text:
    PHILIP HERRMAN, Plaintiff and Respondent, v. THE MERCHANTS’ INSURANCE COMPANY, Defendant and Appellant.
    I. Insurance—Fire.

    1. CONDITION OF POLICY, THAT IT SHALL BE VOID IF THE PREMISES BECOME VACANT AND UNOCCUPIED.

      (a) Breach, what is necessary to constitute.
    1. Vacancy and absence of occupancy, as two separate facts, must occur jointly.

      (b) Vacancy.—Definition of.
    1. Empty—void of every substance except air. a. Ergo—A dwelling-house in charge of servants, with all its furniture, cooking-utensils, beds, mattresses and summer clothing of the owner and his family, is hot vacant, although neither the owner nor any member of his family is in personal occupation.

      (c) Unoccupied.—Definition of.
    1. When no one has the actual use or possession.
    H. Synonyms.
    “Vacant” and “unoccupied ” are not.

    Before Curtis, Ch. J., Sedgwick and Freedman, JJ„

      Decided March 3, 1879.
    Appeal by defendants from the order denying their motion for a new trial, and also from the judgment entered against them upon the verdict directed by the court at the trial.
    The action is to recover upon a policy made by defendants June 8, 1874, and insuring for three years plaintiff’s house and furniture, &c., at Lloyd, Ulster county, New York. The house was for years the summer residence of the plaintiff and his family, from about' the middle of May to the middle of November. November 20, 1876, the plaintiff and his family came to this city, leaving the dwelling-house and other property mentioned in the policy, in charge of his farmer, who, with his family, resided in the frame dwelling mentioned in the policy, and who were permitted to live in the main dwelling-house if they had not sufficient room in their own. The plaintiff left in the house all his furniture, cooking-utensils, piano, beds, mattresses, and the summer clothing of himself and family.
    The premises remained in the charge of the farmer and his family until the fire. They regularly went into the dwelling-house, opened, went through, aired and secured it. It was in sight from their own dwelling. They used, watched and guarded it and the other buildings and property.
    After plaintiff moved to the city, he and Ms wife visited the dwelling-house in question every two weeks, remained in it during the day, examined the property, and lunched there; and were last there three days before the fire, with painters, going through the house with, and directing them as to painting.
    Plaintiff intended to return with his family to the premises in question as their summer residence.
    Upon the trial, the defendant waived the defense of plaintiff’s refusal to arbitrate, and made no question as to the amount of the loss, or the service, or sufficiency, of the proofs of loss.
    A fire occurred April 8, 1877, destroying portions of the insured property, and caused a loss to the plaintiff of over $12,000.

      George N. Parsons, attorney, and of counsel, for appellant.—I.
    The motion to dismiss the complaint should have been granted, as the undisputed evidence showed that the premises, for the loss of which the action seeks recovery, had become vacant and unoccupied long before, and so remained at the time of, the fire. As to occupancy: Whitney v. Black River Ins. Co., 9 Hun, 41; Paine v. Agricultural Ins. Co., 5 Thomp. & Cooke, 619 ; Wustum v. City Fire Ins. Co., 15 Wis. 138 ; Harrison v. City Ins. Co., 9 Allen (Mass.) 231; Keith v Quincy Mu. Ins. Co., 10 Allen, 228; Wood on Ins. § 89, p. 180; Franklin Savings Ins. Co., v. Central Ins. Co., 119 Miss. 240 ; Ashworth v. Builders’ Ins. Co., 112 Mass. 423; Ætna Ins. Co. v. Burns, 5 Ins. Law Journal, 69. As to vacancy : In American Ins. Co. v. Padfield, 78 Ill. 167, the policy contained the provision that “If the house should become vacant and unoccupied, policy should be void.” The tenant had left, but some furniture remained. The court held, that a fair and reasonable construction of the language, vacant and unoccupied, was, that the house should not be without an' occupant—without any one living in it. That the words were not used in a technical but in a popular sense; and in conclusion held, that the house became vacant and unoccupied within the meaning of the policy (North Am. Ins. Co. v. Zaenger, 63 Ill. 464). In Sleeper v. New Hampshire Fire Ins. Co., 56 N. H. 401, the policy provided that it should be void if the premises should become vacant by the removal of the owner or occupant without immediate notice. The occupant removed to another town with his family and part of his furniture, without notice to the owner or the company, intending to return in eight months, or earlier, if business warranted. Fire occurred in four months. Held, that the premises were vacated within the meaning of the policy and policy void—and overrules the case in 55 N. H. 249. To same effect is Thayer v. Agricultural Ins. Co., 5 Hun, 566.
    II. It was argued by plaintiff’s counsel on the trial that inasmuch as defendant insured a dwelling for plaintiff in the city as well as this dwelling in the country, defendant’s officers must have known that plaintiff occupied one place in winter and the other in the summer, and alternately left each unoccupied during his occupancy of the other, and hence defendant was estopped from invoking this clause in defense of this action. As to this: The agreement in the policy has repeatedly and uniformly been held to be a promissory warranty, which must be strictly kept; and not like a condition of insurance, the observance or performance of which might be waived by knowledge and acquiescence (Wood on Ins. § 165, 317, and cases cited ; see also Id. 341, where warranty is concisely stated ; Mead v. North Western Ins. Co., 3 Seld. 530 ; see also Ripley v. Ætna Ins. Co., 30 N. Y. 136; Bilbrough v. Metropolis Ins. Co., 5 Duer, 587; Wood on Ins. 330, and cases cited; Lee v. Howard Ins. Co., 3 Gray, 588; Murdock v. Chenango Co. Ins. Co., 2 Comst. 210; Wood v. Hartford Fire Ins. Co., 13 Conn. 533 ; Chase v. Hamilton Ins. Co., 20 N. Y. 52; Gilbert v. Phœnix Ins. Co., 36 Id. 372 ; Alexander v. Germania Ins. Co., 66 Id. 464 ; 3 Allen, 569 ; 8 Cushing, 127 ; 10 Barb. 285 ; 7 N. Y. 370 ; Blumer v. Phenix Ins. Co., 7 Ins. Law Journal, 833, July, 1878 Poor v. Humboldt Ins. Co., Id. 874, March, 1878; Ætna Ins. Co. v. Burnes, 5 Id. 69, supra). The cases that plaintiff relied upon to the effect that knowledge on the part of the underwriter of the breach of a warranty operates to relieve from the breach, will be found to be based upon the principle of estoppel; and to decide simply that where the underwriter, with a knowledge of the breach, does some act recognizing and affirming the validity of the policy, he shall not be heard to question it after-wards.
    III. Another suggestion made in behalf of plaintiff on the trial was that all of the buildings on the farm were comprised in the word “premises” used in the policy; and that as all of them were not vacant and unoccupied, the warranty was not broken. 1. A reference to the policy will exhibit the fallacy of the proposition. The different buildings and properties were separately insured, as much so as if separate policies had been issued upon each risk. In Associated Firemen’s Ins. Co. v. Assum, 5 Md. 165, the policy was for $1,000—say $700 on books and $300 on music, &c.; and the policy contained a clause that if the assured should thereafter make other insurance on the assured premises, the policy should be void, unless notice was given. Held, that the proper construction of the policy was that if any part of the goods embraced in the policy were afterwards insured in another office without notice, the policy became void. To the same effect is Smith v. Empire Ins. Co., 25 Barb. 497 ; Whitwell v. Putnam Fire Ins. Co., 6 Lans. 166; also Ill. Mu. Ins. Co. v. Fix, 53 Ill. 151.

