author: Adams, J::

text:
    ALONZO BRADNER and JOHN A. VANDERLIP, as Executors, etc., of CONRAD WELCH, Deceased, Appellants, v. LAUREN C. WOODRUFF and Others, as Surviving Trustees of the Bank of Dansville, Respondents.

      Banks — sections 180 and 187 of chapter 409 of 1883 a/re applicable to banks.

    Sections 186 and 187 of chapter 409 of the Laws of 1883, relating to conveyances and assignments by moneyed corporations, and to the giving of preferences to creditors thereof, are applicable to banks.

      Atkinson, Beer., v. The Bochester Printing Company (43 I-Iun, 167) followed.

      Leamitt v. BlatcJiford (17 N. T., 531); Belden v. Meeker (47 id., 307) distinguished.
    Appeal from an order of the Special Tei’m requiring the plaintiff Alonzo Bradner to deliver to Reuben Wbiteman, as receiver, etc., of tbe Bank of Dansviile, certain bonds, coupons and promissory notes, the property of said bank, which order was entered in the Livingston county clerk’s office on the 23d day of September, 1887.
    This was a proceeding brought by R. Whiteman, as receiver of the Bank of Dansviile, to compel Alonzo Bradner to deliver to him certain securities belonging to him as receiver. _ Said Alonzo Bradner claimed the title to tbe bonds and notes under written transfers, one dated May 20,1884, and the other May 21,1884. On the reference Alonzo Bradner claimed that he arranged with A. H. Bradner and Luther Grant for the transfers of these securities and received them two or three days before the nineteenth of May (the date of the receiver’s appointment), and that the assignments were drawn at that time, but were signed, as had been agreed upon between him and the cashier Grant and A. H. Bradner, before the appointment of the receiver.

      J. A. Vcmderlip, for the appellants.

      M. W. Goolce, for the respondents.
   Adams, J::

Yery little conflict respecting the facts of this case is disclosed by the -motion papers, and it was correctly assumed by the court below that certain questions had been so far settled as to admit of no further discussion. One of the questions thus referred to is the fact that the corporation known as the Bank of Dansville was not dissolved by the adoption of a resolution to close its business and the subsequent proceedings taken thereunder. It seems to be equally well established that at the time the receiver was appointed herein, to wit, May 19, 1884, the Bank of Dansville was insolvent, and that while in this condition the bonds and notes in question were transferred to the plaintiff Bradner by Luther Grant, the cashier of the bank. The assignment of these securities was dated May twenty-first, but it is claimed that the arrangement for their transfer was concluded two or three days prior to the appointment of the receiver. This is a matter of slight consequence, however, inasmuch as the facts admit of no other conclusion than .that the assignment was made in contemplation of the bank’s insolvency. It is not claimed that this transfer was made in pursuance of any resolution of the directors of the bank, or that they, as a body, had any knowledge of it, and the only explanation offered for the cashier’s action is that the transfer was designed to secure certain creditors of the bank, whose claims had been long existing. Upon this state of facts the Special Term held that the assignment was void and transferred no title to the transferee.

It is now contended by the learned counsel for the appellant that the conclusion reached by the court below was based upon the erroneous assumption that section 4 of title 4 of chapter 18 of part 1 of the Revised Statutes was applicable to and decisive of the question here presented, whereas that section has been repealed by chapter 402 of the Laws of 1882. So far as the repeal of the section referred to is concerned, the learned counsel is doubtless correct; but he appears to have overlooked the fact that the same legislature which repealed that section consolidated and revised the various statutes relating to banks, banking and trust companies, with the obvious design of framing a general banking act for the government of all banking corporations and institutions. (Laws 1882, chap. 409.) Section 186 of this act provides that “no conveyance, assignment or transfer, not authorized by a previous resolution of its board of directors, shall be made by any such corporation of any of its real estate, or any of its effects, exceeding the value of one thousand dollars,” and by the succeeding section it is further provided that “no such conveyance, assignment or transfer, nor. any payment made, judgment suffered, lien created or security given by any such corporation when insolvent, or in contemplation of insolvency, with tlie intent of giving a preference to any particular creditor over other creditors of the company, shall be valid in law; and every person receiving, by means of any such conveyance, assignment, transfer, lien, security or payment, any of .the effects of the corporation, shall be bound to account therefor to its creditors or stockholders, or their trustees, as the case shall require.” The sections above quoted, prior to the act of 1882, formed a portion of the statute relating to moneyed corporations; and the question of whether or not they were applicable to banks or banking institutions was the occasion of much dispute and contrariety of opinion in the Court of Appeals.

In some of the earlier cases no doubt seems to have been entertained but that they were thus applicable. (Gillet v. Moody, 3 Comst., 479 ; Talmage v. Pell, 3 Seld., 328; Gillet v. Phillips, 3 Kern., 114.) This view of the question was subsequently reversed, however, in an elaborate opinion concurred in by a bare majority of the court (Leavitt v. Blatchford, 17 N. Y., 521), and the doctrine of the last-mentioned case has since been followed and approved. (Belden v. Meeker, 47 N. Y., 307-311.)

Had there been no intervening legislation affecting the subject, we should, of course, feel constrained to follow these later decisions, and hold, with the learned counsel for the appellant, that there was no statutory provision which inhibited the transfer of the securities in question, but, as has already been suggested, the act of 18S2 (chap. 409) was evidently designed to codify all the statutes relating to banks and moneyed corporations, and thereby to bring what was before fragmentary and disconnected into a harmonious whole. To this end all previous statutes bearing upon the various subjects mentioned in this chapter, including title 2 of chapter 18 of part 1 of the Revised Statutes, which relates to moneyed corporations, were repealed (chap. 402, Laws 1882, § 1, sub. 39), and chapter 409 of 1832, was substituted in lieu thereof. By the very first section of this last-mentioned chapter the bank department, which previously had been charged with the execution of the laws relating to banks only (chap. 164, Laws of 1851, § 1), is invested with jurisdiction relative to all other moneyed corporations, except insurance companies; then, again, the sections of the entire chapter are numbered consecutively, and still other circumstances might be pointed out all tending to show an intention on the part of the legislature to bring the various provisions of the' act into relation with each other. That, as thus amended and revised, sections 186 and 187 apply to banks was assumed by this court in a recent case (Atkinson, Recr., v. The Rochester Printing Co., 43 Hun, 167), and a further examination of the question leads us to the conclusion that the assumption there indulged in was correct.

It follows, therefore, that the transfer of the securities in question having been made in contemplation of the bank’s insolvency, if not while it was actually in that condition, and without any authority from the board of directors, was void within the letter as well as the policy of the statute, and the order appealed from must, consequently, be affirmed, with ten dollars costs and disbursements.

Barker, P. J., and Dwight, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Dwight, J.:

license: Public Domain

text:
    WALTER D. HOLT, as Assignee of HIRAM J. D. MINER, Respondent, v. BERTIE ALLENBRAND and Others, Creditors of HIRAM J. D. MINER, Respondents, Impleaded with EDWIN ISHAM and GEORGE P. ISHAM, as Assignee of EDWIN ISHAM, Appellants.

      Notice of the retirement of a member/' of a ffi'm — the sufficiency of it is a question of law.

    It is not necessary, in order to cliarge a customer with, a notice of the retirement of a member of a firm with which he has been accustomed to deal, that the notice of the fact should be positive and explicit. It is enough if it be such as to put him on inquiry, that is, sufficient to suggest to a reasonably prudent man that it is the part of prudence to inquire whether the'fact be so.
    This notice may be given by a change in the firm name, if the change is such as, of itself, to indicate the fact with notice of which the customer is sought to be charged.
    Each case of this kind must stand on its own facts; and when the facts are ascertained the question of the sufficiency of the notice is a question of law.

      The facts in this case held to he sufficient to put customers of a hanking firm upon inquiry as to whether a member of the firm had retired, and to affect them with notice of the fact which such inquiry would have elicited.
    Appeal by the defendants ]£dwin Isham and George P. Isham, as assignee for the benefit of the creditors of Edwin Isham, from a judgment entered in this action, in the office of the clerk of Chautauqua county on July 16, 1888, upon the report of a referee.

      O. D. Murray, for defendants, appellants.

      Stearns c& Kinsley, for defendants, respondent.
   Dwight, J.:

The plaintiff is the assignee, for the benefit of creditors, of one-Hiram J. D. Miner. The assignment preferred three classes of creditors, two of which have been paid, and the controversy in this case arises upon the distribution of the residue of the estate among parties entitled thereto under the third preference of the assignment.

