land, and that said defendant then had, and still has, business and running arrangements with said Allan Brothers & Co., by which each contracts for the transportation of goods by the other, destined to points on and beyond their respective lines, in a manner similar to said bill of lading. This custom or mode of doing business between said Allan Brothers & Co. and said defendant has existed for more than ten years last past. During all this period said defendant has been accustomed continually to receive from said Allan Brothers & Co., goods under such bills of lading, and to transport the same to different parts of Canada and the United States. The particulars of said running and business arrangement are as follows: each receives goods consigned over the line of the other to points on, as well as beyond their respective lines, and agrees as to the price of transportation over their respective lines delivering to the consignors in each instance a bill of lading similar to the one here in question. The goods are then carried, by the party so receiving them, to the place of connection with the other, to wit: Montreal, and there delivered to the other, with a duplicate copy of the bill of lading given, as was done in this case. The bill of lading contained the following: "Shipped in good order and well conditioned, by Allan Bros. & Co., in and upon the screwsteamship called The Damascus, whereof is master for the present voyage. Watts, or whoever else may go as master in the said ship, and now lying in the Port of Liverpool and bound for Quebec and Montreal, twenty-three casks horse-nails, being marked and numbered as in the margin; and are to be delivered, in the like good order and well conditioned, at the aforesaid Port of Montreal (the act of God, the Queen's enemies, pirates, restraint of princes and rulers, fire at sea or on shore, accidents from machinery, boilers, steam or any other accidents of the seas, rivers and steam navigation of what nature or kind soever excepted); with liberty, in the event of said steamer putting back to Liverpool, or into any port, or otherwise being prevented, from any cause, from proceeding in the ordinary course of her voyage, to tranship the goods by any other steamer belonging to or chartered by the Montreal Ocean Steamship Company; and with liberty to sail with or without pilots, and to tow and assist vessels in all situations, and to call at any port or ports to receive and land mails, unto the Grand Trunk Railroad Company, and by them to be forwarded thence by railway to the station nearest to St. Louis: and at the aforesaid station delivered to Messrs. Pratt & Fox or to their assigns, freight and primage payable abroad, and Montreal harbor-dues for the same, in cash, on or before delivery, as per margin, with average accustomed." The case further appears in the opinion. Messrs. O. Kirchner and Wm. Jennison, for plaintiffs in error: We submit that the bill of lading contained two separate and distinct undertakings: (a) That of Allan Bros. & Co. to safely and securely carry the goods subject to certain conditions and limitations, by water from Liverpool to Montreal. (b) That of the defendant to carry the goods from Montreal to the station nearest St. Louis, Mo., without any limitation whatsoever to its common law liability. It is hardly necessary at this day to cite authorities to the point that an undertaking by a railway company to a point beyond its own line, is not ultra vires. While American courts have generally held a carrier of goods liable only for such damages as occur on his own line, and while they were awaiting delivery to a connecting carrier, it is no longer questioned that the carrier's liability extends to the ultimate destination of the goods where there is a special undertaking to carry the goods beyond the terminus of his own line of railway. Krender v. Woolcott, 1 Hilt., 223; Hunt v. R. R. Co., 1 Hilt, 228; Klyle v. R. R. Co., 10 Rich. (S. C.), 382; Moore v. R. R. Co., 3 Mich., 23; Hempstead v. R. R. Co., 28 Barb., 485; R. R. Co. v. Johnson, 34 Ill., 389; Weed v. R. R. Co., 19 Wend., 534; Nutting v. R. R. Co., 1 Gray, 502; R. R. Co. v. Day, 20 Ill., 375; R. R. Co. v. Sullivan, 25 Ga., 231; Perkins v. R. R. Co., 47 Me., 573; Burtis v. R. R. Co., 24 N. Y., 269. But conceding, for the sake of argument, that the defendant was not a carrier of the goods from Montreal to St. Louis, there can be no doubt, on the facts in the case, that it was the duty of the defendant to carry the goods from Montreal to Detroit, and there deliver the goods to the Michigan Central Railroad Company for further transportation and proper instructions, etc. There is nothing to show that the Michigan Central Railroad Company had received these goods for carriage. Shelden v. Robinson, 7 N. H., 157. The goods were burned while in a section of a freight depot set apart for the use of the defendant. The stipulation shows that whenever goods had been so deposited, "They were loaded into the cars of the Michigan Central Railroad Company whenever they, the Michigan Central Railroad Company, were ready to receive them." The fact, therefore, that the goods had not yet