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POPULAR LAW LIBRARY
PUTNEY
Sales, Personal Property ,
Bailments, Carriers,Patents, Copy rights
EXAMINATION!UESTIONS
BY
ALBERT H. PUTNEY,A . B . D . C . L .
, LL . D .
DEAN OF THE ILLINOIS COLLEGE OF LAW,
AUTHOR OF ‘‘GOVERNMENT IN THE UNITED STATES , “COLONIAL GOVERNMENTSOF EUROPEAN STATES ,” “
LANDMARK CASES IN UNITED STATESCONSTITUTIONAL LAW,
”ETC . , MEMBER OF THE BAR
OF MASSACHUSETTS AND ILLINOIS
VOLUME V
T
P9938 f19 08
Copyright, 1 908, byCREE PUBLISHING CO .
Minneapolis, M inn .
All rights reserved.
TABLE OF CONTENTS— VOLUME V .
ELEVENTH SUBJECT— SALES .
CHAPTER I .
DEFINITION AND NATURESection 1 Defin ition .
Sales D ist inguished from BaiIInentsSales Dist inguished from Mortgage “Sales D ist inguished from Consignments to Sell . .
Sales D ist inguished from G ifts ”Sales D ist inguished from Barter.
CHAPTER II .
ci
01
!t
THE CONTRACTSection 7 The Oldest Form of Contract In English Law
8 Requisites of a Contract of Sale9 Parties .1 0 Consideration
1 2 Illegality .
CHAPTER III.
Sect ion 1 3 Corporeal Personal Property .
1 4 Incorporeal Personal Property1 5 After Acquired Property.
CHAPTER IV .
20 Implied Warranties21 Sale by Description22 Sale by Sample .
CHAPTER V.
IV CONTENTS .
Sect ion 28 Sale of Chattels not Specific.
29 Sale of Chattels not yet in Existence30 Reservation of Jus Di sponendi31 Where Title Passes
CHAPTER VI.
PERFORMANCE OF THE CONTRACT .
Section 32 Payment and Del ivery Concurrent Conditions33 What Constitutes Del ivery.34 Place of Del ivery .
35 Delivery to Carrier on Third Person.36 T ime of Delivery37 Quantity and Qual ity of Goods Delivered38 Mode of Del ivery.
39 Excuse for Non-Del ivery40 What Const itutes Acceptance4 1 Excuse for Non-Acceptance42 Conclusion
CHAPTER VI.
RIGHTS OF UNPAID SELLERSection 43 Suit for Contract Price .
( l
45 Seller’s L ien
CHAPTER VIII.
REMEDIES OF THE PURCHASERSect ion 48 Damages for Nou-Del ivery .
49 Damages for Breach of Warranty50 Specific Performance
CHAPTER IX.
RESCISSION OR MODIFICATION OF CONTRACTSection 5 1 Mutual
52 Seller’s R ight to Rescind
CHAPTER X.
SectIon 60
6 1
62
63
64
CONTENTS .
Purchaser from a Lessee “Purchase from Vendee In Sale Fraudulent as to Creditors .
Purchaser of Negotiable PapePurchaser in Market Overt .Other Illust rations .
CHAPTER XI .
THE SEVENTEENTH SECTION OF THE STATUTE OF FRAUDS
Section 1t l
2
3
4
The Rules as to Sale of Goods . .
Contracts Within the StatuteWhat is Included in Terms
,
“ Goods,Wares and Merchan
Acceptance and Receipt of the GoodsContracts for the Sale of Goods to be ManufacturedPart Payment or Earnest MoneyThe Memorandum.
The S igning of the Memorandum
TWELFI‘H SUBJECT—BA ILMENTS .
CHAPTER 1 .
Definit ions .Influence of the Roman Law Relat ive to Bailments upon the
Classes of Bailments Recognized by the Roman LawThe Origin of the Common Law Syst em of Classification of
CHAPTER II.
CHAPTER III .
CHAPTER IV.
VI CONTENTS .
CHAPTER V .
BAILMENTS FOR THE BAILO R ’S SOLE BENEFITSect ion 1 3 Degree of Care and Negl igence
1 4 Depositum1 5 Mandatum
CHAPTER VI .
BAILMENTS FOR THE BAILEE ’S SOLE BENEFITSect ion 1 6 Degree O f Care and Negl igence
CHAPTER VII.
Section 1 7 Care and Negligence1 8 Locatio .
20 Lien .
CHAPTER VIII .
Section 2 1 In General .22 Inn -Keepers23 Who are Guests .24 The Inn-Keepers ’ Bailment Liability
CHAPTER IX.
TERMINATION OF THE BAILMENT RELATION . 1 47
Sect ion 25 By Terms of Contract or By New Agre ement 1 47
26 By Breach of Contract or Dest ruct ion of Ba iled Property . 1 47
THIRTEENTH SUBJECT—CARR IERS .
CHAPTER I.
INTRODUCTORYSect ion 1 A Branch of Bailments .
2 Definition and Classificat ion of Carriers3 Carrier of Passengers .
CHAPTER II.
COMMON CARRIERS .Sect ion 4 Who
5 Duty to Receive Goods From All Persons6 When and Where Del ivery Must be Made
CHAPTER III .
CONTENTS . vii
Section Damage Caused by Act Of GodDamage Caused by Publ ic Enemies .Damage Caused by the Act ofDamage Caused by Inherent Defects In theArt icle ShippedLimitat ion of Liab il ity by Not ice .Limitat ion of Liab il ity by Special Contract .
Liab ility of Connect ing Carriers “Terminat ion of Common Carrier ’sExcept ional Liab il ity .
Lien of Common Carriers .
CHAPTER IV.
CARRIERS OF PASSENGERS . 1 81
Section 1 8 Comparison with Carriers of Goods 1 81
1 9 Passengers . 1 82
20 Liab il ity of Carriers of Passengers for Injuries to Passengers . 1 8321 Liab il ity of Carriers of Passengers as Bailees of Baggage of
FOURTEENTH SUBJECT- " PERSONAL PROPERTY .
CHAPTER 1 .
Sect ion 1 PropertyReal and Personal PropertyAbsolute and Qual ified PropertyPortions of the Sub ject of Personal Property Treated Elsep
es
to
CHAPTER II.
Section 5 General Classification .
7 Occupancy
CHAPTER III.
CONTENTS .
CHAPTER IV.
S ect ion 1 7 Debts1 8 Mortgages .
209
FIFTEENTH SUBJECT—PATENTS .
Annotated Federal Statutes on the Subj ect of Patents
SIXTEENTH SUBJECT—COPYRIGHTS .
Appendix BTable of Cases
C H A P T E R I .
DEFINITION AND NATURE .
SECTION 1 . DEFINITION .
A sale is a complete transfer of the full propertyrights
,that is
,the title
,in thepersonal p roperty soldby the
seller,and made in cons ideration of the price in money
paid by the buyer . At common law, a sale was styled“ a bargain and sale of goods
,
” to distinguish it froma contract to sell . Kent ’s definition of a sale
,is a con
tract for the transfer of property from one person toanother. 1 The definition of Benjamin, is to be preferred
,he defines a sale, as a transfer of the absolute
or general property in a thing for a price in money .
2
The latter definition brings to the attention of thestudent the two distinct property interests in a thing
,
the general property right and the special propertyright . This is of importance In Showing the d istinctionto be made between a sale
,and certain other kinds of
transfers such as a pledge, and a bailment, if the pledgeefor instance transfers to another his interest in thething pledged, the actual property right in the thingremains in the pledgor.3 The further element in thedefinition
,that the sale must be for a price in money
,
is important for if goods are transferred for goods inreturn
,this is not a sale
,it is a barter or exchange .
SECTION 2 . SALES DISTINGUISHED FROM BAILMENTS .
A sale is to be distinguished from a bailment, inthat in the bailment
,the Obligation always remains
to restore to the bailor, the particular thing transferred
2 Kent , 468, 1 2th Ed . Belden vs . Perkins , 78 Ill. , 449 .
Benjamin on Sales, Vol . 1 , Sec. l
1 2 SALES .
to the bailee, although it is still a bailment if the thingto be returned, is returned in an altered form . AS forinstance a delivery of wheat to be manufactured intoflour
,the miller to return to the party delivering, a barrel
Of flour, for every four and one quarter bushels of wheatdelivered to the miller, is a bailment .
‘ An oft quoteddistinction is that made by C . J . Bronson
,in the case of
Mallory vs . Willis 5 in which he says : “When theidentical thing delivered , although in an altered formis to be restored, the contract is one of bailment, andthe title to the property is not changed ; but when thereis no Obligation to restore the specific article, and thereceiver is at liberty to return another thing of equalvalue, he becomes a debtor tomake the return, and thetitle in the property is changed ; it is a sale .
” Thefollowing transaction, following the rule, was held to bea sale ; the manufacturers of certain music boxes,supplied a music box with a slot attachment to oneWestphal on the following te rms, the music box wasto be delivered and remittances for it were to be mad eout of the weekly earnings of the box, at the rate of twodollars a week, if the box did not earn this much thepayment at the rate of two dollars a week was to bepaid in any event . When the sum of two hundredand fifty dollars was paid in, then Westphal was toown the machine . The contract also stated that incase there was a default in any of the weekly payments
,
the whole amount was to become due and payable,or
the music box company might at their election refundhalf the payments made, and reclaim the music box.
“
The fact that the price to be paid is to be fixedat a later date would not make the delivery of grain aFoster vs . Pett ibone , 57 Am. W
IIt
lphaJ vs. Sipe ct al. . 62 lll. ,
Dec. , 530.
Mallory vs. Willis , 4 N. Y 85 .
DEFINITION AND NATURE . 1 3
bailment . The courts have repeatedly held that where
grain is delivered to a warehouseman on the understanding that the person receiving it may take from it athis pleasure and appropriate it to his own use
,and that
the identical grain or grain of like quality was not to bereturned
,but that the money value thereof was to be
ascertained by the market price on the day the depositorshould choose to fix, the transaction is a sale and not amere bailment .7 But Where there is a delivery of thingon trial to be used and if the trial is satisfactory
,there
exists an option to purchase ; the delivery of the thingis a mere bailment and not a sale .
8 Such a bailmentwould develop into a sale on the bailee exercising hisoption to purchase by signifying his acceptance
,or the
acceptance might be implied, by the act Of the personto whom the thing is delivered
,in retaining the thing
an unreasonable length of time,beyond the time
limited for the trial .9
It is to be borne in mind that in any close casewhere the language of the contract is ambiguous, thecourt will be guided by the real intention of the partiesand not altogether by the use of certain words thatmight alone indicate either an intention to make asale
,or bailment
,or something else .
1 0
SECTION 3. SALE DISTINGUISHED FROM MORTGAGE .
It is Of frequent occurrence, that a difficulty arisesin determining in a given case, where the possession ofthe goods are delivered by one, to another, where an ind ebted ness exists on the part of the person deliveringthe goods
,in favor of the person who receives the goods
,
whether the delivery of the goods is in consideration ofthe cancellation of the
44debt,in whole
,or in part
,or
7 Lonergan vs . Stewart , 55 Ill. , 9 Hunt vs . an , 1 00Mass , 1 98.
9 Colton vs . W ise , 7 1 1 1 . App . , 39 5. Irons vs.W
ten net , 51 Iowa, 88.
1 4 SALES .
whether the goods are delivered as a security,to the
creditor for the existing indebtedness . If the debtis satisfied it is a sale
,if the debt is not satisfied it is a
mortgage or pledge .
1 1 The retention of the evidenceof indebtedness
,such as a bond
,or note by the creditor
,
would raise the presumption that the indebtednessremained unsatisfied
,and that a pledge was therefore
intended . If the conveyance extinguishes the debt,
a subsequent or contemporaneous stipulation in theinterest of the debtor, securing to him the right torepurchase ought not to be construed to the creditor ’sprejudice . Such a transaction is not to be cons trueda mortgage
,it is a conditional sale .
1 2 “ It is a necessaryingredient of a mortgage,
” said C . J . Marshall,
“ thatthe mortgagee should have a remedy against the personof his debtor . If this remedy really exists
,its not
being reserved in terms, will not affect the case . Butit must exist in order to justify a construction whichoverrules the express words of the instrument . ” ‘3
Where a. sale is made which carries with it the right Ofrepurchase in the vendor, unless the vendee could alsocompel repayment
,it will not be held to be a loan on
the security of the goods so transferred, it is an absoluteconveyance .
1 4 It remains with the court,in any
case,to say what the contract means , where the con
tract is in writing and the facts are not in dispute, thisraises a question of law . Where the parties are notagreed on the facts
,the question is then one for the
jury .
1 5 A sale is so much like a chattel mortgage thata word on chattel mortgages is of value .
1 ‘ Smith vs . Beattie , 31 N. Y . , 542 ; Glover vs . Payne , 1 9 Wendell ,Stuphen vs. Chishman ,
35 Ill. 5 1 8.
1 ‘ Crosby vs . Delaware Hudson1 ’ Turner vs. Kerr , 44 Mo . , Canal Co. ,
1 1 9 N. Y. , 334.‘3 Conway vs . Alexander, 7 Cranch ,
DEFINITION AND NATURE . 1 5
A chattel mortgage as defined,is a conveyance of
personal property to secure the debt of the mortgagor,
which being conditional at the time, if the conditionbe not duly performed, the whole title vests absolutelyat law in the mortgage .
1 6 A chattel mortgage wasunknown to the Common law.
1 7 The usual form Of thechattel mortgage is a bill of sale with a defeasanceclause
,but any form of words indicating that the in
tention of the parties is that the property is conveyedfor a security is in proper form .
1 8 AS far as thirdparties are concerned if they have notice that theinstrument purporting to be a bill Of sale is a mortgage
,
it will be treated as such,
1 9 but as to innocent thirdpersons who have been deceived by the form of theinstrument
,it will be held to be what it purports to be
,
and . will be enforced as such where their rights areinvolved .
20 Parol evidence is admissible to Show thatwhat purports to be a bill of sale is a mortgage .
21
SECTION 4 . SALES DISTINGUISHED FROM CONSIGNMENTS To SELL .
