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damage? It seems to be very clear that a private per- persous to a burdou whioh cauuot be imposed upon
son could do with impunity on his own property just uatural persons.
wbat the railroad company has done. He might build As was said by Mr. Chief Justice Tilghman in the
a house and thus shut out bis neighbor's view, light case of Shrunk v. The Navigation Company, 14 S. and
and air; he might build an embankment or run a road R. 82, in his commouts on the company's charter,
on or along bis owu line, and be liable for nothing as which provided that compensation should be made
long as he used his house, embaukmeut or road iu a if any persou or persons sball be injured by means
lawful manner, although in either case, an injury may of auy dam or dams being erected as hereinafter men.
bave been done to the adjacent property.

tioned,” “

compensation shall be made," says the Who does not know that even in the country no learned chief justice, "for all damages arising from householder escapes injury and annoyance from clouds immediate injury to property, but not for damages of dust raised iu dry weather by the passage of teams where there is no legal injury, which is called damnum over the common roads? And in the cities this griev. absque injuria. And upon reflection we find that this ance is further aggravated by the intolerable noise was a wise restriotion. There would be no end to occasioned by the use of stone pavements. Never. damages for injuries, considered in the most extensive theless we have yet to hear of a case where one law. sense of the word. For not only may owners of land fully using such road or street was beld liable for the contiguous to the river complain of injury by obstrucinjury thus oocasioned. When a company takes, by tion of the ascent of the fish, but by all other persons its right of eminent domain, part of a tract of land, living in towus or on lands near the river; there are and the damages to the balance is to be measured by other kinds of injury too sustained, particularly by the advantage over the disadvantage resulting from owners of lands on the river, between Fairmount dam the company's works in such case, as we held in Searles and the lower falls; all these persons have lost the v. Railroad Co., 33 Peun. St. 57, contingent and even benefit of navigation free from toll, in batteaux, flats, imaginary damages may be considered by way of offset etc., which was very useful, as it served for carrying to the alleged advantages. But whilst this is so, such produce to market and bringing up manure for their damage cannot be regarded as a substantive claim. lands; yet it has not been contended that for such And we have a reiteration of the same doctrine in the injuries compensation is to be made. Suppose the case of the New Castle & Franklin Railroad Co. v. health of the country to be injured by the evaporation McChesney, 85 Penn. St. 522, wherein Mr. Justice from the dam, is oompensation to be made for this, Woodward remarks, citing the case above named: the greatest of all injuries? I presume not. Where, “ It is well settled, even under more comprehensive then, are we to stop, or what is to be the boundary, legislatiou than this, that contingent damages cannot if we go beyoud the line which I have menbe taken into account as a substantive claim for dam. tioned?" age." How then can we apply to the case in hand a This is the language of a very learned jurist, and the rule of damages that never was applicable except case is all the more in point in that the wording of the under special circumstances, which do not here exist? charter of the Navigation Company and that of the It is contended however that this case is governed by present Constitution is very much alike. Nor would the Constitution of 1874, which provides (art. 16, $ 8): the onerous and ruinous consequences be less to the "Municipal and other corporations and individuals defendant than those which the learned chief justice invested with the privilege of taking private property shows might befall the Canal Company were this docfor public use sball make just compensation for prop- trine contended for adopted. Every person who has erty taken, injured or destroyed in the construction property in city or country within hearing of the noise, or enlargement of their works, highways or improve- or in reach of the dust, of a railroad, or for that matments," and the cases of Pusey v. City of Allegheney, ter, of a common road, might in the case supposed, 98 Penn St. 522; Pittsburg Junction Railroad Co. v. have damages to be estimated as in the taking of the McCutcheon, 18 W. N. C. 627; Pennsylvania Railroad land, or as from a permanent injury arising from the Co.'s appeal, id. 418, and the Pennsylvania Railroad construction of the railroad. If this Pennsylvania v. Duncan, 111 Penn. St. 352, are cited in support of Company has been gullty of a nuisance, if in the use the role conteuded for by the plaintiffs. But it is a of its road it makes more smoke or dust than is lawmistake to suppose that these cases are in point. In fully allowable in the working of its machinery, and the first there was not only the construction of a road, the plaintiffs are thereby injured, they have their but an actual taking. In the Junction Railroad and remedy, but not for any thing short of this. Any other Dunoan case the injury arose directly from the con- rule would lead to this remarkable result, that the struction of the works and the taking and obstruction plaintiffs would be entitled to damages without having of the plaintiff's rights of way, wbilst the Pennsylva- suffered any injury; that is, for anticipated damages, nia Railroad Co.'s appeal covers a case where, witbout and for which a watural person could not be held a warrant of law, the company laid its tracks on a liable. Moreover the corporation would thus be made public street of the borough of Middletown. In the responsible for the manner in which it proposed to case in hand the plaintiffs sustained no injury from exercise its right, though such manner might not only the construction of the viaduct, pune of their prope be lawful, but the best possible, and the least injurierty was taken, neither were any of their rights in- ous to the property of others. fringed, so that neither by the Constitution nor by That the defendant might have hauled its freight the cases quoted, is there a warrant for the plaintiffs and passengers by ordinary carriages, drawn by horses, contention. We agree that over and beyond the from its West Philadelphia depot, through Filbert damages which arise from a taking of property, street, to its station at Broad and Market, without the whether in the shape of land or å right, the Constitu- risk of actionable damages, will, I suppose, not be tion does not impose ou corporations a direct respon- doubted; yet certainly the resulting noise, dust and gibility for every injury for which a natural person anpoyance to the adjacent property holders would in would be liable at common law; so we have held in such case be greater than under the present arrangethe case of Edmundson v. Railrond Co., 111 Penn. St. ment. Why then for a better method of transporta316, and to this doctrine we adhere, for such we think tion, shall it be held liable? To this question no is the spirit of that instrument, but beyond this we answer has been given but the dogmatio one alluded cannot go. Nor is tbere any reason why we should to. "The Constitution so provides.” But as the depart from a rule so reasonable and subject artificial Constitution does not so provide, aod as the plaintiff's

