panama or Aspinwall. Can you not send the oil direct to this port (New Bedford) ? We beg to ask what facilities there are at Panama to repair the cutwater of the J. Perry, which has been knocked off by the ice quite low down under water. Please state your rate of freight for supplies sent our ships from New York.” To this, on the next day. Bellows replied, saying that they would send a copy of their letter “ to our agent at Panama, with instructions to give your oil, after arrival there, the best dispatch possible. We have a gridiron at Panama on which we take up our coast steamers, and there will be no difficulty in taking up your vessel for the repairs she needs. We inclose you tariff freight rates by our line to Panama.” On the ninth of November the plaintiffs wrote Bellows that they had that day learned by telegram that their three vessels had left San Francisco for Panama with 4,150 barrels of oil, and they inquired again for freight rates from New York to Panama. To this letter, on the eleventh of November, 1872, Bellows replied: “We are pleased to learn that you have three cargoes of oil on the way to Panama from San Francisco, and by steamer hence to-morrow we will advise our agent at Panama that he may be on the lookout for them}” and he gave rates of freight from New York to Panama.

This correspondence, together with what was said at the interview between Swift and Bellows, made a special contract between the parties under which the plaintiffs were to deliver the oil at Panama, and the principals of Bellows were to receive the oil from plaintiffs’ vessels, take it upon lighters to the docks, and promptly carry it across the isthmus to Aspinwall without delay, care for the oil upon the isthmus, and see to the coopering of the casks, so that there would be no leakage there, and from Aspinwall transport it to the city of New York. All this was to be done for the single price stipulated. The contract, so far as it went, was complete. It was doubtless expected that bills of lading would be executed, but it could not have been expected that, by them the contract so made should in any way be modified.

Under this contract all the oil was delivered in January, 1873, from plaintiff’s vessels, and the only ground the defendants have for claiming that this was not the contract, under which the oil was transported is the fact that two months afterwards, on the 27th of March, 1873, the common agent of the defendants executed bills of lading which were sent to the plaintiffs, and received by them April 7th. By some delay on the isthmus the oil did not reach Aspinwall, and was not delivered on the steamships until the second or third of April. After the receipt of the bills of lading the plaintiffs did not discover the peculiar stipulations contained in them at variance with the contract which they had previously made. Upon the landing of the oil in New York, the loss of the oil from leakage was discovered, and the plaintiffs paid the stipulated freight, giving notice of their claim for the loss. Under the evidence, the main features, of which we have alluded to, it was certainly competent for" the jury to find that the oil was parted with to the defendants for transportation, and that the defendants entered upon the transportation thereof under the contract claimed by the plaintiffs. The defendants could not, therefor, abrogate or alter that contract by merely signing and mailing bills of lading which did not reach the plaintiffs until after the oil had left Aspinwall, and much, if not all, the loss had accrued. There certainly was no conclusive evidence that the plaintiffs consented to accept the bills of lading in place of the prior contract, and that contract must therefore control. Bostwick v. Baltimore and O. R. Co., 45 N. Y., 712; Guillaume v. Transportation Co., 100 id., 491; Wheeler v. New Brunswick and C. R. Co., 115 U. S., 29.

It is clear that the plaintiffs did not understand that they were making several contracts for the transportation of their oil from Panama to New York, but they evidently supposed they were making a single contract with an agent who had authority to contract for the entire route. While the evidence is not conclusive, not even very satisfactory, that the defendants contracted jointly to carry this oil, yet we think there was enough to justify the jury in finding such a contract. Here was the steamship company engaged in transportation both upon the Pacific and Atlantic oceans, making contracts to carry from ports upon one ocean to ports upon the other, and such contracts could be performed only by carriage across the isthmus over the Panama railroad, and that railroad was engaged in transportation across the isthmus of freight almost wholly to or from vessels of the steamship company.

The two companies had common agents upon the isthmus and in New York. Goods were transported, in all cases, for a single through freight from ports on the Pacific to ports on the Atlantic, and that the freight money, after deducting compensation for lightering, was equally divided between the companies, and the same person was vice-president of both companies. Taking into consideration all these matters,—the situation of the two companies, and all the circumstances surrounding them, and the methods of their business as disclosed in the evidence,—it is not an improbable nor an unjustifiable inference that they were jointly engaged in business, and jointly contracted with the plaintiffs.

If the contract was made by the correspondence and personal interview with Bellows, as claimed by the plaintiffs and found by the jury, then, if the defendants are not jointly liable for plaintiff’s loss, they are severally liable. The whole loss was apparently primarily due to unexplained, unjustifiable delay and carelessness upon the isthmus, while the oil was in the possession of the railroad company. For that delay and loss it is liable as a common carrier upon general principles. The steamship company made a special contract to transport the oil without delay from Panama to New York, and to care for it, and cooper the casks upon the isthmus, and it is liable for the loss by virtue of that special contract. Therefore the defendants are either severally or jointly liable for the loss, and whether they shall be held for the loss jointly or severally cannot be very important to them, because it is quite certain from their relations to each other that they will be able to adjust between themselves in a satisfactory manner the joint recovery. The objection to the joint recovery, therefore, appears to be merely technical, and should not prevail unless the judgment is plainly and clearly wrong, and such we think it is not.

A careful consideration of the whole case has therefore led us tó the conclusion that the judgment should be affirmed, with costs.

All concur.