A mere consignee of goods,that are to be sold on a
commission for the owner,is a factor
,and the representa
tive,or agent of the owner. The title remains in the con
signor . And it has been held that a sale does not takeplace
,but that it is only a consignment for sale
,where
the owner delivers goods to be sold at a price fixedby the owner and to be paid for at a rate agreed uponby the cons ignee at a date agreed upon .
22 On the other
1 ° Wright vs. Ross, 36 Cal. , 41 4. National Ins . Co . vs . Webster
,1 7 B1 stone vs. Burgett
,68 Am . 83 Ill. , 470; Mfrs . Bank vs .
Eco 658. Rugee , 59 Wis ,221 ; see also
‘3 Mervine vs. White, 50 Ala .
,388. Purington vs . Akhurst , 74 Ill. ,
‘9
” Wright vs .Wri ht , 2 Litt . ,9 .
an vs.MCI? 1 05 ; Henderson vs .
Mayhew, 2 Gills (Ind ) , 393.
490.
”3 And enreid vs . Betteley, 8 Allen ,
1 6 SALES.
hand,where goods are shipped to be paid for as sold,
but at all events to be paid for in twelve months it isan absolute sale .23 So in the case where a consigneeis invested with possession in a thing, to pass title asin himself
,where the possession is held under an under
standing with the owner, that as between themselves,no title is to pass until the thing is paid for, it washeld that no title passes until payment was made .
24
The owner of the goods left on consignment with an
other,who is invested with all the indicia of ownership
,
could not assert his ownership or title in the goodsas against a purchase from the consignee, who bought ingood faith, even though he bought under terms contrary to the way the agent was instructed to sell bythe owner.
SECTION 5 . SALES DISTINGUISHED FROM GIFTS .
A gift of property to be valid,in any case
,must be
by actual delivery and acceptance of the thing given .
25
The law will however,presume acceptance of a beneficial
gift where the recipient is unable because of lunacy orinfancy to make an acceptance .
28 The actual deliveryand acceptance of the goods, on the other hand is notnecessary to the validity of a sale unless they are speciallymade a part of the terms of the contract . With gifts
,de
livery,is an all necessary element, and even where goods
have been turned over to another with instructions todeliver toad onee named . The owner may recall the giftbefore delivery is actually made to the donee .
A gift of property being without cons ideration of avaluable nature
,cannot be made if the donor thereby
divests himself of property,in a way that would preju
93 Fish vs. Bened ict , 74 N. Y . , 61 3. Picot vs. Johnson , 1 4 Ill. , 342 ;”4 Co le vs. Mann
,62 N. Y . see also Pinkslay vs. Starr, 1 49
3“ Mahan vs. U. S ,1 6Wall ” 1 43. N. Y., 432.
Rinker vs. Rinker, 20 Ind ., 1 85.
C H A P T E R I I .
THE CONTRACT .
SECTION 7. THE OLDEST FORM OF CONTRACT IN
ENGLISH LAW.
The law of sales is based Upon the Roman law,in
its later stage as modified by the praetors and by legislation. In the Roman law a sale meant originallyonly a barter ; but the introduction of coined moneyconverted the consideration Of the purchaser into price
(pretium) as distinguished from the article of sale
(merx) contributed by the other .1
Far from being a matter of recent development,
the law of sales,being an ancient form of contract, is
naturally one Of almost certain and fixed principles,
though it is not possible to say that in a country asvast as ours
,and made up of so many different state
governments,that there is absolute accord of decision
in the law of sales . There is not . We find however,today
,that the law of sales has been little changed by
any recent legislation and that the law today is for themost part made up of the Common law rules, and thatEnglish decisions on question of sales are frequentlycited in American courts and are found of specialvalue . It is true also
,that our own institutions
,and
circumstances,have made it essential to make a peculiar
application of certain common law principles,and to
reject or render obsolete certain rules of the Englishlaw, that have not become a part of our jurisprudence.
Americanized Ency c. Brittaniea, Vol. VIII.1 9
20 SALES .
SECTION 8. REQUISITES OF A CONTRACT OF SALE .
A sale,being simply one form of contract
,to be
valid,and binding on the parties thereto
,must have
all the usual essential elements that are required in anycontract . The parties to the sale must therefore becompetent to enter into the contract
,the consent to the
terms of the contract must be genuine, the parties mustnot be dealing under a mistake of fact, there must be amutual assent to the terms of the contract ; the salemust be of a thing the transfer of which, under thecircumstances
,is lawful
,and there must be the con
sideration, the price in money paid, or to be paid, tosustain the contract .
In addition to these requisites,and in order that
fraud may be prevented,the statute may in certain
cases require that there be a written memorandum Of
sale , to evidence the sale and to direct that unless thisrequisite is looked to
,that the contract Shall not be
allowed to be good . It is true also that a sale cannot bemade of a chattel, so as to transfer the title theretowhere the title is in some person
,other than the person
making the sale, no greater title can be transferredthan the person transferring himself possesses . TO
this rule that only the legal holder can pass a goodtitle to the property
,there are some important excep
tions,the discussion of which will be had at a later
SECTION 9 . PARTIES .
It is deemed unnecessary to discuss here, the general incapacities of certain parties to enter generally into contract Obligations
,or to secure to themselves con
tract rights by their own agreements . But it maybe stated broadly that certain persons under rule of
THE CONTRACT . 2 1
contract law are totally incompetent to enter into anycontract
,and that in other cases the law protects certain
persons from liability if they see fit under the circumstances Of their situation, to take advantage of theirrights and elect not to be bound on their agreementas made . These general rules of contract law applyequally to the contract of sale . The subject is thereforproperly treated in works on general contract law .
Under the rule that one who buys goods from someperson
,other than the true owner
,gets no title at all,
such persons could themselves convey nothing,and if
they do transfer,or are assisted in the transfer of
the goods so bought,the persons so selling must answer
to the true owner,
2 even though they sell innocently .
It was formerly thought that the owner of the goodscould not sell his own property if it was in the possessionof a third person who held it under an adverse claimof title .
3 These cases seem to be against the modernauthorities which say the owner may waive the tort andsell and convey good title .
4 The infant,whose contract is
ordinarily voidable,is not bound on his express contract
to buy necessaries,but will be bound to pay what the
court thinks is the fair and reasonable price of thenecessaries
,
5 the same having been furnished himunder the express contract . An infant’s contracts ofsale are likewise voidable . He may recover the thingsold, any time either before, or after he reaches hismajority, and he must return the consideration if hestill has it, but if not, he may nevertheless recoverhis chattel sold .
6
Sharp vs . Parks , 48 Ill. , 5 1 1 Dud Stone vs . Denison , 1 3 Pick , 7 ;IS vs . Hawley , 40 Barb . , 397 . Morton vs . Steward
,5 III.
M oon vs . AnKenny 1 1 Ill. , App .,533.
558 ; Gardner vs . Adams , 1 2 Carpenter vs. Carpenter , 45 Ind . ,
Wend , 29 1 42 ; Chandler vs. S immons ,Tome vs .
29
Dubois,6 Wall 548; 9 7 Mass , 508.
Hall vs . Gardner , 2 N. Y 293.
22 SALES .
Lunatics are not bound on a contract Of sale,and
the only exception would be,where they have not been
formally adjudged insane,and the person dealing with
them did so in good faith without the knowledge ofthe insanity .
7 SO the general contract rule in referenceto drunkards, married women, spendthrifts, etc .
, holdsgood in the matter of contracts of sale . With thepower and right
,now in married women, to contract
generally,has come the rule of statute
,hold ing the wife
equally liable with the husband for necessaries suppliedto the family .
8 In the absence Of the statute,the
husband is liable for necessary supplies furnishedthe family .
9
Where a sale is made by a trustee,one who pur
chases with knowledge of the trust, is chargeable withthe same trust in respect to the property
, as the trusteefrom whom he purchases . This is true
,even though the
purchaser pays a valuable consideration . If he buyswithnotice Of thelequitable rights of the
'
third person,the prop
erty will be held subject to the equities of such person .
1 0
SECTION 1 0. CONSIDERATION .
The price must always be money or money’sworth .
1 1 When the parties have expressly agreed uponthe price to be paid for the sale Of a thing , this settles thequestion
,but the price to be paid is not always fixed
with certainty , and sometimes nothing at all is saidabout the amount of money to be paid for the thingsold . In the latter ca
se, the law implies a promise to
pay what the thing is reasonably worth .
1 2 Wherethe thing sold has a market price
,then when no sum is
7 Riggs v Am . Tract Society, 9 W ilson vs . Herbert,41 N. J. L ,
84 N.
V
Y. , 330; McCormick vs .Littler , 85 Ill. , 62 . Perry on Trusts , 5 Ed it . , Sec. 2 1 7.
3 Von Platen vs . Kruegerr, 1 1 Ill. Goldsmith vs . Greenly, 32 Atl. R . ,
App . ,627 ; Polly vs . Walker,
60 Iowa, 88.
‘2 Valpy vs . GIb son, 4 C. B 837.
THE CONTRACT . 23
to be paid, the market price on the day of d elivgovern .
1 3 The price may be left to be fixed byperson
,
1 4 but if the third person refuses to act,in the absence Of fraud
,on the referee’s part,
is no contract . 1 5
It is not necessary that the money be actually paidat the time of the sale
,to pass title to the thing
it may be paid at any time the parties may fix
SECTION 1 1 . FORMAL REQUISITES .
In the absence of a statute the law requires noicular formalities to give validity to the contract ofe . But in addition to the Statute of Frauds
,the law
Iy require that where a bill of sale is given, that itJuld be recorded in cases Where there is no actualange in possession of the thing sold
,in order that the
.e may be good as against creditors, or subsequentca fid e purchasers .
“
In this place,therefore, it is deemed proper to say
word on the subject of B ills of Sale . A bill of saleS imply a writing which may or may not be underLl,
” evidencing the transfer of the property rights inhing . A bill of sale should name the parties theretoth sufficient certainty so that they may be identified
,
“
also,the property transferred Should be sufficiently
scribed that it may be readily ascertained and pointedt . The bill of sale should be delivered by the vendorthe purchaser. Delivery is an essential
,to make a
l Of sale valid .
1 9 At common law,a delivery of a
v c W o w-fla n 1 4 W e “
24 SALES .
bill Of sale,without d elivery of possession Of the propertymentioned in the bill
,was void as to creditors and a
fraud in itself But the rule now is,that the retain
ing of the possession Of the property by the vendoronly raises a presumption of fraud .
2 1 Where theproperty is such that it is incapable of delivery
,a d eliv
ery of a bill of sale is sufficient to pass title and possession .
22 A bill of sale,if taken as security for a debt
,will
be treated, at least so far as the immediate parties thereare concerned
,as a chattel mortgage .
23 A bill Of salewill not transfer the property until it has been deliveredto the vendee or to some .person for him,
and with hisassent .24
SECTION 1 2 . ILLEGALITY .
There are various circums tances that may arise,
to make a contract of sale void for illegality . But theusual ground is that the subject matter of the saleis of a thing
,the sale of which
,the law prohibits
,or
that the purpose of the sale,is to effect that which the
law will not countenance, or that the circumstances ofthe time and place of sale are under legal interdict .
In pas sing on this phase of the law of sales it isonly necessary to keep in mind the general principlesof contract law. The fundamental principles are to beapplied to the law Of sales as they are to any otherbranch of contract law . In the first place then
,if the
contract of sale is illegal, the law will not lend its aidto either of the parties to such an agreement . The
1 Smith ’s Lead ing Cases , 1 ° Cake vs. Shull , 45 N. J. Eq .
Meeker vs
bW ilson" 1 Gall Love vs. Blair, 72 Ind . ,
281 ;
(U S . Polland , Vs .
1 Salton
sta
ll,56
Hamilton vs . Russell , 1 Craven Fed . Rep , 86
(U. 309 ; Thorton vs .
3‘ Bufi’
inton vs. Curtis , 1 5 Mass ,
Davenport , 2 III 296 528.
Gibson V8
384Stevens,8 How.
(U.
C H A P T E R I I I .
OBJECTS OF SALE .
SECTION 1 3. CORPOREAL PERSONAL PROPERTY .
Goods which have a tangible physical existence ,such as to render the goods themselves capable of delivery
,are styled corporeal . When the term goods is used
,
it ordinarily includes all corporeal personal property,
except money .
l This term may also include that whichis evidence of certain property rights . There is authority for the holding
,that negotiable paper is included
in the term merchandise .
’ Some few authorities hold ,however
,the term “ goods does not include promissory
notes ? Goods, wares and merchandise by somedecisions do not include shares of stock .
4 Growingcrops, iructus ind ustriales 5 are considered personalproperty,
6 and fructus naturales are considered , at leastuntil severed from the soil
,as part of the real estate
and not personal property . The word merchandiseincludes in general
,Objects of traffic and commerce .
7
SECTION 1 4 . INCORPOREAL PERSONAL PROPERTY .
The property sold need not of necessity have acorporeal existence ; for instance , the good will of partnership may be sold
? It has also been held thatknowledge and existence of an oil well may be the
Spooner vs. Holmes , 1 02 Mass ,Webbs vs . R . R . Co . ,
77 Md . , 92 ;507 ; Jones vs. Nell is , 4 1 Ill g
amble vs . M itchell , 1 1 A.
205 .
Banta vs . Chic o,1 72 I1 1 . , 204 ;
5 Evans vs. Roberts , 5 B . C.,829 .
Baldwin vs . illiams,3 Mete. , Grafi
'
vs . Fitch , 58 I1 1 . , 373.
(Mass ) 365 . Boardman vs . Cutter , 1 28 Mass ,
Crawford vs. Schmitz , 1 39 ML,
564 ; Vauter vs . Griffin , 40 Barber vs . Com. Mutual L. Ins .
Ind .,593; Whittemire vs . Co . ,
1 5 Fed . Rep . ,31 2 .
G ibbs,24 N. H. ,
484.
28 SALES .
subject Of a contract of sale ? Goods, wares andmerchandise
,according to Massachusetts decision, do
not include mere rights which have not a visible andpalpable form
,such as a mere debt
,
1 0 or shares Of stockin a company not formed .