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contention has no support, either in statute or common is claimed that by the school laws a minor is com pelaw, we must refuse to entertain it.

tent to contract as a school teacher, and therefore The judgments are reversed and a venire facias de such contract may be enforced by the minor the same novo in each case awarded.

as by an adult. It is conceded that the parent has the Mercur, C. J., Green and Clark, J.J., concur; Trun- right to prevent his minor child from teaching, key and Sterrett, JJ., dissent; Paxson, J., absent. but assenting to her teaching, he, it is argued,

must be held to assent to the contracting, with all its legal consequences.

Tbis is the argument. PARENT AND CHILD-EARNINGS OF CHILD

Is it satisfactory? Does it follow, because the parent

assented to this employment, that he emancipates his -CONSIDERATION FOR DEED-WAR

child, and relinguishes his claim to her services ? * BOUNTY

* It appears that the daugbter is about sixteen

years of age, and the father was charged with certain SUPREME COURT OF APPEALS OF WEST VIRGINIA,

duties in respect to her, as education, support and proFEBRUARY 12, 1887.

tection, and as some compensation for these duties be

has a right to claim her earnings. And there is no A bounty paid by the United States government, or by a State, city or county, to a minor, a citizen of the United States,

substantial objection to his maintaining this action. during a war, upon his enlisting in the military service of

We are quite clear that the recovery will bar any fu

ture action by the minor." the United States during a war, as well as his pay, belongs to the minor, and not to his father; and if such

In the case of White v. Henry, 24 Me. 531, it was bounty and soldier's pay are received by the father from

decided that a minor was not emancipated by a iparthe son, they constitute a debt due to the son from the

riage without the father's consent; and the son hayfather, unless intended as a gift to the father by the son,

ing so married, and gone to sea, being employed by and the father may satisfy such debt by a conveyance of

one who knew he was a minor, but married, the father land to the son, and such conveyance should be regarded

can recover from such employer the wages earned by as made for a valuable consideration, and not a voluntary

such son. The court says: “The father has in no way

consented he should have bis earnings, but has always conveyance.

been ready and willing to support him. The defend. to set aside deeds. The head-note shows the

ants, knowing that he was a minor, without the knowlpoint. The defendant had judgment below. edge or consent of the father, employed him as a seaW. H. Harvey, for appellant.

man, and have paid him his wages in full. To allow

the defense would hold out encouragement to sons V. S. Armstrong, for appellees.