      IY. Finally it was claimed on the trial that because the words “vacant and unoccupied” were connected by a copulative conjunction, they must have a different signification; but counsel failed to show which word had a more extended or different meaning than the other, or which word saved plaintiff from the application of the evidence in this case. 1. But contracts as well as pleadings often contain synonymous terms connected indiscriminately ; as in this instance, by copulative or disjunctive conjunctions, without in any sense changing the signification (Hill v. Equitable Mu. Fire Ins. Co., 6 Ins. L. J. 314). (a) Thus we say without “let or hindrance,” when the meaning of the words used in that connection are the same. In the last and best dictionary of English synonyms, by Richard Soule, one of the synonyms of “let” is “hindrance.” (6) An instrument of assignment says, “assign and transfer, and make over,” when the words are clearly synonymous (See same author, which gives as one of the synonyms of “assign” the wmrd “transfer;” another is “make over ;” so one synonym of “transfer ” is to “ make over,” &c.). (c) So in the old action of trespass quare clausum fregit, defendant pleads that a fence was in great decay for want of “ needful and necessary ” repairs, &c., when one synonym of needful” is “necessary,” and one synonym of “necessary” is “needful.” 2. But a complete answer to the point is that the same author treats the very words in question as synonyms. The word “ vacant ” has for its synonym the word “unoccupied.” And Burrill in his law dictionary gives the legal meaning of the word “vacant” as “unfilled, unoccupied, without a claimant, tenant or occupier.” This ought to dispose of the suggestion. 3. The only case cited in support of the proposition of plaintiff was an unreported one from the general term of supreme court in this district, viz.: Woodruff v. Imperial Ins. Co., which does mot pass upon the question, but merely says that as plaintiff was surprised by an inadvértent answer of a witness about the house being unoccupied, the court below properly exercised its discretion in setting aside a nonsuit, and allowing the whole evidence on that subject to come in; and the question whether there was a distinction to be made between that case, where the words “ vacant and unoccupied” were used, and the cases cited on that argument in which the word “unoccupied” only was used, was not passed on. 4. But it will be noticed that neither of the cases in which that question was presented, viz. : Whitney v. Black River Ins. Co., American Ins. Co. v. Padfield, North American Ins. Co. v. Zaenger, Wood on Insurance, supra, were cited to that court; so that it appeared to the court, as intimated in the opinion, that that was a question which had not been passed upon judicially.
    if. B. Hoxie, attorney, and of counsel, for respondent, argued:
    The policy is to be construed in the light of the knowledge by the defendant of the character and use of the premises. It is legally chargeable with such knowledge, and if so it -is estopped to claim that the clause in question is applicable to such a cessation or suspension of occupancy as occurred here, for -such was clearly contemplated (Whitney v. Black River Ins. Co. 9 Hun, 37 [affi’d in Ct. of Appeals, Feb. 14, 1878] ; Cone v. Niagara Ins. Co., 60 N. Y. 619; Pitney v. Glens Falls Ins. Co., 65 Id. 6). The premises were not vacant and unoccupied, because they were in the charge of and occupied by the farmer and his family from the time plaintiff and his family left until the fire-—the dwelling-house in question as much so as the farmer’s own dwelling, the barns, &c., &c. •In this case the premises or the dwelling-house alone would be considered as vacant and unoccupied only if the same were abandoned as a residence or a dwelling-house, and left without any human being to use, watch and care for it, and preserve it in condition fit and necessary for use as a dwelling. A dwelling-house is not vacant and unoccupied within the meaning of this policy, where, as in this case, the household furniture, wearing apparel, &c., remain in it, the house and furniture in charge of, and receiving the constant visits, care and scrutiny of members of the establishment (the farmer and his family), periodical visits and occupation by the owner and his wife, although the family of the owner are absent, but with intention to return and resume continuous dwelling therein, be the period of such contemplated absence long or short (Whitney v. Black River Ins. Co., supra ; O’Brien v. Comm. Ins. Co., 6 J. & S. 517; Cummins v. Agricult. Ins. Co., 67 N. Y. 260 ; Shearman v. Niagara Ins. Co., 46 Id. 526 ; Gibbs v. Continental Ins. Co., 13 Hun, 611, 620). The use of the copulative conjunction in the clause in question “vacant and unoccupied,” contemplates an abandonment of the premises; certainly something more than a temporary cessation of eating and sleeping, i. e., dwelling in the house. If the dwelling house was “ unoccupied ” it was not “vacant.” The household furniture, wearing apparel, &c., all remained, and under the constant supervision of the farmer and his family. In the case of Woodruff 'o. Imperial Ins. Co., Supreme Court, General Term, First Department, May, 1877 (not reported), this precise question was considered, and determined in accordance with above views. The object of the use of the word “ vacant ”, seems to have been to prevent the mere fact that the premises might become unoccupied, from itself rendering the policy void. For that purpose they were required to be vacant as well as unoccupied, and that sufficiently distinguishes this from the cases cited on behalf of the defendants to prevent them from controlling its present disposition.. They were decided upon the effect required to be given to the clause relating alone to the fact of occupation (Keith v. Quincy Mut. Ins. Co., 10 Allen, 228; Wustrum v. City Fire Ins. Co., 15 Wis. 138 ; Ashworth v. Builders’ Ins. Co., 112 Mass. 422, 424; Paine v. Agricult. Ins. Co., 5 N. Y. S. C. [T. & C.] 619), and in no way considered the effect that should be given to the phrase made use of in the policy issued to the plaintiff.
   By the Court.—Curtis, Ch. J.

The principal question discussed and. presented at the argument was whether the policy was annulled by a violation of the condition contained in these words “if the premises shall become vacant and unoccupied, except as herein specially provided for, or hereafter agreed to by this corporation in writing upon this policy, from thenceforth this policy shall be void, and of no force or effect.”

It is apparent that for the breach of this provision of the policy two separate facts, vacancy and absence of occupancy of the premises insured, must occur, and that, too, jointly, so as to be in existence at the same time. This is what the language of the policy calls for. It is urged by the defendants that these words were not used in the policy in a technical but a popular sense. Happily for the protection of real estate, the words expressing the relations and rights of individuals and the public towards it have existed from a very remote period, and during that interval been interpreted by the courts as always possessing the same meaning. Very little has been conceded to what may . be their use in a popular sense, but it has been deemed that private rights and property were best protected by construing them strictly.

The word vacant is not the synonym of “unoccupied.” Vacant means primarily, empty,, void of every substance except air ( Webster’s Dictionary), and unoccupied is that status where no one has the actual use or possession of the thing or property in question. This distinction originates and exists in the language from which the terms descend to us (Redfield v. Utica, &c. R. R. Co., 25 Barb. 58; People v. Ambrecht, 11 Abb. Pr. 101; National Fire Ins. Co. v. McKay, 5 Abb. Pr. N. S. 449).

Although there may be sound reasons for holding that the plaintiff, in the legal sense, and according to which the agreement should be construed, had not ceased to occupy the dwelling-house, yet it is not necessary to rest the decision on this view of it. The language of the policy calls for the dwelling being left both vacant' and unoccupied before the policy will thereby become void. It cannot be, that either in the legal construction or popular sense claimed as the proper definition of the term “ vacant,” that this dwelling-house, in charge of plaintiff’s servants, with all its furniture, cooking utensils, piano, beds, mattresses, and summer clothing belonging to the plaintiff and his family remaining there, was left vacant or empty (Woodruff v. Imperial Ins. Co., First Department, General Term, not reported ; Cummins v. Agricultural Ins. Co., 67 N. Y. 263; O’Brien v. Commercial Fire Ins. Co., 6 J. & S. 517 ; reversed, but not on this point, 63 N. Y. 108).

The court properly excluded the evidence offered, to show that the defendant’s risk was increased, by the alleged vacancy and non-occupancy of the premises, as such vácancy and unoccupancy of the premises did not exist.

The judgment and order appealed from should be affirmed with costs.

Sedgwick and Freedman, JJ., concurred.


source: Caselaw Access Project

author: By the Court—Curtis, Ch. J.

license: Public Domain

text:
    LORENZ BOMMER, Plaintiff and Respondent, v. THE AMERICAN SPIRAL SPRING BUTT HINGE MANUFACTURING COMPANY, Defendant and Appellant.
    I. Estoppel.
    1. BY ACCEPTANCE AND USER.

      (a) When one assigned to a corporation, either duly organized or held out so to be, an improvement made by him, and his right to letters patent therefor, the consideration expressed in the assignment being $1, but the true consideration being, by an oral agreement, a certain royalty during the existence of the patent, and afterwards, but before the issuing of the patent, the corporation, if not before duly organized’organized, or if before organized reorganized, under the said name used in the assignment, and the assignor, without any notice of the change, procured the issue of a patent in the corporate name used in the assignment, and the company accepted the patent, entered into enjoyment thereof,- and for a time paid to the assignor the royalty claimed by him, without any notice to him of any defect in its corporate existence, at a period previous thereto; the company is ESTOPPED
    from avoiding the obligation to pay the royalty originally agreed on.
    II. Statute of limitations.
    a. ROYALTY.

      (a) In an action by an assignor for an accounting, as to articles manufactured under a patent, assigned by an instrument under seal in consideration of a certain royalty on each article so manufactured, and for payment of the amount of royalty found due, the accounting is not to be limited to a period of six years before the commencement of the action»
    Before Curtis, Ch. J., and Freedman,- J.

      Decided March 3, 1879.
    Appeal by defendant from a judgment entered upon a decision of a judge after trial at special term, and after the coming in of the report of a referee, appointed to take and state an account.
    The action is to recover from the defendant a royalty of one cent for each pair of hinges manufactured by the defendant, under a patent for plaintiff’s invention of an improved spring hinge made in 1862.
    The defendant in its answer pleads the statute of limitations, and states that it is a corporation organized August 26, 1863, and that it was not in existence January 17, 1863, the date of the assignment' of the invention and of the letters patent applied for, then executed by the plaintiff, but it admits that December 8, 1863, letters patent issued to it, and that it has ever, since continued the manufacture of the invention.
    At the special term, the findings of law and fact were as follows:
    As matters of fact:—I. That Lorenz Bommer, the plaintiff, was on January 17, 1863, the inventor and owner of a certain spring butt spiral hinge, as described in the specifications and drawings attached to letters patent No. 40,879, dated December 8, 1863, and issued by the United States of America to the defendant herein.
    II. That on January 17, 1863, plaintiff sold and assigned to the American Spiral Spring Butt Hinge Manufacturing Company, by an instrument under seal, all of his right, title and interest in said invention and letters patent to be issued thereon by the United States, for the nominal consideration of $1, but the true consideration and agreed price of said assignment was the payment or royalty to plaintiff of one cent for each pair of hinges to be manufactured according to said invention during the term of said letters patent.
    III. That plaintiff was paid said royalty of one cent for each pair of hinges sold from January 17, 1863, until March 5, 1864, without notice to him of any change in the company, and defendant has neglected and refused to pay anything to plaintiff since said date.
    IV. That the defendant has, since said March 5, 1863, been continually engaged in the manufacture of plaintiff’s invention.under said letters patent, but has wholly failed to account to plaintiff therefor.
    V. That the organization or reorganization of the American Spiral Spring Butt Hinge Manufacturing Company, on August 15, 1863, was without notice to plaintiff, and was, so far as it affects plaintiff or his rights, colorable only.
    • . VI. That the defendant accepted said létters patent of plaintiff’s invention, pursuant to the terms of, and by virtue of the assignment of January 17, 1863, from plaintiff to the American Spiral Spring Butt Hinge Manufacturing Company, and subject to the payment of the royalty of one cent for each pair of hinges manufactured under said letters patent.
    VII. That Mr. Hayes, Andrew J. Biker, and John S. Neville, with whom the contract for the purchase and assignment of said invention was made by plaintiff, made the same as officers of and for account of the American Spiral Spring Butt Hinge Manufacturing Company, and were officers and directors of the defendant, which claimed to be the owner of and accepted the said letters patent under said assignment of January 17, 1863.
    VIII. That defendant, by discharging a part of their hands employed, and not paying promptly those employed, by not employing a sufficient number of hands, and requiring of plaintiff to manufacture a larger number of hinges than he could produce with the means furnished by defendant, and by other unjust and unreasonable exactions, compelled the plaintiff to resign, his position as foreman of defendant’s factory without any fault upon plaintiff’s part.
    And as conclusions of law: First. That the defendant is estopped from denying that it contracted with plaintiff for the purchase of said invention.
    I. Because no notice was given to defendant of any attempted or actual change in the organization of the company.
    II. Because it accepted said letters patent under said assignment with full notice of its terms.
    III. Because it adopted the conditions of said assignment and continued to pay the royalty.
    IY. Because it compelled the plaintiff to resign his position as foreman, and defendant can take nothing by its wrongful act.