1 1 But it is not essentialthat the property to be the subject Of sale should becorporeal ; it may be incorporeal . In New Jerseygoods
,wares
,and merchandise include everything,
in short,not comprehended in the terms lands
,tene
ments and hereditaments . 1 2 In Georgia, the wordsgoods
,wares
,and merchandise are held to include
accounts . 1 3
A physician in a country village being about tomove elsewhere proposed to another physician to comeand take his place
,and in consideration of the payment
Of $500 by the newcomer the retiring physician agreedto recommend the newcomer to his patrons and to usehis influence in his favor . The Court held in an actionto recover themoney
,that the business of the plaintiff
was not such a personal trust and confidence,that it
would not be the subject of sale .
1 4 The route Of anewspaper carrier may be the subject Of sale .
1 5 Anuncertain hope may be sold .
1 6 But a contract to deliver goods not in existence at the time
,is not a sale .
1 7
SO it has been held that there can be no complete saleOf a crop not yet planted .
1 8
SECTION 1 5 . AFTER ACQUIRED PROPERTY .
It is the general rule that even though the titleto the property is still to be acquired
,one may sell or
Reed vs Golden,28 Kans ,
632 .
N. Y . Biscuit CO . vs . Camb’
ridge,
1 1 8 Mass ,279 .
Masc
fi
h
am. vs . Sharp , 1 5 1 Mass ,
Greenwood vs . Law, 55 N. J L .
1 ? Walker vs . Supple , 54 Ga . ,
1 78.
Hoyt vs . Hal y,1 2 Am . Rep
390,39 Conn . ,
326 .
1 “ Hathaway vs . Bennett,1 0
(6 Seld ) , 1 08, 6 1 Am,
Dec ., 739 .
1 °Sed ell vs. McCoy s Ex
’rs,1 5 La . ,
‘7 L03
w vs . Andrews Fed . Gas . No.
8559‘8 Huntington vs. Ch isholm , 6 1
Ga . ,270
OBJECTS OF SALE 29
offer for sale , the goods still to be acquired, if thepresent purchase of the goods is hoped for, or expectedby such a vendor . 1 9 Farm and dairy products, thereafter to arise out of a demised farm, and stock thereonmay be the subject of a sale
,
20 and it is not necessary incase of a sale
,or purchase for future delivery , that the
property should actually be on hand at the time .
2 1
Any one,in general
,has a right to sell any property
they possess,if they are not an incompetent . The power
Of disposition of one ’s property is incidental to ownership
,and it is the policy of the common law not to re
strain it .
22 But it is quite necessary that therebe in existence the thing that is to be sold
,it is the gen
eral rule that if the subject matter is not in existence,
there is no sale .
23 But if a thing has a potential existence, as for example, the natural production or expectedincrease of property then belonging to the seller
,it
may be the subject of a sale . AS a general rule,any
person may sell or Offer for sale, goods that he does notthen own but which he hopes or expects to acquire .
24
But if the property has only a potential existence andis to be afterwards acquired
,then it can only be the
subject of a conditional sale,
25 and as against creditorsthe title remains in the original owner and subject tothe execution, at least until actually delivered over tothe person claiming the interest .
SECTION 1 6 . IN GENERAL .
In treating of the subject matter Of the sale,that
Is, the thing to be sold, it must be kept in mind that it‘9 Wamsley vs . Horton , 77 Hun . Bank of United States
,4 Clark ,
(N. Y . ) 31 7 , Ajello vs . Wors 1 25 .
ley , 1 Oh . ,
’3 Strickland vs . Traner , 7 Exch .,
2“ V5
31 Hoozer vs . COrey , 34 Barb . , 208; Dexter vs . Norton, 47
N.
Bartlett vs . Smith (C. 1 3 2‘ Forsyth sg . CO . vs . Castlen ,Fed . ,263. 1 1 2 Ga . ,
1 922 Insurance Bank of Columbus vs . 25 Brett vs . Carter
,2 Lowell (U. S .
30 SALES .
is quite necessary that the vendor have title,as the
vendor in any event only is able to transfer whateverinterest or title he himself possesses . The only exceptionto this well known rule is in the transferring of moneyor negotiable paper, where the rule of the law merchant applies . Further exception in England is the salein market overt, a doctrine which has never beenapplied in the United States and which is not a partof our law . Where the title of the vendor is a voidableone only
,a purchaser who buys in good faith and for
value without notice of the existing defect will take agood title . Outside Of the city Of London
,market
overts exist by grant or prescription, giving the right tosales in the open market on special days
,under this doc
trine these sales are free from the general rule that if thevendor has not the title
,the real owner may reclaim
his property where he finds it . In London all shops aremarkets overt for the purpose of their own trade .26
Wilk inson vs . Rex. , 2 Camp. , 335.
C H A P T E R I V
CONDITIONS AND WARRANTIES .
SECTION 1 7 . DEFINITION OF WARRANTY .
A warranty is defined as the collateral agreement,
that is annexed to the agreement transferring theproperty right in the thing sold
,by which warranty
,
the seller vouches for, either expressly or impliedly,the title, the condition and the quality of thesubject matter of the sale . An express warrantyis an express or positive declaration or assertion madeby the seller, relating to some fact respecting the thingsold
,which statement may be taken by the buyer as
true,and one on which there is an obligation on which
he may hold the vendor . A representation is thestatement that precedes the agreement of sale
,on which
the contract of sale is founded, and if the representationis relied on, it is the inducement of the contract . Afalse representation may, if it amounts to fraud, givethe injured party the right to rescind the contractitself
,or hold the other party in damages for its breach .
A warranty is likewise to be distinguished fromcondition . If there is a condition which forms the basisOf the contract
,and the condition be broken
,the contract
is at an end . A breach of warranty does not bringthe contract to an end ; it merely gives a right in damages for the breach .
A warranty may arise without the vendor ofgoods using the word warranty
,no particular words are
necessary to bind the vendor,but any language used
from which a warranty might be inferred is sufficient . 1
Stone vs . Denny , 4Meto. (Mass ) , 1 51 .
31
32 SALES .
The warranty need not be in writing . The decision asto whether a warranty exists or not may be one Of lawor fact . Where it is a question of fact, as to whetheror not the representation is made, then the solution Ofthe question in a law suit, is one for the jury,
2 underinstructions from the court
,but where the facts are not
in dispute or the statement is a mi tten one, thequestion is one for the court ?
SECTION 1 8. WARRANTY .
With every contract of sale is the collateral agreement of warranty
,which may be either express or
implied,but since the warranty is always auxiliary to
the main contract which transfers the title in thegoods
,whatever defeats the original contract, likewise
terminates the contract of warranty . A warranty isto be distinguished from statements Or representationswhich are the basis or inducement of the contract . Afalse representation may make the contract voidable
,
a breach or warranty could not affect the validity ofthe original contract . In other words
,a warranty
cannot exist without the original contract Of which itis annexed
,
4 but the existence of the contract is notaffected by the warranty .
The distinction between representation is wellmade in the well known old case of Hopkins vs . Tanquery .
5 The defendant had sent a horse to a sale tobe sold ; before the horse was sold the plaintiff kneeleddown and was examining the horse ’s legs ; thereuponthe defendant told the plaintiff that it was unnecessary , that the horse was perfectly sound in every way .
The plaintiff desisted from further examination and
Thorne vs . Mcveagh , 75 Ill . , 81 . Chanter vs . Hopkins,4 Mesa 5:
Holmes vs. T son , 1 47 Pa . St . , Wels,
305, 1 5 L . A ., 209 . 1 5 Com. B . ,
1 30.
34 SALES .
not to the terms when the warehouse receipts we re tobe turned over which was to be at a later date, thegoods meanwhile remaining In the possession Of thevendor . 1 0 It is entirely competent for the parties byapt words to themselves fix the time and place to whichthe warranty is to be applied
,
1 1 but in their failure todo that
,the general presumption governs .
SECTION 20. IMPLIED WARRANTIES .
Implied warranties are such as are imputed in lawupon the whole . transaction
,as for instance that the
seller has title,or that the goods as to bulk, will cor
respond with the sample, or that the goods are whole
some and merchantable . And it may be said that inevery contract
,whereby a vendor transfers the title
in a thing to another,which the vendor has possession
of,the vendor impliedly warrants that the title is
good in himself, for the purposes of the sale . It is anaccompanying warranty of every sale that the lawmakes, or implies, from the act of sale by the vendor,
1 2
except in the caseWhere the vendor shows plainly an intention to transfer only such title as is specifically therein stated . It is sometimes said that the vendor implied lywarrants the existence of a thing, and that if the thingdoes not exist , the price paid may be recovered back .
There is no doubt that in such a case the price paidmay be recovered back
,
1 3 but this is because no titleever passed to the thing supposedly sold, there was amistake of fact, the contract of sale was therebyavoided . Mistake of fact as to the existence of thething sold will avoid the contract . 1 4 The warranty oftitle carries with it any after acquired right of the venLuthy Co . vs. Waterbury
,
1 ” The Electron , 74 Fed . Rep . ,689 .
su rap ‘3 Marshall vs . P ,eck 1 Dana (Ky.
Snow vs . Shomacker Mfg. Co. ,
69 Ala , Farrer vs .Nightingal, 2 Esp , 631 .
CONDITIONS AND WARRANTIES . 35
dor . 1 5 It seems to be the general doctrine , although wefind disapproval for the same, that if the thing is notin the possession of the vendor then he is not chargeablewith this implied warranty?“ As to quality of goods,there is not ordinarily
,in absence of fraud, a warranty ,
where the purchaser examines the goods at the timeof the sale, or where the opportunity to inspect thegoods remains to the purchaser . 1 7 Nor is there awarranty
,as to defects that the purchaser might
observe by casual examination of thing sold where thedefect is plainly visible
,or Where nothing is done to keep
the purchaser from observing the defect . Where thesale is by sample
,the rule is almost universal that an
implied warranty exists that the goods shall be up tosample in quality and kind . The rule of caveat emptorcould not reasonably be applied because the purchaserhas no means of inspecting the bulk from which thesample is taken?“
The vendor of goods also impliedly warrants thatgoods offered for sale, where the buyer has no oppor
tunity of seeing the goods, that they are merchantable?“
It is now the general rule that where the contract Ofsale contains express warranties, that an implied warauty in conflict therewith could not exist . Nothingcan be implied against the express warranties of theparties . AS to the measure of damages in case of abreach Of implied warranty
,the rule is that it is the
difference between the actual value that the goods areshown to have when sold, and what their values wouldhave been, had the warranty been fulfilled
?“
1 “ Curran vs . Burdsall,20 Fed . 937 ; Kellogg Bridge Co. vs .
Rep . , 835. Hamilton , 1 1 0 U . S . ,1 08.
See Story on Sales,4th Edition ‘8 1 0 Wall . (U. 388 .
Sec. 367 .
1 ° Doane vs . Dunham , 65 Ill. , 5 1 2.
“0 W ilson vs . King , 83 Ill.,232.
6 SALES .
SECTION 21 . SALE BY DESCRIPTION .
In the United States,a sale mad e Of goods by
description,where it is an executed contract of sale
of goods,will carry with it a warranty that the goods
will be as described, either as to kind, quality, name ortitle? 1 The law does not require the use Of formalwords in des cribing the goods so sold, or that thegood s be described with great particularity, and withexactness
,in order to bind the seller ;
2’ the descriptionmay appear in advertising matter or circulars broughthome to the purchaser .
There is this limitation,however, on the rule as
stated, that the use of mere words of commendationwhich have no fixed meaning would not thereby makethe sale
,one by description . So where in the com
mercialworld a particular word or phrase is understoodas having a particular limited meaning, the use of sucha word or phrase will be confined to the sense in whichit is ordinarily understood in the business?“
SECTION 22. SALE BY SAMPLE .
The law does not imply a warranty on the sale Ofascertained goods, where the buyer has ample oppor
tunity to inspect the thing to be sold, and the seller isneither the manufacturer or producer of the same .
This is the application of the common law maxim Of
caveat emptor?4 In such a case in the absence of
fraud on the part of the seller,the buyer purchases at
his own risk .
An exception to the above rule exists in the caseOf the sale by sample . That is to say where the sellerexhibits a specimen only of the goods to be sold for
Pemberton , 51 N. Sweat vs . Shumway , 1 02 Mass ,
Y . ,1 98, 1 0Am. R .
,595. 365 .
Winow vs
éoLombard
,1 8 5” Parkinson vs . Lee , 2 East , 31 4.
‘ 7
CONDITIONS AND WARRANTIES . 37
the purpose of Showing the quality Of the goods . Thiswill be taken as a representation by the seller, that thesample is a fair representation Of the quality Of thebulk
,and the seller will be bound as on an express
warranty ?“ It is,however
,to be commonly treated as
an implied warranty that the bulk is Of the same quality
,nature and kind as the sample ?“
To constitute a sale by sample,the parties must
deal with each other on the basis,and understanding
,
that the bulk will correspond to the sample,and the
buyer must rely on the representation so understood .
The warranty is that the sample fairly representsthe average quality Of the whole mass .
Bradford vs. Manly, 1 3 Mass ,
2“ Hanson vs. Busse 78 III. 230.
C H A P T E R V
PASSING OF TITLE .
SECTION 23. EXE CUTED AND EXECUTORY CONTRACTS .
A sale, as distinguished from an executory contractto sell, only takes place when the agreement to transferthe property rights in the goods is concluded . It istrue that delivery is not essential to pass the title asbetween the parties themselves, but that the titlepasses as soon as the bargain is struck, without regardto delivery
,or payment of the sale price, unless the
contract by the terms states that the title is not to passuntil delivery and payment is made . The executorycontract is simply an agreement to transfer the titleto the goods , the property right in the goods remainingin the seller until this agreement is concluded by thesale . The importance Of the d istinction rests in determining who shall bear the loss of the property, where it isdestroyed
,where the goods are either the subject matter
of the sale,or agreement to sell
,and also in determining
the rights of creditors of either party to the goods inquestion
,when it is a question whether a sale of the
goods has actually taken place, or whether the goodsare merely the subject of an agreement to sell .