impatient of parental control to resist the reasonable GREEN, J. (Omitting minor points. But it is in- authority of their fathers, and give the latter little sisted, that the son being a minor when all these means to secure their own legal rights beyond the exmoneys were earned by him, they all belonged to his ercise of physical restraint." The plaintiff was given father; and when he received them of the son, he re- judgment against the defendant for three months and ceived them as his father, and as the person entitled twenty days' wages at the rate of $14 per month, and to the money; and his subsequent conveyance of interest. these lands without any cousideration other than In Weeks v. Holmes, 12 Cush. 215, where a minor these moneys, and when he was solvent, must be re- shipped on a whaling voyage without his father's congarded as a mere voluntary and fraudulent convey sent, it was held the father could recover of the emance, at least against the plaintiff, & creditor, when ployer the fair share, or lay, as it is called; that is, these voluntary deeds were made.

one per cent of the earnings of the voyage. It would seem to be almost universally admitted And in Bishop v. Shepherd, 23 Pick. 492, it was de tbat the father is entitled to the value of his minor cided that where a minor shipped himseli as a seaman child's labor and services. See Day v. Everett, 7 Mass. in a whale-ship, without his father's consent, and de145; Plummer v. Webb, 4 Mas. 380; Gale v. Parrot, 1 serted in the course of the voyage, whereby his share N. H. 28. None have ever disputed that this absolute of the earnings, by the custom in such voyages, was right of the father to his child's labor extended till the forfeited, and ioured to the benefit of the ship-owner, obild was fourteen years old. But the authorities the father could sue the ship-owner for the value of very generally extend this right, and it seems to me the son's services and earnings upon an implied conjustly, to the father during the whole minority of the tract, if the father repudiated the contract of the son, child; that is, till he reaches the age of twenty-one, as he had a right to do. The services due in this case when the child is legally emancipated from the were for three years. father's control. This seems to me but reasonable, as If the Wisconsin case be sound law, and it seems to thereby the law would set off some years when the me that it is, then it would be unimportant, in the child may be useful against mauy preceding years Maive and Massachusetts cases above cited, whether when he was entirely helpless, and a simple charge when the son shipped himself as a seaman, being a upon the father. This right of the father to his minor minor, he did so with or witbout his father's consent. child's services is well illustrated by a few cases to In either case the father could recover the wages of his which I will refer, and which bear more or less re- son under his contract for pay on the voyage. The semblance to the case before us.

only difference is, that if the minor son sbipped himThe first case to which I would call attention is self as a seaman without his father's cousout, the Monaghan v. School District No. 1, 38 Wis. 104. Cole, father could repudiate the son's contraot, and recover J., in delivering the opinion of the court, says: “Is for the value of his services without regard to the conthere any difficulty in the way of the father maintain- tract; but if the son shipped himself with the father's ing this action ? The daughter was employed by the consent, the father could recover only such pay as officers of the distriot to teach the district school. A under the contract son, it of age, could have rewritten contract was entered into by which it was covered. agreed she should teach the school for four months, But it is universally agreed that the father may voland should be paid $25 a month for her services. The untarily relinquish his cbild's earnings, though he be father was present when the contract was entered a minor, and allow him to earn for himself, and reinto, and assented to his daughter entering into it. ceive and appropriate his own earnings at his pleasure; The contract bas been performed on her part. But it and such an arrangement between the father and his midor son is called an emancipation of the son. By 12 Mass. 375. The facts in this case were, that when such an agreement the son is put, iu reference to his the son was about fourteen years of age, his father services, on the same footing as though he had at told him he might go to sea, and he (the father) would tained the age of twerty-one yoars, when the law give him his time, or all that he should earn, till he itself would emancipate bim. Such an emancipation should be twenty-one years of age. The son accordby the father may be in writing or by parol, and may ingly went to sea, and has followed the course of busibe proved by circumstantial evidence or it may be im- ness ever since. The father at different times replied. There are some cases which seem to proceed on ceived the wages earned by his minor son. When the the idea that an emaucipation may arise without the son was about niueteen years of age, the father caused father's agreement, as the result of his failure to per- to be executed to the son a deed for eighteen acres of form his obligations as a father, or his utter inability land, which the father had bought and paid for; the to do so. But it does seem to me this is not a correct father being then in good credit, and not involved, principle. See Woods, J., in Jenness v. Emerson, 16 though he owed one debt to one Church. No account N. H. 489. But the right of the father to emancipate was kept of the wages of the minor son received by bis minor son is unquestionable, and this right exists the father before this deed was made, but it was bethough the father be insolvent. See Campbell v. lieved to be equal to the value of the land when so Cooper, 34 N. H. 49; Cloud v. Hamilton, 11 Humph. conveyed to the son, and it was intended as a compen104; Armstrong v. McDonald, 10 Barb. 30; Atwood v. sation for the wages of the son, so received from time Holcomb, 39 Conu. 270; Lackman v. Wood, 25 Cal. 147; to time before that by the father. The father afterMcCloskey v. Cyphert, 27 Penn. St. 225; Dierker v. ward became insolvent, and the court held that this Hess, 54 Mo. 250; Hall v. Hall, 44 N. H. 293; Chase v. was not a voluntary conveyance to the son, and was Elkins, 2 Vt. 290; Winchester v. Reid, 8 Jones (N. C.), not fraudulent as to Church's debt, which was exist379.

