author: By the Court. Bosworth, J.

text:
    Wm. J. Brown and Geo. W. Canning v. George Bradshaw.
    (Before Duer, Campbell, and Bosworth, J. J.)
    October 12;
    October 30.
    In an action against A to recover for goods furnished to and on the application of B, a verdict in favor of the plaintiff will be set aside as against evidence, where the evidence is uncontradicted that the plaintiff charged the goods to B, and has received payments from A, on the account, as made on the debt of B, and there is no evidence' inconsistent with the truth of the case being as evidenced by such facts.
    Where any credit is given to the party applying for and obtaining property, the promise of a third person to see the debt thus contracted paid, is void by the statute of frauds, unless in writing and expressing the consideration.
    Where a verdict is set aside solely on the ground that it is against evidence, it will only he done upon payment of costs.
    This cause was tried before Justice Sandford and a jury. A verdict was rendered in favor of the plaintiffs for the amount claimed. The defendant moves for a new trial on the ground that the verdict is clearly against evidence. The facts sufficiently appear in the opinion of the court.

      James T. Brady, for defendant.

      -Parsons, for the plaintiff.
   By the Court. Bosworth, J.

The complaint states a cause of action for goods sold and delivered by the plaintiffs to the defendant between the 1st of November, 1850, and the 1st of February, 1851. The goods were in fact furnished on the application of one Richard- McNulty. The judge before whom the cause was tried instructed the jury that the question to be determined was, to whom was this lumber sold and delivered ? If the lumber was sold to McNulty, and on his credit, the defendant is not liable; if it was sold to the defendant, and on his credit, and at his request, then he is liable. If it appears that the lumber was sold to McNulty on his credit and upon the promise of the defendant to see the plaintiffs paid, the defendant is not liable. The jury found a verdict in favor of the plaintiffs for $204, the amount claimed by the plaintiffs.

Assuming the jury to have acted in obedience to the charge of the court, they must have -found that the lumber was not sold to McNulty, wholly or in part on his credit, but was sold to the defendant on his credit and at his request. The’ defendant moves for a new trial on the ground that the verdict is against law and evidence.

The testimony shows that; McNulty, on the 1st of November, 1850, agreed to purchase of the defendant five lots at a specific price, and to erect ón them five dwelling-houses of a particular character within a designated period. The defendant agreed to advance to McNulty,.to aid in the erection of the buildings, $5,000, as the work progressed, and, if requested, the further sum of from $2,000 to $3,000, as he might deem “ advisable and safe,” to enable McNulty to' so far finish the houses as to have the same all plastered, trimmed, and stairs up, &c.

McNulty agreed to pay by the 1st of April, 1851, the contract price of the lots, and all advances with interest, when a deed was to be given, and in case McNulty could not pay the whole in cash, he was to have the privilege of giving a mortgage on the premises for not exceeding $5,000 of 'the whole amount. The contract contained this clause“ And any' bills for materials for said houses, or for other purposes, paid by said party of the first part (Bradshaw), or incurred, shall be deemed as part of the above advances.”

This action was brought to recover a balance due for lumber furnished by the plaintiffs, to be used in the construction of these houses.

The only evidence given by the plaintiffs, bearing on the questions of fact submitted to the iury, consists of the testimony of HcHulty.

It will be borne in mind that he was not present at any interview between either of the plaintiffs and the defendant. He testifies to what he told the plaintiffs when he applied for lumber and to a subsequent confession of the defendant, but he does not pretend to have repeated to the defendant the statement which he testifies he made to the plaintiffs, nor does he pretend to have had any authority to make the statement, except such as may be furnished by the written contract between himself and the defendant.

He testifies that at the time he ordered the lumber he went to see if it would suit, and he told the plaintiffs that “ the defendant would see them paid for all the lumber they would send to those buildings.” That Corning went to see the defendant before any .lumber was delivered, and the day after Corning so went, he called on the defendant at his office, and told him he had seen the lumber, and “ he said yes, that Hr. Corning, had called on him the day before, and he told him that he would see him paid for all the lumber delivered at those buildings.”

This is all the evidence of the acts or confessions of the defendant, prior to the date of the last item of the bill, tending to show that the lumber was sold to the defendant on his credit and at his request. There was no evidence that the lumber was in fact charged to the defendant in the plaintiffs’ books, or that a bill of the whole, or of any part of it, was rendered to him as the purchaser.

Hr. Wallis testified that he was present at the interview between Corning and Bradshaw, and heard the conversation between them. Corning stated that HcHulty had applied to him for lumber for the houses, and he wanted to know the arrangement between them. That Bradshaw explained to Corning the terms of the contract with HcHulty. Corning then wished to know if the defendant would become responsible for the timber and lumber to be furnished to the houses. “ The defendant said he would not become responsible for anything furnished to the houses, but he would pay the orders of HcHulty out of his payments as they became due.”

Assuming the witnesses to be equally entitled to credit, there is this marked distinction between the nature of the testimony which they gave: Wallis swears to what the conversation actually was between Coming and the defendant, and if he states it accurately, the defendant absolutely refused to incur any liability other than to accept McNulty’s orders, payable as moneys should become due to him under the contract; McNulty, on the other hand, swears to a confession of the defendant that he had told Coming he would “ see him paid for all the lumber delivered at those buildings.”

To charge the defendant on this evidence, it would be necessary to hold that the jury were justified in finding that Wallis was mistaken as to what the conversation between Corning and Bradshaw really was, that McNulty stated accurately the confession of Bradshaw, that the confession was a correct version of the conversation; and to also hold that the terms of it, unexplained, prima, facie import a purchase, or absolute agreement by defendant to pay the plaintiffs for the lumber.

The defendant introduced in evidence a bill containing the first seven items of the plaintiff’s account, amounting to $142 r%\, the caption of which is in these words :

“ Mr. R. McNulty,
“ Bought of Brown & Corning,
“ Wholesale and Retail
“ Dealers in Lumber.
“Terms Cash.”
On the back of it was a receipt in these words, viz.:
“Received, New York, December 7, 1850, one hundred dollars on account of within bill.
“ Brows & Corntng.”

Hence it is incontestable that on opening the account the lumber was charged to McNulty, and there is no evidence that the whole of it was not charged to him. The defendant also gave in evidence a receipt, signed by the plaintiff, in these words, viz.:

“ Received, New York, January 7,1851, of George Bradshaw, for Richard McNulty, one hundred and fifty dollars, on account of'lumber furnished to Thirty-first street houses.
“ Brown & Cornuto.”

All of the account was of a date prior tó this receipt, except two items of the date of January 16,1851, amounting to $15.16. The receipt of course related substantially to the entire account, and its terms are express that the payment it evidences was - made for Richard McNulty, on account of lumber furnished to these houses.

The bill of $142T%T shows that on opening the account credit was given to McNulty, and the receipt of January 7th imports that he was a debtor of the plaintiffs for the lumber on which the $150 was paid. The statement or confession of Bradshaw, sworn to by McNulty, even assuming it to have been as sworn to by him, is entirely consistent with the existence of such a relation between the parties. Instead of raising a presumption, or justifying the inference that Bradshaw was regarded by the parties, or even by the plaintiffs, as the debtor to whom alone the credit was given, it properly only tends to show that Bradshaw undertook that McNulty should pay for such lumber as the plaintiffs might furnish him to be used in the construction of " these houses.

There is certainly nothing in it tending to disprove the fact prima facie established by the terms of the bill of December 7th, and of the receipt of January 7th, that credit was given to McNulty for the lumber, and that he was treated by the plaintiffs as the principal debtor from the beginning to the end of the account. No explanation has been given of the fact that the lumber was charged to him by the plaintiffs, or that the only account which appears to have been Tendered was made out against him as the party liable. The only other evidence which tends tó prove any promise of Bradshaw, original or collateral, to pay for the lumber, is found in the testimony of McNulty, of what was promised and said at the time he . assigned the contract between himself and the defendant to Terwilliger & Graham. McNulty being unable to perform the contract, sold and assigned his interest in it to Terwilliger & Graham, on the 21st of January, 1850, for $150, and they undertook to execute it. Bradshaw gave his assent to the assignment. Cotemporaneously with these transactions, Mc-Hulty and Bradshaw, by a written instrument, relinquished and cancelled the contract as between themselves. McHulty testified that “ when the contract was cancelled, the defendant said he would pay all the bills against the buildings. He said every dollar should be paid if I Would give up the contract. He said he would pay the men that day, and asked if there were any other bills on the buildings, except those for which he was accountable, mentioning that of Brown & Corning, and he. said those would 'be paid to-morrow. He was to advance me $150 to pay the men. He asked me about all the bills he was liable on, mentioning the bill of the plaintiffs.”

Terwilliger and Mr. Wallis were present when the contract was assigned to Graham & Terwilliger, and the agreement between McHulty and the defendant was cancelled. Mr. Wallis testifies that nothing was said about the defendant’s paying any bill. Terwilliger swears that nothing was said, that he heard, about the defendant paying $150 to any one, or any money to any one. If it had been said he must have heard it. He also testified that after the assignment of the contract to himself and Graham, Corning asked him if he was going to pay McHulty’s bill. He said, Ho. Corning said McHulty had told him that by his arrangement with Terwilliger, the latter was to pay all the debts McHulty had contracted respecting the buildings.

Mr. Wallis further testified that he had seen Corning at defendant’s office after money; that Corning said he came to get money on account of McHulty, and at those interviews he heard the defendant refuse' to pay the plaintiffs, because no money was due to McHulty on the contract.