On this appeal the question is, by consent of all parties, narrowed to the inquiry: For what debts of the plaintiff’s assignor is the estate of the defendant Edwin Isham (assigned to the defendant George P. Isham) also liable ? The data of the problem are the following facts: About the year 1861, Hiram J.Miner and others, including Hiram J. D. Miner and Edwin Isham, formed a copartnership in the business of banking, at Dunkirk, under the firm name of H. J. Miner & Co., which copartnership continued down to the death of Hiram J. Miner, in 1872. The business was continued, under the same firm name, at first by all the surviving partners and afterwards by remaining partners (one after another having withdrawn) until February 2, 1884. From June 14, 1880, to February 2, 1884, thé firm consisted of Hiram J. D. Miner, the plaintiff’s assignor, and the defendant Edwin Isham. At the last-mentioned date Isham sold his interest in the business to Miner, and the latter assumed all the liabilities of the firm. Hiram J. D. Miner continued the business down to May 2, 1885, when he made his assignment to the plaintiff. From the first organization of the firm (in 1861) the business was conducted in the same banking office. The sign over the principal entrance was “ H. J. Miner & Co.’s Bank,” until the withdrawal of Isham from the firm, when it was changed to Miner’s Exchange Office.” The certificates of deposit issued by the several firms before June 14,1880, were headed in displayed type “ II. J. Miner & Company’s Bank.” June 14,1880, a new form of certificate was adopted, printed on paper of different shape and texture, in different type, and headed in large script ” characters “ IT. J. Miner & Company, Bankers,” and immediately under that, heading the words, in plain type, Remaining partners, E. Isham, IT. J. D. Miner.” This certificate is known in the case as “ Form A.”' From March 2, 1884, to March IT, 1884, Miner made use of a. certificate the same in all respects as the last, except that the letter S,” at the end of the word partners,” and the name of “ E. Isham,” were plainly erased in red ink, so that the unerased portion of the heading read: “ H. J. Miner & Company, Bankers; remaining partner, H. J. D. Miner.” This certificate is known as “ Form B.” After March 16, 1884, Miner changed the heading of the certificate to read “ Miner’s Exchange Office, IT. J. D. Miner, Prest.” This certificate is known as “ Form C.”

All the certificates from 1861 were numbered in a continuous series till March IT, 1884, when Miner began numbering a new series with No. 1, and continued it to the date of the assignment. The persons employed in the banking office were the same before and after the withdrawal of Isham from the business. Isham was never personally employed in the business of the office. No notice of his withdrawal from the firm was given to the public or to persons dealing with the office, other than by the changes in the sign- and in the certificates of deposit, as above described. The question was of the sufficiency of such notice to discharge Isham from liability to customers of the office. The referee held that the certificate (Form B) in which the name of Isham was erased, was a sufficient notice to all persons receiving’it of his withdrawal from the firm, and that he was discharged from liability on all such certificates and for all subsequent deposits made by persons who had received that notice; also, that he was not liable to depositors, subsequent to his withdrawal, who had not been customers of the office for a long time, or never, prior thereto. But he held, in effect, that, as to all persons who had been customers of the firm down to or within a short time before the withdrawal of Isham, and who made deposits in the same banking office after that time, the certifi'cate (Form C) issued on or after the seventeenth of March, together with the change of sign made on the second day of February, did not constitute notice of such withdrawal nor put them upon inquiry as to a change in the firm, and, accordingly, that as to such persons, who had n,o other notice of the change, the estate of Isham was liable on such certificates; and this is the particular conclusion which is questioned on this appeal.

In this particular we are inclined to think the learned referee was in error. It is not necessary, in order to charge a customer with notice of the retirement of a member of a firm with which he has been accustomed to deal, that the notice of the fact should be positive or explicit. It is enough if it be such as to put him upon inquiry; that is, sufficient to suggest to a reasonably prudent man that it is the part of prudence to inquire whether the fact is so. (Lovejoy v. Stafford, 93 U. S., 430; Claflin v. Lenheim, 66 N. Y., 306.) This, notice may be given by a change in the firm name, the only requirement being that the change should be such as, of itself, to indicate the fact with notice of which the customer is sought to be charged. (American Linen Thread Co. v. Wortendyke, 24 N. Y., 550; Howe v. Thayer, 17 Pick., 91; Kirby v. Hewitt, 26 Barb., 607; Barfoot v. Goodall, 3 Camp., 147.) In the two latter of these cases notice by change of name was held to be sufficient, and in the two former not sufficient, to relieve the retiring partner from liability. Thus, in the "Wortendylce case, the earlier firm name was “ Worten■dyke Bros.” On the retirement of one of three Wortendykes and the admission of one ITofliman, the name was changed to “Worten■dylce Bros. & Go.” It was plain that this change did not even suggest the withdrawal of a Wortendylce, but only the addition of .somebody else, and accordingly the retiring partner was held not discharged from liability. So in Howe v. Thayer, where the business had been conducted under several different styles, in neither of which did the name of the retiring partner appear, it was held that a change from Colton & Fellows to Newton & Fellows had no tendency to disclose the fact that the defendant Thayer had retired from the firm. Whereas, in the case of Barfoot v. Goodall, where the plaintiff’s testator had been accustomed to draw by checks furnished him by the firm, in the address of which the name of Fisher appeared as a partner, and was afterwards furnished with checks in which his name was omitted, Lord Ellenborough said it became him to inquire, before using these, what change had really taken place; and, he added, when he did continue to use them, I must presume that he was perfectly well aware that Fisher had retired and that he continued to deal with the house upon the credit of the other partners.” Of course, every case of this kind must stand on its own facts; and, it is to be- observed, that when the facts are ascertained the question of the sufficiency of notice is a question of law. (See the cases above cited.)

Let us see, then, what are the facts of this case which bear upon the precise question of the sufficiency of notice of the retirement of E. Isham from the firm composed of himself and H. J. D. Miner. During the four years of their continuance of the business as the only remaining partners of H. J. Miner & Co., bankers, they had kept the old sign over the door, “ IL. J. Miner & Co.’s Bank,” and had issued to their customers, including all the respondents in this, case, certificates of deposit headed “ IL. J. Miner & Company, Bankers; remaining partners, E. Isham, II. J. D. Miner.” It is to-be assumed that it was from this certificate alone that the customers, in question derived their information that Isham was a partner in the business. lie retired on the 2d of March, 1881, and that was the end, in fact, of the old firm of II. J. Miner & Co. Thenceforward the business was carried on by II. J. D. Miner individually. The question is, are the respondents chargeable with notice of this important change ? Immediately the old sign was taken down and in its place was erected one bearing the inscription “ Miner’s Exchange Office.” Both signs were large and prominently displayed, and the change was one likely to attract attention. There was some significance in this change alone. The old sign indicated the business of a copartnership, the new -one that of an individual. At the same time a change was made in the certificates of deposit issued, which, the referee held was, of itself, sufficient notice to all who received them, but did not affect the respondents with notice, because none were issued to them. The first certificates received by them after the change bore the heading “ Miner’s Exchange Office, II. J. D. Miner, President.” As to the respondents, then, the change in the certificate corresponded to the change of sign, but it went further. It seems to us that it gave unmistakable indication, not only that the partnership with which the -respondents had formerly done business had ceased to exist, but that there was no longer any copartnership engaged in the business. “ Mineps Exchange Office ” was not an appropriate designation for a copartnership, and the addition, “ BL J. D. Miner, President,” was entirely foreign to such a designation. Strictly, it indicated that the business was being done by an incorporated company or a joint-stock association. Certainly it indicated a notable change in the organization and conduct of the business. The name of Isham which had appeared upon all the certificates formerly issued to the respondents, as that of a partner, was no longer there ; the only name the new heading bore was that of Miner, and he was described as president of some organization under the new name of “ Miner’s Exchange Office.” It seems to us •reasonably clear that if this change was not a positive indication ■that Isham was no longer a partner in the concern, it was, at least, .sufficient to put the respondents upon inquiry as -to whether he was or not, and thus to affect them with notice of the fact, which inquiry would have elicited.

If these views are correct, the judgment must be reversed and a new trial granted.

Barker, P. J., and Adams, J., concurred.

Judgment reversed and a new trial granted before another referee, with costs to abide the final award of costs.


text:
    ELIZA D. SIDWAY, Respondent, v. ISABEL SIDWAY, Appellant.

      Acceptance of a gross sum in lieu of dower — property to be valued, as of the time of its first alienation — effect upon such valuation, of a mortgage given to cover the expense of improvements on the property.

    By tlie death of John J. Sidway in October, 1882, intestate, William J. Sidway, his sole heir-at-law, became the owner in fee of certain real property, subject to the dower right therein of his mother. In January, 1883, the mother and William J. Sidway united in the execution of a mortgage on the premises for the sum of $20,000, all of which sum was expended in improvements on the same premises, which were completed before the commencement of the action hereinafter mentioned, and which were then, and .continued to he, of the full value of the money expended in making them.
    By the death of William J. Sidway, and the subsequent birth and death of a posthumous child, his widow, the mother of said child, became the owner in fee of the premises subject to the dower of the plaintiff.
    In an action, brought by the widow of John J. Sidway for the admeasurement of her dower in the premises, in which she consented to receive a gross sum in lieu thereof:

      Held, that such gross sum should be computed upon the value of the property at the date of the alienation, namely, in this case, at the date of the succession by William J. Sidway, the first heir.
    That, as the charge by way of mortgage was created upon the land by the joint act of the doweress and the owner of the fee, and was for the improvement of the land itself, and resulted in increasing its value to precisely the extent of the charge created upon it, the value of the inheritance was unchanged, and that, therefore, there was nothing in that- transaction to affect in any measure the interest of the doweress.

      Humphrey v. Phinney (á Johns., 484); Oatlin v. Ware (9 Mass., 217) distinguished.
    Appeal from a judgment, entered in tbe office of tbe clerk of tbe county of Erie on tbe 3d day of May, 1888, upon tbe report of a referee.
    Tbe action was brought to admeasure the' dower of tbe plaintiff.