ing when this deed was made to the son. Parsons, There are two decisions which I have seen in which C. J., said: “It appears there was an equitable conthe facts resemble the case before us, and which were sideration subsisting between the father and son; decided differently, because of a diversity in the facts the former having received the earnings of the latter, of the two cases. The decisions themselves seem to an agreement having been entered into by the father be correct in both of them; and a statement of the that the son should enjoy the fruits of his own labor, character of these two cases, and an observation of although not of age to be emancipated. The agreethe diversity between them which led to opposite de- ment was a lawful one, and the money received by cisions will, I think, aid us in reaching a correct con- the father from the earnings of the son may be equitclusion iu this case.

ably considered as the earniugs of the son, which if he The first of these cases is Winchester V. Reid, 8 could not obtain it by coercion, was yet a good and Jones (N. C.), 370. In this case the minor son had valuable consideration for any promise from the worked in a gold mine for some two or three years, at father, and would fully justify the cousideration in from seventy-five cents to ove dollar per day, and he this deed as paid by the son." This case resembles had no other property but these earnings. Having in much the facts in the case before us, except in the this way acoumulated money, when the son was be- important particular that in this case there is uot the tween twenty and twenty-one years of age, the father, slightest evidence of an emancipation, and no reason who was then largely indebted and insolvent, made a to believe that there was any agreement between the deed for a tract of land worth from $300 to $400 to his father and the son that the son should enjoy the fruits son, for which the son paid him down in cash $250, of his own labor, though he was a minor. It is obvihis earnings in working this gold mine, and gave his ous that but for this agreement, made before the note to his father for $50, the residue of the purchase. wages were earned by the minor son, the last decision movey. Parsons, C. J., delivering the opinion of the would have been different, and the deed to the son court, when the question involved was whether this would have been declared voluntary, and therefore deed was fraudulent, says: “A father is entitled to fraudulent as to existing creditors of the father. And the services of his child until he arrives at the age of Buch would be necessarily our conclusion in this case twenty-oue. Musgrove v. Kornegay, 7 Jones (N. C.), on these authorities, unless there can be drawn a dis71. It is true, a creditor cannot make his debtor work tinction between wages earned by a minor son when to pay his debt, nor can be force him to make his serving as a seaman in a private mercantile vessel, children work, or sell under execution the valuable and wages and bounty earned by a minor son while interest which a father has in the services of his child serving as a soldier in the army of his country. So or which a master has in the services of his appren- that the determination of this case must depend upon tice. But if in fact a child does work and earn wages, whether there be such a distinction. the proceeds belong to his father, and if the father in- The father is clearly entitled to the wages of his invests the money so earned in the purchase of land, faut son serving in a mercantile vessel owned by a taking the title in the name of the child, the father private individual, except when he has before the being insolvent, bis creditors can subject the land to wages have been earued agreed that the son might the payment of their debts. Worth v. York, 13 Ired. have all the wages he so earned though he was a 206. Therefore when the son worked at the gold mine, minor. But it does not follow that the father is enhis wages belonged to his father, and he was bound as titled to the wages and bounty received by his minor an honest man to bave taken the money and applied it son, serving in the army or navy of his country as a to his debts, instead of attempting, under the color of soldier or sailor with the father's conseut, though the this money, which was his owo, to pass this laud into father never agreed with the son, before such services the hands of his son. The deed is voluntary and void were rendered, that he should have either the wages against creditors." The appellants insist that the case or the bounty. If in such a case the father is not enibefore us is substantially like this case; and it is, titled to the bounty and wages, then the decision of unless there is a distinction between wages paid a the Circuit Court in holding the deeds from the father minor for working in a gold mine and wages and to the son to have been made for a valuable considerabounties paid a minor for military services in the tion, and were therefore not fraudulent and void as to army of his country. Whether this would make any the father's creditors, must be sustained. Otherwise difference we will presently see.