The only part of the evidence of what was said at the time the contract was cancelled, which deserves to be particularly considered, is the- remark said to have been made by Bradshaw, viz.: “ He said he would pay the men that day, and asked if there were any other bills on the buildings, except those for which he was accountable, mentioning that of Brown & Coming.....He asked me about all the bills he was liable on, mentioning the bill of the plaintiffs.”

Assuming these remarks to have been made precisely as they are sworn to by McNulty, they are in no way incompatible with the theory that the lumber was sold and delivered to McNulty on his credit, and on the promise of Bradshaw to pay any orders that McNulty might draw, as payments should become due to him. Whether considered by themselves or in connection with the other evidence relied upon to sustain the plaintiffs’ case, they do not justify the conclusion in opposition to the legal effect of the terms of the receipt of January 7th, - and of the fact that the lumber was charged to McNulty; that the lumber was sold to the defendant on his credit and at his request.

To claim that as a part of the terms and consideration on which McNulty relinquished his contract, the defendant promised to pay the plaintiffs and is therefore liable, would be an abandonment of the whole ground of action stated in the complaint. That rests on the idea of a sale of the goods to the defendant, as a purchaser of the same, at the time they wei’e ordered.

Reluctant as we are to interfere with the verdict of a jumy, in an action which has been tried and submitted, under appropriate instructions as to the principles of law applicable to the case, yet we cannot resist the conclusion that the lumber was furnished to McNulty on his application and on his credit.

That evidence, satisfactory in its character, establishes the fact that the lumber was charged to McNulty and not to the defendant; that the moneys paid by the latter to the plaintiffs, were paid by the defendant and accepted by the plaintiffs, as a payment on account of a debt owing to them by McNulty. That all the evidence is consistent with such a theory of the case, and with the testimony of Wallis, as to the conversation that took place between Coming and the defendant before any lumber was delivered. And that there is no evidence which authorizes a court or jury to find that no credit was given to McNulty, but that it was given exclusively to Bradshaw and with his assent.

We are, therefore, of the opinion that the verdict must be set aside and a new trial ordered. As it does not appear that the jiidge was requested either to nonsuit the plaintiff, or to order a verdict in favor of the defendant, the verdict is set aside purely on the ground that it is against evidence. In such a case a new trial is only granted on payment of costs. (9 Wend. 60, 17 ed. 501; 4 Hill, 104.)

A rule will be entered granting a new trial on payment by defendant of the costs of the former trial, and of the subsequent proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    Benjamin Flanders, respondent, v. William A. Crolius, appellant.
    (Before Duer, Campbell and Bosworth, J.J.)
    Oct. 13;
    Oct. 30.
    The defendant before goods were delivered to his brother, told the plaintiff to let the latter have what he wanted and “he would be responsible for them,” and the plaintiff therefore furnished defendant’s brother goods, charging them to the defendant, and the defendant knew while the account was running, that his brother was buying goods in his name of the plaintiff, and made no objection to it. Held that a report of a referee finding that the goods were purchased by the defendant and on his exclusive credit, will not be set aside as against evidence. 11 J. R 144. Ohasee v. Day.

    Such a contract is not one to pay the debt of a third person within the meaning of the statute of frauds. It is an absolute and original contract of the defendant to pay a debt contracted by himself personally, and is valid though not in writing.
    Tms is an appeal from a judgment entered on a report of J. B. Scoles, Esq. as referee. The defendant moves for a new trial on the ground that the facts found by the referee are against evidence. "
    The facts sufficiently appear in the opinion of the court.

      H. S. Mackay, for appellant.

      J. W. Green, for respondent.
   By the Court. Bosworth, J.

This action was brought to recover of the defendant for goods famished to his brother. The referee’s report finds the facts to be, that the goods were purchased by the defendant, and that the credit was given exclusively to him. The defendant moves for a new trial on the ground that the verdict is against evidence, and insists that the evidence shows, credit was given to Joseph Crolius, and that the promise of the defendant was collateral, and not being in writing is void by the statute of frauds.

It is uncontradicted that the four bills first furnished to Joseph Crolius were obtained on written orders of the defendant directing them to be charged to himself; that they were so charged, and that the bills of them were made out against the defendant as the purchaser.

It was testified on behalf of the plaintiff, that after the goods nanled in the written orders had been furnished and before any others had been delivered, the plaintiff expressed to the defendant his unwillingness to deliver goods to Joseph without proper security. The defendant replied that the plaintiff might deliver goods to his brother Joseph, and “ he himself would be responsible for the amount of all bills for goods sold and delivered.”

This promise having been made, the plaintiff continued to furnish goods to Joseph and charge.them to the defendant, from about the middle of June, 1849, to the 21st of Feb. 1850, amounting in the aggregate to about $1100.

Joseph Ceolius, a witness on behalf of the defendant, testifies, that when he had paid for the goods obtained on the written orders, he did request the defendant to say to the plaintiff that he might let Joseph have goods, and he, the defendant, would be responsible for them. But he did not hear the defendant make such a promise to the plaintiff. That he was a stranger to the plaintiff when he first obtained goods on the written orders.

He further testified, that at about the middle of the account, he told the defendant he was buying goods of the plaintiff in the defendant’s name; some he had paid for and some he had not. In answer to this the defendant said, “ Joe, mind and pay Flanders.”

This is undoubtedly sufficient evidence until contradicted or satisfactorily explained to justify the conclusion of fact reached by the referee, that the goods were bought by the defendant and the credit given exclusively to him, and that such was originally the understanding of the character of the transaction had by all the parties.

The cause seems to have been tried upon the assumption, that the goods were in fact charged to the defendant as they were delivered. They are spoken of by the book-keeper of the plaintiff and by Joseph Crolius- as having been so charged-Ho point appears among those furnished by the defendant on the argument before us, taking the ground that they were not proved to have been so charged, nor does any objection appear to have been made on the trial to the nature of the evidence given, that they were charged to defendant.

We concur in the opinion, that assuming the cause to have been tried on the assumption, as a conceded fact, that the goods in question when delivered were charged in the plaintiff’s books to the defendant, the referee was entirely justified by the evidence, in finding that the defendant was the purchaser and that credit was given exclusively to him.

The testimony tends to show that before any goods were delivered except those obtained on the written orders, the defendant who had authorized the delivery of these, and directed them to be charged to himself, told the plaintiff to let Joseph have more goods, and he would be responsible for such as should be furnished. The contract therefore was directly between the plaintiff and the defendant. We think it a significant fact that this arrangement was made after all the goods had on written orders had been furnished, and before any others had been delivered. When there is connected with this the further fact that Joseph informed his brother, while the account was running, that he was buying of the plaintiff in the defendant’s name, and the latter forbore to make any objection, the conclusion seems to be a just one, that all the parties understood and acted on the understanding, that the goods were furnished on the exclusive credit and responsibility of the defendant.

We do not think that the evidence relied upon as tending to show that credit was given to Joseph personally is of such a character as to overcome the effect of the evidence tending to prove that it was given solely and exclusively to the defendant, or to justify us in setting aside the report as against evidence.

The exception taken to the decision of the referee in- allowing the question to be answered, appearing at folio 16, was not argued, nor is it noticed in the defendant’s printed points, and we therefore regard it as having been abandoned.

The examination at the instance of the referee, appearing at folio 38, was undoubtedly made with a view to test the credibility of the witness, and for that purpose may have been proper. So point was made on the argument that the referee erred in admitting that evidence.

On the whole case we are of opinion that substantial justice has been done between the parties, and that the conclusions of fact found by the referee were warranted by the evidence.

The rule of law, on the facts as found by him, is accurately stated in his report. The motion for a new trial is denied, and the judgment entered is affirmed with costs.


author: By the Court. Duer, J.

text:
    Harmony v. Bingham.
    When a covenant to transport goods, and deliver them at the place to which they are destined within a limited period, contains no exception, the obligation which it creates is absolute and unconditional.
    This construction is not barred by a subsequent covenant, that a certain deduction shall be made from the freight in the event of a delay in the delivery of the goods beyond the period limited.
    Where the bill of lading contains a stipulation to deliver the goods in good order, “the dangers of the railroad, fire, leakage, and all unavoidable accidents excepted;” the exceptions relate exclusively to damages affecting the condition of the goods, and do not vary the obligation of the carrier to deliver them within the period limited by a separate covenant.
    Hence, when the delivery of the goods is delayed beyond the time fixed by the l covenant, the carrier cannot defend himself by showing that the delay was in/, fact occasioned by unavoidable accidents.
    When there is a delay in the delivery of the goods and the stipulated reduction from the freight is not then made, but the agent having charge of the goods refuses to deliver them until the whole freight is paid, the payment thus exacted is to be regarded as compulsory, and creates no bar to a recovery of a sum as damages for the breach of the covenant, equal to the deduction that ought to have been made.

      (Before Duer and Campbell, J.J.)

    October 12, 13;
    October 30, 1852.
    There may he a duress of property as well as of the person, and a payment thus exacted can no more he treated as voluntary in the one case than in the other.
    As a general rule, when a bailee in the possession of perishable merchandise, exacts more than is due as the condition of its delivery to the owner, the money paid as the necessary means of obtaining the delivery may be recovered back, as a payment made under duress.
    Covenants are alternative only when they give an election to the party bound by them to perform one or other of the acts to which they relate, so that his fulfilment of one covenant is a discharge from his obligation to perform the other.
    Covenants to deliver goods within a certain time, and in case of a later delivery, to make a certain deduction from the price of transportation, are not alternative, since they give no election not to deliver the goods at all. The second covenant only fixes the measure of damages for the violation of the first.
    The breach of a covenant need not be assigned in the exact words of the covenant. It is sufiieient when the performance of the covenant in its true meaning and ¿import is negatived by a necessary implication.
    A variance between the declaration or complaint, and the proof, by which it is certain that the defendant was not and could not have been misled, may, under the provisions of the Code, be disregarded, without amendment, by a referee, as well, as by a judge.
    Motion to set aside the report of a referee denied, and judgment for the plaintiff affirmed with costs.
    Motion to set aside the report of a referee upon a case and exceptions. The action was to recover damages for the breach of certain covenants, on articles of agreement under seal between the plaintiff and the defendants. The. suit was commenced before the Code, and the declaration, the sufficiency of which to cover the demands of the plaintiff was denied by the counsel for the defendants, was in the words following:—

      Superior Oowrt, of the Term of October, one thousand eight hundred and forty-six.