      O. T. Quimby, for tbe appellant.

      W. L. Mcuroy, for the respondent.
   Dwight, J.:

A very simple statement of tbe problem presented by this appeal seems to us to demonstrate its correct solution by tbe referee. By tbe death of John J. Sidway in October, 1882, intestate, William J. Sidway, bis sole heir-at-law, became tbe owner in fee of tbe premises in question, subject only to tbe right of dower of tbe plaintiff, his mother. Tbe property was then worth tbe sum of $26,500. In January, 1883, tbe plaintiff and William J. Sidway united in tbe execution of a mortgage on tbe premises for tbe sum of $20,000, and obtained thereon a loan of that sum of money, all of which was expended in improvements on tbe same premises, completed before tbe commencement of this action, and which were then and are now of tbe full value of tbe money expended therein. By tbe death of William J. Sidway in June, 1885, and tbe subsequent birth and death of bis posthumous child, tbe defendant, Ms widow and tbe mother of such child, became the- owner in fee of the premises, subject to the dower of the plaintiff.

The latter having commenced this action for the admeasurement of her dower, and having consented to receive a gross sum in lieu thereof, the question is, upon what value shall such gross sum be computed ? The answer is, upon the value of the property at the date of alienation, viz., in this case at the date of succession by the first heir. Such is the general rule, which is not questioned here (Walker v. Schuyler, 10 Wend., 180; Marble v. Lewis, 53 Barb., 132), and there is nothing, as we conceive, in this case to take it out of the rule. There is a case in which a rule more onerous to the heir has been declared, viz., where the heir has improved the land after descent and before assignment of dower. In such case it has been held, in this State and in Massachusetts, that the widow shall have dower in the improvements also. (Humphrey v. Phinney, 2 Johns., 181; Catlin v. Ware, 9 Mass., 217.) Of course, if the doweress has joined in the conveyance of a portion of the land, or in the creation of a charge upon it, or in any other act which detracts from 'the value of the inheritance, she must submit to 'a corresponding depreciation of her dower. But this case is in neither of the categories supposed. The charge created upon this land was by the joint deed of the doweress and the owner of the fee, and it was for the improvement of the land itself, and resulted in the appreciation of its value to precisely the extent of the charge created upon it. The value of the inheritance was unchanged, and there was, therefore, nothing in the transaction to affect, in any measure, the interest of the doweress, or, as we have said, to take the case out of the rule that dower is to be computed upon the value of the property as it was at the date of succession by the heir.

Such was the conclusion of the referee in this case, and the judgment entered accordingly must be affirmed.

Barker, P. J., concurred; Childs, J., not voting.

Judgment affirmed, with costs.


author: Macomber, J.:

text:
    CHARLES BLOOD, Respondent, v. SARAH S. KANE, Appellant.

      A counter-claim, existing in favos- of a decedent, cannot be set sip by Ms executs-ix in an action bs-osight against her individually.

    In an action, brought to recover tlie sum of eighty-five dollars for furnishing a casket and for the burial of the body of her husband, the defendant set up in her answer a counter-claim, being an indebtedness upon an open account owing by the plaintiff to the defendant’s husband in the lifetime of the latter. It appeared that the contract for her husband’s burial was made by the defendant individually, and not as the executrix of her husband’s will.

      Held, that as the defendant had no title to or interest in the alleged counter-claim, except as she obtained the same by virtue of the letters testamentary issued to her, the counter-claim was not available to her in this action.

      Basioso v. Myers (24 Hun, 286) distinguished.
    Appeal from a judgment of the County Court of Chautauqua county, entered upon the report of a referee, in the office of the clerk of Chautauqua county, August 9, 1888.

      Stecvrns c& Kinsley, for the respondent.

      Holt <& Holt, for the appellant.
   Macomber, J.:

The action is brought to recover the sum of eighty-five dollars for furnishing a casket and for the burial, etc., of the body of one James Kane, the husband of the appellant, and also to recover the sum of twenty-five dollars for like services rendered in behalf of the appellant for the removal of the body of her brother from the cars to the respondent’s rooms, and for the use of a hearse therefor.

No question seems to have been raised in regard to the promise of the appellant to pay for the services rendered by the respondent to her deceased brother, and she is consequently liable for the amount (ten dollars) allowed by the referee therefor. The appellant set up in her answer a counter-claim, being an indebtedness upon an open account, owing by the respondent to the appellant’s husband in the latter’s lifetime. The referee has rejected all evidence of this alleged counter-claim on the ground that the same is not available to her in this action, which is against her individually, and not as the executor of her late husband’s last will, and has given judgment for the further sum of eighty-five dollars asked for in the complaint, with interest from the time the services were rendered. There is no evidence in the case, as made up, that the defendant undertook by her agreement to make compensation for the plaintiffs services out of the estate of her husband only; on the contrary, she appears absolutely to have contracted individually for such payment. The only question, therefore, in the case is whether, having undertaken individually to pay the debt, and the action being against her individually, and not as the personal representative of her husband’s estate, it is competent for her to defeat the plaintiffs claim, in whole or in part, by the counter-claim set up in the answer. The counterclaim (Code, § 501) must be itself a complete cause of action, in favor of the defendant against the plaintiff, existing at the time of the beginning of the action. (Mayo v. Davidge, 44 Hun, 342; Matter of Hill, 17 Abb. N. C., 273.) The defendant had no title to or interest in the alleged counter-claim, except as she obtained the same by virtue of letters testamentary to her. The open book account could not pass title to her by mere delivery of it, and for that reason this case is- distinguishable from the case of Barlow v. Myers, (24 Hun, 286). The true test is, in this instance, could the defendant have brought an action against the plaintiff to recover upon the indebtedness owing to her husband without alleging and proving that she had acquired, by virtue of the will and of letters testamentary, title to the account. Section 1811 of the Code of Civil Procedure requires an action to be brought in the representative capacity of the party when the cause of action is held by him as executor or administrator. (See, also, Bucklin v. Gallup, 105 N. Y., 453.)

The judgment appealed from should be affirmed, with costs.

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed.


author: Macomber, J.: Barker, P. J.

text:
    GEORGE E. JENNINGS, GILMAN H. PERKINS and AARON E. PERKINS, Respondents, v. THE GRAND TRUNK RAILWAY COMPANY OF CANADA, Appellant.

      Principal and agent — shipping note — presumption that the bill of lading contains the same conditions ■ — power of a vendoi' shipping a/riicles to his vendee to limit by a special contract, the carrier's liability — release — protection of a ccwrier from, the negligence of connecting roads — the failure to serve a notice must be specially pleaded— when the defendant canjiot email itself of it.

    In 1881 J. So EL Shanly So Co., who resided, in the city of Rochester, were engaged in buying potatoes in Canada, at points upon the line of the defendant’s road, and shipping them to the city of St. Louis for a market. Before making any shipment they requested the general manager of the defendant’s business to give them tb e lowest rates in car-load lots from certain points mentioned, on the defendant’s line, to the city of St. Louis, and the said rates were given to them in a letter written by its general agent.
    Upon the trial of an action, brought to recover damages alleged to have been sustained by the plaintiffs because of the defendant having negligently delayed to transport a car-load of potatoes, it appeared that this car-load was delivered to the defendant by one Du Brule, of whom Shanly & Co. had purchased the same, on the eighteenth day of April at Brockville, that Du Brule, at the time of the delivery, notified the defendant’s station agent that they were to be shipped to Shanly & Co., and thereupon Du Brule filled up and signed with his own hand and delivered to the station agent a blank shipping note kept by the defendant and supplied to shippers for that purpose, which, in substance, was a request to defendant to ship said potatoes subject to the terms and conditions printed on the back of such shipping note, which terms were assented to as the basis upon which the defendant’s bill of lading was to be delivered. At the same time the station agent delivered to Du Brule a bill of lading, which he attached to his own draft drawn on Shanly & Co. for the balance due him for the purchase-price of the potatoes. The draft was forwarded for collection and the same was paid a few days thereafter. Neither party put the bill of lading in evidence on the trial or proved its contents.

      PLeld, that, as Du Brule was charged by the plaintiffs with the duty of shipping the goods, the carrier was authorized to make a valid and binding special contract with him, such as the owner might have made if he had been personally present conducting negotiations.
    That as neither party put in evidence the bill of lading, nor was its contents proved on the trial, it and the shipping note, which were both executed at the same time, and simultaneously delivered and related to the same subject-matter, should be considered as constituting one agreement, and that it would not be assumed that the bill of lading contained any provision changing or modifying the terms or conditions contained in the shipping note, or anything inconsistent with these provisions or conditions.
    That as no proof was made in this case as to the laws of Canada, the rule winch prevails in this State allowing a carrier to limit his liability would be presumed to prevail in Canada.
    That the facts of this case, that the special rate at which the potatoes were carried was the lowest rate made by the defendant for this class of freight; that it was made at the particular request of the shipper; that it was, in fact, a less rate than the defendant was authorized to charge for the transportation of the potatoes beyond the line of its own road, constituted a good consideration for the special contract which was valid and binding alike upon the carrier and the plaintiffs.
    The referee found as a fact that the transportation of the potatoes was negligently hindered and delayed by the defendant upon its own road, and also upon the connecting road, and that in consequence of such delays and the long confinement of the potatoes in the car they were greatly depreciated in their market-value.
    It was provided in the contract that the responsibility of the defendant should terminate when the goods should have arrived at the place to be reached on its own road, where it connected with other roads, and that the defendant should not be liable for damages to the property arising from delays which occurred on the connecting roads, the contract providing as follows: “ Nor will the company be liable for damages occasioned by delays caused by storms, accidents, over-pressure of freight or unavoidable causes, or by the weather, wet, fire, heat, frost, or delay of perishable articles, or from civil commotion.”