it must be reversed. The other case to which I refer is Jenney v. Alden, The oldest case on this subject which I have seen 18 an English case, Carson v. Watts, 3 Doug. 350. This listing, and not wages; and it belongs to the minor, was 9 suit brought to recover a minor's share of a and not to his fatber or master.” The court says prize taken by a privateer vessel during the war. It (p. 529): “It has been held in Banks v. Conant, 14 was brought by the administrator of the minor sailor Allen, 497, that a bounty paid by the pational governagainst the owner of the privateer vessel, and the ment, or by a State, city or town, to a child or apquestion involved was whether the minor's share of prentice upon his eulisting into the military service of the prize belonged to him or to his master, as the the United States, belongs to him, and not to his minor, during all the time he served on this privateer, father or master." was an apprentice as a mariner, and the master re- In Kelly v. Sprout, 97 Mass. 169, it was decided that ceived the wages due him for the two voyages the bounty inoney, to which a minor becomes entitled minor had made, and now claimed the prize money upon his enlistment as a soldier, belongs to bim, and which was coming to this minor, his appreutice. The not to his master, and that an agreement to give bis following were the opinions of the different judges in military bounty to his master for permitting bim to the case :

enlist was voidable by the apprentice on the ground of “Willis, J. I think the master is entitled to all the infancy. wages or money fairly acquired by the apprentice as So too money paid to the minor for his enlistment for labor or service; but to any extraordinary gains as a substitute, is to be regarded as a gift by the govhe may acquire out of the usual course of his service I ernment, and the regular pay of the soldier which is think the master not entitled. Suppose that in case regarded as pay for services rendered. It seems to of a wreck at sea, an apprentice, by any exertion of his me that there is no well-grounded distinction between own, had recovered part of the wreck from a ship the two. In time of war the government has a right stranded, would the master be entitled ?

to demand military service of its citizens, whether “Lord Mansfield. It is very extraordinary that no adults or minors, And it may compel the service, case has occurred since 1747. I did think it had been whether the citizen be minor or adult, whether he decided. Upon the first argument I thought it clear does or does not consent, and it may fix itself the that whatever an apprentice who runs away gains in price it will pay for such services. It seems to me another service, eo nomine belongs to the master, aud therefore that this sovereign power of a government is earned for him; and if it is any thing specific, the to require the military services of an infant, a citizen, master may bring trover for it. I could see no differ- in time of war, on what terms it pleases, makes it ence in the case of a privateer or letter of marque, be- regular to pay to such citizen as much a gift or bounty tween wages and prize money, which is in lieu of as what is paid to induce the citizen to volunteer, is wages. In men-of-war there is a difference. This is all to be regarded in the some light as bounty, and not like the case of extraordinary gain, as the instance not as way for services. The sovereign power of the put, treasure trove, recovery of wrecks, etc., for that is State supersedes the rights and powers of a father no remuneration of services. But I am now struck over his infant child in such a case; and as it may very much with the usage, and am unwilling to go require the military services of an infant in a war, if against it. We must take the usage to be as stated it chooses, without any compensation, so it may fix by Mr. Ward [tbis usage was that the apprentice what his compensation shall be. And if the State should have the prize money, and the master the fixes the bounty to be paid, and the regular pay of wages), and I think it ought to decide.