    City and County of Hew York.—ss. Manuel X. Harmony complains of Thomas Bingham, Jacob Dock, William A. Stratton, and William Bingham, being in custody, &c., of a plea of breach, of covenant. For that whereas, heretofore, to wit, on the twenty-fifth day of March, one thousand eight hundred and forty-six, at the city and in the county of Mew York aforesaid, by certain articles of agreement, then and there made, concluded and agreed upon, between the said plaintiff of the one part, and the said defendants, by the name and description of “ Bingham’s Transportation Line,” Dépdt Mo. 276 Market-street, Philadelphia, of- the other part, one part of which said articles of agreement sealed with the seal of said defendants, the said plaintiff now brings here into court, the date whereof is the same day and year aforesaid, it was covenanted and agreed by and between the said parties, that the-said defendants party thereto, of the first part, in consideration of one dollar, the receipt whereof by them was duly acknowledged by said defendants, and of the prices thereinafter stated, would convey and transport from the city of Mew York to. Independence, in Missouri, and would safely deliver at Independence aforesaid, within twenty-six days from the first day of April then next, any and all goods which said plaintiff Manuel X. Harmony might send by said Transportation Line, on or before the said first day of April, one thousand eight hundred and forty-six, at the following prices, to wit: two dollars per hundred pounds weight for goods in boxes, and one Sli-lOOths dollars per hundred pounds weight for goods in bales. And, said defendants party to said articles, of the first part, further covenanted and agreed therein and thereby, that in case of the failure to deliver said goods at Independence aforesaid, within the said period of twenty-six days, the said party of the first part should deduct ten cents per hundred pounds from the freight bill for every day the' goods are delayed beyond the said period of twenty-six days.
    And the said defendants, in and by said articles, did further covénant and agree to and with said plaintiff, that they the said defendants would in the name of, and at the expense of said defendants, contract for and pay all freight of said goods from Pittsburg to Independence aforesaid; and that said defendants would fully indemnify and save harmless the said plaintiff, from any and all freight and expenses to be paid to third -parties for transporting such goods or any part thereof between the two last named places, and that said defendants would fully indemnify and save harmless the said plaintiff from any lien or .liens for freight, and from any loss or damage sustained by delay of such goods, by reason of such lien or liens, between the two last named places.
    And, the said plaintiff avers that he, the said plaintiff, at the city and in the county aforesaid, did on or before the said first day of April, one thousand eight hundred and forty-six, deliver to and send by said defendants, by the name and description aforesaid, one hundred tons of goods in boxes and in bales, pursuant to said articles, to be, by them the said defendants, carried and transported to and delivered at Independence aforesaid, at or by the time and in manner aforesaid, pursuant to' said covenant, which said goods so delivered as aforesaid, were of great value, to wit, of the value of one hundred thousand dollars.
    And the said plaintiff avers, and further in fact says, that although said goods were duly shipped and • sent in manner aforesaid, yet the. said defendants, not regarding their said covenant and agreement, did not in fact carry and transport said goods from the city of Hew York to Independence, Missouri, as aforesaid, and did not deliver the said goods at Independence aforesaid, within said twenty-six days from the said first day of April, one thousand eight hundred and forty-six, as in and by their said covenant said defendants were bound and obligated to do ; but thát said goods were not delivered by said defendants at Independence aforesaid until a long time, to wit, six months after the said first day of April, one thousand eight hundred and forty-six.
    And said plaintiff avers, that on the arrival of said goods at Independence aforesaid, and before the commencement of this suit, said plaintiff demanded said goods of said defendants, that said defendants then and there refused to deliver said goods to said plaintiff, unless said plaintiff would pay the freight thereon : and that said plaintiff thereupon, and before the commencement of this suit, and before the delivery of said goods by said defendants to said plaintiff, at Jhdependénce aforesaid, did pay to said defendants the freight on said goods, to wit, the sum of three thousand dollars; and said plaintiff avers that said payment of freight was made under an express protest and denial of said defendants’ pretended right to have or claim the same or any part thereof.
    And the said plaintiff further in fact says that, by reason of the delay of said defendants in making delivery of said goods at Independence aforesaid, pursuant to their said covenant, the said plaintiff was greatly hindered and delayed in forwarding his said goods to Santa Fe and other parts of Mexico, the markets where they were destined to be sent to be sold; that said goods depreciated in value by reason of such delay and non-delivery by said defendants; that said plaintiff thereby lost a profitable market and sale for said goods; and the said plaintiff was subjected to great expense in hiring and keeping men and teams at Independence aforesaid, and also subjected to the loss of his own personal time and services, to the damage of said plaintiff (including the said sum of three thousand dollars, so as aforesaid unjustly demanded by and paid to said defendants for freight, and which said plaintiff hereby claims to receive back), altogether fifty thousand dollars.
    And, so the plaintiff in fact says, that the said defendants (although often requested so to do), have not kept their aforesaid covenant, so by them made as aforesaid, but have broken the same, and to keep the same have hitherto wholly neglected and refused, and still do neglect and refuse, to the damage of said plaintiff, fifty thousand dollars, and therefore brings his suit, &c."
    To this declaration the defendant, Thomas Bingham, after craving oyer, and setting forth the articles of agreement, pleaded, first, non est factum, and second, that the plaintiff, if damnified, had been damnified of his own wrong, and appended to his pleas a notice, that upon the trial evidence would be given of certain facts therein specified, proving that the alleged delay in the delivery of the plaintiff’s goods had been caused solely by unavoidable accidents, and was therefore no breach of any covenant in the agreement. In February, 1850, an order was made founded upon the written consent of the attornies, referring the cause to Joseph S. Bosworth, Esq., as sole referee, to hear and decide all the issues, and report thereon, and upon the hearing before the referee, the counsel for the plaintiff in support of the action, read in evidence a stipulation in writing, accompanied with certain schedules, and signed by the attomies of the parties, which stipulation and schedules are as follows:—
    We hereby stipulate, upon the trial of this cause, to admit in evidence, with the same force and effect as if proved by competent testimony, the following facts (subject to all legal exceptions), viz.:
    That, on Wednesday, the 26th day of March, 1846, at the city of Hew York, the parties to this suit executed the articles of agreement, a copy whereof is hereto annexed, marked A.
    That, in pursuance of said articles of agreement, the plaintiff delivered to the defendants, at the city of Hew York, on Wednesday, the first day of April, in the year 1846, to be carried and transported from the city of Hew York to Independence, Missouri, three hundred and thirteen packages of goods, consisting of two hundred and sixty-six bales, thirty-three boxes, nine trunks, three baskets, and two kegs; containing, in all, sixty thousand five hundred and forty-eight pounds weight, as follows, fifty-three thousand and sixty-nine pounds weight in said boxes, one thousand and fifty-six pounds weight in said trunks, one hundred and eighty pounds weight in said baskets, and twenty pounds weight in said kegs; the receipt of which goods, for such transportation, was acknowledged by said defendants by a receipt, a copy whereof is hereto annexed, marked B.
    That the distance from Hew York to Independence, by the route usually pursued by the defendants in the business of transporting goods and merchandise, is nineteen hundred and seventy-four miles; as follows, from Hew York to Philadelphia, by the Oamden and Amboy Railroad, ninety-six miles; from Philadelphia to Columbia, in Lancaster county, in the stale of Pennsylvania, by the Philadelphia and Columbia Railroad, eighty-two miles; and from Columbia to Hollidaysburg,in Blair county, in said state, by the Pennsylvania canal, one hundred and seventy-two miles; and from Hollidaysburg to Johnstown, Columbia county, in said state, by a mountain railway, over ten inclined planes, thirty-six miles ; and from Johnstown to Pitts-burg, in Alleghany county, in said state, by canal, one hundred and three miles ; and from Pittsburg to St. Louis, in the state of Missouri, by the Ohio and Mississippi rivers, eleven hundred and.forty-five miles ; and from St. Louis to Independence, in Jackson county, in said state of Missouri, by the Missouri River, three hundred and forty miles; and that the usual time occupied by the defendants in transporting goods from New York to Independence is twenty-nine days, as follows, from New York to Philadelphia two days, thence to Columbia one day, thence to Hollidaysburg four days, thence to Johnstown one day and a half, thence to Pittsburg two days and a half, thence to St. Louis twelve days, thence to Independence five days.
    The said Pennsylvania canal, from Columbia to Hollidaysburg, is a public work belonging to the state of Pennsylvania; that the same lies along and is supplied by water from the Susquehanna River for the distance of forty-three miles, and by the Juniata River for the distance of one hundred and twenty-two miles : that this canal usually freezes up in the winter, and is not usually open until the fifteenth day of March of each year: that it did freeze in the winter of 1845-6. That on the fifteenth day of March, 1846, the said canal, by reason of a great and unusual freshet, was rendered impassable and not navigable; that the same was subsequently repaired by the state of Pennsylvania, which alone had power and authority to repair the same; and which, before the 25th day of March, 1846, gave official public notice to the defendants and others that the same would be ready for use and navigable on or before the fourth of April, 1846 ; but said canal continued not navigable and was impassable until Saturday the eighteenth day of April, 1846.
    That said sixty thousand five hundred and forty-eight pounds weight of goods, in the packages aforesaid, were, by the said defendants, transported from the city of New York, on the first day of April, a.d. 1846, by the route aforesaid, and arrived at said Columbia, on the third day of April, a.d. 1846, and were then and there ready to be transported to said Hollidaysburg forthwith. That on the said eighteenth day of April, a.d. 1846, three hundred and twelve of said packages of goods were transported by said Pennsylvania canal, from said Columbia to said Independence, in the state of Missouri, and thence safely and in good order delivered- to said plaintiff, on the 17th, 19th, and 23rd days of May, a.d. 1846, respectively, and freight paid thereon by said plaintiff, as appears by the three receipts hereto annexed, marked C1,2,3.
    That at the time of making said articles of agreement there was and is another route by which said goods and merchandise might have been carried and transported from the city of New York to Independence, in Missouri, to wit: by sea from New York to New Orleans, thence by the Mississippi river to St. Louis, thence to Independence as aforesaid, and that the parties to said articles of agreement knew of the same.
    That the annexed schedule, marked D, contains a particular statement of the goods contained in the packages aforesaid.