The Illinois Court in stating the legal meaning tobe attached to the term bargain and sale, as distin
guished from an agreement to sell states the principleas follows : “ The words bargained and sold have asettled legal meaning and import a sale
,which vests
the property in the buyer . ” 1 And they quote in thatcase
,from the rule of the common law as stated in
Barrow vs. Wandow , 71 Ill. , 2 1 4.
39
40 SALES .
Noys Maxims , C . 42 : If I sell my horse for money,
I may keep him until I am paid, but I cannot have anaction in debt until he is delivered ; yet the propertyof the horse is by the bargain
,in the bargainer or
buyer. But if he do presently tender me the money,
and I refuse it,he may take the horse and have an
action for detainment ; and if the horse die in mystables
,between the bargain and delivery
,I may have
an action of debt for my money,because by the bargain
,
the property was in the buyer . ” The rule as stated inCowen ’s Treatise
,2nd cd .
,part 1
,p . 50, is also quoted :
“ By a regular sale, even without delivery, the propertyis absolutely vested in the vendee
,that if it afterward
dies or is destroyed in the vendor ’s custody,without
his fault,still he is entitled to the price
,because, by
the contract,the property is in the vendee
and the vendor is considered a bailee or trustee for thevendee and would be responsible only forordinary neglect . ”
SECTION 24 . INTENT GOVERNS .
Whether the contract agreement is held to be asale
,or a bargain and sale
,as it was early called, or
whether it was merely an agreement to sell,depends
upon the intention of the parties to the contract .There can ordinarily be no difficulty in determiningwhat the agreement was, when the intention of theparties is clearly shown by their negotiations andacts, the seller divesting himself of all title to thegoods and the buyer assuming full control with allattending liabilities . If the intention is manifestedin no uncertain way
,it will control ? What was
the intention of the parties, is one Of fact for thejury, acting under instructions from the Court . Where
Callaghan vs . Meyers, 89 Ill. , 570.
42 SALES .
failing clearly to express their intention, certain rulesof construction are adopted by the courts . The lawindulges in the presumption that no title has passedto the good s
,where something remains to be done to
put them in Shape for final delivery and until thisthing to be done is accomplished .
“ But the fact thatthe price has not been fixed
,would not of itself alone
prevent the title from passing . So the presumptionlast spoken of, indulged in by the law,
may be overcome,if,notwithstanding the fact that something remained
to be done, the parties had intended a sale nevertheless?
The rule is restated in Graff vs . Fitch,
“ as followsWhile the general doctrine on this subject may beregarded to be, that where some act remains to be donein relation to the articles which are the subject-matterof the sale, as that of weighing or measuring, and thereis no evidence tending to Show an intention to makean absolute and complete sale
,the property does not
pass to the vendee,until such act is performed
,yet
where it appears, that the parties intended that thesale should be complete before the articles sold areweighed or measured
,the property will pass before
this is done Where the seller,by the terms of the
contract,agrees to forward the goods to the buyer,
the property right in the good s, and the risks of lossremain in the seller
,and until the goods are transported
to the buyer, the title remains in the seller and onlypasses on delivery to the buyer.
SECTION 26. SALE OF SPECIFIC CHATTELS UNCONDITIONALLY .
It is the general rule of law,that when a sale and
delivery is made of specific chattels without condition,Yockey vs . Norn , 51 01 Mich . ,
1 93. 58 Ill. , 373.
Graff vs . Fitch , 58 Ill. , 373.
PASSING OF TITLE . 43
title passes thereby to the buyer and the law presumesthe contract is an actual sale
,even in advance of
delivery , if the thing sold is ready for delivery .
The fact that the seller retains the goods in hispossession for security does not affect the presumptionof sale
,
7 unless the sale was understood to be on a cashpayment
,operating as a condition precedent , but even
in that case, it is sometimes held that the title is transferred as soon as the agreement is reached , and that thegoods are held at the risk of the buyer
,and that the
seller is merely asserting his lien in retaining possessionuntil the price is paid .
If a party purchases an entire lot of Cigars ofanother
,and the vendor
,after receiving payment,
takes the purchaser to the factory,and says “ Here
are your cigars,
” handing to him several boxes, andthe purchaser pays for the stamps to go upon the boxes,and the purchaser employs the hands in the factoryto stamp them
,this being as complete a delivery as the
vendor can make,will be sufficient to pass the title
against an attaching creditor of the vendor ?
SECTION 27. SALE OF SPECIFIC CHATTELs CONDITIONALLY .
It is always within the province of the parties toa sale
,to regulate the time when the title shall pass,
and if they annex a condition to the contract,that the
goods are to be first put in a deliverable state,or
,that
the purchaser shall make payment,or that the per
formance of some other stipulation be had as a condition precedent to the title vesting in him the title willnot pass until the condition is performed .
Beardsley vs. Beardsley,1 38 U. 492 .
S 262 Eaton, 1 5 Gray ,Straus vs . Menzesheimer, 78 Ill. ,
44 SALES .
SECTION 28. SALE OF CHATTELS NOT SPECIFIC .
It is qui te essential to the sale that the goods tobe sold, must be separated from other goods so thatthey may be identified
,in order that title pass . 1 0 The
same rule applies to goods that are to be manufactured,
title does not pass until good s are completed and madeready for delivery . It is the general rule also
,which
,
however,we find cannot be reconciled with the con
flicting rule of certain other courts,that where there is
a sale of a quantity of goods from a uniform mass,an
appropriation is necessary Of the certain specifiedportionof the mass in order that the purchaser may be vestedwith authority .
1 1 When the appropriation of the thingto be sold is subsequently mad e , then the agreementto sell
,becomes a sale in fact, when the parties express
ly or impliedly assent to the appropriation as made .
"
It is quite possible that there be a sale of anunfinished chattel, if the parties agree that the titlepass at once
,even though the vendor is to complete
the chattel subsequent to the sale as made .
1 3
This is another case where the real intention ofthe parties will govern .
SECTION 29 . SALE OF CHATT ELS NOT YET IN EXISTENCE ‘
A contract may be made for the sale of goods,not
yet in existence, but the contract does not ordinarilybecome a sale, until the goods are manufactured, prod uced or grown and the seller ’s complying in otherparticulars with the order . It is deemed sufficient
,
according to the greater weight of authority,for the
purpose of passing title to the good s , for the seller to
Guy vs . United States , 25 Ct . Cl. view see the case of Whitehouse vs . Frost 1 2 East , 6 1 4 .
1 ‘ Ropes vs . Lane , 9 Allen (Mass ) , 1 “ Moody vs. Brown, 34 Me . 1 07.
502 ; Morrison vs Woodley, ‘3 Thornd ike vs. Bath , 1 1 4Mas s84 Ill. 1 92 . For the opposite 1 1 6.
PASSING OF TITLE . 45
produce the goods as specified,and to tender or offer
delivery Of the same . The acceptance by the buyeris not required .
1 4 The seller could recover for thegoods as soon as tender is made
,if he elects so to do
,
but might,on refusal of purchaser to accept
,make a
resale Of the goods and sue for the difference . Thereis some authority
,however
,to the effect that accept
ance,in such case
,is necessary to pass title .
Where goods are in process of manufacture orconstruction the title may pass by stipulation
,if the
parties so agree,before the goods are completed . But
the intention that the title was to pass must be clearlyshown, and the mere fact that installments on thepurchase price are paid from time to time
,or that the
goods are made under the superintendence of the buyer,
would not alone show an intention to pass title beforecompletion of the subject matter of the sale
,but if
by taking all the stipulations together,the intention
to pass title is clear,the property will vest in the pur
chaser during the progress Of the worThe general rule
,as to when title passes to things
that are to be grown, is stated as follows by the Colorado Court : The contract was one for producing andselling certain alfalfa crops
,the seller being obliged
by the contract to raise,cut
,stack and measure the
alfalfa ; this he did and a recovery was allowed on such,showing the title having been held to have passed whenthe terms of the contract were fulfilled . The court said :“ The weight of authority is
,that the appropriation
by the seller of the article when completed in accordance with the terms of the contract
,passes the title
without the subsequent assent Of the purchaser, andan action for the agreed price can be maintained .
”
Shawhan vs Van Nest,25 Allen
,Mass ,
287.
Ohio St .,
Colorado S rings Live Stock Co.
Briggs vs . A L ight-Boat , 7 vs. God img , 20 Colo . , 249 .
46 SALES .
SECTION 30. RESERVATION OF JUS DESPONENDI .
Whatever the presumptions are that the court mayindulge in, as to the intention Of parties from the circumstances or condition under which the sale is made,these inferences will be repelled , by it being shown thatthe parties in reality intended the contrary . Therefore,where the seller shows plainly an intention not to passtitle to the goods
,even though he may have put the
article in a deliverable state,or even p laced it in the
hands of the carrier for transportation,the title to the
goods does not pass . Rules as to presumed intentiongive way where the real intention is Shown by positiveacts of the parties . The reservation of the right of titlein the goods may be shown, by the seller having the billOf lading so drawn as to make the goods deliverableto his own order or to his agent, with a draft attachedto be accepted by the purchaser. This right
,called
the reservation of the jus d esponend v’
, is the absoluteright of disposal of the goods, and is something morethan a mere lien . So the transfer Of the bill of lading
,
by the shipper on a sale or pledge of the propertyshipped
,is a symbolical delivery of the property .
The shipper,when he is the owner of the property
shipped,does not lose his title by inserting the name
of the consignee when he ships the property . Thetitle still remains in him unaffected . In such a case
,
the consignee becomes the factor or commission merchant of the shipper . 1 7 When the bill of lading is accom
panied by a draft, made payable at sight and drawnagainst the purchaser, there must be acceptance, andpayment of the draft, before the purchaser can claimthe bill of lading . The effect of reservation Of jus d esponend v
’
is to compel early payment by retainingtitle until payment . Incidentally it determines when‘7 Michigan Central R . Co. ,
vs . Phillips , 60 Ill. , 1 90.
PASSING OF TITLE . 47
title passes and the sale is completed . The reservationof the right also includes the right of making a pledgeof the property, or a sale, or mortgage, before the titleto the goods passes to the purchaser . The purchaseracquires no title where the carrier delivers the goods tothe purchaser, if the goods are shipped accompaniedby a bill of lading providing otherwise . Mere delivery
,
in such a case could not convey title to the purchaser . The title remains in the seller .
SECTION 31 . WHERE TITLE PASSES .
The rule is well established that the title passesin the place where the contract of sale is made
,and
under the rule that the lex loci contractus controls inthe matter of the validity of the contract ; if the saleis a valid one where made, it is valid everywhere . Theterms of the sale may show however, that goods boughtin one state
,to be delivered to the purchaser in an
other,are to remain the property of the seller
,until
actually turned over to the buyer in the state wherehe is . The sale in such a case would therefore takeplace in the latter state?“ The passing of the title togoods is not affected by the fact that the parties to thesale have their domicile in a place other than theplace where the sale is mad e .
The comity of states, does not require the enforcement of a contract valid where made, in a state Whereits enforcement would mean a violation Of the publicpolicy of the state ,
” or Where it would be against thebest interests Of the citizens Of the state to enforce it .A sale is not invalidated merely from knowledge of thevendor
,that the goods are to be resold in another state,
where in the latter,the sale is forbidden by the law Of
Weil vs . Golden , 1 41 Mass ,364. Green vs . Van Buskirk, 5 Wall.,
50 SALES .
buyer and seller,or delivery may depend upon a pre
vious course of dealing in similar cas es, or the customof delivery may be invoked to Show the manner ofdelivery intended by the parties . The delivery mayalso be regulated by the circums tance of the contract,or the kind Of goods sold . Under the general ruledelivery is made
,so as to satisfy the law, whenever the
seller has done everything that he should do under thecontract of sale, and has placed the goods at the disposal of the purchaser in as complete a way as thecircumstances of the sale permit . The place of delivery
,unless the parties agree otherwise, is at the place
of the sale of the goods ; therefore in the absence ofexpress or implied obligations on the seller, by the termsOf the agreement made by the parties making the sale
,
under terms or circumstances out of the ordinary course,
the delivery is complete by the seller’s placing thegoods at the place of sale, at the free disposition ofthe purchaser, and within his complete dominion
?
SECTION 34 . PLACE OF DELIVERY .
The place of delivery as already stated,is ordinarily
fixed as the place where the goods are at time the saleis made . If good s for instance, are bought at a shop,delivery is to be mad e there, in the absence Of anagreement to deliver elsewhere ? And the same principle is applied in thecase of goods to be manufacturedor raised from the soil. The rule has no applicationhowever, where the parties make an express agreementas to where delivery is to be made
,or when the parties
deal with each other supposedly having in mind a fixedand general custom . Where a fixed place of deliveryis agreed on by the seller, this then is a term of the
Mitchell vs . LeClair, 1 65 Mass , Smith vs. Gillett, 50 III 290
PERFORMANCE OF THE CONTRACT . 5 1
contract and its fulfillment is a prerequisite to recoveron the contract ?
Where the place of delivery is at the option Of one ofthe parties
,the Massachusetts court has stated the rule
as follows “ Where the vendee is by the terms of thecontract to designate the place Of delivery
,the vendor
is bound to make delivery at the place designated .
If the vendee omits to designate the place,the vendor
is guilty of no breach of contract if the articles areready for delivery at the time fixed by the contract . ”
SECTION 35. DELIVERY To CARRIER OR THI'
RD PERSON .
In all cases where the purchaser ultimately wishesto make use of the goods at a place, distant from theplace of purchase
,it is quite necessary that the goods
be shipped to him by carrier, but since the delivery isheld to take place at the place of sale
,ordinarily the
carrier must be cons idered as the agent Of the purchaserand not the agent of the seller. Where the contractis silent on this point, the delivery is made by deliveringthe goods to the carrier .7 The seller, may, however,agree to assume the risk of carriage, if that is the case,then the carrier is the agent of the seller.
It is the usual rule, that with the transfer of thetitle in the goods
,and delivery of same
,the risks of
carriage also pass to the purchaser and must be sentin accordance with the order of the purchaser. Thedelivery to the carrier, also must be made with theintention to pass title completely to the purchaser ?
The fact that goods are sold on credit will not interferewith the intention to pass title .