been loaded, conclusively shows that the Michigan Central Railroad Company had not received these goods for carriage, and they were, therefore, in the custody of the defendant. The inability or refusal of the connecting carrier will not relieve the first or intermediate carrier from his common law liability. Goold v. Chapin, 20 N. 1., 259; Fenner v. R. R. Co., 46 Barb., 103; Merriam v. R. R. Co., 20 Conn.. 362; Redf. Carr., sec. 95; R. R. Co. v. Shurtz, 7 Mich., 518. Messrs. I. P. Christiancy and E. W. Middaugh, for defendant in error. Mr. Justice Hunt delivered the opinion of the court: The defendant is a Corporation engaged as a common carrier in the transportation of persons and property. This action seeks to recover damages for a violation of its duty in respect to certain merchandise shipped from Liverpool to St. Louis, and carried over its road from Montreal to Detroit. The goods reached the City of Detroit on the 17th of October, 1865, and on the night of the 18th of the same month were destroyed by fire. The defendant claims to have made a complete delivery of the goods to the Michigan Central Railroad Company, a succeeding carrier, and thus to have discharged itself from liability before the occurrence of the fire. If the liability of the succeeding carrier had attached, the liability of the defendant was discharged. Rawson v. Holland, 59 N. Y., 611; O'Neill v. R. R. Co., 60 N. Y., 138. The question. therefore, is: had the duty of the succeeding carrier commenced when the goods were burned? The liability of a carrier commences when the goods are delivered to him or his authorized agent for transportation, and are accepted. Rogers v. Wheeler. 52 N. Y., 262; Grosvenor v. R. R. Co., 39 N. Y., 34. 44] *If a common carrier agrees that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit amounts to notice, and is a delivery. Merriam v. R. R. Co., 20 Conn., 354; Converse v. Nor. & N. Y. Tr. Co., 33 Conn., 166. The liability of the carrier is fixed by accepting the property to be transported, and the acceptance is complete whenever the property thus comes into his possession with his assent. R. R. Co. v. Smyser, 38 Ill., 354. If the deposit of the goods is a mere accessory to the carriage, that is, if they are deposited for the purpose of being carried without further orders, the responsibility of the carrier begins from the time they are received; but, when they are subject to the further order of the owner, the case is otherwise. Ladue v. Griffith, 25 N. Y., 364; Blossom v. Griffin, 13 N. Y., 569; Wade v. Wheeler, 47 N. Y., 658; R. R. Co. v. Schurlz, 7 Mich., 515. The same proposition is stated in a different form when it is said that the liability of a carrier is discharged by a delivery of the goods. If he is an intermediate carrier, this duty is performed by a delivery to the succeeding carrier for further transportation, and an acceptance by him. Authorities, supra. The precise facts upon which the question here arises are as follows: a At the time the fire occurred, the defendant had no freight room or depot at Detroit, except a single apartment in the freight depot of the Michigan Central Railroad Company. Said depot was a building several hundred feet in length, and some three or four hundred feet in width, and was all under one roof. It was divided into sections or apartments, without any partition wall between them. There was railway track in the center of the building, upon which cars were run into the building to be loaded with freight. The only use which the defendant had of said section was for the deposit of all goods and property which came over its road, or was delivered for shipment over it. This section, in common with the rest of the building, was under the control and supervision of the Michigan Central Railroad Company, as hereinafter mentioned. The defendant employed in this section two men, who checked 45] *freight which came into it. All freight which came into the section was handled exclusively by the employés of the Michigan Central Railroad Company, for which, as well as for the use of said section, said defendant paid said company a fixed compensation per hundred weight. Goods which came into the section from defendant's road, destined over the road of the Michigan Central Railroad Company. were at the time of unloading from defendant's cars, deposited by said employés of the Michigan Central Railroad Company in a certain place in said section, from which they were loaded into the cars of said latter company by said employés when they were ready to receive them; and, after they were so placed, the defendant's employés did not further handle said goods. Whenever the agent of the Michigan Central Railroad Company would see any goods deposited in the section of said freight building set apart for the use of the defendant, destined over the line of said Central Railroad, he would call upon the agent of the defendant in said freight building, and, from a way-bill exhibited to him by said agent, he would take a list of said goods, and would then, also, for the first time, learn their ultimate place of destination, together with the amount of freight charges due