tbe soldier, and directs it to be paid to the soldier "Buller, J. Independently of statutory regulations,

who volunteers, whether a minor or an adult, no the prize money is as much a bounty of the crown on other person, in case the soldier be a minor, can claim board privateers as on board king's ships. There does such bounty or pay, whether the minor has been not seem much difference in the case from that cir- emancipated or not by his father or master. The cumstance. I rather incline to the opinion that the minor's right to receive such pay and bounty does not apprentice is entitled to the prize money acquired." arise from his having obtained the consent of his The next oldest case is United States v. Bainbridge,

father to receive the same, but from a better reason, 1 Mas. 71, decided i: 1876. Judge Story, in the opin- that his sovereign State has directed it to be paid to jon in this case, on page 83, says "All the acts, from him personally. the first establishment of the navy, authorize the em- I am therefore of opinion that in tbis case Bartley ployment of midshipmen (who are invariably minors F. Miller, though a minor when he received his when they enter into the service), and all the acts bounty and pay as a soldier, was entitled to retain since the statute of June 30, 1798, ch. 81, including them as his own, and his father having received such those now in force, and under which the present ap- bouuty and pay, he thereby became indebted to his plicant has been enlisted and held in service, in ex- son; and as the amount of his indebtedness, includpress terms authorize the president to engage and ing interest, exceeded the value of the land which bis employ 'boys' in the ordinary duties of the navy. In father couveyed to him, sucb couveyances cannot be no one of them is there any provision requirivg the regarded as voluntary and fraudulent against tbe consent of parents or guardians to their engagement, plaintiff, a creditor of the father. This case, on this or authorizing them to make it. The laws manifestly view of the law, becomes very like the case of Jenney contemplate that it was a personal contract made by V. Allen, 12 Mass. 375, and the principles on wbich the the infants themselves for their own benefit. They deed to the son in that case was decided to be not are entitled to the pay, the bounties and the prize fraudulent and void, must control in this case, and money earned and acquired in the service. To sup- require us to hold the two deeds from the father to pose that the Legislature meant to authorize an in- the son as made for a valuable consideration, and not fant to enlist in the navy, and yet the contract should

fraudulent. For these reasons the decree of the Cirbe voidable at his election, would be to suppose that cuit Court appealed from must be affirmed, and the it meant to repeal the rules and articles of the navy in appellees must recover of the appellent their costs in his favor, and enable hiin to desert when his services this court expended and $30 damages. were most important to the public."

The otber judges concurred in this opinion. In Mears v. Bickford, 528, it was decided that “ upon a contract made with his father's consent, between a

NEW YORK COURT OF APPEALS ABSTRACT. minor and the defendant, to enlist as a substitute, the father cannot maintain an action in his owu CHATTEL MORTGAGE Dame. The bounty money is a gift to the person ene PROVINCE OF JURY-NOTICE EVIDENCE.-11) In an

VALIDITY - POSSESSION

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action against a sheriff for levying upon a stock of goods in plaintiff's possession as mortgagee, the defense was that the mortgage was fraudulently given to protect the mortgagors against the claims of their creditors, and that the mortgagors were permitted to make sales out of the mortgaged stock for their own benefit. There was evidence tending to show that the mortgage was given for a valid indebtedness, and that the mortgagees employed an agent to look after the goods, and protect their interestu. Held, that the question of fraud was properly submitted to the jury. (2) In such action there was evidence that the plaintiff made an arrangement with the mortgagor's bookkeeper by which the latter was to look after the interest of plaintiff as mortgagee. The court charged the jury that it was for them to say whether such arrangement, “if made, was made in good faith, and the intent was a change of possession and control, or on the other band was a blind." Held, that a subsequent request by defendant to charge that “the possession of plaintiff by the book-keeper was not such a possession by plaintiff as to remove the case from under the statute,'' was properly refused. (3) Defendant's request to charge that “if the jury found that the plaintiff had an agent in the store of the mortgagors during the time the mortgage was in existence who knew the full facts of sale out of the mortgaged property, and that the mortgagors disposed of the proceeds of such sales for their own account, they should find for the defendant,held properly refused, (1) because the testimony did not warrant the assumption that the mortgagors made sales, and applied the proceeds to their own use; (2) because even if the plaintiff, through its agent, had notice of such sales and appropriation, such notice was merely evidence from which a previous agreement to permit them might be iuferred. (4) A party may be examined, as to his own iutentions and motives, when a questiou of fraudulent intent on his part is iu issue, but he cannot testify as to the motives or intent of another party. (5) Where a witness has been examined upon a point in his direct examination, and is not cross-examined as to such point, it is discretionary with the trial court to permit further testimony on the point by the same witness on redirect examination. April 19, 1887. Manufacturers & Traders' Bank of Buffalo v. Koch. Opinion by Rapallo, J.