M iller vs. Somerset Co .,5 1 S . W 7 Prince vs . Boston L . R . Co
1 4. 1 01 Mass , 542 .
Lucas vs.Nichols , 5 Gray (Mass ) , 8 Diversey VS Kellogg,44 Ill 1 1 4
309 , Foster vs. Ropes , 1 1 1 Mass 1 0.
52 SALES .
SECTION 36. TIME OF DELIVERY .
Where the time of delivery is not fixed by theterms of the contract
,the law demands that the delivery
be made wi thin a reasonable time . What is a reasonable length of time, depends upon the facts and circumstances Of the particular sale?o Where the time Of
delivery is agreed upon,in the contract
,not much
difficulty can arise,where the terms of the contract
stating the time of delivery are clear and unequivocal,but the parties may see fit to state the time of deliveryin a more or less ambiguous form . Where the languageis not plain
,it remains then for the court to con
strue it ; for instance, where delivery is to be mad e“ as soon as possible,
” “ about a certain day,
” “ nextyear” and the like terms . These terms may have asomewhat different meaning under different circumstances .
Where the time fOr delivery is fixed by the termsof the contract the law usually deems the time to beof the essence of the contract . 1 1 Performance at the timeagreed upon is indispensable . To make it absolutelyfree from doubt
,it is , however, a general rule of con
tract law that where time is to be of the essence of thecontract the safest way would be to use this phrase,stating in express words
,that time is of the essence of
the contract . In the contract of sale,it is enough ordi
narily to fix the time in the contract .The weight of authority in the United States is
that the right to rescind the contract of sale remainsto either party, where the other fails to perform anessential term of the contract .1 2
Providence Coal 00 . vs. Coxc ,1 9 R . I. , 380.
PERFORMANCE OF THE CONTRACT . 53
SECTION 37. !UANTITY AND!UALITY OF GOODSDELIVERED .
The amount Of goods,or the quantity, or quality of
the material purchased as named in the contract, isthe amount
,or quantity to be delivered
,the contract
could not be satisfied by delivery of a less amount,or
a greater amount,than the contract calls for . Where,
however, something in excess is delivered to insureagainst shortage and no charge made for the same,that could not raise an Objection to the delivery . Butthe amount delivered must be the amount agreed uponin the contract
,and if the seller sends more
,or less
than the quantity ordered , or sends goods Of a differentquality, the title does not pass to the goods so sent untilthe purchaser makes the new contract by acceptingthe goods so sent?“ Where less than the whole amountordered is shipped
,the buyer may reject the shipment
as made,he has a right to stand on the contract as
made .
“
SECTION 38. MODE OF DELIVERY .
In addition to the buyer ’s placing the goods at thedisposal of the purchaser in a deliverable state, ordelivering the goods to the carrier
,or other agent Of
the buyer with notice of the same to the purchaser Wherenotice is necessary
,a d elivery mayalsobe made by the de
livery Of the keys of the building, in which the goods arestored
,by the buyer to the seller, or where intent is also
shown to surrender possession of the goods,this has been
deemed a delivery, so as to pass title . And it has beenheld that such a mod e of delivery is good as against acreditor of the seller, who subsequently attempts totake the goods on an attachment or execution?“ SO‘3 Larkin vs. M itchell , 42 M ich . 29 6 . Peterson
, 1 62 III. 1 56 ; PackNorrington V S . Wright , 1 1 5U. S . , ard vs . Dunsmore , 1 1 Cush1 88. 282 .
54 SALES .
whena ship isin a foreign port or on the high seas, a transfer Of the ship may be made by assignment Of the billof sale
,and a delivery of the assignment, with other
papers relating to the vessel, and the buyer takes actualpossession as soon as the ship comes to
f
port, or circumstances will allow?“ Delivery may be made by installments
,only where the parties to the contract of sale
‘
have so agreed,and where from the nature of sale it
would be unreasonable to expect the whole to bedelivered at one time, the right to deliver in installmentsInay lxahnphed .
SECTION 39 . EXCUSE FOR NON-DELIVERY.
It is a general rule of the law of sales that the selleris not in default
,if the delay on his part is occasioned
by the default of the purchaser in firs t doing that whichis a condition precedent to delivery .
1 7 The buyer mayfor instance
,fail to come for the goods at the time
agreed upon,in which case, the seller would be justified
in deeming the contract abandoned?“ Delivery willbe excused if the buyer refuses or defaults in payment
,
where payment and delivery are to be contemporaneous . SO if the buyer renounces the contract, the selleris thereby excused from the duty of making delivery .
The seller of goods is likewise absolved from hisobligation to make delivery of goods, if before the dayfixed for the delivery the buyer becomes insolvent .
Where the performance of the contract itself isby law made illegal subsequent to the date of its making
,both parties are excused from performance . Per
formance is likewise excused where at the time,it is
physically impossible to perform, but this does includemere inability to perform the contract .1 ° Crapo vs. Kelly , 1 6 Wall . , ‘3 W
fa
qrre
Hn
386Buckminster, 24
‘7 Weill vs American Metal Co1 82 1 1 1 1 28.
PERFORMANCE OF THE CONTRACT. 55
SECTION 40. WHAT CONSTITUTES ACCEPTANCE .
Once the contract of sale has been made, the buyerowes the reciprocal duty to the seller, of making acceptance of the goods when delivery of the goods is madeby the buyer. This includes something in additionto mere receipt of the goods by the buyer ; it includesalso the mental act of assent, as well as the physicalact of acceptance . Acceptance is held to have beenmade in the absence of express as sent, where thebuyer receives the goods and then deals with them insuch a way as to make the law presume an assent, aswhere he retains the goods without Objection, for a timebeyond the time to make objection .
Acceptance will likewise be implied so as to preclud e the buyer from returning the goods
,where he
exercises acts of ownership over the goods, as by makingresale of the goods or by giving a chattel mortgageon them?“
When the acceptance is made, under mistake offact, or by reason of a fraud perpetrated on the purchaser by the buyer, the courts will in most cases grantrelief to the buyer?“
SECTION 4 1 . EXCUSE FOR NON-ACCEPTANCE .
The buyer is likewise excused from performing hispart of the contract
,namely
,making acceptance of {the
goods, where the other party to the contract of sale isin default . The default of the seller may arise froma failure to deliver on time
,or it may be that the goods
delivered are not of the quality or quantity agreedupon. In the latter case the buyer may reject the
6 SALE S .
refuses to accept the goods . The buyer is not boundto return the goods to the seller unless he has agreedto do so in the contract made . Notice to the sellerof his rejection Of the goods, is all that the law demands .21
SECTION 42 . CONCLUSION .
When delivery is made by the seller,and accept
ance is made by the buyer,the contract of sale is com
plete in SO far as executing the sale is concerned, butthere may be nevertheless
,outstanding rights in
either party . The right to enforce payment by theseller
,where payment was not a condition precedent
to passing the title,and the right in the buyer to hold
the seller for delay in delivering the goods,where there
is no express waiver Of damage shown by the buyer,or
where the circumstances of acceptance do not Show anintention to waive damages of delay by accepting thegoods . An acceptance under compuls ion
,would not
thereby waive damages suffered by reason of delay .
”
Acceptance of the goods does not ord inarily concludethe buyer, as to a warranty made in reference to thegoods, but if by the terms of the contract of sale acceptance is to conclude the buyer on this point
,the contract
governs . The contract may also properly provide thatnotice be given to the seller of any defects in thegoods sold
,within a reasonable time and the effect
of the retention of the goods beyond that time, withoutnotice or complaint, would be to deprive the purchaser Of relief“1 Doane vs . Dunham 65 Ill. , 5 1 2.
3“ Kingman vs. Watson , 97 Wis ,
3“ Haven vs.Wakefield , 39 Ill. , 509 . 596.
58 SALES .
contract price, and the market value at the time andplace of delivery?
The law makes an apparent exception to thegeneral rule where goods are manufactured upon theagreement Of the buyer to receive the goods whenready, the buyer being liable for the full contract
mi ce , on the theory that title to the goods has passedto him
,the law compelling the seller, however, to hold
the goods for the purchaser .4 It is a general rule oflaw
,that where the seller has parted with goods, and
has been induced to do so by the fraud of the purchaser,
the law permits him to bring an action for the deceit,
but since the contract under such circumstances isvoidable and not void, the seller has this remedy ora choice of another remedy, if he wishes to ratify thecontract after the discovery Of the fraud .
An election to rescind the contract, would precludethe seller thereby . The seller
,under the circumstances
now under discussion, must proceed, within a reasonable time after discovery of the fraud, to make his choiceOf remed ies, whether he will d isaffirm the contract, orwhether he will ratify it and then seek his damages forthe fraud perpetrated by the buyer .“ He has no rightto delay action so as to prejudice the rights of a thirdperson, who may in the meantime purchase the goodsin good faith .
SECTION 45 . SELLER’S LIEN .
The seller, after he has sold the goods named inthe contract of sale , continues to have a special propertyinterest in the goods, which grows out of the originalownership, as long as the possession remains in him
Whitney V
S. Boardman , 1 1 8 Ba;3
nard vs . Campbell , 58 N. Y
Smith V’
s. Wheeler, 7 Oregon , 49 .
RIGHTS OF UNPAID SELLER . 59
either actual or constructive . The special propertyright is designated the vendor’s lien, although theright carries with it something more than the merelien as we ordinarily understand the term .
“
The lien,the holding Of the goods to secure pay
ment,secures only the unpaid purchase price
,and does
not extend to the payment Of storage or dock charges,
or any other expense or charge incident to the exerciseof the lien .
7 The lien being a mere right or privilegeas a protection to the vendor
,he may waive the right
to exercise the same . The lien is impliedly waived bygiving credit to the purchaser, unless it is further understood that the goods are to remain in the possession Ofthe seller . This implied waiver is more or less a cond itional waiver, made on the understanding that thepurchaser will keep his credit good at least until receiptof the goods by the vendee .
The vendor’s right of lien is lost by unconditionaldelivery to the vendee ? The lien is not lost
,however
,
if the purchaser procures possession by fraud,unless
the goods have passed to a boaa fid e purchaser.
SECTION 46 . STOPPAGE IN TRANSIT .
The right of stoppage in transvtu,that is the right
to reclaim the possession Of the goods while still intransit
,from the Seller to the buyer
,was founded in
the civil law,and looked upon as a remedy of the court
of equity primarily, but is now,and has been for a
long time, looked upon as a legal remedy and right, andis of universal application in courts of law. It is anextension Of the right of the vendor’s lien . The lienis lost by parting with possession of the goods , but the
Diem vs. Kobl itz , 49 Ohio St . ,41 . Smith vs. Dennie , 6 Pick . (Mass ) ,
Jones on Liens , Sec. 904 .
60 SALES .
right to resume the lien may be acquired , by the exerciseof this right of stopping the goods in transit up to anytime previous to the vendee ’s actually acquiring possession Of the goods ? The right arises with the transferof title to the goods and the delivery to the carrier tobe turned over to the purchaser . It may be said tobegin where the lien leaves Off. The right of stoppagein transitu ,
arising from original ownership,can only be
exercised by the vendor,or one standing in his position ;
it could not be exercised by one having a mere lien onthe goods?“
The right is ordinarily to be exercised only againstan insolvent buyer
,but this would include any one
who apparently has by his conduct or acts furnishedevidence of general inability to pay his debts .
The vendor’s right of s toppage in transitu cannotbe taken away by an attachment levied on the goodsby the creditors of the buyer . 1 1 The transit of the goodsends when, having arrived at their destination, theyare given over into the actual or constructive deliveryof the purchaser. The right of stoppage in transituis effected by a notice to the carrier
,ordering their
stoppage,the notice should properly be in writing
and should sufficiently describe the goods for purposesof identification, and should state the reason for thestoppage . The carrier, however, cannot insist on proof,of the statement contained in the notice, or of the rightto claim the stoppage in any particular case .
1 2 It isreasonable, however, that the seller should act in goodfaith toward the carrier in the exercise of this right
,and
he must pay the carrier’s charges against the goods .
Newhall vs . Vargas ,1
1 3 Ma , 93. Allen vs Mgne Central R . Co
l“ Sweet vs . Pym , East , 4 . 79 Me 3Naylor vs . Dennie , 8 Pick .(Mass .1 99 .
RIGHTS OF UNPAID SELLER . 6 1
The exercise Of the right Of stoppage tn transitu restores possession Of the goods and incidentally the vendor’s lien .
SECTION 47. RE-SALE .
The unpaid vendor of goods has the further rightof making a re-sale of the goods under certain circumstances. The title to the goods sold may have passed
,
and yet the vendee may refuse to fulfill his obligationto the seller to make payment for the goods, or it maybe impossible for him to fulfill his Obligations becauseof his insolvency ; in either of these cases, the vendormay exercise his right of re-sale . It is a powergreater than either the lien, or the right of stoppagein transftu, and may be exercised while the possessionoriginally remains in the vendor, under proper circumstances
,Or when the goods have been retaken under a
proper exercise of the right of stoppage in transitu .
As to the time when the re-sale may be made, thegeneral rule is that the goods can only be resold whenthe payment Of purchase becomes due?“ But anexception to this general rule exists in the case ofperishable property, for obvious reasons . As to whethernotice of intention to resell on the part of the buyerto the vendee is necessary
,is a matter on which there
is a difference of opinion,some few courts hold it is
necessary, especially where the seller wishes to makethe sum realized on the re-sale a bas is of recoveryagainst the buyer .“
In Illinois and in other States, it is held that nonotice of intention to re-sell is necessary?“ But noticeof time and place of the sale itself need not be given
,
1 “ Shaw vs . Lad y Ensley Coal Cc . ,Ullman vs . Kent
,60 Ill.
,271 ;
1 47 Ill. ,526 . Rosenbaum vs . Weeden
,1 8
Hanand vs. Rea, 48 Gratt 785.
62 SALES .
though the giving of such a notice would be properand might prove of value . The purchaser on re-saletakes good title unless the re-sale is irregular
,or unless
the right was improperly assumed by the seller, thebuyer not being in default.
C H A P T E R V I I I .
REMEDIES OF THE PURCHASER .