thereon; that, from the information thus obtained from said way-bill in the hands of the defendant's agent, a way-bill would be made out by the Michigan Central Railroad Company for the transportation of said goods over its line of railway, and not before. These goods were, on the 17th of October, 1865, taken from the cars and deposited in the apartment of said building used as aforesaid by the defendant, in the place assigned as aforesaid for goods so destined. At the time the goods in question were forwarded from Montreal, in accordance with the usage in such cases, a way-bill was then made out in duplicate, on which was entered a list of said goods, the names of the consignees, the place to which the goods were consigned, and the amount of charges against them from Liverpool to Detroit. One of these way-bills was given to the conductor who had charge of the train containing the goods, and the other was forwarded to the agent of the defendant in Detroit. On arrival of the goods at Detroit. the conductor delivered his copy of said [46 way-bill to the checking clerk of defendant in said section, from which said clerk checked said goods from the cars into said section. It was the practice of the Michigan Central Railroad Company, before forwarding such goods, to take from said way-bill in the custody of said checking clerk, in the manner aforesaid, the place of destination and a list of said goods and the amount of accumulated charges, and to collect the same, together with its own charges, of the connecting carrier. We are all of the opinion that these acts constituted a complete delivery of the goods to the Michigan Central Company, by which the liability of the Grand Trunk Company was terminated. 1. They were placed within the control of the agents of the Michigan Company. 2. They were deposited by the one party and received by the other for transportation, the deposit being an accessory merely to such transportation. 3. No further orders or directions from the Grand Trunk Company were expected by the receiving party. Except for the occurrence of the fire the goods would have been loaded into the cars of the Michigan Central Company, and forwarded, without further action of the Grand Trunk Company. 4. Under the arrangement between the parties, the presence of the goods in the precise locality agreed upon, and the marks upon them, "P. & F., St. Louis," were sufficient notice that they were there for transportation over the Michigan Road towards the City of St. Louis; and such was the understanding of both parties. EDWIN A. C. HATCH, Plff. in Err., V. THOMAS B. CODDINGTON. (See S. C., Reporter's ed., 48-58.) The cases heretofore cited in 20 Conn., 354, Power to borrow money-agent's authority-deand 33 Conn., 166, are strong authorities upon the point last stated. livery of contract. 1. A general power to borrow money includes authority to give to the lender the ordinary securities for the sum borrowed. Among these are bonds, notes or acceptances, and collaterals. 2. Persons who deal with an agent before notice recall. of the recall of his powers, are not affected by the 3. Whether the delivery of a contract is absolute tion of fact for the jury. or conditional, and on what conditions, is a ques[No. 13.] In the latter case, a railroad company and a steamboat company had a covered wharf in common, at their common terminus, used as a depot and a wharf; and it was the established usage for the steamboat company to land goods for the railroad, on the arrival of its boats in the night, upon a particular place in the depot, whence they were taken by the railroad company, at its convenience, for further transporta47] tion, both *companies having equal posses- Argued Oct. 11, 1877. Decided Oct. 22, 1877. sion of the depot. There was no evidence of an actual agreement that the goods deposited were in the possession of the railroad company, and the goods in question had not been in the manual possession of the railroad company when they were destroyed by fire on the Sunday afternoon following their deposit on the previous night. It was held that there was a tacit understanding that the steamboat company should deposit their freight at that particular spot, and that the rail-struction of a railroad within it, by the Minneroad should take it thence at their convenience. The delivery to the succeeding carrier was held to be complete, and a recovery against the first carrier for the loss of the goods was reversed. In Merriam v. R. R. Co. [supra], it was held that if a common carrier agree that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit alone is a sufficient delivery; and that such an agreement may be shown by a constant practice and usage so to receive property without special notice. In Error to the Circuit Court of the United States for the Southern District of New York. This was an action of trover, brought in the court below by Hatch, the plaintiff in error, against the defendant in error, to recover the value of forty-five Minnesota State Railroad bonds, issued by that State in aid of the consota and Pacific Railroad Company. The bonds were delivered to that company in February, 1859. The