      Brown & Matthews, attorneys for Bingham.

      John M. Platt, plaintiff’s attorney.
    ARTICLES OF AGREEMENT—SCHEDULE A.
    Articles of Agreement, made this 25th day of March, in the year one thousand' eight hundred and forty-six, between Bingham’s Transportation Line, Depot No. 276 Market street, Philadelphia, party of the first part, and Manuel X. Harmony, of the city of New York, merchant, party of the second part, witnesseth, the said party of the first part, in consideration of one dollar, the receipt of which is hereby acknowledged, and of the prices hereinafter stated, doth hereby covenant and agree to, and with said party of the second part, that the said party of the first part will carry and transport from the city of New York to Independence, in Missouri, and will safely deliver at Independence aforesaid, within twenty-six days from the first day of April next, any and all goods which said Manuel X. Harmony may send by said Transportation Line, on or before the said first day of April, 1846, at the following prices, to wit, two dollars per hundred pounds weight for goods in boxes, and one 87j-100ths dollars per hundred pounds weight for goods in bales. And the said party of the first part covenants and agrees that, in case of failure to deliver said goods at Independence aforesaid, within the said period of twenty-six days, the said party of the first part shall deduct ten cents per hundred pounds from the freight bill, for every day the goods are delayed beyond the said period of twenty-six days. It is mutually covenanted and agreed between said parties, that in case said goods are lost on the rivers between Pittsburg and Independence aforesaid, the said Manuel X. Harmony shall pay freight from New York to Pittsburg on such goods, to said party of the first part, at the rate of one dollar and thirty-seven and a half cents per hundred pounds weight for goods in boxes, and one dollar and twelve and a half cents for goods in bales. The said party of the first part covenants and agrees to and with said Manuel X. Harmony, that said party of the first part, will in the name of and at the expense of said party of the first part, contract for and pay all freight of said goods from Pittsburg to Independence, and that said party of the first part will fully indemnify and save harmless the said Manuel . X. Harmony, from any and all freight or expenses to be paid to third parties for transporting such goods, or any part thereof, between the two last named places; and further, that said party of the first part will fully indemnify and save harmless the said Harmony, from any lien or liens for freight, and from any loss or damage sustained by delay of such goods by reason of such lien or liens between the two last named places; and it is agreed mutually, that said Harmony is to pay no commission or other charge except the prices above stated. In witness whereof the parties have hereto set their hands and seals - the day and year first above written.
    (Signed) Bingham’s Transportation Co.,
    Wm. Tyson, Agent, [l. s.]
    (Signed) M. X. Harmony. [l. s.]
    Signed, sealed, and delivered in the presence of
    W. J. Moorhead.
    RECEIPT OF GOODS—SCHEDULE B.
    Bingham’s Transportation Line,
    Depot, No. 276 Market street, Philadelphia.
    proprietors.
    Thomas Bingham, Philadelphia. Jacob Hock, “
    W. A. Stratton, “
    William Bingham, Pittsburg.
    AGENTS.
    William Tyson, No. 10 West street, New York.
    James Wilson, Howard street,
    Baltimore, Md
    Harnden & Co., Boston, Mass.
    Under the firm of Bingham, Dock, & Stratton.

      Received, Few York, April 1, 1846, of Manuel X. Harmony, the following packages in good order, marked as per margin, which we promise to deliver in like good order, the dangers of the railroad, fire, leakage, and all unavoidable accidents excepted (Sundays excepted), at the warehouse of Wm. Bingham, Pittsburg, and consigned to--, Pittsburg, he paying freight at the rate of- as contract, from Few York, per 100 lbs.; and on presentation of this receipt, receiving the packages annexed, at said warehouse, to forward to Independence.
    RECEIPTS FOR FREIGHT.—SCHEDULE C.
    [Fo. 1.]
    “ Independence, May 23, 1846.

      “ Received of M. X. Harmony, five hundred and ninety-nine 40-100ths dollars, in full for bill of freight and advances on 156 packages of merchandise, weighing 31,522 pounds, received from Messrs. Bingham & Co. or their agents, at St. Louis, and landed at this place on the 17th instant, which merchandise I refused delivering unless my freight and advances were paid, which was acceded to without delay by said Harmony.
    “E. H. Dennis,

      “ Clerk of steamboat Archer.

    “ Received of Chouteau & Valle.”
    [Fo. 2.]

      “ Independence, May 21, 1846.
    “ Received of M. X. Harmony, five hundred and thirty-seven 14-100ths dollars, in full for bill of freight and advances on 149 packages of merchandise, weighing 28,286 pounds, received from Messrs. Bingham & Co. or their agents, at St. Louis, and landed at this place on the 19th instant, which merchandise I refused delivering unless my freight and advances were paid, which was acceded to without delay by said Harmony.
    “ Chever,
    “ Glerk of Olvoe Plants

      [Ho. 3.]
    “ Independence, May 23, 1846.'
    “Received of M. X. Harmony, twenty-one 40-100ths dollars, in full for bill of freight and advances on 7 packages of merchandise, weighing 1,178 pounds, received from Messrs. Bingham & Co. or their agents, at St. Louis, and landed at this place on the 23d instant, which merchandise I refused to deliver unless my freight and advances were paid, which was acceded to without delay by said Harmony.
    “T. O. DmroAsr,
    “ Olerh 8. B. Nimrod.

    “ 6 bales, 1 keg.”
    The plaintiff’s counsel called as a witness Wm. B. Morehead, who, being duly sworn and examined, testified as follows:—Is a clerk in the city of Hew York, was a clerk of the plaintiff in the spring of the year 1847, and went with him to Independence. I was present when a majority of the goods in question, and sent by “ Bingham’s Transportation Line,” were delivered to Mr. Harmony, at Independence. The delivery was made at a point on the Missouri River, at a place called Owen’s Landing, about four miles from Independence.

      Q. What occurred when Mr. Harmony went there to receive his goods ? (This question was obj ected to by defendant’s.counsel, as calling for evidence irrelevant under the issue in this action; the referee overruled the objection, and allowed the witness to testify, whereupon the defendant’s counsel excepted, and the exception was duly noted.)

      A. I did not hear all that occurred. I understood what occurred—but did not hear but a small portion of it.

      Q. State what you heard at that time and what you saw? (This question was also objected to by the defendant’s counsel, as calling for evidence irrelevant under the issue, and also as calling for evidence of acts and declarations of the plaintiff and third persons without first showing, as the plaintiff was bound to do, that the defendant, or some person in his behalf," was there present; the referee overruled the objection, and allowed the witness to testify, whereupon the defendant’s counsel excepted, and the exception was duly noted.)