      Second. That plaintiff is entitled to an accounting from, defendant of all the hinges manufactured or sold by it since March 5, 1864, under said letters patent, and to be paid a royalty of one cent for each pair of hinges made.

      Third. That the defendant exhibit before the referee to be appointed, its books of account and of manufacture, showing the number of hinges manufactured or sold by the defendant since March 5, 1864.

      Fourth. That the plaintiff be at liberty to apply on the foot of the decree herein for a further accounting by defendant for said hinges manufactured or sold by defendant herein after this date, during the existence of said letters patent, upon due proof to this court of the failure of the said defendant to account for any of said •hinges hereafter manufactured or sold by it.

      Fifth. That a decree be entered in accordance herewith.
    All of the foregoing findings of fact and law were excepted to by the defendant.

      Theodore R. Shear, attorney, and Elihu Root, of counsel, for appellant, on the questions discussed by the court, urged:
    I. The judgment is erroneous, because it includes royalty upon hinges, manufactured and sold more than six years before the commencement of the action, any right of recovery for which was barred by the statute of limitations. The action was commenced March 7, 1877. The second conclusion of law under which the referee took and stated the account, includes all hinges manufactured or sold by the defendant since March 5, 1864. Either the plaintiff’s right of action does not accrue under his alleged contract until the termination of the letters patent, which will be in December, 1880, that is to say, it has not yet accrued; or it accrued when the hinges were manufactured or sold. In the former case, of course, this action could not be maintained. In the latter case, both principal and authority are conclusive that it cannot be maintained for any sums the right to which accrued more than six years before the commencement of the action (Code of Pro. § 383 ; Davis v. Gorton, 16 N. Y. 255; Rider v. Union India Rubber Co., 5 Bosw. 86 ; S. C., affi’d 28 N. Y. 379). The fact that there is an accounting involved in this action, does not take it out of the statute of limitations. It is only where there has been a mutual, open, and current account, where there have been reciprocal demands between the parties, that the cause of action is deemed to have accrued from the time of the last item (Code of Pro. § 386 ; Albro v. Figuera, 60 N. Y. 630 ; Hultslander v. Thompson, 5 Hun, 348). The report of the referee in accordance with which the judgment is entered, treats the plaintiff’s cause of action as accruing from time to time, as the hinges were manufactured and sold, and allows interest upon the sales of each year from 1864 to the time of the report. We thus have judgment for principal and interest upon a cause of action on simple contract, which accrued and could have been sued upon thirteen years ago.. This cannot be sustained.
    II. The judgment should be reversed, because it appears by the evidence that the defendant was not incorporated at the time of the alleged contract. It seems to be supposed, on the part of the plaintiff, that the effect of this undisputed fact is evaded by the fifth finding of fact, that the organization (or, as it is called, reorganization) of the defendant on August 15, 1863, was without notice to the plaintiff, and was, so far as it affects the plaintiff or his rights, colorable only. It matters not whether it is called an organization or a reorganization, the defendant was a new and distinct corporate entity, not in existence at the time the contract was made; and while the effect of a contract made by the promoters of the defendant in anticipation of the defendant’s formation, or of a contract made by a preceding corporation to the rights of which the defendant succeeded by assignment, might be the same as if the contract were made by the defendant, that is another and a different cause of action, and depends upon facts not alleged in the complaint in this action, not met by the answer, and not properly before the court for its determination. The action is upon a contract made by this defendant, and not upon any obligation devolved upon it by authority of its relation to any preceding persons or corporation. ¡Not only were there no allegations to this effect in the complaint, although the plaintiff had full notice of the time of the defendant’s organization by its answer, and full opportunity to amend accordingly, but, throughout the evidence, no testimony was offered by the plaintiff, and no testimony was permitted on the part of the defendant to show what were the relations between the defendant and the preceding company, or what rights or obligations were devolved upon the defendant by those relations.

      III. The judgment is erroneous in including two cents for each pair of double spring hinges made by the defendants, upon the theory that each double hinge is equivalent to a pair of single hinges. This is an unwarrantable extension of the terms of the contract. A pair of hinges is a pair.of hinges; and it is no more because by putting in two springs instead of one a door can be made to swing better. The plaintiff himself does not assert that a double-acting hinge would be expressed by the term “a pair of hinges,” but says, that if double-acting hinges are wanted this is expressed.

      Bigismund Kaufman, attorney, and Lewis Banders, of counsel, for respondent, on the questions discussed by the court, urged:
    The defense appears to be this : 1. That the first assignee of plaintiff’s invention was a prior company of the same name, merged in the present one. 2. That the assignee of a non-negotiable chose in action, without notice for value, takes it discharged of the assignor’s obligations, the same as negotiable paper before due. (a) The first answer to these, propositions is that none of them are pleaded. The second is that plaintiff never had any notice of a second company; never assented to any mere assignment or contract. 3. The answer admits letters patent were issued to it. The patent shows the assignment was from plaintiff. Defendant cannot deny it (Cook v. Barr, 44 N. Y. 158 ; Fearing v. Irwin, 4 Daly, 396; Robbins v. Codman, 4 E. D. Smith, 325; Miller v. Moore, 1 Id. 743). The recitals in the patent bind defendant (Hardenburg v. Lakin, 47 N. Y. 111; Atlantic Dock Co. v. Leavitt, 54 Id. 38; Carver v. Jackson, 4 Pet. 83 ; Crane v. Morris, 6 Id. 611 ; Dem v. Cornell, 3 Johns. Cas. 176). 4. Defendant did have notice of the terms of the assignment, and paid the royalty until March 5, 1864. . 5. There is no evidence defendant paid anything for the .assignment, and it is not, therefore, a holder for value. 6. The old Code provides, section 112, that in case of an assignment of a chose in action, the action by the assignee shall be without prejudice to any set-off existing at the time of or before notice of the assignment. This preserves the old common law rule, where action had .to be in name of assignor. A purchaser of a chose in action must always abide the case of the peeson from whom he buys, and he stands entirely in the place of the latter (Crane v. Turner, 67 N. Y. 439 ; 61 Id. 88-105 ; 64 Id. 220-225 ; 50 Id. 66 ; 26 How. 161). 7. Defendant, holding as assignees of the patent, cannot repudiate its terms. By claiming the fruits of the assignment they must bear its burdens and ratify all the means by which it was obtained (Fowler v. N. Y. Gold Exchange Bank, 67 N. Y. 143, and cases there, cited; Qui sentit commodum sentire debet et onus, Brown's Leg. Max. 682 ; Wood v. Perry, 1 Barb. 131; Chamberlin v. Day, 3 Cow. 353 ; Countryman v. Boyer, 3 How. 389).
   By the Court—Curtis, Ch. J.

The defendant is not in a position to-defeat the plaintiff’s claim for compensation, for the use and enjoyment of his invention, because it was not, as it insists, at the time the plaintiff’s assignment bears date, a corporation duly organized, under the laws of the State of Yew York, and was not in existence. The letters patent for the plaintiff’s invention issued to and were accepted by the defendant at a time subsequent to August 26, 1873, when the defendant alleges it was so duly organized as a corporation, and ever since the defendant has manufactured under it. As the plaintiff had no notice that the defendant was not duly organized, when he executed the preliminary assignment of the invention, and afterwards caused the issue of the letters patent to the defendant, at a time when it was duly organized, which issue was accepted by the defendant, and ratified by user and the payment of the accruing royalties thereunder to the plaintiff, until the defendant compelled him to leave its employ, no reason exists why the defendant should avoid -its liability. If the defendant held itself out.as a corporation, when not duly incorporated, and preliminary steps were taken, which resulted after it was duly incorporated in the issue to it, and the vesting in it of the letters patent of the plaintiff’s .invention, the defendant, after acceptance and enjoyment and part .payment at the rate claimed by plaintiff, .and .without notice to plaintiff of any defect in its corporate existence, at .a period previous thereto, is estopped from avoiding the obligation to pay the plaintiff.

The questions are .very much narrowed by the pleadings, though a wide field was presented on the argument.

The instruments under which the defendant has the use of the plaintiff’s invention, .and upon which the plaintiff claims, are under seal, and there appears to be no ground afforded in the case, for sustaining the defendant’s plea of the statute of limitations.

The evidence shows that one pair of double-acting hinges is composed substantially of two pairs of single-acting hinges, and sustains the findings that each of the double-acting hinges comprise two pairs of ■single hinges.

There is nothing presented in the -case and exceptions that leads me to the conclusion that there should be a reversal of the judgment.

The judgment and order appealed from should be affirmed, with costs.

-Freedman, J., concurred.


author: By the Couet.—Curtis, Oh. J.

text:
    CHARLES N. DURANT, Plaintiff, v. WILLIAM P. ABENDROTH, Impleaded, &c., Defendant.
    I. Bankruptcy proceedings.
    1. Res adjudícala, as to special partnership.
    (<$) Van Dolsen v. Abendroth, 43 N. T. Superior Ot. 470, followed.
    II. Dismissal oe complaint.
    1. Moving for, on several grounds, one tenable, others not.(<t) Effect of.
    1. The fact that untenable grounds’ are also assigned, will not cure an erroneous ruling on an assigned tenable ground.
    1. This, although hut a single exception is talcen to the denial of the motion.

      2. No cause of action proven.

      (d) What mat be urged in support of this ground.
    1. A defense established by conceded or undisputed facts, which shows that the claimed cause of action never existed. 1. E. G.: Res adjudícala against plaintiff on his claimed came of action.

    HI. Direction of verdict fob plaintiff on the court’s own
    MOTION.
    1. Exception to, want of.