plaintiff claimed title under a written assignment from the company, executed by its president and attested by its secretary, dated May 13, 1859, to one Selah Chamberlain, and another written assignment of the same date from Chamberlain to Hatch, the plaintiff in error. Both of these transfers described the bonds as "Now in the hands of T. B. Coddington & Co., of the City of New York," which was defendant's firm. The plaintiff contends that the goods were not The bonds had been deposited with defendant's in the custody and under the control of the firm as security for the obligations of a contract Michigan Road, for the reason that the case to purchase railroad iron, made with the firm states that they "are in a section of the freight by the company Apr. 21 in the same year. Undepot set apart for the use of the defendant." der this contract the railroad company agreed This is not an accurate statement of the posi- to purchase of Coddington & Co. a certain quantion. The expression quoted is used incidental- tity of railroad iron. Coddington & Co. agreed ly in stating that, when the agent of the Mich- to loan to the railroad company $16,000. The igan Road saw "goods deposited in the section railroad company agreed to deposit with Codof the freight building set apart for the use of dington & Co., as a security for the loan and the defendant, destined on the line of said Cen- for the performance of the contract, $85,000 of tral Railroad, he would call upon the agent of Minnesota state bonds. The contract provided defendant and, from a way-bill," obtain a list for the sale of the bonds by Coddington & Co. of the goods, and their destination. Just how on default of the company, etc. Notes were exand in what manner it was thus set apart ap-ecuted to Coddington & Co. by the Minnesota pears from the facts already recited. It was a and Pacific Railroad Co., by its president, and portion of the freight house of the Michigan the forty-five bonds in question were delivered Company, in which a precise spot was selected or set apart, where the defendant might deposit goods brought on its road and intended for transportation over the Michigan Road, and which, by usage and practice and the expectation of the parties, were then under the control of the Michigan Company, and to be loaded on to its cars at its convenience, without further orders from the defendant. We are of the opinion that the ruling and di48] rection of the *circuit judge, that upon the facts stated the defendant was entitled to a verdict and judgment in its favor, was correct, and the judgment should be affirmed. It is ordered accordingly. to Coddington & Co., as a part of the above mentioned eighty-five bonds. The other forty bonds were never delivered to Coddington & Co. There was some dispute as to whether or not the forty-five bonds in question were delivered unconditionally. The contract with Coddington was made by the president of the company under the following resolution: "Resolved, That this Company hereby authorize and direct the execution, on the part of the Company, of the first mortgage deed, the form of which was approved by resolution of this Board dated June 28, 1868. And whereas, the interest of the Minnesota and Pacific Railroad Company requires that no default in the performance of the conditions under which the credit of the State of Minnesota has been loaned to this Company shall occur, and that means shall be promptly provided with the aid of said loan of State credit to construct 100 miles of road at an early day, thereby vesting in the Company the right to sell unconditionally 384,000 acres of land; therefore, Resolved, That Edmund Rice, President of the Minnesota and Pacific Railroad Co., or any agent or agents duly appointed by him in writing to execute the trusts and powers conferred by this resolution, be and are hereby authorized and empowered, in pursuance of section 21 of the charter to sell, loan, pledge, hypothecate or otherwise dispose of the first mortgage bonds of the Company, in conformity to the provisions of the trust mortgage deed of said Company, at par or any price less than par, and for such sum or sums as to the said Rice or agents appointed by him shall appear most for the interest of the Company; and the said President or such agent or agents as he may appoint, is and are, hereby authorized to borrow such sum or sums of money for such length of time and for such rate of interest as to him or such agent or agents may seem proper, for or on behalf of the Company, and also to purchase such quantity of iron rails, locomotives, cars, tenders, rolling stock and machinery for such road and upon such terms as he or such agent or agents may deem advisable, and to make, execute and deliver in the name and on behalf of said Company such obligations, bills of exchange, contracts and agreements in writing, as will enable him or such agent or agents to carry out the powers and authorities above conferred upon him or them, making monthly report to the Board of his acts in the premises, all which acts thereunder done are hereby ratified and confirmed; provided, that the whole amount of obligations to be incurred