      A. I heard Mr. Harmony object to pay the freight on these goods. (The counsel for the defendant renewed his objection to the declarations of the plaintiff.) Harmony said he should sue for damages, because the goods had not been delivered at the specified time; I heard the captain of the steamboat, which had some of the goods on board, say, he was desired to collect the freight, and he should do it, before he delivered the goods. The bulk of the goods at this time were on board the steamboat, the remainder were in a storehouse on shore.
    Gwss-exammation.—Harmony, the plaintiff, since 1846, has, been engaged prosecuting a claim against the Government of the United States, for the destruction and seizure of the goods in question. I have read over the statement made by him in that claim. In that statement the cost and expenses of these goods is set down. Ho other valuation. There is a total amount of claim made out in that statement.
    The plaintiff then rested his case.
    ■ The defendant’s counsel then moved for a nonsuit, on the following grounds:—
    First. That this is an alternative covenant, and there is no breach of it properly assigned in the declaration: the agreement .being to deliver in twenty-six days, or deduct from the freight bill ten cents per hundred pounds, per day, the breach assigned should have negatived both alternatives; moreover there is no evidence of a breach of both alternatives of the covenant; there being none of a demand and refusal to deduct, and the plaintiff is therefore not entitled to recover.
    Second. That whether there was or was not a demand and refusal, yet, the plaintiff having paid the freight bill in full, he either paid it in compromise and settlement of a disputed claim, and in order to deprive the defendants of their lien for the charges of transportation of the goods, and so is estopped from claiming to recover it back; or, he paid it in his own wrong; and in any event, if recoverable at all, it must be recovered by the plaintiff in the equitable action of assumpsit for money had and received, and not in the technical action of covenant.
    Third. That the defendants being prevented, by inevitable necessity, from performing the contract in respect to the conveyance of the goods in twenty-six days, were excused from the obligation to deduct from the freight bill, and were not liable.
    Fourth. That the receipt of April 1, 1846, referred to in the stipulation, was so far a modification of the contract of the parties, as to exempt the defendants from any detriment from delay, occasioned by unavoidable accident, and the delay now complained of being of this character, and sufficiently excused, the plaintiff was not entitled to recover.
    This motion for a non-suit the referee denied, and the counsel for the defendant excepted to the decision, and the exception was duly noted.
    The defendant’s counsel thereupon offered to show, that about the first of April, 1846, the canal, spoken of in the articles of agreement and stipulation, was so nearly repaired, that the same might have been completed, and the goods might have been transported, and arrived at Pittsburgh, in the usual time, and within the time limited by the terms of the contract, and thence conveyed to the end of the route within 26 days, had it not been, that at that time, and after the execution and delivery of the contract, by reason of another freshet, similar in violence and extent to the first, as mentioned in the stipulation, there was a second breach in the said canal, similar to the first breach mentioned in the stipulation, and the goods in question were thereby necessarily and unavoidably prevented from being transported from Columbia to Hollidaysburgh, and detained at Columbia, from about April 4, to April 15, 1846, and thereby the delay complained of was occasioned.
    To this evidence Mr. Bonney, of counsel for the plaintiff, objected, the referee sustained the objection, and the defendant’s counsel excepted to the decision, and the exception was duly noted.
    The defendant then rested his case.
    In May, 1851, the referee reported in favor of the plaintiff, and that he had sustained damages by reason of the matters alleged in the declaration, to the amount of $1560/^ over and above his costs and charges.
    The referee gave in writing the following reasons for his decision:

      OPINION OF BEFEKEE.
    The question in this case is, what claim can the plaintiff make under the covenant counted upon, for not delivering within the 26 days, the goods having been actually delivered but after the expiration of the 26 days % Assuming that the bill of lading-does not modify the contract of 25th of March, 1846, I think that a deduction for each day’s delay should be made from the freight bill at the specified rate. An allowance at this rate would exceed the freight actually paid, or stipulated to be paid. The amounts paid to get possession of the goods are in the aggregate $1158T%V The following statement shows on what days the goods were delivered, how much on each day, the number of days’ delay, the amount to be allowed at the specified rate, and the amount actually paid and when paid,,viz.

    To be delivered in 26 days from the 1st of April, 1846, or on the 27 th of April, 1846.
    The deductions to be made at the specified rate, exceed the sums paid for freight by $122//6. The freight on the weight of the goods, as it was shown to have been by the receipts annexed to the stipulation (viz. 60,986 lbs.), assuming that in bales to weigh 53,069, would amount to about the sums paid.

      53,069 lbs. in bales, at $1 875 per cwt. , - $995 04
    7,917 lbs. in boxes, at $2 “ “ - - > 158 34
    60,986 lbs. weight of goods. Freight, $1,153 38
    There is no covenant to pay at this rate, as well as to deduct at this rate from the freight bill. I am of opinion that under this covenant, as the failure to deliver occurred from causes beyond the control of the defendants, their only liability is a loss of all right to any- freight.
    The defendants insist that the money paid by plaintiff was paid on compromise and settlement, and in order to deprive the defendants of their lien for transportation, or it was paid in their own wrong voluntarily, with a knowledge of the facts, and cannot be recovered back at all, and if at all, not in an action on this covenant. If it appeared that the defendants had actually paid the freight to the carriers for transporting the goods from Pittsburgh to Independence, so that no third persons had a lien on the goods for freight on their arrival at Independence, which would authorize them to retain the goods until the freight was paid, and that the freight .was paid to defendants with a knowledge of these facts, merely because the defendants, in violation of their covenant, refused to deliver without the freight was first paid, I should feel much doubt whether the plaintiff could recover it back. (4 Cowen, 428; 4 J. E. 220; 9 Co wen, 674.) The declaration alleges payment of freight at Independence to the defendants. The fact as stipulated by the parties is, that this freight was paid to earners, who transported the goods from St. Louis to Independence. The sums demanded and paid covered their freight, and the charges of transporting to St. Louis, which they advanced on receiving the goods at that place. They had a lien for their advances and their freight, and had a right to retain, until they were paid. The plaintiff could not by a resort to any legal remedy get possession without paying. He did not pay voluntarily or in his own wrong. The variance between the allegation and proof, has not actually misled the party to his prejudice, in maintaining his defence in this "respect upon the merits. The point is, that the plaintiff was wrongfully compelled to pay and did necessarily pay the sums claimed for freight, in order to obtain possession of his goods. The declaration avers payment to the defendants. The admitted facts, as agreed upon by stipulation before the trial commenced, show that it was paid to the carriers, who had a right as against all parties to this action, as a condition to their being bound to give up the goods, to exact the payment. Actual justice requires that the plaintiff should not under such circumstances fail to recover, on account of the language in which the breach is expressed. Sections 169,170, and chap. 1, of title 1, of the act of April 11, 1849, to facilitate the determination of existing suits, leave me at liberty, as I think, to disregard the alleged defect in the declaration, and I accordingly report’ in favor of the plaintiff for - $1158 44 and interest from Hay 23, 1846, to Hay 8,1851, 402 08
    Total, Hay 8,1851, - - $1560 52
    J. S. Boswoeth,

      Referee.

      A. Mathews, for the defendant,
    in moving to set aside the report, insisted upon the following points:—
    I. The covenants declared upon make an alternative covenant, the agreement being according to its legal effect a covenant to transport and deliver the goods in twenty-six days, or deduct from “ the freight bill ” ten cents per hundred pounds per day, for each day’s delay; the breaches assigned should have negatived both alternatives, but there is neither averment nor proof of refusal to deduct from “ the freight bill.” (Lowe v. Peers, 4 Burr R. 2228; Fletcher v. Deytch, 2 Term. R. 32; Slosson v. Beadle, 7 Johns. R. 72; Smith v. Smith, 4 Wend. 468; Pearson v. Williams, 24 Wend. 244; Pearson v. Williams, 26 Wend. R. 630; Farnham v. Ross, 2 Hall R. 167; Watts v. Shepherd, 2 Ala. R. 425; Jones v. Green, 3 Young & Jer. R. 298; Duckworth v. Allison, 1 Mees. & Wels. R. 412; Rawlinson v. Clark, 14 Mees. & Wels. R. 187.)
    1. The evidence offered, if it proved any cause of action at all, did not sustain the declaration, but rather showed a failure to indemnify the plaintiff “ against freight and expenses paid to third parties,” and liens for freight and expenses from Pittsburgh to Independence, and beyond the defendant’s route. The plaintiff proved a payment of some freight, and advances to clerks of steamboats; but there was a failure of proof as to whether or not the deduction from “ the freight bill ” provided for in the agreement was made.
    2. There was no proof that the captain or clerks of the steamboats were or pretended to be the agents of the defendants. Were they such agents to liquidate and settle this claim for demurrage ?
    3. The plaintiff has misconceived the effect of the covenants contained in the articles of agreement; he should have declared against the defendants for not deducting from “ the freight bill ” after they had failed to deliver in twenty-six days; in lieu of that the gravamen of his complaint is, that he paid freight without calling on the defendants to deduct, or giving them an opportunity so to do,
    II. If it be admitted the plaintiff paid ^the freight bill” in full, then he either paid it in compromise and settlement of a dispute, or he paid it in order to deprive third parties of their lien for freight and expenses; or he paid it voluntarily in his own wrong; and in any event, the covenant to dedüct from “ the freight bill” is waived and extinguished by the aet of the plaintiff; and his remedy, if any, is in the equitable action of assumpsit, for money had and received, to recover his excessive payment. (2 Law. 419,1 Wend.; Russell v. Cook, 3 Hill, R. 504; Weyman v. Farnsworth, 3 Barb. S. C. R. 369; Robinson v. City of Charleston, 2 Richardson R. 317; Chase v. Donnell, 7 Greenleaf, 134; 2 Sand. S. C. 475.)
    HI. The defendants being prevented, by inevitable necessity, from performing the contract in respect to the conveyance in the twenty-six days, were excused from the obligation to deduct from the freight bill, and were not liable. (See Stipulation; Parsons v. Hardy, 14 Wend. 215; Bowman v. Teal, 23 Wend. 306; Beebe v. Johnson, 19 Wend. 500; B. & Ald. 342; id. 53; 4 Wheat. 204.)
    IV. The receipt of April 1st, 1846, being a contemporaneous act of the parties under the agreement, was so far a modification thereof as to save the defendants from damages resulting from delay, occasioned by “ unavoidable accident;” and the delay, now complained of, being of this character, and sufficiently excused, the plaintiff is not entitled to recover. (Case, fol. 57; Parsons v. Hardy, 14 Wend. 215.)
    V. The referee erred in the admission and exclusion of testimony.
    VI. The report should be set -aside, and judgment ordered for defendants,