      {a) Effect on denial of motion to dismiss complaint.
    1. Does not- affect defendant’s right to a new trial, if Ms motion to dismiss was well founded.
    1. Exceptions oi'dered to he heard at general term. This, although the case comes before the general term upon ■exceptions so ordered to be heard on the court’s own motion.
    TV. Trial.—Conduct of.
    See dismissal of complaint and direction of verdict, supra.

    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided March 3, 1879.
    This is a motion by defendant, Abendroth, for a new trial, upon exceptions taken at a jury trial, a verdict having been rendered in favor of plaintiff, by the direction of the court. The judge ordered the exceptions to be heard in the first instance at the general term, and the judgment in the meantime suspended.
    The plaintiff sued the defendants as copartners in the firm of Griffith & Wundram. The cause of action is a balance unpaid of an account stated. That the account was stated, and the balance sued on found to be due, is admitted by the answer of the defendant, Abendroth, he being the only defendant who answered.
    The answer set up that defendant Abendroth was not a general partner, but a special partner only, of the other defendants; that on November 23, 1872, the firm of Griffith & Wundram, and they individually, were duly adjudicated bankrupts; that plaintiff’s claim was duly proved ; that appellant was made assignee; that thereafter the firm was adjudged to be a spécial partnership ; that the assignee paid on said claim a dividend ; and that such adjudication had been in force more than one year before the commencement of this action, and now remains in full force and effect.
    Upon the trial, the following proof was given in respect to the bankruptcy defense.
    The petition in bankruptcy of George W. Wundram on his own behalf, and against his partner, John Griffith, dated November 23, 1872, and the schedules annexed.
    The adjudication in bankruptcy, dated November - 30, 1872, wherein it was “ adjudged that John Griffith and George W. Wundram, and .the copartnership of Griffith & Wundram, became bankrupt before the filing of the petition, and they are therefore declared and adjudged bankrupts accordingly.”
    The assignment of all the assets, real and personal, of the firm and the individuals.
    The notice to the creditors of the meeting to prove their debts and choose an assignee, with, an order of publication and due proof thereof. Proof of debt upon this claim showing that the said Griffith & Wundram, and the persons by and against whom a petition for adjudication of bankruptcy had been filed, at and before the filing of the said petition, were indebted in the sum claimed. That Joseph McDonald & Co., creditors of Griffith & Wundram, presented a petition to have certain claims against said firm that had been assigned to defendan t reheard and disallowed, dated August 6,1873.
    That on this petition Judge Blatoheord ordered a rehearing on notice to all the creditors. On the same day the order was issued.
    The report and opinion of the register, in which he determines as follows : “It appears from the evidence taken at this second general meeting of the creditors of the bankrupts, that John Griffith and George W. Wundram, the partners in this bankruptcy, were the general partners of the limited partnership of Griffith & Wundram, of which William P. Abendroth, the assignee in bankruptcy, was the special partner.” The register, therefore, concludes: “ the said William P. Abendroth is entitled to reserve and retain the dividend on those claims to his own use.”
    Upon this report Judge Blatoheord made this indorsement : “I concur in the conclusions of the register as to the claims above mentioned. October 13, 1875. Samuel Blatoheord, district judge.” He also made an order for payment.
    The election- of, and order appointing defendant assignee of said Griffith & Wundram was also shown.
    The report of the register shows: “ Colwell Brothers ” (the owners of said claim) “signed the paper at the first meeting of the' creditors of the bankrupts, choosing Abendroth to be the assignee in bankruptcy of the estate and effects of the bankrupts’ the election of Abendroth was unanimous.”
    It was admitted that Mr. Abendroth, as such assignee, paid to said Colwell & Brothers, a dividend of six per cent, out of the assets of the assigned estate. The complaint alleges that this payment was made on ¡November 17, 1875, and the answer admits it, so that this payment was subsequent to the adjudication.
    The court directed a verdict for plaintiff, exceptions to be heard in the first instance at the general term.

      Norwood & CoggesTiall, attorneys, and Carlisle Norwood, Jr., of counsel, for plaintiff, on the questions considered in the opinion, urged:
    I. The defendant’s counsel moved for the dismissal on three distinct grounds, and took but a single exception to the denial of the motion. It follows that if the refusal of the court to dismiss can be sustained as to any one of the grounds of the motion, then a single exception to the three grounds stated was not well taken, and presents no question for review (Coghlan v. Dinsmore, 1 Abb. Ct. of App. 375 ; Day v. Roth, 18 N. Y. 448 ; Haggart v. Morgan, 5 Id. 422; Buch v. Remsen, 34 Id. 383). The motion to dismiss on the ground that plaintiff had not proved facts sufficient to constitute a cause of action against the defendant Abendroth was properly denied. The answer had admitted the liability of the copartnership of Griffith & Wundram, the defendant Abendroth simply contending that he was not a member of that firm. The proof was that he was a member of that firm, the same facts having been established as were shown when this court before held him liable in the case of Durant v. Abendroth {ante).

    II. If the defendant wished to have the right to review the ruling directing a verdict against him, he should not have applied to have the exceptions heard, in the first instance, at the general term, but should have allowed a judgment to be entered, and then could have appealed therefrom, or he might have made a motion for a new trial at the circuit or special term. But he has chosen to rely on his exceptions (Price v. Keyes, 1 Hun, 180, 182; Hoxie v. Green, 37 How. Pr. 97). (a) The Code distinctly points out that the exceptions only are to • be heard, and numerous decisions have settled the practice. These decisions hold there are but three methods provided for reviewing exceptions. The review may be had by an appeal from the judgment ; by a motion for a new trial upon the exceptions at the general term, under such an order as was made in this case ; and by a motion for a new trial at the circuit or special term (Price v. Keyes, 1 Hun, 177; Sheaf v. Utica & B. R. R. R. Co., 2 N. Y. Supreme Ct. [Thomp. & Cook], 388 ; Emmons v. Wheeler, 3 Hun, 545 ; McMicken v. Lawrence, 7 J. & S. 540). (5) A direction of a verdict against a defendant having made a defense, is a ruling by the court that the testimony or evidence produced by such party is insufficient to establish his defense. By such a ruling the effect of the defendant’s evidence is passed upon, and in order to review such a ruling, there must be an exception by pefendant (Requa v. Holmes, 16 N. Y. 201). Such a ruling is in fact the charge to the jury, and though consisting of but a single proposition, an exception must be taken in order to review it (Requa v. Holmes, supra), (c) Error cannot be assigned upon any ruling of the court in the progress of a trial, unless by the bill of exceptions it appears that an exception was taken to such ruling (Granger Iron Co. v. Street, 19 Ohio, 300).
    III. As to the decision of this court at general term in Van Dolsen v. Abendroth: That decision has no application here. The following matters were admitted by the demurrer, and formed the basis of the general term decision, but such matters are not shown at all in this case. 1. That on or about November 23, 1872, voluntary and involuntary proceedings were duly instituted in the United States district court, wherein said firm were duly adjudged bankrupts. As has been pointed out, the defendant’s proof has not sustained this allegation which the demurrer admitted. 2. That such proceedings were had in the bankruptcy matter to which plaintiff and defendant were parties that it was duly adjudged and determined that John Griffith and George W. Wundram, the bankrupts in this bankruptcy, were the general partners in the limited partnership of Griffith & Wundram, of which William P. Abendroth was the special partner. As has been urged on this brief, the proof does not show such an adjudication. And the attention of the court is especially directed to the fact that what the respondent relies on as a judgment is only an opinion of a register in bankruptcy. A register in bankruptcy has no authority to adjudicate such a question.

      Arnoux, Hitch & Woodford, attorneys, and Wm. Henry Arnoux, of counsel, for defendant.
   By the Couet.—Curtis, Oh. J.

The principal question presented is very much the same as that passed upon by the general term in Van Dolsen v. Abendroth, 43 N. Y. Superior Ct. 470.

In this latter case, the plaintiff Van Dolsen was a party to the proceedings in bankruptcy, where it was competent to have Abendroth adjudged a general partner, if he had elected to interpose such a claim and establish it; but he did not, and participated in the dividend under the adjudication in bankruptcy, in which Abendroth was held a special jjartner. The court considered that it would be inconsistent with well-settled rules, that this matter, which was, or could have been determined in the proceedings in the United States district court, should be allowed to be litigated here, and overruled the demurrer to the defendant’s answer.

The answer in the present case is similar, but the question comes before the court after a trial, upon exceptions.

The evidence shows, that the plaintiff’s assignors, Colwell & Brother, were parties to the proceedings in bankruptcy, and received a dividend under the adjudication. They had their opportunity to show that the defendant Abendroth was liable as a general partner. They knew of the advertisement of the limited partnership. If they wished to contest its legality, they had their recourse to the records in the county clerk’s office, and to the bankrupts, and to their books and papers in the hands of the assignee, the defendant, and ah opportunity in the federal court of being heard, and of having an adverse decision reviewed. It was in evidence that at the second general meeting of the creditors, the register held, that it appeared by the evidence that Griffith & Wundram, the bankrupts, were the general partners of the limited partnership of “ Griffith & Wundram, ’ ’ and that the defendant Abendroth was its special partner, and it was also shown, that the report and certificate of the register were approved by the United States district judge. The decretal order of the judge recites that due notice had been given of such second general meeting to all the creditors of the bankrupts, as appeared by the proof thereof, duly filed. In all these bankruptcy proceedings the plaintiff’s assignors were actors, and participated in the results. If these bankruptcy proceedings were irregular, or the decision erroneous, they had then and there an ample opportunity for a rehearing, or a review. But having proceeded thereunder without raising this question, which they could have done, and having gathered all the fruits of that adjudication, they are debarred from raising it here.

There is nothing that appears at the trial of the present case in regard to this question to take it out of the scope of the decision in the corresponding case of Van Dolsen v. Abendroth, above referred to.