on behalf of the Company under this resolution shall not exceed the sum of $1,750,000." The above resolution was passed July 13, 1858, at a meeting of the Board of Directors. Jan. 23, 1859, the following resolution was passed, which, the plaintiff claims, withdrew the power conferred by the former resolution: Resolved, That R. R. Nelson, acting President of the Minnesota and Pacific Railroad Company, be authorized to make application and receive from the Governor, $100,000 of the state bonds which said Company are now entitled to. Resolved, That the acting President be instructed to appropriate the $100,000 of the state bonds which the Minnesota and Pacific Railroad Company are now entitled to from the State, to pay the actual current expenses which have accrued up to date, and which may hereafter accrue, including salaries of officers, interest of the first mortgage bonds of the Company already disposed of, and other incidental expenses. Judgment in the court below having been for the defendant, the plaintiff sued out this writ of error. The case further appears in the opinion. Messrs. E. W. Stoughton and B. F. Rice, for plaintiff in error. Messrs. S. P. Nash and Wm. M. Evarts, for defendant in error, cited Le Roy v. Beard, 8 How., 451, 468; Sandford v. Handy, 23 Wend., 260; Nelson v. Cowing, 6 Hill, 336; Story, Ag., sec. 470; Lightbody v. Ins. Co., 23 Wend., 18. *Mr. Justice Strong delivered the opin- [55 ion of the court: We concur with the Circuit Court in the opinion that Mr. Rice was authorized by the resolution of the Board of Directors of July 13, 1858, to make the contract with the defendant, which it is claimed he made on the 21st of April, 1859. That resolution was very broad. As appears from its preamble, it aimed to provide promptly, means for the construction of one hundred miles of the Company's railroad, and to guard against default in the performance of the conditions upon which the credit of the State had been loaned; and these aims were intended to be secured, in part, with the aid of the state loan, that is, with the aid of the state bonds delivered to the Company. The preamble, having avowed such purposes, was followed by a resolution which expressly conferred upon Mr. Rice, the President of the Company, several distinct powers. The first was to sell or hypothecate the first mortgage bonds of the Company (thereafter to be issued) for such sum or sums as he might think for the interest of the Company. A second power given was to borrow money on behalf of the Company in such sums, for such length of time and at such a rate of interest as he might think proper. And, thirdly, he was empowered to purchase iron rails, locomotives. machinery, etc., for the Company, on such terms as he might deem advisable, and, to enable him to carry out these powers and authority, he was empowered to make, execute and deliver obligations, bills of exchange, contracts, and agreements of the Company. It is difficult to see what words would have been more comprehensive for the grant of power to do everything which, in the judgment of Mr. Rice, was necessary or advisable, either for borrowing money or purchasing iron for the Company. A general power to borrow money includes authority to give to the lender the ordinary securities for the sum borrowed. Among these are bonds, notes, or acceptances, and collaterals. But the resolution went further. It conferred power to make contracts and agreements, such as would enable Mr. Rice to borrow money or to make purchases of railroad iron; not merely contracts of purchase, but contracts and agreements that might enable him to effect a purchase. An engagement to give collaterals as a security for money borrowed, or for the payment of a *debt in- [56 curred for iron, is surely within the limits of such a power. This disposes of the first question raised by the assignments of error. We hold that there is nothing in the agreement of April 21, 1859, transgressive of the power with which the President of the Company was clothed by the resolution of the directors. We are also of opinion that the power thus conferred was not revoked or withdrawn by the subsequent resolutions of January 23d and February 3d, 1859. They made no reference to the action of the Board in 1858, or to any powers conferred by that action upon the President of the Company. Undoubtedly, they conferred authority upon Mr. Nelson, acting as President of the Company in the absence of the President. to dispose of the bonds; but such authority was not inconsistent with the concurrent existence and he is hereby, authorized to proceed to New [Corporate Seal.] Secretary. There is nothing here denying that the contract to which it refers had been made, or asserting that no obligation had been assumed. On the contrary, all its language is appropriate to a contract perfected. It is an admission that the Company had confirmed and accepted it. It speaks of the contract as made, not merely proposed, and asserts an impossibility to comply with its terms, not of an impossibility to enter into the engagement. It authorizes Newton to procure a surrender of the contract and a return of the bonds, which it states