SECTION 48. DAMAGES FOR NON-DELIVERY .
Where the grounds for specific performance of thecontract are absent
,the remedy of the buyer for failure
to deliver,is by an action at law for the actual damages
suffered by the seller’s default . The measure of damages
,if we presuppose that the buyer has paid nothing
on the contract in advance,is the difference between
the contract price and the market price,with interest
,
on the difference in money,from the day that delivery
was due? But to apply the rule just stated there mustbe a market value
,or it must be possible to compute
the amount to which the buyer is actually entitled .
When goods have neither a market value,nor actual
value,only nominal damages could be recovered .
If the parties had in mind other losses to thevendee, in case Of failure on the part of the seller todeliver
,and dealt in contemplation of this fact, it would
be an added element to be considered in measuringthe damages
,as an added risk assumed by the seller .
But the damage claimed must not be uncertain orremote ?
SECTION 49 . DAMAGES FOR BREACH OF WARRANTY.
If the title of the vendor is defective,and the
real owner claims the goods,the buyer may recover
damages for breach of warranty of title . Here themeasure Of damages would be for the actual loss sus
Brackett vs. Edgerton,1 4 M inn ,
Penn. vs . Smith , 1 04 Ala . ,445.
Sedgwick on Damages, Sec. 29 4.
SALES .
A breach of warranty Of title can hardly take placeuntil the purchaser is disturbed by reason Of theoutstanding title and no suit ordinarily lies until thebuyer suffers damages because of the breach .
4
The breach of warranty may be of a warranty ofsomething other than the title ; if so, the buyer maysue for the actual loss he has sustained . If the articledelivered was of no value, then the entire amount paidby the purchaser could be recovered . The buyer mayrecover for
° breach of warranty even though he has notmade payment of purchase . This is true unless thecontract by its terms makes payment a condition preced ent .
The buyer may recover on a breach of warranty,
even though the value Of the goods afterward increasein value
,so that on a re—sale of the goods
,the buyer
makes a profit . The buyer is always entitled to anypossible profits, as he must also hear the losses of theventure . SO
,even if on re-sale a profit was made
where a warranty in reference to the goods failed, intheory at least, the profit is less than it would havebeen in case the warranty was not broken .
Where the buyer is sued for the purchase price,
he may defend by way of recoupment,by showing the
representations of the seller were not fulfilled by whichhe has sustained an injury .
“
SECTION 50. SPECIFIC PERFORMANCE .
A bill for specific performance on a contract tosell
,will ordinarily not be entertained by a court of
equity . The buyer will be decreed to pursue his remedies at law. Specific performance is usually neithera necessary nor a practicable remedy . The damagesallowed the buyer on suit for failure to carry out
Case vs. HAIL, 24 Wend .,1 02. Underwood vs .Wclf, 1 31
C H A P T E R IX
RESCISSION OR MODIFICATION OF CONTRACT .
SECTION 5 1 . MUTUAL CONSENT .
The right to rescind or modify a contract of sale,
the terms of which have previously been arranged , isalways open to the parties whether the contract isexecuted
,or executory merely . Mere abandonment
of the sale,by mutual agreement, is sufficient to dis
charge an executory contract . A contract executedas to one of the parties only, can only be dischargedby performance by the other party, or by release underseal
,or by an agreement supported by a proper con
sideration to release the party who has not performedhis part of the agreement . It is competent however
,
for the parties to substitute a new agreement in placeof the original contract ; the general rules as to theright to rescind the contract apply to the right torescind in a contract of sale .
SECTION 52 . SELLER’S RIGHT To RESCIND .
In addition to the right Of the seller to rescind thecontract, where the contract by its terms gives theright, the seller may also rescind upon any of thegrounds upon which contracts generally may berescinded . This includes the right to rescind
,on the
ground of fraud, where the buyer Obtains possessionof goods by false representation
,as to his solvency,
or financial condition,or by other fraudulent repre
sentations, material to the contract ,
’ or by the buyer’s
68 SALES .
what would ord inarily interfere with reality of consent,would likewise affect the contract of sale, so if theconsent was given under a mistake Of fact, or deliverymade under duress
,the seller may Show these things
as ground for relief . Mere insolvency of the buyeralone is not sufficient ground for rescission of a contractby the seller . Where the contract is executory
,the
seller may rescind where he learns that the buyerintends to use the goods for an illegal purpose ? SO,as long as the contract remains executory
,any breach
Of contract by the buyer would ordinarily be sufficientto give authority to
‘
the se ller to exercise the right torescind
,as for instance
,awrongful refusal of the buyer
to accept the goods ?
As a proper condition for the exercise of the rightto rescission
,the law demands Of the seller that he re
turn the cons ideration received from the buyer,or
Offer to return the consideration . If the seller seesfit to avail himself Of the right to rescind
,the law
demands that he act promptly, after notice of the factthat gives him the right to rescind
,is brought home to
SECTION 53. BUYER’S RIGHT To RESCIND .
The buyer may also exercise the right to rescindthe contract of sale
,in accordance with the original
terms of the sale where the terms Of the contract contain such a privilege . So the buyer may elect to rescind the contract of right
,on discovery of fraud on
the seller ’s part,in inducing the contract . The buyer
may also rej ect the goods where they do not meetthe conditions of the contract if the contract is still anexecutory one ?
Cogsvan
h
vs M ilburn,L . R . ,
2 Flylamy g
s Ledger, 48 Hunxc 230. 465 .
Wolf vs. Dietzsch , 75 Ill 205 ,
RESCISSION OR MODIFICATION OF CONTRACT 69
It is the general rule of law that the buyer maynot rescind an executed sale for mere breach of warranty
,but rescission is permitted even of an executed
sale in some states for a mere breach of warranty,
the latter holding is called the Massachusetts rule .
“
The buyer may also rescind where there is a failureof consideration
,or where the contract is made under
a mistake of fact,
“ or where to perform the contractwould be to do something illegal . The general principles of contract law apply . Any act by the seller
showing a repudiation Of the contract would give thebuyer the right to rescind . The buyer is
,however
,gov
erned by the same rules that govern the seller in the excroise of the right to rescind the contract . The election of the right to
'
rescind upon the part of the buyer isproperly shown
,by giving notice to the seller of the
intention to rescind with an Offer to return the goods,
or by showing that the goods are held subject to theseller ’s orders .
Br
goa
pt vs . Isburgh , 1 3 Gray , Hamilton vs. McAlister
,49 S .
Car. ,
C H A P T E R X .
PROTECTION AFFORDED BONA FIDE PUR
CHASERS .
SECTION 54 . IN GENERAL .
The general rule is,that where goods are sold by
one who himself has no title to the same,or who has
no authority to sell, as the agent of the owner, that thesale is invalid as against the right of the true owner?SO where stolen goods are purchased the buyer canacquire no title from the thief
,even if he buys in good
faith,because the thief has no title to convey ; the
owner may,moreover
,recover his property wherever
he finds it ? But there are cases where one who buysin good faith and as a bona fid e purchaser, will beprotected . Where the purchaser buys of an assumedagent
,in good faith, and on the holding out Of the owner
that the agent is apparently possessed of authorityto sell
,the purchaser will be protected . This would be
holding the principal on the ground of estoppel ?
So the law will protect the purchaser where theowner stands by
,and in silence permits another to buy
his property from some one who appears to be theowner
,for to hold otherwise, in face of the conduct
of the owner, would be to aid in perpetrating a fraudon the innocent buyer. One who fails to speak hisrights
,where silence on his part will tend to bring in
jury to one thereby, is precluded thereafter from asserting his own rights in the premises, as the law willthen compel him to continue his silence .
“
Ventre ss vs. Smith , 1 0 Pet . , 1 75. Stewart vs. Munford , 9 1 Ill. , 58.
Baehr vs . Clark , 83 Iowa, 31 3. Niven vs . Belknap , 2 Johns , 589 .
72 SALES .
It is also a general rule of law that a purchaserin good faith without notice of the seller’s defect oftitle
,will be protected against the person claiming the
good s,where the seller ’s title was a voidable one
merely and not void , and where the seller’s title had
not been voided at the time of the sale .
“
The rule as just stated,that the person with a
voidable title may transfer a good title to a bona fid epurchaser
,before the defrauded party discovers the
fraud and takes steps to d isaffirm,is because the law
finding the title in the seller,even though it is subject to
being voided,allows a transfer of the same to anyone
who takes it in good faith and for value before thetitle is lost by the original owner rescinding the sale .
“
If the vendor ’s title was void, the rule would be otherwise . But one who buys from another who has thenaked possession only, takes nothing as against thetrue owner . The true owner may pursue his propertyand recover it from the purchaser without notice
,when
he has done nothing to estop himself from assertinghis title . The purchaser must then look to the vendor for his remedy on the implied warranty of title .
7
The only exception to the rule,that no man can
transfer title or right of ownership to another,where
the title or ownership is not in the vendor,is in the
case of the transfer of cash , bank bills, checks andnotes payable to bearer or paper trans ferable by delivery
,and in the usual course Of business
,and this ex
ception is for the commercial purpose of sustaining thecurrency
,at any hazard ; the other exception is in the
case of sale in market overt, which doctrine is alone t e
cognized in England,and has no force in this country ?
7 Holland vs. Swain , 94 Ill . , 1 54 .
7 Klein vs. Seibald,89 III 540.
Old Dom . Store Co. vs. Burck Faucett vs. Osborn , 32 Ill. , 4 1 1 .
hardt,31 Grat . , 664 .
74 SALES .
ing possession of the property, or of some evidenceof title thereto by the latter
,although the considera
tion was paid at the time of the contract,is not a bona
fid e purchaser for value, and cannot hold the propertyas against the defrauded creditor?2
SECTION 56. PURCHASER FROM THIEF .
The courts have repeatedly held that a bona fid epurchaser can acquire no title to goods purchased fromthe felon who has stolen the same
,and that the owner
may recover the goods,or their value if the innocent
purchaser has resold the goods to one in good faith, andthe property has passed beyond the reach of theowner?3 There is no d ifierence in principle betweenthe recovery of the property from the person in whosepossession it may be found, and the recovery of itsvalue from one who has bought it and sold it .
It has been contended that in order to recoverfrom the innocent purchaser in an action of trover,that a prosecution and conviction of the thief shouldbe had , but the general holding on this proposition,except where the goods are sold in market overt (whichrule of law is not applicable to the United States) , isthat the right in the owner to sue w
i
thout prosecutionof the thief is fairly established?4
The fact that the owner has his remedy againstthe thief, would not interfere with his right to claim hisproperty in the hands of another .
SECTION 57. PURCHASER FROM A LIFE TENANT .
AS to the right of the purchaser from the lifetenant to claim the rights of a bona fid e purchaser, asagainst the remainder-man, where he purchases in
Bagg
ard vs. Campbell , 58 N. Y. , Hoffman vs . Connor, 20Wend . ,
n Sharp vs. PaTks , 48 Ill. , 51 1 ; Nez
wkirk vs . Dalton , 1 7 1 11 41 3.1 Yeates R . , 478
PROTECTION AFFORDED BONA FIDE PURCHASERS . 75
good faith and without notice , it has been held thatsuch a purchaser takes subject to the rights of the remaind er-man
,and that possession in such a case
,
does not mean ownership so far as an innocentpurchaser is concerned . In the English case Of Hoarevs . Parker in the second Term Reports
,page 376,
Dunford and Easts Reports,the facts were as follows :
“ The action was trover by the plaintiffs who claimedunder the remainder—man agains t the defendant towhom the goods had been pawned by the tenant forlife . Admiral Stewart by will gave his plate to trusteesfor the use of his wife d urante vid uv
’
tate,requiring her
to Sign an inventory , which she did at the time the platewas delivered into her possession . She afterwardspawned it with the defendant, for a valuable consideration
,who had no notice of the settlement
,and before
the commencement of this action,she died . A demand
and refusal was proved . The question for the courtwas whether the defendant was bound to deliver upthe plate without being paid the money he had ad
vanced on it . The court held the right Of the remainderman was clearly established
,and that the pawn-broker
had no lien,even though he had no notice Of the settle
ment,and that until the legislature saw fit to change
the law,possession alone in such a case could not be
considered ownership .
SECTION 58. PURCHASER FROM CO -TENANT .
When cc-tenants own personal property, in common or j ointly
,one of the cc-owners cannot by sale
of the thing so owned rightfully transfer the title ofhis cc—owner, unless of course in the case where the ccowner j oins with him in the sale . Where one cc-ownerunder claim of exclusive ownership to the propertyattempts to sell the entire interest in the goods, it is
76 SALES .
the general holding of most courts to treat such a saleas a conversion
,and to hold the seller liable to the
aggrieved party in an action in trover .Some courts give the cc-tenant in the property
the election either of treating the sale as valid,and of
seeking his remedy agains t the cc-tenant selling thegoods
,or of repudiating the sale
,and of continuing in
his right to the property as a cc-tenant,even as agains t
a bona fid e purchaser .
SECTION 59 . PURCHASER FROM BAILEE .
An answer to the query,as to whether or not a mere
bailee may convey title where he has the possession Of
a thing to an innocent purchaser, who has no notice of,the owner ’s title
,is to present the same question asked
Where one buys of a life tenant,a lessee or a thief .
A purchaser who buys from a thief,gets just as good
a title,as against the real owner Of the goods , as a pur
chaser from a mere bailee acquires ; in either case thepurchaser holds the property subject to the rights Ofthe real owner . Peaceable possession by one who isnot the owner
,even possession with the consent of the
owner,and with apparent ownership without such
consent,is not conclusive evidence of title ; he who
has no title can give none,and a sale by one in peaceable
possession,even to an innocent purchaser
,will not
divest the real owner of his title, unless he exhibitedthe vendor
,or voluntarily permitted the vendor to
appear as owner,or clothed him with indicia of owner
ship besides giving him such possession, or by giving
him possession intending to part with the title,or has
done some actual fraud upon said purchaser?“
7“ Small vs. Robin,9 Hun . (N.
7“ Hutchinson vs . Oswald , 1 7 III.41 9 ; Gilbert vs. D ickenson , App .
,28 ; Faucett vs. Osborn,
7 Wend .,449 ; Perry vs. 32 Ill. , 422
Granger, 2 1 Neb . , 579 .