At the close of the plaintiff’s case, the defendant moved to dismiss the complaint, which the court denied lor the present. At the close of the testimony, the defendant moved to dismiss the complaint. That motion was denied and the defendant excepted.

This motion was substantially a motion to dismiss the complaint, for the reason that the evidence failed to establish a cause of action against the defendant, Abendroth. If the court ought to have granted this motion, to dismiss the complaint, the fact that other reasons or grounds which may not have been tenable were also mentioned, does not sustain an erroneous ruling denying it. Amotion to dismiss, on the ground that no cause of action is proved against the defendant, may present a question vital to the litigation. The law does not contemplate, that where no cause of action is proved, the court should by any informality in the form of the motion to dismiss the complaint, be placed under the necessity of finding that there is one proved, and what it is, and of directing a verdict accordingly.

The court directed a verdict for the plaintiff for $7,051.24, and ordered the exceptions to be heard in the first instance at the general term, but the case does not show that these directions were made upon the motion of either party, or that any exception was taken to the direction for a verdict. This subsequent disposition of the case did not affect the accrued right of the defendant, if there was no cause of action proved against him, and he had moved for a dismissal of the complaint and excepted to the denial of his motion. -

Defendant’s exception should be sustained, and the verdict set aside, and there should be a new trial, with costs to appellant to abide the event.

Sedgwick and Freedman, JJ., concurred.


author: By the Court.—Curtis, Ch. J.

text:
    CHARLES FAULKNER, and others, Plaintiffs, v. WILLIAM T. HART, and others, Defendants.
    I. Respondeat supebiob.
    1. EXCEPTION FROM THE RULE, OF AN EMPLOYER OOCUPYINGr A REPRESENTATIVE OR OFFICIAL CHARACTER; WHO DO NOT FALL WITHIN.

      (a) Trustees for holders of railroad mortgage bonds, in possession of and operating the railroad, ¿to not fall within.

    II. Common cabbiebs.
    1. Railroads.

      (a) Liability as common carriers after transportation to place of destination—when does it cease ?

    1. Question is to be detebmined by the law of the
    PLACE OF DELIYEBY.
    1. In a case where the shipper must be-deemed to know the usage of the carrier in delivering freight at the place of destination, and the law of that place in respect to it, and the inference from the evidence is in conformity with the view that the original contract called for, and the shipper contemplated a delivery in accordance with the usage and law prevailing at that place, the facts are not of a character to appeal very strongly to the courts of this State to give the parties a remedy in conflict with the law of that place, as defined by its courts.
    III. Massachusetts.
    1. COMMON CARRIERS; LIABILITY OF AS, WHEN THE LAW OF MASSACHUSETTS GOVERNS.

      (a) By the usage of railroad companies no freight was delivered between 5% p. m., on Saturday night until the next Monday morning. All freight remaining undelivered at p- M- Saturday was stored in the company’s freight warehouse, ready for delivery when called for on the following Monday.
    Held, undeb the law of Massachusetts, that although the train containing the goods had arrived on Saturday at %% p- M-, and the consignee was in attendance to receive them, yet as it did not arrive in time for the delivery of the goods to the consignee before 5% f. m. of that day, the company’s liability as common carrier ceased upon a discharge of the goods from the cars to the company’s freight warehouse.
    IV. Performance.
    1. LAW OF PLACE OF.
    (a) Governing matters connected with the performance of a contract made elsewhere.

      See Carrier, supra.

    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided March 3, 1879.
    This' case comes before the court in a controversy submitted under section 1279 of the Code. The facts appear in the opinion.

      McDaniel,- Lummis & Souther, attorneys, and Everett P. Wheeler, of counsel, for plaintiffs, argued:
    I. There can be no question that the weight of authority, both in this country and in Europe, is that the words “ to deliver goods to a consignee,” in an agreement for the carriage of goods, do not mean to deposit them in a warehouse, wharf or station, without giving the consignee notice of their arrival and reasonable opportunity to take them away. Originally, common carriers undertook to deliver goods to the consignee at his warehouse or place of business. When steamships acquired the greater part of the carrying trade by sea, and railroads the greater part of it by land, it was found that to do this was inconsistent with the convenience of business, and the rule was so far modified as to allow a deposit, of the goods in a suitable wharf or warehouse, with notice to the consignee, and a reasonable opportunity given.to him to take them away, to take the place of a delivery to him personally (McAndrew v. Whitlock, 52 N. Y. 40; Ostrander v. Brown, 15 Johns. 39, Platt, J. ; 2 Kent's Com. 605 ; Richardson v. Goddard, 23
      How. U. S. 38 ; Gatliff v. Bourne, 4 Bing. N. C. 314 ; 3 Mann. & Gr. 337; 11 Clarke & Fin. 45). To the same effect are Price v. Powell, 3 Comst. 322; Zinn v. N. J. Steamboat Co., 49 N. Y. 442 ; Sherman v. Hudson R. R. R., 64 Id. 254; The Sultana v. Chapman, 5 Wis. 454; Slade v. Payne, 14 La. Ann. 453; Dean v. Vac. caro, 2 Head, 489 ; The Peytona, 2 Curtis C. Ct. 21; Graves v. Hartford & N. Y. Co., 38 Conn. 143 ; Chicago & Rock Island R. R. v. Warren, 16 Ill. 502; Moses v. Boston & Maine R. R., 32 N. H. 523; The Tangier, 1 Clifford, 396; Redfield on Carriers, §§ 110, 111; Story on Bailments, § 545.
    II. It is contended by the defendants that the two Massachusetts decisions mentioned in the agreed statement establish that, there is a local law in Massachusetts which differs from that of the rest of the world, and that the contract in question is to be construed with reference to this local law. It is believed that neither of these positions is tenable. The Massachusetts cases do not purport to hold that there is any such local law. They are decisions in reference to a principle of general commercial law, and do not purport to be, and are not, in fact, based upon any local statute, usage or custom. Therefore, although due weight will undoubtedly be given to these decisions, they are not binding upon other courts (Swift v. Tyson, 16 Pet. 1; Meade v. Beale, Taney, 339 ; Austin v. Miller, 5 McLean, 189 ; The George, Olcott, 89 ; Pine Grove v. Talcott, 19 Wall. 666 ; Robinson v. Commercial Ins. Co., 3 Sumner, 220; Richardson v. Goddard, and The Tangier, supra). In like manner, the supreme court of Hew Hampshire, in an action for the nondelivery of goods, agreed to be transported to Boston, which were burned before delivery to the consignee, refuse to follow the Massachusetts cases (Moses v. Boston & Maine R. R., 32 N. H. 523). The language of Blackstone in his Commentaries, vol. 1, p. 273, and vol.
      4, p, 67, is in point. Undoubtedly the books of reports of cases are presumptive evidence of the law. But as Benedict; in his work on Admiralty, section 313, b, well says : “They are, however, evidence which may be rebutted, and when successfully rebutted their evidence cannot prevail. No number of erroneous decisions can furnish sufficient reason for deciding contrary to law. When a decision has been followed, without hesitation or consideration, by many others, it is but one decision, of which the others are but echoes. The question always remains, what is the law, and decisions are to be weighed, not counted.” So also, 1 Kent Com. 477: “It is probable that the records of many courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.”
    III. The Massachusetts cases referred to in the agreed case are not sufficient for the defendants’ purpose, even if they constituted a rule of decision for this court. It is agreed in the statement, that the Norwich and New York Transportation Company, at New York receipted for the cases in good order, to be transported to Boston and delivered to the plaintiffs’ Arm in Boston. In the cases of Bice v. Hart, and of the Norway Plains Company v. Boston and Maine Bail-road, it did. not appear that there was an express agreement to deliver to the consignee. C. J. Shaw limits the latter decision to a case where there is no special agreement to deliver to the consignee. The case of Stevens v. Boston & Maine Railroad (1 Gray, 277), shows that where there is an actual refusal by the common carrier to deliver, the doctrine in the Norway Plains case is not applied, even by the local courts of that State. It may be claimed that the case of Rice v. Hart, mentioned in the agreed statement, overrules this last mentioned decision. But as the contract in suit was made before the decision in Richardson v. Hart, this court will not give to that a retroactive effect so as to change the character of a previous contract (Harris v. Jex, 55 N. Y. 421, and cases cited).
    IV. The position taken by the defendants involves another fallacy, to wit: That when a contract is made in one State to be performed partly in that State and partly in other States, the construction of the language used in the contract is always to be determined by the law of the State where the performance is to terminate. It is, however, submitted that the decision in the case of a contract made in one State to be performed in another depends upon the question, was the contract made in reference to the laws of the place of performance ? (Donnelly v. Corbett, 3 Seld. 500 ; Baldwin v. Hale, 1 Wall. 223; Dyke v. Erie Railway Co., 45 N. Y. 113.) How it is not to be supposed that parties contracting in one State know or contract with reference to peculiar and unique decisions of another State as to what the law merchant is. As already shown, that is presumed to be the same everywhere. A contract made in Hew York, which uses the words “to deliver to Faulkner, Page & Co.” is not to be construed as to the meaning of the word “deliver,” with reference to certain decisions of the local Massachusetts courts. It would seem almost too clear for argument, that when two men in the State of Hew York use the word “ deliver,” they use it in the sense in which people in that State commonly understand it, and not in the sense in which people in Boston may understand it. The very decisions cited for the defendants admit this. They maintain that in the absence of such a contract the carrier is not bound to deliver to the consignee, but performs his whole duty as carrier by delivering his goods, not to the consignee, but to him-

      self as warehouseman. But they never held that if he does contract to deliver to the consignee, he is not bound by his contract. The legislature of the State of Massachusetts has no' power to make a law impairing the obligation of a contract to deliver to the consignee; much less can their local courts impair the obligation of such a contract, and say that it does not mean what it says, but that it means something else quite different (Gelpcke v. Dubuque, 1 Wall. 175, 206 ; Olcott v. Fond du Lac, 16 Id. 678). The presumption is, in the absence of evidence to the contrary, that the words in the contract were used by the parties in their ordinary meaning, and not in a special, local and technical sense. Indeed, it is held by the courts of this State that even a local usage to the contrary will not avail in an action against a carrier on an agreement to deliver to the consignee (Ostrander v. Brown, 15 Johns. 39). And the authorities are uniform that a local usage of any sort is not valid in opposition to the express language of a contract between parties, and that if the language of the contract is explicit, it cannot be varied or contradicted by parol evidence, or a meaning given to the contract different from that called for by its terms (Collender v. Dinsmore, 55 N. Y. 200; 1 Greenl. Evid. § 295 ; Broom Legal Maxims, 477).
    Y. The regulation of the defendants, closing their freight station at half-past five on Saturday, was unreasonable. If they would terminate their liability as common carriers, they certainly should afford to a consignee present to receive the goods an opportunity to take them away; especially on Saturday. The validity of this regulation does not appear to have been considered by the Massachusetts court. But it is only reasonable by-laws and regulations that are valid (Elwood v. Bullock, 6 Ad. & Ell. N. S. 383; Barney v. Steamboat Co., 67 N. Y. 301; Hibbard v. New York Central R. R., 16 Id. 455).