      Held, that as the defendant could legally contract, and had, in this case, agreed to carry and deliver the goods at East St. Louis, the connecting lines engaged by it to carry the goods to their destination were the agents of the defendant, and it was liable for their negligence resulting in damages to the owners.
    That, as all the delays occurred in consequence of the defendant’s own negligence, the release did not protect the defendant, as it did not, by its terms or necessary implications, exempt the defendant, from damages arising from its own negligent acts or those of its agent or servants.
    The defendant contended that it was exempt from such damages as the plaintiff suffered by loss of market, on account of the delays, under another clause of the contract, which provided “ that the company shall not, in any case or under any circumstances, be liable for loss of market.”

      Held, that as this clause did not in terms apply to a case where the loss of a market arose from the defendant’s negligence, the contract should be so construed as to make the release in this respect applicable to cases where the loss of a market arose from other causes, such as a failure to deliver within a stipulated time.
    The defendant pleaded, in bar of a recovery for the cause of action set out in the complaint, that no written notice was served of any claim for damages, as required by the twelfth clause printed on the back of the shipping bill, which is as follows: “ IS. That no^claim for damages to, loss of, or detention of, any goods for which this company is accountable shall be allowed, unless notice in writing and the particulars of the claim for said loss, damage or detention are given to tlie station freight agent nearest to the place of delivery within thirty-six hours after the goods, in respect of which said claim is made, are delivered.”
    The allegation of the answer, in this respect, was : “And this defendant alleges, upon information and belief, that the notices required by said agreements were never given as thereby required.” No allegation was made that no notice was served within thirty-six hours from the time of the delivery of the freight at the end of its journey to the plaintiff, except inferentially and argumentatively.
    Held, that as the court should enforce the common-law obligations of common carriers with rigor, and should modify them only with reluctance and of necessity, and as the defense set up by the defendant did not, in any repect, go to the merits of the controversy between the parties, except as it was founded upon this forfeiture clause contained in the printed conditions indorsed upon the way-bill, that the defense was not sufficiently alleged to enable the plaintiff to avail itself of the clause in question.
    The claim was, in fact, presented to the defendant by letter before the action was brought, though not within the thirty-six hours, and an answer was sent from the defendant’s general freight agent’s office acknowledging the receipt of the notice, expressing the sorrow of the agent with regard to the detention of the potatoes, and stating that the plaintiffs were doubtless aware that such detention had arisen through causes over which the defendant had no control, namely, the strike of railway employees in Chicago.

      Held, that this was a waiver of the condition.
    That the condition was not available to the defendant, under the circumstances of this case, as it was not intended by the officers of the company to apply, when the agreement of the company was to transport freight so far from the place of shipment and beyond the defendant’s line.
    That the time limited, in which to ascertain the particulars of the loss and place them before the company, was palpably too short to enable the owners to comply therewith when the delivery was to be made so far off.
    That the plaintiffs, under a special contract which was outside of the company’s general business and against its printed regulations, could not be bound by the clause on the back of the shipping bill which, apparently by inadvertence, had not been struck out or adapted to long hauls over other railways than the defendant’s, and to deliveries at great distances from its western terminus. (Barker, J., dissenting.)

      Jackson v. St. Paul Pire and Marine Insurance Oompcmy (99 N, Y., 124) followed.
    Appeal from a judgment, entered in the office of the clerk of Monroe county on the 21st day of June, 1887, upon the report of a referee, awarding to the plaintiff the sum of $2,420 damages and $675 costs.
    The defendant is a foreign corporation, created by and under the laws of Canada, for the transportation of freight and passengers, its western terminus being at Fort Gratiot, where it connects with other railways running west from that point, constituting a through line to the city of St. Louis. In 1881 J, Ii. Shanley & Co., residing in ■ the city of Rochester, N. Y., were engaged in buying potatoes in Canada, at points upon the line of the defendant’s road, and shipping them to the city of St. Louis for a market. Before making any shipments they requested the general manager of the defendant’s business for the lowest rates in car-load lots from points mentioned on the defendant’s line to the city of St. Louis, which were given in a letter written by the general agent, who also, at the same time, informed the defendant’s station agents of the rates which had been given Shanley & Co. Thereafter, and between the eighteenth and twenty-sixth day of April, Shanley & Co. delivered to the defendant, in car-load lots, five separate shipments of potatoes to be transported to St. Louis. It is claimed that the transportation was negligently delayed, and in consequence thereof the potatoes were depreciated in quality and the shipper lost a market. This action is to recover the damages sustained by reason of the delays. One car-load was shipped at Brockville, April 18, 1881, by one Joseph E. Du Brule, of whom Shanley & Co! purchased the potatoes, who, at their request, delivered the potatoes to the defendant for transportation. At the time of the delivery Du Brule signed and delivered to the 'station agent a shipping note, so-called, of which the following is a copy:
    “GRAND TRUNK RAILWAY COMPANY OF CANADA.
    “ This company will not be responsible for any goods missent, unless they are consigned to a station on their railway. Rates, weights and quantities entered on receipts are not binding on the company, and will not be acknowledged. All goods going to or coming from the United States will be subject to customs, charges, etc.
    “ Brockville, April 18th, 1881.
    “The Grand Trunk Railway Company of Canada will please receive the undermentioned property, in apparent good order, addressed to order of Merchants’ Bank of Canada, East St. Louis, HI. To be sent by the said company, subject to the terms and conditions stated above and on the other side, and which are agreed to by this shipping note, delivered to said company, as the basis upon which their receipt is to be given for said property.

    “ J. E. DU BRULE,
    “ Consignors

    The material clauses, printed on the back of this paper, are referred to in the opinion. They were printed under a heading, in large type, which reads, viz.: “ General notices and conditions of carriage.” The facts and circumstances connected with each of the other shipments, so far as they differ from the one just referred to, are pointed out in the opinion. Before the commencement of this action Shanley & Co. assigned their cause of action to the plaintiffs.

      J£. C. Sprague, for the appellant.

      Martin W. Cooke, for the respondents.
   Macomber, J.:

The opinion of the presiding justice, which contains all the material facts except as herein mentioned, would lead to an affirmance of the judgment in the case, save for the twelfth printed condition on the back of the bill of lading. That condition is as follows : “ 12. That. no claim for damages to, loss of or detention of any goods for which this company is accountable, shall be-allowed unless notice in writing and the particulars of the claim for said loss, damage or detention are given to the station freight agent nearest to the place of delivery, within thirty-six hours after the goods in respect of which said claim is made are delivered.”

The notice in writing above mentioned was not given within thirty-six hours to the nearest station freight agent of the defendant, and hence the presiding justice is of the opinion that no recovery can be had .by plaintiff, except for the one car load which was never delivered. I cannot assent to that proposition under the established facts appearing in this case. Courts of law should enforce the common-law obligations of common carriers with rigor, and should modify them only with reluctance and upon necessity. (Express Company v. Caldwell, 21 Wall., 266.) The defense set up in the fifth clause of the answer, now relied upon by the defendant, does not, in any respect, go to the merits of the controversy between the parties, except as it is founded upon this forfeiture clause of the printed conditions indorsed upon the way-bill. But even this defense is not sufficiently alleged to enable the defendant to avail itself of the clause in question. The allegation is, “ and tliis defendant alleges, upon information and belief, that the notices required by said agreements were never given as thereby required.”

There is no allegation that no notice was served within thirty-six hours from the time of the delivery of the freight at the end of its journey, to the plaintiffs, except inferentially and argumentatively. It is true, that if the notice was never given, it could not well have been given within thirty-six hours, but the question is one of strict defense and the parties will be held to accurate averments. A plea of the ten-year statute of limitations would cover the shorter statute of six years, yet it would be insufficient to enable the defendant, under such a plea, to avail himself of the shorter statute in the proof. The objection must be specifically set up. In this instance the defendant has not alleged specifically that the notice required was not given within thirty-six hours, as it ought to be required to do before permitting a defense of this description to discharge the defendant from liabilities. The allegation of the answer is “that the notices required by said agreements were never given as thereby required.” This may, and it probably does, refer only,to the omission of the plaintiffs’ assignors to give “ the particulars of the claim for said loss,” etc.; or it may mean that the notice in writing was not given to the station freight agent nearest to the place of delivery, but to some other station agent. At all events in setting forth this unconscionable forfeiture of the plaintiffs’ property rights and the defendant’s consequent exemption from liability, the defendant lias not unequivocally placed itself clearly on the thirty-six-hours clause. By not so making the allegation of the breach of the condition this technical defense was waived. But, furthermore, the answer, as it stands, is not true, because the claim was, in fact, presented to the defendant by letter before the action was brought, though not within the thirty-six hours.

Three of the shipments were made on the 18th day of April, one on the 20th of April and one on the 26th of April, all in the year 1881. The usual time for transporting potatoes, the distance assumed to be carried by the defendant, was from four to six days. All the damages sustained by the plaintiffs for the negligence of the defendant was by reason of the detention of the several cars, and not by reason of any injury inflicted after their arrival at the destination, except, in one instance, where the car was never attempted to be delivered to the plaintiffs. On the 21st day of May, 1881, the plaintiffs’ assignors wrote a letter to the defendant, in which they stated that the potatoes were detained, and had not arrived; and that it was causing them heavy loss; and that they intended to look to some one to pay the damages. Upon the receipt of that letter, and on May 25, 1881, the defendant made this communication to the plaintiffs’ assignors:

“GRAND TRUNK RAILWAY OF CANADA,
“Assistant General Freight Agent’s Oeeice
“ (Kingston, East).
“ Montreal, May 25, 1881,
“ Gentlemen. — Your favor of the 21st at hand. I am sorry with regard to the detention of your potatoes. No doubt you are aware that this has arisen through causes over which we had no control, namely, the strike of railway employees in Chicago.
“Yours truly,
“GEORGE B. REEYE,
“A. G. F. A.
“ Messrs. J. H. Shanley & Co., 183 East Mann St., Rochester, JR. Y.”