had been transferred to Coddington & Co. upon such terms as might be agreed upon. All this is plain recognition of the contract as a binding obligation. and an assertion of a wish to obtain a release from it. To say the least, it is inconsistent with any intent to treat the contract as imperfect and inoperative. In view of it we think the court was justified in refusing to charge the jury as requested; and, if there was error in the mode in which the question of ratification was [58 submitted, it was error of which the plaintiff cannot complain. of the like power in Rice. Two persons may be employed separately to negotiate the sale or hypothecation of bonds, and either may thus dispose of them. If a disposition be made By one, of course the other will be unable to exercise the power with which he was clothed; but, until a sale or hypothecation is made, either may make it. Moreover, in this case there is no evidence that knowledge of the resolutions of January 23 and February 3, 1859, was ever communicated or intended to be communicated to the defendant. The authority given to Mr. Rice was exhibited to him. On its face it was a continuing authority, on which he had a right to rely until notified of its revocation. Persons who deal with an agent before notice of the recall of his powers are not affected by the recall. 2 Kent. Com. 644, n.: Fellows v. Steamboat Co.. 38 Conn., 197; Tier v. Lampson, 35 Vt., 179; Morgan v. Stell, 5 Binn., 305. It follows, therefore, very plainly, there was no error in the refusal of the Circuit Judge to instruct the jury, that, if the resolution of July 13, 1858, conferred upon Mr. Rice authority to make the contract, the authority was withdrawn by the resolutions of January 23 and February 3, 1859. At the trial in the court below there was some evidence that the contract set up as a defense by the defendant was not unconditionally delivered. The plaintiff alleged that when it left the hands of Mr. Rice, on its way to the defendant, after his signature, two conditions accompanied 57] it. One was that it should not be *binding, and that the delivery of the bonds should be inoperative, unless the Board of Directors of the Company, after being advised thereof, should The other conapprove, ratify and confirm it. dition alleged was, that if forty of the bonds, making up, with the forty-five deposited with the defendant, the eighty-five called for by the contract, had been disposed of at St. Paul by the proper officer of the Company who had them in charge, the contract should not be binding. Whether such conditions had been imposed was a question of fact properly submitted to the jury, with the instruction that, if they had been, the contract was not binding unless the Company afterwards ratified and adopted it. It, there- Indorser, liability of — parol proof— witnesses, fore, became a material inquiry in one aspect of the case whether there had been such an adoption or ratification; and the defendant asked the court to instruct the jury that there had been no ratification by the Railroad Company, and especially that a certain resolution of the Company, adopted May 13, 1859, and communicated to the defendant, was not a ratification. The court declined to give such instructions, and, we think, properly. We think the resolution referred to was a plain acknowledgment that the contract made by Mr. Rice with the defendant was binding upon the Company, and as it was communicated to the defendant, it was notice to him that the Company acknowledged its obligation. The resolution and its preamble was as follows: It is unnecessary to notice the other assignment of error, in view of what we have said. The judgment is affirmed. *JOHN GOOD, Plff. in Err., [90 IDA MARTIN. (See S. C., Reporter's ed., 90-98.) when competent. 1. When a promissory note, made payable to a particular person or order, is first indorsed by a third person, such third person is held to be an original promisor, guarantor or indorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place. 2. Parol proof is admissible, to show whether the indorsement was made before the indorsement of the payee, and before or after the instrument was delivered. If the indorsement was made before the payee became the holder of the note, then the party so indorsing the note may be charged as an original promisor. 3. A witness in civil cases cannot be excluded in the courts of the United States because he or she is a party to or interested in the issue tried; but this provision has no application in the courts of a Territory where a different rule prevails. [No. 11.] Submitted Oct. 11, 1877. Decided Oct. 22, 1877. Error to the Supreme Court of the Territory of Colorado. Whereas, circumstances have arisen in the affairs of this Company whereby it has become impossible to comply with the terms of the contract made by the President thereof, on behalf the Company, with T. B. Coddington & Co., of the City of New York, under date of April 22d, 1859 Therefore, Resolved, That William H. Newton, Esq., be, of. 95 U.S. U. S., Book 24. NOTE.-Indorser before payee; liability and rights See note to Rey v. Simpson, 16 L. ed. U. S., 260. 22 341 |