      Weeks & Forster, attorneys, and George II. Forster with G. W. Baldwin, of counsel, for defendants, on the questions considered by the court, argued :—I.
    As trustees for the bondholders of the insolvent Boston, Hartford and Erie Railroad Company, no negligence can be imputed to defendants. They are running and operating the road as such trustees. They have not assumed to act other than as such trustees, and have not held themselves out as carriers of freight other than as such trustees. No personal neglect is imputed to them, either in the selection of agents or in the performance of any duty. They are, therefore, not liable to this claim of the plaintiffs. The doctrine of respondeat superior does not apply to cases where the employer occupies a representative or official character, and has not individual or personal interest in the property or business in which the subordinate is employed (Cardot v. Barney, 63 N. Y. 281; Lane v. Cotton, 1 Ld. Mansf. 646 ; S. C., 1 Salk. 17; Whitfield v. Lord Ledespencer, Cowp. 754; Hall v. Smith, 2 Bing. 156 ; Duncan v. Findalter, 6 Cl. & Fin. 894). The principle was recognized in Bush v. Steinman (1 B. & P. 404), and the defendant held liable for the reason that the work was carried on for his. benefit.
    II. By the law of Massachusetts proprietors of a railroad, who transport goods over their road for hire, and deposit them in their warehouse without additional charge, until the owner or consignee has a reasonable time to take them away, are not liable as common carriers for the loss of the goods by fire, without negligence or default on their part, after the goods are unladen from the cars, and placed in the warehouse, but are liable as warehousemen only for want of ordinary care, although the owner or consignee has no opportunity to take the goods away before the fire. The proprietors of a railroad are not obliged to give notice to the consignee of the arrival of goods transported by them, in order to exonerate themselves from their liability as common carriers. By the law of the place of delivery, therefore, the liability of the defendants, if common carriers, became merely that of ware-housemen, as soon as the goods had been deposited in the freight depot, and delivery from themselves as "common carriers to themselves as keepers for hire, discharged their responsibility as common carriers (Norway Plains Company v. Boston & Maine R. R., 1 Gray, 263; Rice v. Hart, 118 Mass. 201). The rule thus established, after argument by eminent counsel and upon much consideration, and supported by great force of reasoning, has ever since been considered settled law in that commonwealth (Sessions v. Western R. R., 16 Gray, 132 ; Rice v. Boston & Worcester R. R., 98 Mass. 312 ; Miller v. Mansfield, 112 Id. 260 ; Stowe v. New York, Boston & Providence R. R., 113 Id. 521). And it has been recognized in the ablest decisions, which have taken a different view of the subject, as a rule of a definite and practicable character and of easy application (Moses v. Boston & Maine R. R., 32 N. H. 523, 543 ; Graves v. Hartford & New York Steamboat Co., 38 Conn. 143, 151). This case does not require us to consider whether the rule should extend to a case in which the goods have not arrived at their final destination, but are held by one railroad corporation in a warehouse at the end of its own line, with the duty of forwarding them by another carrier to their ultimate destination, as to which the judg-' ments of the supreme court of the United States in Railroad Co. v. Manufacturing Co. (16 Wall. 318), and of the court of appeals of New York, in McDonald v. Western Railroad (34 N. Y. 497), seem to be in conflict with the opinions expressed in Denny v. New York Central Railroad (13 Gray, 481, 487), and Judson v. Western Railroad (4 Allen, 520, 523). The other cases cited for the plaintiffs, in the supreme court of the United States, the house of lords, the court of appeals of New York, and this court, were cases of common carriers by sea, who have not the same means of warehousing goods at their destination, and are not therefore within the rule which governs railroad corporations (see also Fenner v. Buffalo & State Line R. R. Co., 44 N. Y. 505, 511; Henshaw v. Rowland, 54 Id, 242 ; Pelton v. Rensselaer & Saratoga R. R. Co., 54 Id. 214).
    III. Inasmuch as delivery of the goods was to be made in Boston, where the loss occurred, the law of Massachusetts should control the rights of the parties with respect to such delivery. This rule has been applied in several carefully considered cases where the facts are analogous to the facts here (Barber v. Wheeler, 6 Am. R. 434; Grey v. Jackson, 12 Id. 1 ; Knowlton v. Erie R. R., 19 Ohio St. 260 ; S. C., 2 Am. R. 395 ; M. & St. P. R. R. v. Smith [Ills. S. C., 1875], 7 Chic. Leg. News, 174).
    IV. There is no hardship in applying this doctrine to the case.under consideration. The plaintiffs were both consignors and consignees ; as consignees, doing business in Boston, they must be presumed to know the laws of the State, of which three of them were, and for upwards of ten years had been residents and citizens, and that the goods were at their risk when discharged from the cars upon the freight platform. As this risk was an insurable one they might, if they had chosen, have obtained complete protection. Suppose, on the other hand, the defendants had obtained insurance on these goods against their liabilities as carriers, they could have recovered nothing from the underwriters, because the goods were destroyed after their liability as carriers had ceased (Norway Plains Co. v. B. M. R. R., 1 Gray, 263; Rice v. Hart, 118 Mass. 201). If the plaintiffs desired that the goods in question should be disposed of or delivered, upon their arrival in Boston, in a manner unusual to the course of business there, they should have given special directions to that end (Van Santvoord v. St. John, 6 Hill, 160 ; Rawson v. Holland, 59 N. Y. 618).
    V. The duty imposed on' the defendants, if common carriers, was to carry and deliver. What other construction can be put upon a contract to deliver than to deliver in accordance with the laws and usage of the place of delivery ? It is well settled that a mere usage, which is matter of evidence, is, when proven, to control the question of delivery, because such usage takes the place of general law, and the presumption therefore arises that it is in view of parties who contract about its subject matter (Angell on Carriers, § 301; McMasters v. Penn. R. R., 69 Penn. St. 374). But in the case under consideration the usage and the general law, as expounded by the courts, are in accordance, and the goods were delivered in strict conformity therewith. The contention of the defendants is that they are not liable as common carriers, because their contract as carriers had been fully performed, and “matters connected with the performance are regulated by the law prevailing at the place of performance” (Scudder v. Union Bank, 1 Otto [91 U. S.] 413). Suppose there had been a positive statute of the State of Massachusetts, enacting that the liability of a carrier should cease when the goods had been discharged at the end of the route, into a suitable warehouse, or the charter of the company had contained a special provision to the same effect. The effect of such provision in the charter of a railroad company was considered in Railroad Co. v. Manufacturing Co. (16 Wall. 326); and although it was held that the exemption did not apply to the circumstances of that case, it appears to be conceded that the liability of the carrier would have been determined thereby, if the goods in question had reached their final destination (and see Mills v. Mich. Centr. R. R., 45 N. Y. 626). Suppose, on the other hand, there had been a positive statute of the State of New York, enacting that the liability of a carrier should, in ail cases, continue until the goods entrusted to him had been actually delivered to the consignee, such statute liability would be limited to defaults occurring within the State. Whitford v. Panama R. R. (23 N. Y. 465), where it was held that a statute giving an action for damages resulting from negligence did not apply where the injury was committed in a foreign country, even though the negligence was that of a corporation chartered by the State of New York, and which made the contract in such State for the conveyance of the injured party over its road. This is not a case where, in answer to a suit brought in one jurisdiction upon a liability which occurred in another, the defendant attempts to avail himself of the laws of the place where the liability occurred, which abridge or limit the remedy therefor. There is no question of the extent of remedy here. It is the liability which is denied. The case, therefore, is taken out of the range of the numerous decisions, which hold that as to the remedies for contracts broken the lex fori is to govern, and that statutes of other States, which limit the remedies, either in time or amount, have no application.
    VI. The plaintiffs cannot claim here that the defendants were carriers between New York and Boston. It is not true in point of fact. Their obligations as carriers began when they received the goods from the Norwich & Worcester Railroad Company. But suppose the plaintiffs’ claim to be true. The case would then fall within the rule, which is very succinctly stated, with its limitations, in Dyke v. Erie Railway Co. (45 N. Y. 113), that “the lex loci contractus determines the nature, validity, obligation and legal effect of the contract, and gives the rule of construction and interpretation, unless it appears to have been made with reference to the laws and usages of some other State or government, as when it is to be performed in another place, and then, in conformity to the' presumed intentions of the parties, the law of the place of performance furnishes the rule of interpretation.” Still more in point is Story on Contracts, section 655, where it is said that “if a contract is to be performed partly in one country and partly in another country it has a double operation, and each portion is to be interpreted according to the laws of the country where- it is to be performed ” (see also 1 Chitty on Cont. [11 ed. 130] ; Scudder v. Union Nat. Bank, 1 Otto, 413; M. & St. P. R. R. v. Smith [Ill. S. C., 1875], 7 Chic. Leg. News, 174; Pomeroy v. Ainsworth, 22 Barb. 118; Andrews v. Pond; 13 Pet. 78; Kessler v. N. Y. C. & H. R. R. Co., 61 N. Y. 538 ; Pope v. Nickerson, 3 Story, 474, 485 ; Addison Cont. § 240).
    VII. The general obligation created by the law of the place of delivery, in respect to the mode of delivery by a carrier controls. The plaintiffs were bound to know such law and bound by it, and the defendants are entitled to its protection. It was clearly recognized in 0Ranson v. Holland (59 N. Y. 613), that such a law would protect the carrier, and that when by the law of the place of delivery the carrier had the right to store the goods, then the nature of the bailment changes, and he is relieved from the stringent responsibility originally assumed, and the liability of a warehouseman is substituted (Rawson v. Holland, 59 N. Y. 615, 6, cites Van Santvoord v. St. John, 6 Hill, 157; Goold v. Chapin, 20 N. Y. 259; McDonald v. Western R. R. Co., 34 Id. 497; Root v. Great Western R. R. Co., 45 Id. 524; Mills v. Michigan Central R. R. Co., Id. 622 ; Nutting v. Connecticut River R. R. Co., 1 Gray, 502 ; see also, Pelton v. Rensselaer & Saratoga R. R. Co., 54 N. Y. 214). The inference from the opinion of the court in Shelton v. Merchants Dispatch Trans. Co. (59 N. Y. 264), is that if the law of Illinois, the place of the fire, had been proved in that case, it would have controlled. Here the law of Massachusetts appears from the case, and should control.
   By the Court.—Curtis, Ch. J.