All of these cars of freight, with the exception of the car which was lost, had arrived at their destination at the time of the writing of the letter by Shanley & Co. to the defendant; that letter, though its contents are doubtless imperfectly given, owing to the refusal of the defendant to produce it, is broad enough, under the circumstances, to cover all claims to damage which Shanley & Co. had sustained by reason of the delays in the transportation, and the defendant manifestly so regarded it; for instead of placing its denial of liability upon the ground now sought to be set up in its behalf, or on the ground of insufficiency of details of the claim, the defendant placed it wholly upon the proposition that it was absolutely absolved from liability by reason of the labor strikes at or near Chicago, which claim was wholly untenable. This, too, was a waiver of the condition; that a waiver may be made by not insisting upon its fulfillment, or by circumstances, is abundantly established by authority.

In the case of Hermann v. Niagara Fire Insurance Company (100 N. Y., 411), the policy required notice of a loss to be served forthwith on the company. It accepted final proof of loss, without objection that this condition had not been complied with, basing its refusal to pay on the ground that the policy had been canceled. It was held that a strict compliance with the provision had been waived. In the case of Griffey v. The New York Central Insurance Company (100 N. Y., 417) there was a like provision in the policy that notice of any loss should be given forthwith, and it was held that if the holder gave notice without unreasonable delay he was in time. So in the case of Barnum v. Merchants’ Fire Insurance Company (97 N. Y., 188), the assured was required by the policy to produce, with the proofs of loss, a certificate of a magistrate or notary public most contiguous to the place of the fire, and not concerned in the loss, stating certain particulars in reference thereto. The certificate accompanying the proofs was of a notary residing within 400 feet of the fire. It appeared, however, that there was another notary who lived nearer. No defect in this respect was pointed out by the defendant until after the commencement of the action. It was held that it was then too late to raise the objection. In the case of Ames v. New York Union Insurance Company (14 N. Y., 253) it appeared that the proofs of loss were required to be furnished within thirty days after the fire, and the company had ninety days thereafter in which either to pay or to object to the sufficiency of the proofs. If objection to the proofs was made, it was competent for the insured to supply any defect by further proof. By the twelfth condition of the policy, any action thereon was required to be brought within six months after the loss. Thus it will be seen that the company could, and in that particular instance did, actually so manipulate the ninth and twelfth conditions printed in its policy that the plaintiff would be required to furnish further proofs of loss, so as to be satisfactory to the insurance company, at a time beyond the six months limited by the twelfth clause, provided the company insisted upon the ninety days which was accorded it in which to pay the loss, and this would so tide the matters over the short statute of limitations of six months that no action could finally be brought upon the policy. It was held that the action might be maintained after the expriation of the six-months limitation.

Moreover, the condition in question, even though not waived and pleaded, is not available to the defendant under the circumstances, as the referee has properly held. It was not intended by the officers of the company to apply, when the agreement of the company was to transport freight so far from the place of shipment and beyond the defendant’s fine. The time limited, in which to ascertain the particulars of the loss and place them before the company, was palpably too short to enable the owners to comply therewith, when deliveries were made so far off. The plaintiffs cannot be bound by a clause on the bach of the shipping bill, which, apparently by inadvertence, had not been struck out or adapted to long hauls over other railways than its own, and to deliveries at great distances from its western terminus, under a special contract which was outside of the company’s general business and against its printed regulations.

In the case of Jackson v. The St. Paul Fire and Marine Insurance Company (99 N. Y., 124) the plaintiff, who was the receiver of the Patterson Fire Insurance Company, brought an action upon a policy of reinsurance taken out by the Patterson company upon certain property in California. The blank form which was used in the policy of reinsurance was that of the ordinary policy of insurance, and contained the condition that no action should be begun thereon until after an award had been made, as specified in the policy, fixing the amount of the claim, nor unless the action was begun within twelve months after the loss. It was held that the condition had application to the contract of primitive insurance only, and not to a contract of reinsurance. This case is sufficient authority for us to hold that the mere circumstance of the existence on the back of a contract of affreightment of a condition does not work a forfeiture in cases where manifestly it was not intended to apply, and where it remained only on account of the inadvertence of parties to strike out, so as to conform to an agreement which was not contemplated by the author of the blank form.

I think the judgment was right, and that it should be affirmed.

Dwight, J., concurred.

Barker, P. J.

(dissenting):

In disposing of this case the referee, in effect, held, as matter of fact and of law, that the defendant received and transported the potatoes, at the request of the owners, without any discharge or release from the duties or liabilities imposed by law upon common carriers of merchandise; that no special contract was entered into between the shipper and the carrier, except as to price of transiiortation. If his conclusions in this respect are sustained by the evidence, then we are unable to see why' the judgment should not be affirmed.

The defendant contends, that at the time the property was delivered for shipment, a special contract was entered into between it and the owner, by the terms of which the owner released it from all claim for damages arising from particular causes set out in the written agreement, which the referee failed to observe in awarding damages to the plaintiff, and for this reason the judgment should be reversed.

This action relates to live separate and distinct shipments, and it was held by the referee that the defendant failed to perform its agreement as to all of them. All the legal questions presented for our consideration arise upon the facts and circumstances connected with the particular shipment made on the eighteenth day of April, at Broclcville, as those connected with the other shipments are not materially different. This car load was delivered to the defendant by Du Brule, of whom Shanley & Co. had purchased the same, who, at the time of the delivery notified the defendant’s station agent that they were to be shipped to Shanley & Co., and thereupon Du Brule filled up and signed with his own hand, and delivered to the station agent, a blank shipping note kept and supplied by the defendant to shippers for that purpose, which, in substance, was a request to defendant to ship said potatoes, subject to the terms and conditions printed on the back of said shipping note, which terms were assented to as the basis upon which the defendant’s bill of lading was delivered. At the same time the station agent delivered to Du Brule a bill of lading, who attached it to his own draft, drawn on Shanley & Co., for the balance due him for the purchase-price of the potatoes, which was forwarded for collection, and the same was paid a few days thereafter. Neither party put the bill of lading in evidence on the trial or proved its contents. As bearing on the question whether the owner of the property was bound by the conditions of the shipping note delivered to the station agent, the referee made the following finding, viz.: “ Six. That said shipment bill was so made by said Du Brule and delivered to said defendant without the knowledge or consent of said J. IT. Shanley & Co., and without request or requirement at the time of said defendant or its station agent, but in conformity with a general requirement or custom of defendant in the receipt of goods for transportation, known to said Du Brule from the transaction of similar business with said defendant theretofore on his own. account. But said J. H. Shanley & Co. Then knew it to be the universal custom of railroad companies, so far as their experience went, to require shipping bills to be executed by the shipper containing the terms and conditions of shipment, upon the delivery of potatoes or similar goods to such companies for transportation.”

Upon the facts and circumstances thus narrated, which are the material ones bearing on the case, the question is presented whether Du Brule had authority, as the agent of the owner, to make this contract, fixing the terms and conditions of the defendant’s liability as carrier. As a general rule, the agent to whom the owner intrusted the goods for delivery to the carrier is to be regarded as having authority to stipulate as to the terms of transportation. (Redfield on Carriers, § 52.) The owner of the potatoes, after their purchase from Du Brule, left them in his charge for shipment, and the defendant was justified in treating him as the agent of the owner, and authorized to make and conclude a contract for the transportation. The circumstance which has been mentioned that the defendant’s station agent who received the property and issued the bill of lading, knew at that time that Shanley & Co. were the owners of the property, does not take the case out of the operation of the general rule. Shanley & Co. were not present at the time the shipment was made to act in their own behalf. The right of the carrier to negotiate for the terms of transportation with the person in charge of the property is based upon the fact that the owner is absent and has placed the property in charge of another, and not upon the circumstance that the carrier does not know who the owner of the property is. Du Brule was the only person present with whom the defendant’s agent could make the necessary arrangement, and he stood towards the defendant, for this pmpose, in the position of an owner. The special finding of the referee that the shipping note, signed by Du Brule, was delivered to the defendant without the consent or knowledge of Shanley & Co., we construe as a finding that they gave him no instructions whatever on this subject, and such was the fact, as the evidence discloses. This circumstance, therefore, may be passed as having but little, if any, bearing on the questions under consideration.

The plaintiff contends that before the property was delivered for shipment Shanley & Co. had made and concluded a contract with the carrier for the transportation, and that the goods were received under the terms of that arrangement, and for that reason the agreement made by Du Brule was unauthorized, and that the defendant cannot substitute and rely upon the latter contract as determining the rights of the parties. We think the evidence fails to support this contention. Some weeks before the goods were shipped or purchased Shanley & Co. requested the defendant’s agent to give “ the lowest rates on potatoes in car-load lots from Brock-ville (and other points) to East St. Louis,” to which the agent replied, making rates, and the same was accepted by them. No other terms or conditions for the transportation of the property were agreed upon before shipment, nor were any negotiations had relative to the subject. The other terms and conditions of the contract were left for future arrangement, if either party should insist upon special terms and conditions different from those imposed by law upon common carriers of merchandise. At the time the goods were delivered the shipper had the option either to insist that the defendant should transport the goods without any special contract for the carriage or to assent to the terms proposed by the defendant.. I am of the opinion, although it is not necessary to pass upon the question in disposing of this case, that the defendants might at any time, before any potatoes were delivered for transportation, withdraw the rates offered and make other rates if they were such as was demanded of all shippers of the same class of goods from, and to the same points.