SALE – DELIVERY - CONDITION FOR PROMPT SHIPMENT.– A contract was made in New York, on Feb. ruary 2, 1881, for the sale of “about one hundred tons of old iron rignol rails for prompt shipment by sail from Europe, and for delivery ou dock at the port of New York," at a certain designated price. On the following day (February, 3), a quantity of rails were loaded on a ship in Germany lying in a river forty miles from the sea. This river was frozen fast at the time, and remained upnavigable until the beginning of the following month of April, when the ship sailed, and reached New York on June 14, after a voyage of ordinary length. The vendors then tendered the rails, and the vendees refused to accept them, alleging a decline in their market value pending the delay in arrival. The evidence showed that rails of a similar character could have been readily obtained in other European ports, where a delay from ice could not have occurred. Held, that the vendors had not complied with the provisious of the contract for “prompt shipment," and that they consequently were not entitle to recover in an action brought by them against the vendees. This implies expedition, admits of less delay than would be permitted under a covenant to act merely within a reasonable time, and in effect the plaintiffs interpret it as meaning directly” or “at once." Such indeed was their conduct.

The con

tract was made in New York on the second of February, 1881, and the plaintiffs rely upon a bill of lading showing that on the very vext day, at Stettin, iron rails answering in description to those named in the contract were put on board a veseel chartered for New York. Therefore respoudents' contention is that the whole condition is satisfied ; and “if any delay thereafter occurred to tbe prejudice of the defendant, he must look to the ship for his indemnity." The last position fails when we see that no privity existed between the defendant and the vessel or its master, and that its only contract relation was with the plaintiffs. The sole object of prompt shipment was to secure a speedy arrival for delivery in New York. Until then the goods were at plaintiffs' risk, and only then could the defendant's liability attach. Before that event happened there was to be neither transfer of title nor transfer of possession. It is quite unimportant to inquire how it might be as between the master of the vessel and the plaintiff or the shipper, one of whom may be assumed to be the owner, and the other, by virtue at least of the bill of lading, entitled to possession. As to the plaintiffs iu the case before us, it is more reasonable to construe the condition of prompt shipment as a precedent to delivery, and so relating to the actual commencement of the voyage that the known unnavigable condition of the river could furnish no excuse for the delay. The de. fendant was entitled to such timely delivery as would follow an effective shipment; in other words, to an exact performance by the plaintiffs of their contract to ship and deliver, not two things separable in their nature, but two steps to a single end. That involves not only a purpose to transport, but an expeotation that transportation would commence, if not at ouce, certainly within a reasonable time. Shipment cannot be said to have been made from Europe when the port selected had no passage-way or outlet. Nor can it be fairly argued even, that the iron was shipped “for delivery in New York," if it was apparent to the shipper that the vessel could not leave the docks where it took in freight. Something more than shipment was bargained for, viz., prompt shipment; and the delivery was to be within such time, as dangers of the sea only excepted, might reasonably follow. Notbing less could have been in the minds of the party than expedition, or immediate and effective or beneficial shipment as a step toward delivery. Payment was postponed to delivery, both to be made in New York. The sale was for sbipment from Europe, altogether at tbe vendor's expense and risk, and no exception was provided for savo “dangers of the sea," among which a certain and safe confinement in port is not included. Duncan V. Topham, 8 C. B. 225. " Prompt' is synonymous with “quick,"

"" sudden," “precipitate." Indeed one who is ready is said to be prepared at the moment; one who is prompt is said to be prepared beforehand. Such represents the con. dition of the plaintiffs. Their immediate loading of the vessel shows that they were prepared beforehand; but if their construction of the coutract is correct, the qualifying word might as well be one of postponement and delay. The fault was with the plaintiffs. It was optional with them to ship from any port in Europe. Il at the time of shipment, the plaintiffs or their agents knew, or might have known, that detention and delay at the place of shipment, and before ground could be broken for the voyage, were unavoidable and to be expected, they must have also known that the delivery could not be made as contracted for, and the subsequent tender was too late. It was not a "prompt shipment," and the defendant was not bound to receive the cargo. I have not overlooked the argument of the plaintiffs by which our attention is directed to

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