This controversy is presented in a case agreed upon by the parties and submitted without action.

The plaintiffs claim that the defendants are liable as common carriers, for a failure to deliver to them ten cases of merchandise, Sent by the plaintiffs’ firm in New York to the plaintiffs’ firm in Boston. This merchandise arrived in Boston on Saturday, at 3M p. m. but not in time to be delivered to the plaintiffs’ messenger before half-past five o’clock on Saturday afternoon, at which hour the yard and freight-station of the defendants’ road, as well as those of all other railroads in Boston, are closed for the delivery of freight until the ensuing Monday. The merchandise in question was discharged from the cars into the defendants’ warehouse on Saturday afternoon, too late for delivery that day, and the same night they were destroyed by fire, without fault or neglect on the defendants’ part.

The facts presented in the case disclose no reason for exonerating the defendants from liability as common carriers, on the ground that they were trustees or public officers of an insolvent corporation, and as such acting in a different capacity than that of carriers of freight. They were in possession and operating a railroad, from Putnam, in Connecticut, to Boston, as trustees for the holders of the mortgage bonds of The Boston, Hartford and Erie Railroad Company, the terminal road over which this merchandise was forwarded. They received the goods to transport to Boston from Putnam as carriers of freight.

The cases of Norway Plains Company v. Boston and Maine Railroad Co. (1 Gray, 263), and Rice v. Hart (118 Mass. 201), referred to in the stipulation as evidence of the law of Massachusetts, indicate a careful-consideration of the nature of the liability which attaches upon a state of facts such as is submitted to us in the agreed statement. •

The last case above mentioned was similar to the present, arising upon a like state of facts, and the action was there brought to recover against these same defendants, for a loss of goods arriving at the same time and transferred to the defendants’ freight-house that afternoon" and destroyed by the same fire. '

In that case, as in this, the agent of the consignee was at the station after the arrival of the goods, prepared to receive them. In that case it was held that the liability of the railroad corporation as a carrier ended before the loss of the goods. The decisions referred to in the stipulation as evidence of the law of Massachusetts hold that the railroad company, upon the state of facts presented here, are responsible as common carriers, until the goods are removed from the cars and placed on the platform; that if, on account of their arrival at night, or at any other time, when by the .usage and course of business the doors of the merchandise depot or warehouse are closed, or for any other cause they cannot be delivered, or if for any reason the consignee is not there to receive them, it becomes the duty of the company to store them safely, ready to be delivered, and to deliver them, when called for by the parties entitled to receive them; and that for the performance of these duties after the delivery of the goods from the cars, the company is liable as a warehouseman for hire.. The company is thus held, after it has completed its transportation, to become a warehouseman, as a matter of law, and to have ceased to be a common carrier. This appearing to be the law in Massachusetts and recognized as such by its courts would be a bar to the plaintiffs’ recovery if the question was before one of the tribunals of that State.

It is therefore for us to consider, to what extent, if any, the plaintiffs’ remedy is affected by presenting his claim in a court of this State. Hone of the parties are residents here ; the defendants and all of the plaintiffs but one, reside in Boston, and have for many years. The plaintiffs carry on business there, and it is but fair to presume that they knew the practice of the railway companies there, in respect to closing their deliveries of freight from the platform, from half-past five o’clock on Saturday evening, until the following Monday morning, and storing it in the interval in their warehouses, and they must also be presumed to know the law of their residence in regard to such action. The plaintiffs’ contract was not made with these defendants, but with the Horwich and Hew York Transportation Company, in connection with which and another company, the defendants participated in forming a connected line of transportation from Hew York to Boston. The plaintiffs could have selected a different time for the shipping and arrival of their goods, if they had seen fit, or they could have protected themselves by contract with the carrier, or by insurance against loss while in the freight-house. Ho objection is shown to have been made by them, to the placing of their goods in defendants’ warehouse.

Under these circumstances the question arises, whether the remedy of the plaintiffs is not governed by the law of Massachusetts, the place where the contract was to be ultimately performed. The facts above referred to are not of a character to appeal very strongly to the interposition of a court in this State, to give the parties a remedy in conflict with the law of Massachusetts as defined by its courts. In this case, it must be deemed, that the plaintiff knew both the usage of the railway companies delivering freight in Boston, and the law of Massachusetts in respéct to it, and while every feature of the case, and every fairly derived inference from it, is in conformity with the view that the original contract called for, and that- the plaintiffs therein contemplated a delivery to their Boston firm, in accordance with the usage and l'aw there prevailing, there is nothing that shows or expresses that the delivery was to be otherwise.

It is almost a mátter of necessity, that the law at the place of the final performance of the carrier’s contract should govern in regard to the delivery of goods. In the great commercial centers, where railway freights are delivered from the various States and provinces, it is obvious that there must be some uniform rule at the place of delivery governing such deliveries. To be guided by' the various laws of the localities from whence the goods are sent, would be attended with great inconveniences, even if it was possible. The doctrine of the federal courts indicates that matters connected with the performance of a contract are to be regulated by the law prevailing at the place of performance (Scudder v. Union Nat. Bank, 1 Otto [91 U. S.] 406).

In this State the same principle is sustained, in Whitford v. Panama Railroad Company (23 N. Y. 474, 472), where, in affirming a decision of this court, the question is carefully considered.

The defendants should have judgment in their favor under the submission.

Sedgwick and Freedman, JJ., concurred.


text:
    DUNCAN McCOLL, Plaintiff, v. THE WESTERN UNION TELEGRAPH COMPANY, Defendant.
    I. Damages—measure of, for breach of contract.
    1. CONTEMPLATION OF PARTIES TO CONTRACT—RULE AS TO.

      (a) Such damages only are recoverable as the parties- either actually contemplated, or may be fairly supposed to have contemplated, as flowing from the breach.
    1. Remoteness as Affecting supposed Contemplation. (a) Where the damage claimed is a loss of that which might have been obtained, depending on the contingency of a certain expected action of a third party in the event of the contract being carried out, it 3s too remote to be regarded as within the contemplation of the party breaking the contract.
    II. Application of rule.—Telegraphic Despatch.
    Despatch as follows: “ Gan close Valley ría and Othere, 22, 20 net, Montreal. Am. immediately.”

    HELD,
    that commissions which the sender would have earned as a broker in effecting a charter of two vessels named Valkyria and Othere, if the message had been duly transmitted, were not damages either actually contemplated, or to be fairly supposed to have been contemplated by the defendant, and therefore not recoverable.
    HI. Telegraph Companies.
    1. Damages for non-delivery not contemplated, are not recoverable. See Supra.

    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided March 3, 1879.
    At the trial a verdict for $1,580.30 was directed for the plaintiff, and it was further directed that the exceptions taken by the defendant at the trial, be heard in the first instance at the general term.

      The action was brought to recover certain commissions, which the plaintiff claimed he would have earned, had the charters of vessels been concluded, which were lost from the defendant’s failure to deliver in due time a telegraphic message.
    In April, 1872, the plaintiff was a commission and shipping merchant, and broker, at the city of New York. James W. Carmichael & Co., correspondents of his at New Glasgow, Nova Scotia, had advised him that their two vessels, the YalTcyria and Othere, were seeking charters at Montreal to carry cargoes of lumber-thence to Montevideo or Buenos Ayres1. The plaintiff-communicated with his agents at Montreal, and on April 15, 1872, obtained from them offers for the charter of these vessels, which he thought James W. Carmichael & Co. would accept. On that day he dispatched a message to James W. Carmichael & Co., as .follows:
    “ Can close Yalkyria and Othere twenty-two, twenty net Montreal. Ans. immediately.” At the same time , the plaintiff paid defendant the cost of transmission, $2.05.
    The telegram was sent to Boston, on its way to New Glasgow, but was not sent forward beyond Boston. The plaintiff did not hear anything of it until April 25, 1872, when letters referring to it had been sent by the plaintiff to James W. Carmichael & Co., and their replies received by him. The telegram was not delivered at New Glasgow until the last-mentioned day. It was then of no use. One of the ships had been meanwhile chartered, and the charters which it referred to could no longer be obtained, and could not have been obtained after April 19, a date about half-way between the time of dispatching the message and the time of its delivery. Had the telegram gone forward in usual and ordinary course, the charters would have been accepted and concluded, and thereupon the plaintiff would have earned, as his commissions for negotiating the same, the sum for which, with, interest, the verdict hereinafter mentioned was directed.