In view of the whole case, I have reached the conclusion that the goods were shipped under a special contract, assented to ¡by the shipper’s authorized agent. As indicating Du Brule’s authority and control over the goods, it should be kept in mind that they were consigned to the Merchants’ Bank of Canada by Du Brule, as consignor, and he received the bill of lading and attached the same to a draft which he drew in his own name on Shanley & Co, and which he procured to be discounted and used the avails to pay the balance due him for the potatoes; and this draft Shanley. & Co. honored on presentation. It thus clearly appears that Du Brule, who signed the shipping note as consignor, had not made a full and unqualified delivery of the potatoes to his vendees' at the time the bill of lading was delivered to him. This car-load was consigned to the bank, with instructions in the shipping note to advise Shanley & Co. on the arrival of the goods at the place of destination. An examination of the cases bearing on the question will show that the rule is well established that where the agent of the owner is charged by him with the duty of shipping goods, the carrier may regard him as fully authorized to make a valid and binding special contract, such as the owner might have made if he had been personally present conducting negotiations. (Nelson v. Hudson R. R. R. Co., 48 N. Y., 498.) In the ease last cited the plaintiff purchased of dealers in the city of ,New York a mirror, and gave them instructions to ship the same to him by railroad to his home in Fulton, in this State. They shipped the same by the defendant’s road, and made a special contract, by the terms of which the carrier was exempt from certain liabilities which covered the injury to the property complained of. It was held that authority to deliver goods to a common carrier for transportation includes all the necessary and usual means of carrying the same into effect; that the consignor of goods to a distant consignee, who is the owner, is the agent of the latter for the purpose of shipping. A ruling to the same effect was made in Squire v. New Central amd Hudson River Railroad Company (98 Mass., 239). In that case the owner of a cargo of live hogs placed them in the charge of an agent or servant to look after and care for them while in transit from Chicago to New York, without any authority specially conferred to make contracts for transportation with any of the connecting lines. When the hogs were loaded on the defendant’s cars at its terminus, near Suspension Bridge, the agent or servant in charge made a special contract with the company as to the terms or conditions of transportation, and it was held that the contract was binding on the owners, for the reason that the person in charge was the only person with whom the carrier could make the arrangement, and that he stood in the place of the owner for this purpose, although he did not have express authority to make the agreement. A like ruling was made in the case of York Company v. Central Railroad Company (3 Wall., 113), and many other cases might be cited to the same effect.

Neither party put in evidence the bill of lading, nor was its contents proved on the trial. As it and the shipping note were both executed at the same time and simultaneously delivered, and related to the same subject-matter, they should be considered as constituting one agreement. We may not assume that the bill of lading contained any provision changing or modifying the terms or conditions contained in the written request to receive and ship the property, called in that instance a shipping note, or anything inconsistent with those provisions and conditions. A bill of lading is the written evidence of a contract of carriage of goods from one place to another for a stipulated price. (Covill v. Hill, 4 Denio, 323; 1 H. Black, 359.) When it was disclosed that a bill of lading had been prepared and delivered to the consignor at the time the goods were shipped, upon the terms proposed by the shipper, it seems reasonable to hold that it was incumbent upon the plaintiff to produce the bill or prove its contents as a part of their case. But, whether that be so or not, the instrument given in evidence, which was assented to by the carrier, must be regarded as constituting the contract between the parties.

Having reached the conclusion that the property was shipped under a special contract binding on the consignors, we have now to inquire whether the stipulations which it contains releasing the defendant from certain common-law liabilities as carriers is supported by a good consideration. In this State the law is well settled that a common carrier of merchandise may, by express contract, limit his common-law liability shielding him from damages occasioned by his negligence or that of his servants. (Dorr v. New Jersey S. N. Co., 11 N.Y., 485; Mynard v. Syracuse, etc., R. R. Co., 71 id., 180; Bissell v. N. Y. C. R. R. Co., 25 id., 442; Nicholas v. N. Y. C. R. R. Co., 89 id., 370.) Without some proof on the subject, we must assume that by the laws of Canada the defendant might, for the service it undertook to perform, charge a1 fair and reasonable compensation. This is the rule which prevails in this State.

In discussing the question as to what would constitute a good consideration to support a release from those duties and obligations which the law imposes on common carriers, Earl, J., said in the ease of Nelson v. The Hudson River Railroad Oom.jpany (48 N. Y., 511):

They must carry for all upon equal terms, charging one no more than another for freight or property delivered under like circumstances. But they are not bound to carry all kinds of property for the same-freight. They may charge .ordinary rates for some kinds of property exposed in the carriage to ordinary hazards, and extra, rates for property exposed to extra hazards. As railroad companies are bound to carry freight without any contract limiting their liability, their mere agreement to carry does not furnish a consideration for the agreement to limit their liability; nor does their agreement to carry for the price which they would be authorized to charge, in case their liability was not limited, but it is a sufficient consideration if they agree to carry for a reduced compensation because their liability is limited.”

In that case it was held that a good consideration was proved to support a release from liability because the contract, on its face showed that the railroad company was to carry at “ tariff rates,” as the court could not say, in the absence of proof, that “ tariff i-ates ” meant the full rate which could be lawfully charged by the defendant for the carriage of the kind of goods transported in that case.

In view of all the facts of the case before us, we think that the special rate at which, the potatoes were carried, being the lowest rate made by the defendant for this class of freight, at the particular request of the shipper, was, in fact, a less rate than the defendant was authorized to charge for the transportation of the potatoes beyond the line of its own road.

In York Company v. Central Raiload Company (3 Wall., 107) it was held, that when there was an agreement limiting the liabilities of the carrier, it would be presumed, in the absence of proof to the contrary, that it was upon the consideration of a reduced rate for the carriage. It appeared in that case that the goods were to be carried at a fixed rate, which was stated in the bill of lading, and the court said that the consideration thus expressed, was sufficient to support the entire contract, including the release by the consignor, which exempted the carrier from certain risks. . We have reached the conclusion, based upon the authorities cited, that the special contract was based upon a good consideration and is valid and binding alike upnon the carrier and the defendant.

The referee found, as a fact, that the transportation of the p:>otatoes was negligently hindered and delayed by the defendant upon its own road, and also upon the connecting road, and in consequence of such delay and the long confinement of the potatoes in the car they were 'greatly depu-eciated in their market-value by heating and sprouting. On reading the evidence bearing on this question, we see no reason for disagreeing with the referee’s conclusion. The usual and customary time for transporting goods of this class, perishable in their nature, was six days, and the time actually taken was eighteen or twenty days.

In estimating the plaintiff’s damages, the referee made allowance for depreciation in quality and also for decline in the market-price of the potatoes, which, upon the shipment now under consideration, with the interest thereon, amounted to the sum of $399.26. The remaining and important question is, does the release from liability, contained in the contract of shipment, constitute either a full or partial defense for the losses sustained by the owners, for which damages were awarded to the plaintiff ? It is provided in the contract that the responsibility of the defendants shall terminate when the goods shall have arrived at the pfiace to be reached on its own road where it connects with other roads, and that the defendant shall not be liable for damages to the property arising from delays which occurred on the connecting roads. The defendant insists that this term of the agreement shields it from so much of the damages which the owner of the goods suffered in consequence of the delays which occurred on the other lines.

The defendant could legally contract to carry and deliver the property at places beyond the terminus of its own' road, and from the facts and circumstances of this case it is established, beyond all dispute, that the defendant agreed to carry and deliver the goods at East St. Louis. (Condict v. The Grand Trunk R. Co., 54 N. Y., 500.) The connecting lines engaged by the defendant to carry the goods to their destination were the agents of the defendants, and it is liable for their negligence resulting in damages to the owners. The question of liability for damages, as presented in this case, is to be treated as if the delays all occurred on the defendant’s own road. As the delays occurred in consequence of the defendant’s own negligence, the release from liability does not protect the defendant, as the contract does not, by its own terms or necessary implication, exempt it from damages arising from its own negligent acts or those of its agents or servants. The clause of the contract relied upon reads as follows: “3. Nor will the company be liable for damages occasioned by delays caused by storms, accidents, overpressure of freight or unavoidable causes, or by the weather, wet, fire, heat, frost, or delay of perishable articles, or from civil commotion.”

The cases of Mynard v. Syracuse, etc., Railroad Company (71 N. Y., 180) and Nicholas et al v. New York Central and Hudson River Railroad Company (89 id., 370) may be referred to as establishing a rule of construction applicable to the provisions contained in the clause quoted, showing that they do not shield the defendant from the damages arising from its own act of negligence, or those of its servants.

The defendant further contends that it is exempt from such damages as the plaintiff suffered by loss of market on account of delays under another provision of the contract which provides that the company shallnot, in any case, or under any circumstances, be liable for loss of market.”