PROTECTION AFFORDED BONA FIDE PURCHASERS . 77
SECTION 60. PURCHASER FROM A LESSEE .
A purchaser from the wife of the lessee Of a farm,
who has in her possession and control certain personalproperty
,which in fact, is the property of the owner
of the farm,cannot claim the right to the goods so pur
chased as against the owner. The court says in such acase
,
1 7 “ the facts do not justify the inference that theowner had thereby invested the person in possessionof said property, as lessee, with the apparent power tosell
,as it is not the common business of persons who
are placed in charge of farms to sell the personalproperty which the owners confide to their custody
,
for the ordinary and necessary requirements of farms .Persons who purchase such property from them without the necessary evidence of their right to sell
,must
take the consequences of their own improvidence .
”
The rule as stated above, is the general rule Of application in such cases
,and unless the owner has done
something further to Show apparent authority in thelessee in possession
,the lessee could convey no title
to the property, even to one who buys in good faith,and without notice of the owner’s rights?“
SECTION 6 1 . PURCHASER FROM VENDEE IN SALEFRAUDULENT As To CREDITORS .
The general rule is stated as follows : One whobuys from the vendee or assignee of a debtor
,may
himself take a good title to the goods so bought,even
though the debtor ’s vendee who buys,had notice of
the fraud on the creditors Of the debtor,if the one who
buys from the debtor’s vendee does so in good faith andfor value, without notice of the fraud?
“ A purchaser ingood faith for full value, without notice of defects in77 Hopper vs . Callahan , 78Md . , 529 . Anderson vs . Roberts, 1 8 John‘7 Saét
sqs vs. Everett , 20 Wendell , son (N.
78 SALES .
the seller ’s title,can hold the property as against an
attacking creditor of the corporation from which theseller obtained it
,even if the seller had notice of the
insolvency of the corporation,and his title would have
been invalidated thereby?“ Even the vendee of thedebtor would acquire a good title if he has no noticeof the fraudulent intent on the creditors,
” and acted ingood faith and was a purchaser for value .
If the title in the vendor is defeasible upon theact of some one having a paramount title, the vendorin such a case continues nevertheless to have the rightsof the true owner in so far as he transfers the title toa
r
bona fid e purchaser, and such a purchaser where hehas paid a value and purchases without notice of thefraud, or of the fact that the character of the title issuch as may be voided
,he then acquires a title which
cannot be avoided, it is no longer defeasible .
SECTION 62. PURCHASER OF NEGOTIABLE PAPER .
Negotiable paper includes at common law, billsof exchange and notes, and to a limited extent, checks .B ills and notes were designed to take the place ofmoney . The right to transfer money freely from oneperson to another even where the transferor has notthe right or ownership of the money is well known .
This right is given and acceded to for the benefit oftrade . Negotiable bills and notes are given all theattributes of money
,the chief attribute of which is
that the transferee of a negotiable bill or note canclaim clear title to the same if onlyhe can Showhimself tobe a bona fid e purchaser . To constitute one a bona fid epurchaser or holder of a negotiable bill or note
,the
purchaser must first purchase the paper in good faith,without notice of any existing equity between the
Walker vs. Miller , 59 Fed . Rep . ,
7‘ Zoe ller vs . Re illy 1 00N. Y 1 03.
PROTECTION AFFORDED BONA FIDE PURCHASERS . 79
immediate parties to the paper, and without knowledgeof anything defective in the transferor ’s title, and hemust also be a purchaser for value, that is to say, hemust pay the market value of the paper, he must alsopurchase the paper before maturity of the same, andhe must purchase the paper in the usual course ofbusiness
,the last of which requisites requires the pur
chaser to see that the paper is properly indorsed overto him
,as well as delivered, if the terms of the Instru
ment require indorsement ; if indorsement is notrequired
,then delivery alone must be properly made .
Bills of exchange first acquired the element Of
negotiability,which element distinguishes the rights
acquired by the transferee,on transfer of contracts
evidenced by bill or note from the rights acquiredunder transfer of other contracts
,on assignment of the
same . The element of negotiability was first given tobills of exchange in England by the Law-Merchantfrom which custom of the merchants it came to be bygeneral adoption
,a part of the common law of England .
Promissory notes are claimed by some to have likewise acquired the element of negotiability by commonlaw recognition
,however
,whatever controversy existed
was finally terminated by the passage of the statuteof 3 and 4 Anne, Chapter 9 , which made promissorynotes indorsable and transferable in the same manneras bills of exchange .
One may, on purchase of a bill or note, purchaseor acquire even a better title than his transferer had ,where the transferor ’s title is defective, and where hebecomes the purchaser of a bill or note as a bona fid epurchaser in the full sense of the term .
SECTION 63. PURCHASER IN MARKET OVERT.
Sales in market overt in England, offer an excep»
80 SALES .
tion to the general principle that the vendor can conveyonly such title as he himself possesses . As has beenstated
,the doctrine has no application in the United
States . In London all shops in which goods areexposed subject to sale are markets overt, but in thecountry only such places are so considered
,as are set
apart by custom for the vending of certain goods,and
all shops are not included . Even in London the shopsare considered as markets overt, only for such goodsas are usually sold in the shop . The shop-keeperhimself is not protected from liability by this rule oflaw ; it is for the benefit only of the innocent purchaser.A sale in market overt could not convey title to propertyOf the kings, nor could a sale there made, protect thepurchas er who does not buy in good faith . And thesale must not be made in a warehouse or where the shopwindows are closed .
SECTION 64 . OTHER ILLUSTRATIONS .
Many illustrations are given in the law reports ofcases involving a sale by one in possession of the goods
,
where the question arises as to his rights to convey,or the
rights of an innocent purchaser to acquire by purchase,
the title to the property . An interesting case appearsin the Michigan reports
,
” of which the main facts wereas follows : One Samuel Manassau
,brought an action
to replevin a horse ; Manassau on securing the horseon the writ, took it to another county, and sold it todefendant . McGlora Manassau
,being unable to Ob
tain the property under an execution,inWayne County
,
went toWashtenaw County, where the property was andmad e a demand on defendant for its possession, andupon his refusal, brought this action of replevin .
Verdict and judgment went for the plaintiff . SamuelF 87 Michigan, 543.
C H A P T E R X I .
THE SEVENTEENTH SECTION OF THESTATUTE OF FRAUDS .
SECTION 65. THE RULES As To SALE OF GOODS .
The seventeenth section Of the statute of frauds,
which has to do purely with the sale of goods, is asfollows : “ N0 contract for the sale of goods, wares ormerchandises for the prices of ten pounds sterling
,or
upwards,shall be allowed to be good, except the buyer
Shall accept part of the goods so sold, and actuallyreceive the same, or give something in earnest to bindthe bargain, or in part payment , or that some note ormemorandum in writing of the said bargain be madeand Signed by the parties to be charged by such contract
,Or their agents thereunto lawfully authorized .
”
This part of the statute of frauds has been enacted innearly all the States of the Union
,— Illinois
,Ohio
,
Delaware , Kansas, Texas, Virginia, and Pennsylvaniabeing exceptions .The original English statute became a law in
1 677, and its passage and authorship is credited forthe most part to Lords Hale and Nottingham .
SECTION 66 . CONTRACTS WITHIN THE STATUTE .
Broadly speaking, this section of the statuteincludes all contracts for the sale of goods for theprice specified . The term sale being understood in itsordinary meaning, that is, a transfer of the property
84 SALES .
the sale of goods by auction,2 and likewise the transfer
of goods by barter and exchange a sale of a part interest is also included as within the statute . The valueof the goods may not have been determined at thetime of sale owing to the fact that the quantity remained indeterminable , the price eventually determined upon
,will then control, in determining whether
they are within the statute,or, whether the price
as eventually shown is not sufficient to bring themwithin the statute .
“ Where a number of articles arebought, the aggregate value of which exceeds thenecessary statute price, the contract is within thestatute .
“
A contract of sale is none the less within thestatute, because there is incorporated in the contractancillary agreements which are not within the statute .
“
In the case cited the court decided that a contract forthe sale of a mare , was not taken out Of the statute,because of an agreement for the feeding of the mare andanother mare
,which was not included in the sale .
SECTION 67. WHAT Is INCLUDED IN TERMS,GOODS
,
WAREs AND MERCHANDISES .
The original idea is,that the words
,include all
kinds of corporeal movable property, and the Englishdecisions held that the statute did not apply to incor
poreal rights and property such as stocks, and shares,etc ? The English rule has been followed in part inthe United States,
“ but the majority Of the decisionsare to the contrary, the Massachusetts court , forinstance
,has decided that a sale of promissory notes
7 Davis vs . Rowell , 2 Pick . (Mass ) , Jenness vs . Wendell , 5 1 N. H. , 63.
Harman vs . Reeve,1 8 C. B . ,
587.
7 Dowl ing vs.McKenny , 1 24 Mass . 7 Tempest vs. K ilner 3 C. B . ,249 ;
Du‘
I
J
I
Vcroft vs. Albrecht , 3 M .
Carpenter vs . Galloway, 73 Ind ., 422.
41 8. Vauter vs . Griffin , 40 Ind 593.
STATUTE OF FRAUDS . 85
is within the statute,
“as is also the sale Of shares in a
manufacturing corporation,
” and the Maryland andConnecticut courts have held the same . The Mainecourt has held a sale of bank notes is within the statute?l SO it may be said that the term
,goods
,wares
and merchandise,includes both corporeal and in a
qualified sense at least,incorporeal personal property
,
according to the general rule in the United States .
SECTION 68. ACCEPTANCE AND RECEIPT OF THE GOODS .
Lord Blackburn has used the following languagein commenting on the clause of the statute
,in reference
to receipt of part of the goods and acceptance : “ Thereceipt of part of the goods is the taking possessionOf them . When the seller gives to the buyer theactual control of the goods , and the buyer acceptssuch control he has actually received them . Such areceipt is Often evidence Of an acceptance, but it isnot the same thing ; indeed the receipt by the buyermay be
,and Often is
,for the very purpose of Seeing
Whether he will accept or not . If goods of a particulardescription are ordered to be sent by the carrier, thebuyer must in every case receive the package to seewhether it answers his order or not ; it may even bereasonable to try part Of the goods by using them ; butthough this is a very actual receipt it is no acceptance,so long as the buyer can consistently object to thegoods as not answering his order . It follows fromthis, that a receipt Of the goods by a carrier, or onboard ship
,though a sufficient delivery to the pur
chaser is not an acceptance by him so as to bind thecontract
,for the carrier
,if he be an agent to receive , is
clearly not one to accept the good s .” 1 2 To satisfy
Baldwin Gooch vs . Holmes , 41 Me . , 523.
7“ Tisdale vs . Harris,20 Pick . 9 .
OD Sales , 22, 23
86 SALES .
the statute , the acceptance by the vendee , should bemade with the intention of taking possession of thegoods of the owner?“
It will be seen that delivery, or mere possession bythe vendee
,is not enough . Acceptance need not be
by the vendee in person, however, but may be madeby his duly authori zed agent . It will also be seenthat the vendee has the right of time
,for making
examination of the goods , and the right of rejectingsame
,if not in accordance with his order .The acceptance may never take place
,because
one of the party may make a d isaffirmance of thecontract
,either with or without just cause
,before the
acceptance is made, and while the contract is stillunenforceable because of the statute?“
The acceptance need not be made expressly,it
may be inferred from the acts or conduct of the buyerin reference to the goods, either by the buyer
’s act in retaining the goods
,for an unreasonable length Of time
after their receipt, without giving notice to the seller ofan intention not to accept,
” or by conduct before orafter the receipt of the goods, that would be inconsistent with the ownership of the seller?“ Where thegoods at the time Of the sale are in the hands of a thirdparty
,the statute is satisfied
,where the third party
attorns to the buyer, the seller giving his assentthereto
,the third person then holding the goods as
bailee of the buyer .Receipt Of the goods need not necessarily precede
acceptance, nor is it necessary that receipt and ao
ceptance be contemporaneous . Acceptance may be
7“ Knight vs. Mann ,1 1 8 Mass ,
1 43. Beaumont vs. Brengeri, 5 C. B. ,
7“ Rem ick vs . Sanford , 1 20 Mass , 01‘7 Bri
g
ard man vs. Spooner, 1 3 Allen ,7“ Taylor vs . Smith , 2!. B . , 7 1 .
STATUTE OF FRAUDS . 87
made before actual receipt,as where the goods are
examined, at the seller’s place of business and there
accepted, and the seller thereafter delivers them tothe buyer by the orders of the latter .
SECTION 69 . CONTRACTS FOR THE SALE OF GOODS ToBE MANUFACTURED .
The statute does not contemplate,as being in
cluded in its terms , contracts for the sale of things tobe manufactured by the seller
,but look upon such a
contract as one for work and labor only .
This rule, as stated, is subject to many qualifications and is hedged in by many rules of exception
,so
that it may be said there is no general rule on thesubject
,but the question always is this
,is the contract
under the circumstances of the case, to be cons idereda sale or one for work and labor to be performed uponthe material of which the goods are to be made . Thereare three doctrines on thispoint, which may be invokedto determine the meaning to be given the words in thestatute
,called respectively, the English rule, the
Massachusetts rule, and the New York rule . TheEng lish rule is stated in the now famous case of Leevs . Griffin,
” by Judge Blackburn, as follows :“ If the
contract be such that it will result in the sale of achattel
,then it will constitute a sale, but if the work
and labor be bestowed in such a manner,as that the
result would not be anything which could properly besaid to be the subject of a sale, the action is for workand labor.
The rule would not include the case where workis done upon goods of another, or even materialssupplied or added to the goods of another. The English rule make a special point upon the fact as to7“ Brown vs. Allen , 35 Iowa, 306 .
7“ I . B. dz S . ,272.
88 SALES .
whether the thing bargained for, can be regarded asa thing capable of sale by the professed seller at thetime of delivery
,disregarding the fact whether they
are in existence, at the time the contract is madeor not .The Massachusetts rule puts special force on the
question whether the good s can at the time named fordelivery, be regarded as goods, wares, and merchandise,in the sense of being goods subject to be made marketable
,by the manufacturer
,and likewise disregards the
fact as to whether or not the goods are in existence atthe time the contract is made . This test mainly
,is
then,whether the manufacturer produces the article
in the general course of his business ?“ This rule isthe one generally adopted throughout the UnitedStates .