      Thomas D. Hall, attorney, and of counsel for plaintiff, on the questions considered by the court, argued :—
    I. The plaintiff was entitled to recover the damages he had incurred by the failure of the company to forward and deliver his message. These damages, “flowing naturally and directly from the breach of the contract,” were the commissions he would have earned had the message gone forward; and which he lost because it was not sent. The message was sufficiently explicit. To any ordinary intelligence, upon a casual reading, it would convey the idea that it referred to pending negotiations of vessels which could be closed, and the words “twenty-two, twenty net,” and “ answer immediately,” would denote that the subject matter, if not sufficiently disclosed, was important, and that the purpose of the message was urgent. Had the message been obscure, it was the defendant’s duty or business, by inquiry of the sender, to remove the obscurity and inform itself of its purport (Rittenhouse v. Independent Line of Telegraph, 44 N. Y. 263, 265). The rule of damages in cases like the present, is fully stated in the case in 41 N. Y. This rule has been followed in all subsequent cases ; and even in cases like that in 45 N. Y., where .the telegraph company had the benefit of its discriminations, the authority of the case itself has been confirmed and upheld. In summing up the elements or basis of damages in such cases, the court says: “A more precise statement of this rule is, that a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach, if, at the time they entered into it, they had bestowed proper attention to the subject, and had been fully informed of the facts” (Leonard v. New York Telegraph Co., 41 N. Y. 544, 566, 567; De Rutte v. New York Telegraph Co., 1 Daly, 547).

      Porter, Lowrey, /Sorere <6 Stone, attorneys, and George N. Soren, of counsel, for defendant, argued:—
    I. The verdict for plaintiff cannot be sustained, because the damages awarded to him were not within the contemplation of the defendant when it made the contract. The defendant was entitled to be tried on its contract, w’hich was simply a contract to telegraph and deliver the mere /text of the message. (1) The rule respecting contemplation of damages and the limits of recovery within the principle, is well presented in Griffin v. Colver, 16 N. Y. 491; Baldwin v. United States Telegraph Co., 45 N. Y. 744, and cases cited; Landsberger v. Telegraph Co., 32 Barb. 530; British Columbia S. M. Co. v. Nettleship, 3 L. Rep. (C. P.) 499; Horne v. Midland R. Co., 7 L. R. (C. P.) 590; 8 Id. 131; Cory v. Thames Iron Co., 3 L. R. (Q. B.) 190; Hobbs v. London R. Co., 10 Id. 111; 11 Eng. Rep. 181; Elbinger, &c. v. Armstrong, 10 Id. 127; Sumner v. Ford, 1 El. & El. 616; Simpson v. London and Northwestern R. R. Co., 16 Eng. Rep. 330. (2) The English cases above cited, hold strictly that contemplation means actual contemplation founded on knowledge; and they give no sanction to a doctrine of constructive contemplation, which is, of course, no contemplation at all. (3) These cases further hold, with respect to contemplation of damages, that even knowledge or notice, unless worked into his contract, will not suffice to charge a party (see Willes, J., in British Columbia, &c. v. Nettleship, L. R. C. P. 508, 509). (4) The principle of the rule cannot be better presented than in the decisions about messages in cipher (Candee v. Western Union Telegraph Co., 34 Wis. 471 [17 Am. Rep. 452]; Sanders v. Stuart, 17
      Eng. Rep. 268). The ground of decision in favor of the telegrapher in these cases is, that it is impossible that he should have had knowledge or contemplation of the transactions involved in such messages, or of the consequences or damages that would follow his default in regard to them. (5) The principle obviously holds good and governs when the message, though not in actual cipher, is yet so obscure as to convey no sense, or no definite or fair explanation of the matter involved (see the remark of Allen, J. in Baldwin’s case, 45 N. Y. p. 749, Allen's cases, p. 649, that such a message might as well be in cipher; opinion of Halt, F. J. [dissenting] in Bryant case, 1 Daly). (6) As there was nothing on the face of this message which disclosed the nature of the subject to which it referred, and especially nothing of the roundabout and remote grounds upon which the plaintiff founds his cause of action and deduces these damages, and no information about any of these things given to the defendant, there is no reason whatever which will uphold this recovery. The cases of Shields, Lane, Stevenson, Kinghorne, Landsberger, Baldwin, Oandee, Dorgan, Beaupré, Grildersleeve, Behm, Hord and Barnesville Bank are all adverse to the plaintiff. (7) In the cases collected at the end of the “Abstract of Oases,” where substantial damages have been allowed, it will be seen that in most of them—for example, in the cases of Parks, Hobson, Birney, Bryant, De Butte, Wenger and Leonard—the dispatches had upon their face disclosed the nature and extent of the business involved. (8) But for the very reason that that feature characterized those cases, and is entirely wanting in this, those decisions cannot avail the plaintiff here. (9) As to the cases of True, Graham, Squire and Strasbnrger, if the rule laid down in the largest number of cases is sound—and the difference in facts being taken into account, as just observed, the cases cited under 7 do not qualify their authority—then these cases last referred to deserve no respect. In those cases, as is said by the editor in 9 Am. Rep. 55, there could have been no more knowledge or contemplation of the nature or extent of the transaction than if the message had been written in cipher. (10) In the Sprague case, it must be assumed that the counsel fee was allowed, as being fairly within the scope of the information communicated to the company as to the pendency of the cause and the coming trial of it, and so naturally and directly incidental to those things. (11) The language employed in the case of Leonard v. Telegraph Co., 4 N. Y. 544, is to be read in the light of the facts before it. The message there was, ‘ ‘ Send five thousand sacks of salt immediately.” If, instead of this, the message had been “ Send five immediately,” it may be very safely doubted whether the court would have employed such language as it has used, at the close of the passage last quoted. But the message showing that the transaction related first to salt, then to a specified quantity of it, and then to an immediate shipment of that amount, the imputation of the facts, incidental to these known facts, is not an extravagant application of the well-settled rule, that the parties may be charged with such deductions as they may be fairly supposed to have made, if they had contemplated an actual breach of the contract and its natural consequences.
    II. The rule illustrated by these cases, which requires the damages recoverable to have been within the actual contemplation of the parties, is to be strictly construed in favor of" telegraph companies. (1) It is manifestly unsound, and as unjust, to regard the telegraph company as a party to the contracts or transactions which are the subject of the messages intrusted to it. The telegrapher is, in these cases, only a third person, not party, having to do with the transaction between the sender and receiver only in an external and collateral way. In almost no case can it be fairly presumed to have such knowledge of the subject of a message as is possessed by the principals in the transaction to which it relates; but in most cases, as in this, it has no knowledge, and can have no actual or even presumed contemplation of anything to which the message refers. (2) Further, the telegraph company is not a voluntarily contracting party. By force of its public duty, it is compelled to do the service demanded of it, without interest in, or right to be informed of the nature of the transaction involved. As to its own service, the law sanctions a contracting under certain reasonable regulations, and the exemption of itself by special contract from damages beyond certain limits. Such a contract was made between these parties, on the terms of the blank in this case, and the rights of both parties here are to be ascertained by the terms of that contract, and not by those of plaintiff’s transaction with third persons (Breese v. United States Telegraph Co., 45 Barb. 274; S. C., 48 N. Y. 152; Belger v. Dinsmore, 51 Id. 166.)
    III. The damages awarded in this case cannot be allowed, because they are too remote, and depend on contingencies which might or might not have happened in such way as to have yielded this commission to the plaintiff, if there had been no default by the defendant, (a) If the message had been received by Carmichael & Co., it is not certain, in a legal sense, that they would have accepted the offer. It is true they say, now, that they would have done so, but that has been held insufficient (Kinghorne v. Montreal Telegraph Co., Allen's Cases, 14). (5) If they had sent an acceptance of the offer, that might not have reached the plaintiff in time to secure his parties, (e) If an acceptance had reached the plaintiff, it would not have concluded any contract with the proposed charterers. The evidence is that Carmichael & Co. “would have considered the charters closed on receiving a reply to that effect.” But it does not appear . that those offers would continue till all these transactions were completed, {d) But charters must have been actually closed before the commission could be earned, (e) This opens new contingencies, and leads out to that remoteness which the law will not favor. (/) And especially should it be noticed in this case, that this remoteness and thin-spun contingency lead very far away from that which was communicated to defendant, to wit, the few incoherent words forming the message.
   By the Court.—Curtis, Ch. J.

The defendant urges, that the verdict for the plaintiff cannot be sustained, because the damages awarded to him were not within the contemplation of the defendant when it made the contract, and that this case is governed by what was held in Baldwin v. United States Telegraph Co. (45 N. Y. 744). In the present case, the text of the message which the defendant failed to transmit until after a delay of several days, indicates upon its face no occasion for special care or the involving of the chartering of two vessels. There was no notice or information of any fact given to the defendant or contained in the message itself, indicating its importance or that special damages would result from any neglect. However strongly the plaintiff may have felt assured, acting as a broker in the matter, that the offer telegraphed to his principals would be accepted, ahd that he would get his five per cent, commission, yet there is nothing in the case that places these contingencies, in themselves uncertain and remote, within the contemplation of the defendant. It is true, the plaintiff’s principals might have accepted the offer, and paid the plaintiff the commissions, and their evidence is, that they would have accepted it, if it had not been delayed by the neglect of the defendant, in failing to forward it immediately.

The claim of the plaintiff is for a special and contingent loss, and not for such a loss as was the natural and necessary consequence of the defendant’s neglect, or, such as from the surrounding circumstances, could even be inferred by the defendant.

The decision in Baldwin v. United States Telegraph Co. (45 N. Y. 744), that, where a special purpose is intended by one party and is unknown to the other, and does not appear by the message itself, in the assessment of damages, such special purpose cannot be taken into consideration, but that the damages must be limited to those resulting from the ordinary and obvious purpose of the contract, governs the case under consideration.

There should be a new trial, unless the plaintiff reduces his verdict to $2.05, the sum paid defendant to transmit the message, with interest from April 15,1872.

Sedgwick and Freedman, JJ„