It is argued by the learned counsel for the defendant, in support of his position, that the rule of law that a carrier is responsible for negligence, unless its contract by its exact terms release it from, the consequences of its negligence, has no application to the measure of damages; that such rule relates to and affects only the liability of the carrier. A common carrier is not liable for loss of market unless he is guilty of negligence in delaying the transportation. If, however, he should contract to deliver the freight within a fixed time, he is liable for damages arising from non-delivery within the stipulated period, including loss of market, although the non-performance did not occur from any fault of his own. (Harmony v. Bingham, 12 N. Y., 99.) Within the rule laid down in the cases already cited, we think the exemption does not include a case where the loss of market arises from a negligent delay in transportation. The question presented should be treated the same as if the only claim for damages was the one arising from the loss of a market. In such a ease it is plain the question would not be simply one of the measure of damages, but the primary inquiry would be whether the owner has a right of action arising out of a earner’s negligence, and if that should be established, then he might recover as damages the loss sustained by reason of the decline in the market at the place of destination. As the release does not, in terms, apply to a case where the loss of market arises from the defendant’s negligence, the contract should be so construed as to make the release in this respect applicable to cases where the loss of market arises from other causes, such as a failure to deliver within a stipulated time.

The defendant pleaded, in bar of a recovery for the cause of action set but in the complaint, that no written notice was served of any claim for damages as' required by the twelfth clause printed on the back of the shipping bill, which is as follows: 12. That no claim for damage to, loss of or detention of any goods for which this company is accountable shall be allowed unless notice in writing and the particulars of the claim for said loss, damage or detention are given to the station freight agent nearest the place of delivery within thirty-six hours after the goods in respect of which said claim is made are delivered.”

The defendant requested the referee to find that no notice in writing, making claim for loss, damage or detention, was given to the station agent at the place of delivery within thirty-six hours after the delivery of the potatoes. This the referee refused to find, and assigned as a reason for his refusal that the clause requiring the notice to be served did not apply to shipments beyond the terminus of the defendant’s own road. In this conclusion I think the learned referee erred. In terms, the provisions of the clause are not limited in their application to cases where the freight is to be delivered at points on the defendant’s own road, and the purpose of requiring a notice of loss to be served is as applicable to a case where the goods are to be delivered beyond the defendant’s own line as when they are to be delivered at some point on its own road. As before stated, my conclusion is that the contract required the defendant to transfer and deliver the goods to the consignee in the city of St. Louis, and, for this reason, I think the condition requiring notice to be given of the loss, when one is claimed, should be held to include the place of ultimate destination. The evidence would support the finding that no claim of loss was given by the consignees as required by the agreement. In disposing of the questions already considered an attempt has been made to show that a special contract was made and entered into, and that the same was valid and binding on the consignees, and if we are correct in that conclusion, the provision of the contract requiring notice of loss to be served must defeat a recovery, if on a new trial it should be found that the requisite notice was not served. This is one of the terms of an entire contract, founded upon a good consideration, and it is as obligatory upon the shipper as any other provision of the agreement. In this State it is now well settled that the shipper and carrier may, as between themselves, insert in their agreement for the transportation of freight any condition which does not contravene public policy or which is not forbidden by law. If the validity of this condition was made to depend upon whether it was a reasonable one or not, I should be inclined to hold that it is. The parties here have made it a matter of specific agreemeent, based upon a good consideration, and the question of the reasonableness of the stipulation has been placed by the action of the parties beyond our inquiry.

In view of the perishable character of the property, it was reasonable for the carrier to require that a notice of a claim for damages should be served within the time mentioned after the goods were delivered, for the reasons fully stated in the cases of Express Com pany v. Colwell (21 Wall., 264), and Lewis v. The Great Western Railway Company (5 Hurl & Norman, 367). The car-load of potatoes shipped on the eighteenth of April at Preston, containing 401 bushels of potatoes, the referee found had never been delivered, and that the plaintiff’s damages, with the interest thereon, amounted to $545.60; and I am unable to discover any reason why the judgment-should not be affirmed as to that item of damages. The other shipments were made under contract of the same nature and character of the one we have considered, and the recovery for damages for the losses sustained on each of those shipments, by reason of the negligent delay in delivery, cannot be sustained, for the reason that no notice of the loss was served:

The judgment should be reversed and a new trial granted before another referee, unless the plaintiff stipulates to reduce the judgment to the sum of $545.69; and if such stipulation is served within thirty days, then the judgment should be modified accordingly, and as modified affirmed, without costs of this appeal to either party.

Judgment affirmed.


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    JAMES SWEENY and Others, Plaintiffs, v. PHEBE J. WARREN and Others, Defendants.

      Powers of sale in a will — when not inconsistent with its other provisions.

    Tlie will of John Sweeny contained the following clause: “I also desire and authorize my executors to sell and convey all that part of block F on the Niagara river, * * * and it is my desire that the said land be sold in a body for commercial purposes.”
    After making a devise of the remaining part of block F to certain persons, and other gifts, the will, in its concluding clause, was as follows: “ And I authorize and direct my executors to sell and convey the strip of land heretofore mentioned and described as lying on the Niagara river, and also that piece of land lying on Sweeny street, and on the Tonawanda creek, east of the building known as the shoe-shop, for the purpose of discharging all my debts.”

      Held, that the direction or authorization made by the testator to the executors to convey the property for commercial purposes was not inconsistent or in any respect irreconcilable with the later provisions of the will.
    That the intention of the testator was that the executors might sell these premises, recommending them to look towards commercial uses for a successful market tlierefor, and that if. they should not turn out to be available for such purposes, then to sell them for the payment of debts, if necessary.
    That a sale made by the executors to the widow of the testator, who knew that the personal estate of the testator was sufficient to pay all its debts, by a deed -which contained no limitations as to the use of the property for commercial purposes, was valid.
    Application for judgment upon a verdict directed for the defendants at the Niagara Circuit, September, 1888, subject to the opinion' of the court at General Term.

      Sherman S Rogers, for the plaintiffs.

      E. Q. Sprague, for the defendants.
   Macomber, J.:

This action is ejectment to recover the possession of apart of block F in Tonawanda, Niagara county. The question in it arises under the will of John Sweeny, the material portions of which, so far as they relate to this action, are as follows: I also desire and authorize my executors to sell and convey all of that part of block F on the Niagara river, running back from said river to a continuation of the west line (to the north) of a projected canal, as laid down on a map made by Augustus Canfield, on lot or block G, being nearly on a parallel line with the Niagara river, and it is my desire that the said lands shall be .sold in a body for commercial purposes.”

After making a devise of the remaining part of block F to certain persons, and other gifts, the will, in its concluding clause, is as follows: And I authorize and direct my executors to sell and convey the strip of land heretofore mentioned and described as lying on the Niagara river, and also that piece of land on Sweeny street, and on the Tonawanda creek, east of the building known as the shoe-shop, for the purpose of discharging all my debts'.”

The defendants claim title to the land in question under a deed executed by Warren Bryant, as surviving executor of the last will and testament-of John Sweeny, while the plaintiff claims title as íiéirsat-Jaw, or the grantees of the heirs-at-law, of John Sweeny.- " There was ñó direction'for the application of the personal property tó the payment of debts, and no other disposition made of it by the will. But such personalty was abundantly sufficient to pay all the indebtedness which the testator owed, and was actually applied to that purpose. It is now contended by the counsel for the plaintiffs that the last clause of the will, above mentioned, limited the right to sell this land for the payment of debts only, and should prevail over the previous portions of the will; and that, inasmuch as the widow of the testator was the purchaser from Bryant, the surviving executor, having knowledge of the condition of the estate, she is not, nor are her grantees or heirs-at-law, in position to claim any equities other than those which may attach by the terms of the will themselves.

The question before us is one of testamentary intention. The true construction of this instrument does not, in our judgment, lead to the inference or conclusion that there is disclosed in it an irreconcilable conflict of purpose in the mind of the testator. The direction or authorization made by the testator to the executors to convey the .property for commercial purposes is not inconsistent in any respect or irreconcilable with the later provisions of the will. It is only when the subsequent provisions are not reconcilable, and where repugnancy between the several provisions distinctly appeal’s, that the rule giving effect only to the latter provisions'prevails.

The true rule is stated in the case of Roseboom v. Roseboom (81 N. Y., 356), where the court says: “We thus follow the rule which requires a will to be so construed as to avoid, if possible, all repugnancy and give effect to all its language. We have no occasion to depart from it; the two clauses are not irreconcilable, and •there is no occasion, therefore, to reject one in order to uphold the other — a desperate remedy and to be resorted to only in case of necessity — so that one rather than both provisions should fail.” (See, also, Clarke. v Leupp, 88 N. Y., 228; Van Vechten v. Keator, 63 id., 52; Van Nostrand v. Moore, 52 id., 12.)

Reading the several provisions of the will together, the plain construction of them is that the testator desired to, and did, actually give his executors power to sell the portion of land in question absolutely. The expression in the clause quoted, that it should be conveyed for commercial purposes, is not a limitation upon the power of the executors to convey, nor a limitation upon the use to which the land should subsequently be put. It constitutes no more than a mere expression on the part of the testator that he believed the strip of land to be peculiarly adapted to commercial purposes, wbicli was pre-eminently true; and this was undoubtedly a prevailing reason in bis mind wbicb induced him to give tbe power to bis executors to convey it.