      B. W. Bonney, for the plaintiff,
    rested his argument on the following points, which he discussed at large :—
    I. The testimony of the witness Morehead was admissible, and properly received, to. show under what circumstances the goods were delivered, and why the freight was paid. What was then said was part of the transaction•—-part of the res gestae. (1 Greenleaf’s Ev., § 108, 9, 10; 4 Phillips’ Ev.—C. & H. notes—180 to 188, and cases cited.)
    H. The motion for a nonsuit was properly denied by the referee. 1. The covenant by defendants is, first, that they will convey and deliver, &c.; and secondly, that in case of failure to deliver they shall deduct, &c. The declaration avers that defendants did- not deliver, and that plaintiff demanded the goods, which defendants refused to deliver unless plaintiff would pay the freight, which plaintiff thereupon did pay, under express' protest, and denial of defendants’ right to claim it. The proof fully sustains the declaration. 2. The payment of the freight in full was neither in compromise or settlement of a disputed claim, nor made by plaintiff in his own wrong. • Such payment was made fropi necessity, to obtain the goods from parties lawfully in possession, and having ostensibly a lien on the goods for the freight—against which lien the defendants had expressly covenanted to protect them—and was made under protest, and a direct assertion of plaintiff’s rights. 3. That the defendants were prevented by the delay in repairing the Pennsylvania Canal from transporting the goods in time, is no excuse ■ for the breach of their covenant. (Chitty on Contracts, Perkins’ Ed. 1848, p. 734, &c.) 4. The receipt of April 1, 1846, is not, nor was it intended to be, a modification of the original covenant by defendants. ‘ It was given merely to show what goods had been delivered to defendants to be by them transported, pursuant to their contract; and this is expressly so stated in the stipulation in relation to facts. Besides, there is nothing contained in the receipt which would excuse the delivery of the goods within the stipulated time. (Chitty on Contracts, p. 734, &c.)
    HI. The testimony offered by the defendants was properly ruled out by the referee, That the injury to the Pennsylvania Canal, and the delay of the state in repairing it, caused the delay in the transportation and delivery of the goods by defend-, ants, constitutes no defence to the action for breach of their covenant. ■ (Chitty on Contracts, p. 734, &c.)
    IT. The plaintiff is entitled to judgment for the amount reported by the referee, with interest and costs.

       Mr. Justice Bpsworth having acted as referee, although present upon the argument, took no part in the decision.

   By the Court. Duer, J.

We entirely agree with the referee, that the obligation of the defendants, resulting from their covenant to deliver the goods of the plaintiff at Independence within a stipulated period, was absolute and unconditional, and that its effect as such was not at all varied by the clause which immediately follows in the articles of agreement. This subsequent clause was plainly inserted for the benefit of the defendants, by limiting the penalty, to which, in the event of a delay in the delivery of the goods beyond the specified period, they would be liable, to a sum not exceeding the freight they would be entitled to receive, and was certainly not designed to give an election to the defendants not to perform, at all, the duty they had undertaken to discharge.

It is not necessary to deny that in construing the articles of' agreement, the terms of the receipt or bill of lading for the goods must be taken into consideration, so that the two instruments may receive, if possible, a consistent interpretation. But there is in reality no variance or discrepancy that needs to be removed or reconciled. The exceptions in the bill of lading relate entirely to damages affecting the condition of the goods themselves, not at all to a loss resulting to the owner from a delay in their delivery. They are exceptions from the provision to deliver them in good order, not from the covenant to deliver them within a specified time.

The referee has very properly found that the delay in the delivery of the goods was produced by causes beyond the control of the defendants, in other words, was the result of unavoidable accidents; but he has just as properly decided, that this fact constitutes no defence to the action. By the terms of their covenant the defendants took upon themselves the risk óf being able tg deliver the goods within a required and specified period, and their failure to make this delivery, no matter from what cause it arose, was a breach of their covenant, rendering them liable in damages to the plaintiff" to the entire amount stipulated in the articles of agreement.

The plaintiff must therefore be entitled to remuneration equal to the deduction from the freight to which he was entitled when the goods were delivered, that is, a sum corresponding with the amount which he then paid, unless it has been proved that he waived all claim to this deduction, at the time of the delivery of the goods, or with a full knowledge of the facts made a voluntary payment of the whole freight that was demanded.

The proof, however, that has been given, so far from warranting this conclusion, establishes the fact, that the plaintiff, when he claimed the delivery of his goods, instead of abandoning, insisted upon his rights, and that the payment then made by him, so far from being voluntary, was, in judgment of law, compulsory and coerced. As the deduction to which the plaintiff was then "entitled, which- was equal to the whole freight demanded, was wrongfully withheld, it necessarily follows that the defendants, who stipulated that the deduction should be made, have violated the covenant, and that the plaintiff is entitled to recover back, as damages, the whole sum with interest, which, in disregard of his protest, he was then required and forced to pay. It is proved by the witness More-head, that when the plaintiff claimed- the delivery of his goods, he objected," as he had a right to do, to the payment of any freight whatever ; and that the captain of the. steamboat in which the goods had been transported from Pittsburgh, refused to deliver them upon any other condition than the payment of the whole freight he had been desired to collect, and which was in reality all that would have been due bad the goods been delivered in time; and the fact of such refusal is not merely proved by the witness, but is confessed in the receipts which the captain gave for the payments he exacted, B was under these circumstances that the required payment Was made, and there is no pretence for representing it as made in compromise of a disputed claim, since it embraced the whole sum that was demanded. It was a payment" extorted as the means of releas ing the goods from an unlawful detention-r-a payment extorted by duress, not indeed of the person, but of the property of the plaintiff.

The law upon this subject has been very accurately stated by Hr. Justice Sandford, in a case in our Reports, to which, as sustaining his own views, we were referred by the learned counsel for the defendants. In delivering the opinion of the court in the case of Fleetwood v. The City of New York (2 Sand. S. C. R. p. 475), that eminently learned and cautious judge admitted that there are “ cases of duress of personal property in which payments for its relief are deemed involuntary, and the money may be recovered back.” He added, that although “ most of these cases have arisen upon seizures of goods under revenue or excise laws, yet the principle has been extended to cases where bailees or others, who came lawfully into the possession of goods, have received more than was due before they would relinquish such possession, and that the principle is founded upon the movable and perishable character of the property, and the uncertainty of a'personal remedy against the wrong-doer.” (2 Sand. pp. 479,480.) On the subj ect of payments compelled by duress of property, the learned judge referred to the cases of Chase v. Dwinall, 7 Greenleaf, 134; Ellicott v. Swartwout, 10 Peters, 137; and Clinton v. Strong, 9 John. 300; to which many others might be added:— /

It is scarcely necessary to remark, as it is too obvious to escape attention, how exactly, in all respects, the well chosen and carefully weighed language of our lamented brother is applicable to the circumstances of the case now before us. The captain of the steamboat was a bailor who came lawfully into the possession of the goods, and who exacted more than was due as the condition of their delivery. The goods were movable and perishable, and considering their character and value, their remote situation, and the nature of the commerce—the inland trade with Mexico—in which they were employed, the personal remedy of the plaintiff against the wrong-doers was, in an eminent degree, inadequate and uncertain: It would be an abuse of language, and an affront to common sense, to say that the payment thus made by the plaintiff, as the necessary and only means of recovering the possession of his property and of securing himself from a heavy, immediate, and perhaps, in the result, irreparable and ruinous loss, can be treated as voluntary^ and in denying to him upon this ground the relief that he seeks, we should violate, as it seems to us, the plainest rules of morality and justice.

Such being our views of the facts and of the law of this case, we cannot do otherwise than affirm the judgment that has been rendered, unless we are compelled to assent to the validity of the objections that remain to be stated. These objections, in our opinion, do not affect the merits of the case ; but although they may be regarded as technical and formal, yet, if they are valid, it will be our duty to give them effect by a reversal of the judgment.

It is insisted that the two covenants of the defendants, the covenant to deliver the goods at Independence within a limited time, and that binding them in the event of a delay in the delivery, beyond the period specified, to make a proportionate deduction from the freight, are in their nature alternative, and that, according to the just rules of pleading, the breaches ought to have been so assigned as to negative both alternatives ; but that, in reality, it is not averred in the declaration, nor was it proved upon the trial, that there was any breach of the second covenant by the refusal of the defendants to make that deduction from the freight which they had stipulated to allow.

It is a necessary conclusion from the observations we have already made, that we do not consider the covenants in question as alternative. Covenants are alternative, in the proper legal sense of the term, whdn they give an election to the party bound by them to perform one or other of the acts to which they relate, and by the fulfilment of one covenant to discharge himself, wholly, from the performance of the other. The covenants in question gave no such election to the defendants. The first, imposed upon them a positive duty; the second, instead of releasing them conditionally from this duty, fixed the measure of damages for its violation. The defendants had no election not to deliver the goods, as both covenants suppose the delivery to be made. The declaration, therefore, in our judgment, would have been good had it set forth only the first covenant, and claimed damages for its breach, leaving the defendants to answer the claim for damages, by showing either that the necessary deduction from the freight had been made, or that the plaintiff, by a voluntary payment of the whole freight, had waived his right to demand it.

The objection, however, that we are considering is untenable, even upon the supposition that the declaration ought to have assigned a breach of both covenants-—-for such in our opinion is its actual form. Both covenants are set forth, and a breach of each is alleged, and the refusal of the defendants to make the necessary deduction from the freight is sufficiently averred, and has been clearly proved.

We have seen' that the deduction to which the plaintiff was entitled, was equal to the freight demanded and paid. The declaration therefore in averring, as it expressly does, that the plaintiff when the goods were delivered denied the right of the defendants to the freight they claimed, and made the payment under protest, avers substantially and by a necessary implication, that he claimed, and the defendants refused to make, the deduction which they had covenanted to allow. By holding the declaration to be bad and the plaintiff therefore not entitled to recover, because the breach, as assigned, negatives not the words, but only the meaning and import of the covenant, we should indeed entangle justice in a net of form,”—a reproach that in the present age, no court of justice can be willing to incur, or be excused for meriting.

It was next insisted, that even upon the construction that we have given to the covenants of the defendant there is a fatal variance between the declaration and the proof—a variance which makes it our duty to set aside the referee’s report. The declaration avers that the freight, which the plaintiff claims to recover back as damages, was paid to the defendants, whereas the proof shows, that the payment was made to the Captain of the steamboat who had the goods in charge. It is not denied, however, that if the captain is to be regarded as the agent of the defendants, the declaration is properly drawn, and the averment fully sustained by the proof.

•The conclusive answer, therefore, to the objection is, that the captain was the agent of the defendants; an agent, by whose acts and declarations, in our opinion, they were bound. They contracted personally to deliver the goods, not at Pittsburgh but at Independence, and although they were only the proprietors of the line that ended at Pittsburgh, their contract was entire and embraced the whole necessary transportation. The persons therefore whom they employed to transport the goods from Pittsburgh to Independence, and there deliver them, were their agents, for the plain reason, that they were acting at' their request and on their behalf, in the discharge of a duty which they had' themselves undertaken to perform. As no freight was to be paid until the final delivery of the goods, the captain of the steamboat was their agent, not merely to make the delivery, but for the collection of the freight, and as such they were bound to instruct him to demand no more than the sum that upon the arrival of the goods at Independence would be due to them under their agreement with the plaintiff. Under these circumstances the refusal of the captain to deliver the goods, upon any other terms than the payment of the whole freight, was their refusal, and the extorted payment made to him, a payment to themselves. The referee has intimated strong doubts whether the money thus paid could have been recovered back, had there been no subsisting lien upon the goods, or the payment had been made to the defendants in person, but the doubts thus expressed we are not to be understood as sharing. It is true that the case of the plaintiff is strengthened, by the fact that the captain of the steamboat had a lien upon the goods, for that portion of the freight which was due for their transportation from Pittsburgh to Independence ; but had there been no subsisting lien, and had the whole freight been exacted by the defendants in person, we must still have held that the plaintiff was entitled to recover. It would still have been true, that the defendants were bailees, exacting more than was due, as the condition of relinquishing their possession of the goods; and a payment made to them under a denial of their right, and for the sole purpose of reclaiming the goods from an unjust detention, we must still have regarded as coerced, and, therefore, void and recoverable. We however agree with the learned referee that if there was any variance between the declaration and the proof, it was a variance by which the defendants were not, and could not have been misled, and which, therefore, under the provisions of the Code, he was justified in disregarding.

The exceptions to the ruling of the referee in admitting the testimony of Morehead, and in rejecting the evidence subsequently offered to be given by the defendants, do not require a special notice or discussion. They are shown to be groundless by the observations already made.

The judgment is affirmed with costs.


author: By the Court. Campbell, J.

text:
    Caldwell v. Murphy, Survivor, &c.
    In an action for an injury to the person, the circumstances, condition in life, and pursuits of the plaintiff may properly be given in evidence, in order to enable the jury to determine the extent of his actual damages.
    For the same reason, an inquiry into the probable consequences of the injury, as transitory or permanent, is eminently proper.
    When successive actions may be brought for a continuous wrong, the damages in each may be justly limited to those sustained by the plaintiff at its commencement.
    But where for an injury to the persbn a single action only can be brought^ the certain and probable consequences of the injury must of necessity be considered, in order to enable the jury to give to the plaintiff a full compensation.
    When the judge in beginning his charge told the jury that a common carrier for the transportation of passengers is liable to the same extent as a common carrier of goods, held that the alleged error was rendered immaterial by his finally submitting the cause to the jury upon the single question whether the servant of the defendant, the driver of a stage, had been guilty of negligence.
    Although the liability of a carrier for passengers is in some respects more limited than that of a carrier of merchandise, he is bound to use the utmost care diligence, and foresight, and if by the exercise of these, an accident from which an injury or loss has resulted might have been prevented, he is liable.
    The judge was therefore correct in telling the jury that the defendants were liable, unless the accident, the overturning of a stage, which occasioned the injury to the plaintiff, was the result of irresistible force or inevitable accident, plainly meaning by “inevitable,” an accident which human care or foresight could not have prevented.
    When the proprietors of a stage are accustomed to receive fare for the transportation of passengers on its top, they cannot impute negligence to a passenger thus seated.
    If negligence were imputable to the plaintiff, as there was no pretence for saying that it contributed to produce the accident or injury, it was no bar to his recovery.
    (Before Duer, Campbell, and Bosworth, J. J.)
    October 13, 14;
    October 20, 1852.
    Motion for new trial denied, and judgment for plaintiff affirmed with costs.
    Appeal from a judgment upon a verdict for the,plaintiff, and from an order at special term denying a new trial.
    The action was for an injury to the person of the plaintiff, occasioned by the overturning of a stage belonging to the defendants, and was tried before Mr. Justice Duer and a jury, on the 5th, 6th, Ith, and 8th days of February, 1851. The facts on which the claim for damages was founded are set forth in the complaint as follows:
    The complaint of William Caldwell, of the city of Hew York, shows that the defendants Thomas Murphy and James Kavanagh were, on or about the fourth day of Hovember, A. D. 1849, the owners and proprietors of a certain stage or omnibus which was licensed, authorized, or permitted by law to pass and re-pass upon the Third Avenue, in the city of Hew York, to any passenger for hire; that the said carriage, stage, or omnibus, was thus driven by a driver or servant of the said defendants, on the aforesaid day, upon the said Third Avenue.
    That the said carriage, stage, or omnibus, was old, rotten, weak, or of bad materials, so that it was unsafe and dangerous to be used for the purpose of carrying passengers, and that in consequence of the said condition of said stage, carriage, and omnibus, and the careless and negligent use thereof, the damages and injuries hereinafter named occurred and happened to this complainant.
    That the said carriage, stage, or omnibus, was carelessly and negligently driven along the said street or avenue. That the tongue or pole of the stage was broken, and the stage, carriage, or omnibus turned over or upset.
    That the said plaintiff was seated upon the said carriage, stage, or omnibus, as a passenger, with Agnes Caldwell, his child; that in consequence of said overturning, or upsetting, caused as before stated, the said child of this complainant was killed, and the plaintiff greatly injured, bruised, .and made sick, lame, and weak, and rendered unable to work or labor for a long space of time, and obliged to employ a physician, and be at great expense and trouble, so much so, that the damage which was caused by the defendants and their servant as before set forth in this complaint, has been, as he claims and alleges in pursuance of the statute in such case made and provided, and for his personal damage the sum of five thousand dollars, and he therefore prays judgment for the said sum of five thousand dollars.
    The defendants, in their answer, denied that on or about the day mentioned in the complaint they employed, drove, or used, or permitted to be employed, drove, or used, any stage or omnibus for the transportation of passengers on the Third Avenue, of the unsound and bad condition mentioned in the complaint, and they denied that on or about that day any stage or omnibus belonging to them was broken or upset in consequence of such condition. They also denied that any stage or omnibus, of which they were the proprietors, was at the time mentioned broken or "upset by the careless or negligent driving thereof, and they averred that the only stage or omnibus belonging to them, which was upset or broken at the time mentioned, was so upset and broken in consequence of the bad and unsafe condition of the Third Avenue, and that for damages arising from this cause they were not liable.
    Upon the trial a number of witnesses were examined on both sides, and there was considerable variance and some contradictions in their testimony, but the material facts stated in the complaint, except the unsound condition of the stage, were fully proved, and the conflict in the testimony related chiefly to the condition of the road at the time of the accident, and to the question whether by proper caution on the part of the driver it might have been avoided.
    The defendants’ counsel moved for a nonsuit, which was denied, and in the course of the trial various exceptions were taken to the ruling of the judge upon questions of evidence. The grounds of the motion and the nature of the exceptions appear sufficiently in the opinion of the court.
    On the trial the proceedings of a coroner’s jury, who acquitted the owners and driver of the stage of all negligence, and imputed, the accident solely to the bad condition of the avenue, were given in evidence, and it appeared from the proceedings and the testimony of the coroner, that Kavanagh, one of the defendants, had been summoned and had served as a juror.
    When the testimony was closed, the defendants’ counsel moved the court to strike out of the cause all of the evidence relating to the death of the child, on the grounds that the plaintiff had not proved any pecuniary loss or damage to have accrued therefrom. The judge thereupon decided as a matter of law, that the plaintiff could not recover any damages for the death of the child, because the statute contemplated pecuniary damages, and the plaintiff had not proved any. The cause was then summed up to the jury by the counsel for the respective parties, when the counsel for the defendant asked the judge to charge to the jury the following propositions as matter of law:
    . 1. Plaintiff cannot recover if from the evidence the jury believe that the driver of the stage used ordinary care and prudence in its management. -
    2. Plaintiff cannot recover if his injury arose from the driver’s negligence, coupled with plaintiff’s own carelessness, misconduct, or the want of ordinary prudence or care on his part in getting on to the top of the stage after it was full. Hor if his being on the top of the stage in an exposed condition necessarily contributed to the overturning of the stage.
    3. Plaintiff cannot recover if he was imprudently the heedless cause of his own injury. That to entitle him to recover, the law requires the party prosecuting to be without fault.
    4. That if the jury believe that the upsetting of the stage was caused by the obstruction or unsafe condition' of the Third Avenue, that defendants are not liable.
    5. That in case the jury are of the opinion that the plaintiff’s injury wholly arose from the driver’s carelessness, they cannot take into the account of their verdict any loss of service or time subsequent to or since the commencement of this action.
    The judge charged the jury, that by the rules of the common law every principal is liable for the acts or omissions of his agent, every master for those of his servant within the scope of the employment for which the agent or servant is retained. That these rules applied emphatically to common carriers, to which class the defendants, as engaged in the business of transporting passengers for hire, certainly belonged. As a general rule, a person who contracts to perform a particular service for a reward is responsible only for ordinary care and diligence, but the law exacts from common carriers and them servants extraordinary care and diligence, and regards its omission as culpable negligence, and hence unless the loss, with which they are sought to be charged, appears to have resulted from irresistible force or inevitable accident, they are not excused from liability. These rules had been assailed by the counsel for the defendants as harsh and inequitable, but they were found in the code of every civilized nation, ancient and modern, and were in reality founded on very manifest and sound reasons of public policy, so much so, that were they to be abandoned, or materially relaxed, the security that is now enjoyed for property and life would be greatly endangered.
    The complaint in this case charged that the injuries which the plaintiff had sustained had arisen from the unsound and rotten condition of the stage and from the negligence of the driver, and if the overturning of the stage was owing to the joint action of these causes, or to the separate action of either, the plaintiff was entitled to a verdict for such damages as under all the circumstances the jury might deem to be reasonable.
    That in his opinion, there was no evidence to warrant the inference that the accident was owing in any degree to the unsound condition of the stage, and consequently the sole question was, whether it was justly imputable to the negligence of the driver.
    That the determination of this question seemed to depend entirely upon the credit to be given to the testimony of the driver. If it was true, as had been sworn, that the oversetting of the stage was solely owing to the sudden rolling of a heavy stone from the top of the bank, the accident might properly be regarded as one that could not have been foreseen or guarded against, and for the consequences of which, therefore, neither the driver nor the owners were responsible. But on the other hand, if the stone, when struck by the wheel of the stage, was lying in the road, it seemed impossible to deny that the accident might have been avoided in the exercise of that care and diligence which the driver was bound to use. Upon this supposition he saw no escape from the conclusion that the injuries to the plaintiff resulted from the negligence of the driver, and therefore that the defendants were bound to compensate him.
    That the jury must judge for themselves whether the statement made by the driver was not highly improbable, and wholly inconsistent with the testimony of other and disinterested witnesses. The driver was in truth swearing to discharge himself, and in judging of the credit due to him, it was a material circumstance that no such explanation had been given by him, when examined before the Coroner. That in judging of the conduct of the driver, the jury were not to be at all influenced by the verdict of the Coroner’s jury'. The proceedings before the Coroner were not evidence of themselves, and they had been so conducted as to deprive them of all claim to consideration.
    That if the jury should arrive at the conclusion that the overturning of the stage was owing to the want of due caution on the part of the driver, the bad condition of the road afforded no excuse, nor did the circumstances of the case furnish any ground for the assertion that the accident was owing to any negligence on the part of the plaintiff. He was not to be deprived of damages because he had, taken his seat on the top of the stage, or had failed in the confusion and terror of the moment to adopt the best course for extricating himself and his child from the peril. That if the jury, under the instructions given to them, should be of opinion that plaintiff was entitled to recover, they would wholly lay out of their view the death of plaintiff’s child, and would only take into their consideration in making up their verdict, plaintiff’s personal sufferings and injuries of body, including his loss of service or labor, and his continuing or probable permanent disability and loss, together with the amount expended by him in his sickness for medicine or other attendance and necessaries, and would allow him therefor, as his actual damages, a full and liberal compensation.
    The judge then refused to give any more specific answer than that contained in his charge to the several propositions of law, or any of them, submitted by defendant’s counsel. Defendant’s counsel thereupon excepted to each and every part of the charge of the judge, and did also except to his several refusals - to charge the jury, as above severally requested, and such and every of said exceptions were duly entered.
    The jury found a verdict for $625 as damages.