Tbe subsequent clause giving tbe executors power to convey for tbe purposes of paying, debts is clearly reconcilable with tbe foregoing views, for tbe moneys received upon tbe sale, if required, would undoubtedly be appropriated to that purpose. There appears to be no limitation expressed in tbe latter clause of tbe will of tbe power and tbe right of tbe executors absolutely to convey these lands in accordance with tbe precedent clauses. In short, tbe intention of tbe testator, as disclosed by bis will, appears to be that tbe executors might sell these premises, recommending them to look towards commercial uses for a successful market therefor; and if they should not turn out to be available for such purposes, then to sell them for tbe payment of debts, if necessary.

Such being tbe case, tbe decision of the- learned judge at tbe circuit was correct, and judgment should be ordered for tbe defendants upon tbe verdict, with costs.

Barker, P. J., and Dwight, J., concurred.

Motion granted; judgment ordered for tbe defendants on tbe verdict.


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    GEORGE C. CARPENTER and HENRY M. CARPENTER, Respondents, v. GERMAN-AMERICAN INSURANCE COMPANY OF NEW YORK, Appellant.

      Policy of insurance — failure to furnish proofs of loss — failure to prom title in the assured at the date of the policy.

    In an action, brought to recover for a loss sustained by the burning of a steam mill, which was insured by the defendant, a defense was interposed to the effect that the plaintiffs had violated a condition of the policy in respect to rendering proofs of loss. The language of the policy in that respect was that “in case of loss the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath, stating,” etc. (Here followed a specification of the facts required to be stated in what are commonly called the preliminary proofs of loss.)

      It appeared upon the trial that an immediate notice of the loss was given, but that no proofs of loss were furnished until about six months after the loss occurred.

      Held, that, as the stipulation in respect to furnishing proofs of loss was not made a condition of the policy, the delay in rendering these proofs did not of itself work a forfeiture of the policy or preclude a recovery by the plaintiffs.
    One of the conditions of the policy was that the assured were, at the date of the insurance, the sole, absolute and unconditional owners of the property insured. The proofs and admission of the plaintiffs showed that, at the date when the insurance was effected, the plaintiffs had no legal title to the property insured, but held it under a contract of sale executed by the National State Bank of Elizabeth, N. J., the party of the first part thereto, by which it agreed to sell and convey the premises to the plaintiff George C. Carpenter on or before December 6, 1882. On the contract there was indorsed a transfer from George. C. Carpenter to Henry M. Carpenter of an undivided half of the premises.
    The jury found that the plaintiffs had, at or before the time of the'issuance of the-policy to them, informed the agent of the defendant, who countersigned and issued the policy, “ that they held the mill and premises on which it was situated by contract for purchase and not by deed.”
    The evidence given by the plaintiff on the trial showed that the plaintiffs had a contract from the Bank of Elizabeth, but that the title of the property was in one John Kean.

      Held, that the plaintiffs, having failed to show that, at the time of the issuance of the policy, they held an equitable title by virtue of a contract of sale from the owner of the property,'as, in substance, the jury found they informed the defendant’s agent, they could not recover.
    Appeal from a judgment in favor of the plaintiffs, rendered at-the Erie Circuit, which was entered in the office of the cleric of Erie county on the 24th day of July, 1888; also from an order of a. Special Term, dated July 11, 1888, denying a motion for a new trial on a case and exceptions, which was entered in the said cleric’s office on July 11, 1888.

      M. W. Ooohe, for the appellant.

      George Wadsworth, for the respondents.
   Dwight, J.:

This action was on a fire policy for the loss of a steam saw-mill in McKean county, Pa. Several defenses were set up by the answer, only two of which are insisted upon on this appeal, viz.: 1st. That the plaintiffs have violated the condition of the policy in respect to rendering proofs of loss. 2d: That the plaintiffs had no insurable-interest in the property at the time of effecting the insurance.

The omission to render proofs of loss, until about six months after the loss was incurred, is admitted. The language of the policy in that respect is as follows: “ In case of loss the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath, stating,” etc. Here follows-a specification of the facts required to be stated, in what are commonly called the preliminary proofs of loss, and the requirement of a certificate of a magistrate or other specified official, in support, of such statement. The immediate notice of the loss was given and acknowledged. No time being fixed within which the preliminary proofs should be l’endered, the contract will be construed to intend a. reasonable time ; and there was nothing in the case which would have justified the court in holding that the delay of six months was reasonable. But what was the effect of failure on the part of the-plaintiff to perform this stipulation of the contract? None is specified in the policy. Peformance of the stipulation is not, in terms, made a condition of liability on the part of the defendant, nor is a forfeiture of the policy attached to that stipulation as a. penalty for its non-performance. The undertaking of the defendant is expressed to be “ in consideration of the receipt of fifty dollars.”

But there are in the contract a score of expressed conditions upon the existence or non-existence of which the validity of the policy or the liability of the defendant are made to depend. Thus, if the-assured make an erroneous representation in an application ; if he omit to make known any fact pertaining to the risk; if there be any other insurance; if the risk be increased; if the assured be adjudged a bankrupt; if any change take place in the title (whether voluntary or otherwise); if the policy be assigned; if the assured is not the sole, absolute and unconditional owner of the property insured; if gunpowder or any one of many other things be kept or used on the premises; if the mill be run over hours or lie still for more than ten days, and upon many other expressed conditions existing previous to loss, the policy shall be void. So, too, after loss, no recovery shall be had on this policy beyond the actual damage to the property or its cash value if totally, destroyed, to be determined by appraisal, if not agreed upon. A refusal to answer questions on an examination under oath, to which the assured may be required to submit, or to subscribe his evidence taken on such examination, •or any fraud or attempt at fraud, or false swearing on the part' of the assured, shall cause a forfeiture of all claim under this policy.

Finally, at the close of the contract, occurs the provision: “ This policy is made and accepted on the above expressed conditions.” This language may, we think, with propriety be held to'refer to those provisions of the policy, of which illustrations have been given, which are expressly made conditions of its validity, or of liability on the part of the insurer, or of the limitation of such liability. The stipulation in respect to rendering proofs of loss is not made ■one of those conditions, and we think the delay in rendering those proofs did not of itself necessarily work a forfeiture of the policy •or preclude a recovery by the plaintiffs.

The other question is possibly one of more difficulty. It is made by the contract one of the conditions of the validity of the policy that the assured were, at the date of the insurance, the sole, absolute and unconditional owners of the property insured. If not so, the policy is declared to be void. The proofs and admission of the plaintiff show that, at the date when the insurance was effected, the plaintiffs had no legal title to the property insured, but held it under a contract of sale. The contract was executed by the National State Bank of Elizabeth, N. J., as party of the first part, dated September 10,1881, and thereby the bank agreed to sell and convey the premises to the plaintiff, George C. Carpenter, on or before the 6th day of December, 1882. On the contract was indorsed an •assignment by George C. Carpenter to the plaintiff Henry M. Carpenter of “an undivided one-half part of the premises.” There was also evidence tending to show, and the jury, by a special verdict, found the fact to be, that the plaintiffs, at or before the time of the issuance of the policy to them, informed the agent of the defendant, who countersigned and issued the policy, “ that they held the mill .and premises on which it was situated by contract for purchase, and not by deed.”

"We do not understand the defendant to question here the proposition maintained by counsel for the plaintiffs, and upon which the court directed a general verdict for the plaintiffs, that the notice found by the jury to have been given to the agent at the time of issuing the policy, was notice to the defendant; and that the defendant is chargeable with knowledge of the facts thus communicated to the agent, so far as they were facts, to the same effect as if those facts had been stated in the contract itself. But there is the further-question here, whether that statement represented the actual facts ’ of the case. If not, it had no effect to relieve the plaintiffs from the express condition of the contract, to the effect that they were the sole, absolute and unconditional owners of the property insured; and. upon that question the burden of proof was clearly on the plaintiffs. By their contract with the defendant, the. plaintiffs have expressly consented to the condition that if they were not, at the date of the-contract, the sole, absolute and unconditional owners of the property, the policy should be void. It is conceded that this condition was not fulfilled; the plaintiffs seek to avoid the condition by proof’ that the insurer was informed, at the time of making the contract, that they were not the sole, absolute and unconditional owners of the-property, but held an equitable title thereto by virtue of a contract, of purchase and sale. The theory of the plaintiff’s case, in this, respect, is that the defendant was estopped from insisting upon the violated condition because it contracted in view of the actual facts of the case, which were communicated to its agent at the time of the contract. Clearly, in order to avail themselves of the estoppel, it was necessary for the plaintiffs to prove both the fact of the com_ munication to the defendant’s agent and the truth of the fact communicated. This they have failed to do. The evidence is that the plaintiffs had a contract from the Bank of Elizabeth, but that the-title of the property was in one John Kean. There is a suggestion that Kean was the president of the bank, and that he held the' title in trust for the latter, but there is no evidence to that effect, and, so • far as the evidence goes, it negatives the proposition that the vendor in the plaintiff’s contract of purchase had any title to convey.

The plaintiffs have, therefore, failed to show that at the time of’ the issuance of the policy they held an equitable title by virtue-of a contract of sale from the owner of the property, as, in substance, they allege and the jury have found, they informed the defendant’s agent. We must consider the plaintiffs as having failed to make a case in the. respect last considered, and that the defendant w-as entitled to a direction of a verdict in its favor on the first and. second grounds stated in its motion to that effect.

The judgment and order appealed from should be reversed and a new trial granted.

Barker, P. J., and Maoomber, J., concurred.

Judgment and order reversed and new trial granted with costs to .abide the event.