      T. Darlington, for the defendant Murphy, now insisted that the verdict ought to be set aside and new trial be granted, and rested his argument principally upon the grounds stated in the opinion of the court.

      D. E. Wheeler, for the plaintiff, contra.
   By the Court. Campbell, J.

It was said in Myers v. Malcocol/m, which was an action to recover damages for injury to the person, that evidence of the wealth of the defendant was inadmissible, because the plaintiff was entitled in that case to recover the actual damages he had sustained without regard to the ability of the defendant to pay them, and such is the general rule in cases free from malice or wilful negligence. But, in relation to the plaintiff, the case is widely different. As to him, it is often necessary to inquire into his condition in life, his habits, pursuits, and necessities, in order that the jury may determine what actual damage he has sustained. The loss of a limb might produce equal pain to two men, but the actual damage which that loss would occasion, when we are called upon to estimate that damage in dollars and cents, would depend very materially upon the pursuits and condition in life of the party claiming to recover such damage. In Foot v. Tracy, 1 John 53, Kent, J., says, “The jury have, and must inevitably have, a very large and liberal discretion in apportioning the damages to the rank, condition, and character of the plaintiff, and they must have evidence touching that condition and character, so as to have some guide to that discretion.” (See Lincoln v. Saratoga & S. R. R. Co., 23 Wend. 425). In estimating that damage also, it is very manifest that a most important inquiry must be, whether the injury which the plaintiff has sustained is of a temporary or of a permanent character. Where successive actions may be brought for a continuous wrong, as in the case of a continued trespass upon land, the damages in each suit are very properly limited to those sustained by the plaintiff at its commencement, but for an injury to the person, resulting from a single act, a single action only can be brought, and it would therefore be manifestly unjust not to take into consideration upon the trial the nature and extent of the injury in all its consequences, since, by not so doing, the plaintiff in many cases would be deprived of the larger portion of the compensation he might justly claim, and the damages given be wholly disproportioned to the injury sustained. The ruling of the judge on the trial, admitting evidence on both these points, we therefore think was correct. Another question put to one of the witnesses, inquiring what had been the condition of the plaintiff as to health since the injury, was objected to, and application was made to strike out the answer of the witness, which answer was, that the plaintiff has since invariably complained, and which application to stride out was refused by the judge. It was, perhaps, not very material, and was not much pressed upon the argument. The complaint of pain and suffering connected with the appearance of the injured party, form the means of judging as to his physical condition. The witness to whom this question was addressed had attended on the plaintiff as a friend during the period immediately following the injury, and had aided in lifting him in and out of bed, and saw him frequently after'he was able to leave his house, and had therefore the best means - of learning whether such complaint was real. We think it was proper evidence for the jury under the circumstances. The judge charged the jury that, as a general rule, common carriers transporting passengers for hire are liable for damage to the persons carried, unless the same resulted from inevitable force or inevitable accident, but in this case, he added, that the sole question was whether the accident was justly imputable to the negligence of the driver. It was contended by the defendant’s counsel that there is a wide difference between the liability of common carriers of merchandise and of carriers engaged in the transportation of passengers, that while, by the common law, the rule, originating in motives of public policy, was that the former were rendered liable for loss, except occasioned by the act of God or the king’s enemies, it was much less stringent in reference to the latter class of carriers, and they are not liable if they use ordinary care and prudence in the management of their vehicles. In Ingolls v. Bills and others, 9 Metcalf 1, the Supreme Court'of Massachusetts examined with much care, and commented on many of the leading cases, and they say in conelusion: “ The result to which we have arrived, from the examination of the case before us, is this—that carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient, and suitable coaches, harness, horses, and coachmen, in order to prevent those injuries which human care and foresight can guard against.” Having thus provided the means of transport, they are in like manner bound to use the utmost care and diligence in the managing, directing, and using those means, so that, as far as human care and foresight can go, they may guard against injury., Having done all that human-care and foresight can do, and loss happening, they are not liable. ' Pure accidents will excuse them. They are not answerable, at all events. Human life is too valuable to be required abso-1 lutely at the hands of those who have done all that the utmost I care and foresight can do for its protection. But the magnitude of its value, at the same time, requires of carriers of passengers such extreme care and foresight. The charge of the judge that the law exacted from common carriers of passengers extraordinary care and diligence, and that they are liable, unless the injury arises from force or pure accident, was entirely correct. W e do not deem it necessary to enter upon a review of the cases, but we think they will be found to support this view. See Christie v. Griggs, 2 Campbell 79; Aston v. Heeren, 2 Esp. R. 533; and Ingolls v. Bills, 9 Metcalf 1, and cases there cited.

At the present period, when the lives of so many hundreds of people are intrusted to the carriers of passengers by steamboats j and railroads, and when accidents and disasters are so lament- / ably frequent, it is no time to relax a rule so salutary and so f necessary for the public safety.

There was no evidence tending to show that the plaintiff was guilty of negligence. He was on the top of the stage with many others by the consent of the driver, who collected his fare from them; and, when the owners of a stage agree to transport passengers upon the top, they have assuredly no right to impute negligence to a passenger thus seated. It appears, also, that there were seats for passengers on the top of the stage. The negligence of the plaintiff, if there had been any, in order to excuse the defendant, must have been such that it directly concurred in producing the injury. It can hardly he pretended that it did so. The comments of the judge upon the evidence seem to have been fairly warranted. The testimony of the driver was contradicted in material points by that of two or three other disinterested witnesses. The credit to he given to him was, however, left to the jury, and the whole case was, we think, fairly submitted. The other objections that were taken on the trial, and partly urged on the hearing before us, have seemed to all of us so evidently groundless as not to require a special notice. The judge, at the close of the testimony, decided that the plaintiff could not recover any damage for the death of the child. The verdict of the jury was for §625, and considering the plaintiff’s injury was not large. We are unable to see any reason for a new trial.

The judgment for the plaintiff is therefore affirmed with costs.