The New York rule makes it necessary that therebe a completed contract of sale at the time the contractis made . Therefore if the goods are not in existenceas a whole at the time Of the contract
,but are goods
which the manufacturer is to produce or prepare inthe future, then the contract is not deemed to be acontract of sale,
”
Many courts lay special stress on,whether the
goods are to be produced on special order requiringpersonal work and particular skill
,or are to be produced
in the usual course of the manufacturer’s business, if
the latter they deem it a sale, but the former theydo not deem to be within the statute
,but rather a
contract for work and labor on the thing produced .
SECTION 70. PART PAYMENT OR EARNEST MONEY.
If the parties have made no written memorandum7“ Gardner vs . Binney , 1 1 5 Mass ,
7‘ Cooke vs . M illiard , 65 N. Y. , 352 .
450.
90 SALES .
writing , it may consist of a number of different papers,or the writings of a correspondence , provided thepapers taken all together constitute a sing le, connected,consistent writing?“ The writing should be sufficientto identify the parties thereto ; it should also describethe goods sold and the price to be paid, if that has beenagreed upon . It should also show all the remainingmaterial terms of the contract .Wh ere the sale is not to be for cash, the memoran
dum should properly state the terms of cred it as given .
In one case a part of the purchase price was to be secured by a mortgage to contain a clause authorizing therelease of lots on payment of the valuation, but thememorandum did not Show the valuation ; it was heldto be insufficient?“ The time and place of delivery
,if
agreed upon, are a material part of the contract, andtherefore should be stated in the memorandum ofsale . The memorandum properly should state thecons ideration for the contract, but this is sometimesexcused by the statute, and by some courts is deemednot essential. The memorandum in any event shouldshow such an agreement as would import a sale andcontain all the essential parts of a bargain?“
SECTION 72. THE SIGNING OF THE MEMORANDUM .
The English statute says that the memorandumshall be signed by the parties to be charged thereby,but the language of the statute in the Uni ted Statesis usually that the memorandum shall be Signed bythe party to be charged thereby . The general holding
,
in this country, at least, has been that the memorandum need only be signed by the party agains t whomit is to be enforced and not by both the parties to the
1 36 U.
7“ Wardell vs .Williams , 62Mich . , 50.
7“ Redus vs. Holcomb , 27 S . R ., 524.
STATUTE OF FRAUDS . 9 1
contract .” But it has been held , that in the casewhere the contract consists of mutual promises, thatboth parties must Sign
,and that unless both parties
do sign,the contract would not be binding because Of
the lack of the element of mutuality ?“
The signing may consist of the writing out the nameof the person in part
,or in full
,or it may be by mark
,or
it may be by any sign that the person to be bound onthe contract has used
,with the intention of binding him
self On the contract . A signature made with a rubberstamp
,a printed signature , or the use Of the mere
initials of the party charged, or the use of a nameadopted by the person, or the name that he is knownusually by
,would suffice as the signature of the party .
Signing need not ordinarily be at the end of the memorand um,
but may be at the beginning,or in the body
of the note or memorandum ,if put there with the
intention Of signing the contract . Where the statute,
however,requires that the party to be charged on the
contract should subscribe his name, a signing at theend alone would be sufficient .
The statute makes a special provision for a signingby the agent
,provided he is law q y authorized to
Sign by his principal . It seems that the authorityfor the purpose Of binding the principal, on the contract under the 1 7th section of the Statute Of Frauds
,
may be conferred,either expressly or impliedly or
where one assumes to act as agent without authority,
his act may be subsequently ratified, so as to make itthe principal ’s?“
Where the signing is by an auctioneer at an auctionsale, this binds the purchaser, for the auctioneer is the“7 Perkins vs . Hadse ll
, 50 Ill. , 2 1 6 .
7“ Hawkins vs . Chase , 1 9 Pick2“ Wilkinson vs . Heavenrich
,58 (Mass ) , 502.
Mich ., 574
92 SALES .
agent of the purchaser for the purpose of entering hisname as soon as the bid is made . The law, however,requires that the auctioneer Sign the name Of the purchaser to the memorandum of sale . Th is signing mustbe done at the time and place of the sale of the particular thing
,knocked down to the bidder. This alone
satisfies the statute . Before the sale, the auctioneeris the agent of the seller
,but becomes the agent Of the
buyer as soon as the bid is accepted,for the purpose
of completing the sale .
CH A P T R E I .
DEFINITION AND HISTORY OF BAILMENTS .
SECTION 1 . DEFINITIONS .
A Bailment is the delivery of goods for some purpose
,upon a contract, expressed or implied, that after
the purpose has been fulfilled they Shall be redeliveredto the bailor
,or otherwise dealt with according to his
directions,or kept till he reclaim them?
The famous writer on Bailments, Sir William
Jones,gives two definitions : “ A delivery of goods
on a condition,express or implied
,that they shall be
restored by the bailee to the bailor,or according to his
directions as soon as they purpose for which they arebalied shall be answered .
” 7 And,
“ A delivery Of
goods in trust,on a contract
,expressed or implied,
that the trust shall be duly executed and the goodsredelivered as soon as the time or use for which theywere bailed shall have elapsed or be performed .
Blackstone ’s definition is as follows ° “ Bailment,from the French bailor
,to deliver
,is a delivery of
goods in trust,upon a contract
,express or implied,
that the trust shall be faith q y executed on the partof the bailee .
”
SECTION 2 . INFLUENCE OF THE ROMAN LAW RELATIVE TO BAILMENTS UPON THE COMMON LAW .
Bailments first began to become an importantsubject Of litigation in England during the period whenthe Roman law or civil law was exerting its greatest
2,pt . 2 , c. 5 ,
7 Jones on Bailments , 1 1 7.
2 Blackstone ’s Commentaries ,1 .
96 BAILMENTS .
influence upon the jurisprudence of England . Asbai lment law in Rome was well defined , early Eng lishlegal wri ters on the subject were greatly influenced bythe Civil law and adopted the Roman division whichwas a mere catalogue rather than a scientific classification .
5
SECTION 3. CLASSES OF BAILMENTS RECOGNIZED BY
THE ROMAN LAW .
The following classes Of Bailments were recognized under the Roman law °
( 1 ) Depositum.
(2) Mand atum.
(3) Commod atum.
(4) P ig nus .
(5) Locatio.
(6) Mutuum.
( 1 ) A d epositum was a gratuitous bailment Of
goods for custody or safe keeping .
(2) A mand atum was a bailment Of goods for theperformance of some service upon them by the baileegratuitously .
(3) A commodatum was a gratuitous loan of achattel for the use of the bailee gratis .
(4) A pignus or pledge was a bailment to securethe performance of an obligation
,with power Of sale
in case Of default .
(5) A locatio was a hiring of a chattel . Thisclass was subdivided into (a) locatio rei or the hireduse Of a thing ; (b) locatio operis, or hired services ofvarious kinds about the thing . This
,in turn
,was
again subdivided into locatio cus tod iae,or the hired
custody Of a thing ; locatio operis faciend i, or the hired5 Goddard on Ba ilments , Sec. 1 2 . See writ ings of Bracton ,
Lo rd Holt andS ir W ill iam Jones.
C H A P T E R I I
COGGS VS . BERNARD .
SECTION 5 . COGGS VS . BERNARD?
(Case is given on followi ng pages . )
In an action upon the case,the plaintiff declared
,
quo cumBernard the defendant, the loth of November,1 3 Will , 3, &c.
,assumpsisset , salvo ci secure elevare
Anglice, to take up several hogsheads Of brandy thenin a certain celler in D . et salvo ci secure d eponere,Anglice to lay them down again in a certain other cellarin Water-lane the said defendant and his servants andagents
,tam negligen ter et improvid e, put them down
again into the said other cellar, quod per d efectumcurae ipsius the defendant, his servants and agents,one of the casks was staved, and a great quantity ofbrandy
,viz .
,so many gallons Of Brandy
,was spilt .
After not guilty pleaded, and a verdict for the plaintiff,there was a motion in arrest of judgment
,for that it
was not alleged in the declaration Of the defendantwas a common porter, nor averred that he had anything for his pains . And the case being thought to bea case of great consequence
,it was this day argued
seriatim by the whole court .“ Gould, J . I think this is a good declaration .
The Objection that has been made is,because there is
1 00 BAILMENTS .
or come to any damage ; and if a premium be laid to begiven
,then it is without question so . The reason of
the action is,the particular trust reposed in the de
fendant,to which he has concurred by his assumption,
and in the executing which he has miscarried by hisneglect . But if a man undertakes to build a house ,without anything to be had for his pains, an actionwill not lie for non-performance
,because it is nud um
pactum. So it is the 3 Hen .
, 6, 36. So if goods aredeposited with a friend and are stolen from him, noaction will lie . 29 Ass ,
28. But there will be adifference in that case upon the evidence
,how the
matter appears ; if they were stolen by reason of a baseneglect in the bailee
,the trust will not save him from
an action ; otherwise if there be no gross neglect . So
is Doct . et Stud .,1 29
,upon that difference . The same
difference is,where he comes to goods by finding .
Doct . et Stud .,ubi Supra . Ow.
,1 4 1 . But if a man
takes upon him expressly to do such a fact safely andsecurely
,if the thing come to any damage by his mis
carriage,an action will lie agains t him . If it be only
a general bailment,the bailee will not be Chargeable
,
without a gross neglect . So is Keilw.,1 60. 2 Hen .
,
7, 1 1 . 22 Ass ,41 . 1 R .
,1 0. Bro . Action
,sur lo
case, 78. Southcote
’s case is a hard case indeed
,to
oblige all men that take goods to keep to a specialacceptance
,that they will keep them as safe as they
would their own,which is a thing no man living that
is not a lawyer could think of and indeed it appearsby the report of that case in Cro . Eliz .
,81 5, that it was
adjudged by two judges only, viz . :Gawd y and Clench .
But in 1 Vent . , 1 2 1 , there is a breach assigned upon abond conditioned to give a true account
,that the de
fendant had not accounted for £30; the defendant
1 02 BAILMENTS .
without that it would not lie ; and, therefore, the und ertaking is held to be the matter traversable, and awrit is quashed for want of laying a place of the undertaking . 2 Hen .
, 7, 1 1 . 7 Hen .,4,1 4 . These cases are
all in point, and the action adjudged to lie upon theundertaking .
“Now to give the reason of these cases, the gist
of these actions is the undertaking . The party ’sspecial assumpsit and undertaking obliges him so todo the thing
,that the bailor comes to no damage by
his neglect . And the bailee in this case shall answeraccidents, as if the goods are stolen ; but not suchaccidents and casualties as happen by the act of God ,as fire
,tempest
,etc . So it is 1 Jones, 1 79 , Palm .
, 548 ;
for the bailee is not bound upon any undertakingagains t the act of God . Justice Jones
,in that case,
puts the case of the 22 Ass,where the ferryman
overloaded the boat . There is no authority,I confess,
in that case ; for the action there is founded upon theferryman ’s act
,viz .
,the overloading the boat . But it
would not have lain,says he
,without that act ; because
the ferryman,notwiths tanding his undertaking, was
not bound to answer for storms . But that act wouldcharge him without any undertaking
,because it was
his own wrong to overlade the boat . But bailees arechargeable in case of other accidents
,because they
have a remedy against the wrong -doers : and in casethe goods are stolen from him
,an appeal of robbery
will lie,wherein he may recover the good s
,which
cannot be had against enemies,in case they are
plundered by them ; and therefore in that case heshall not be answerable . But it is objected , that hereis no consideration to ground the action upon . Butas to this , the difference is between being obliged to do
COGGS V S . BERNARD . 1 03
the thing and answering for things which he has takeninto his custody upon such an undertaking . Anaction indeed will not lie for not doing the thing, forwant of a sufficient consideration ; but yet if the baileewill take the goods into his custody
,he shall be answer
able for them,for the taking the goods into his custody
is his own act . And this action is founded upon thewarranty
,upon which I have been contented to trust
you with the goods,which without such a warranty I
would not have done . And a man may warrant athing without any consideration . And therefore whenI have reposed a trust in you upon your undertaking,if I suffer, when I have so relied upon you, I Shall havemy action . Like the case of the Countess of Salop.
An action will not lie against a tenant at will generally,if the house is burnt down ; but if the action had beenfounded upon a special undertaking, as that in consid
cration the lessor would let him live in the house,he
promised to deliver up the house to him again in asgood repair as it was then
,the action would have lain
upon that special undertaking . But there the actionwas laid generally .
3.
“Southcote
’s case is a strong authority ; and
the reason of it comes home to this,because the general
bailment is there taken to be an undertaking to deliverthe goods at all events
,and so the judgment is founded
upon the undertaking . But I cann ot think that ageneral bailment is an undertaking to keep the goodssafely at all events : that is hard . Coke reports thecase upon that reason ; but makes a difference, wherea man undertakes a case specially
,to keep goods as he
will keep his own . Let us consider the reason of thecase : for nothing is law that is not reason. Uponconsideration of the authorities there cited, I find no
1 04 BAILMENTS .
such difference . In Ed w. 4,40
,b,there is such an
opinion by Danby . The case in 3 Hen . 7,4,was of a
special bailment, so that that case cann ot go very farin the matter. 6 Hen .
, 7, 1 2, there is such an opinionby the by . And this is all the foundation of Southcote ’s case . But there are cases there cited
,which
are stronger against it, as Hen ., 7, 26, 29 As s ,
28, thecase of a pawn . My Lord Coke would distinguish thatcase of a pawn from a bailment
,because the pawnee
has a special property in the pawn ; but that willmake no difference, because he has a special propertyin the thing bailed to him to keep . 8 Ed w.
,2,Fitzh .
Detinue, 59 , the case of goods bailed to a man, locked
up in a chest and stolen ; and for the reason of thatcase
,sure it would be hard that a man that takes goods
into his custody to keep for a friend,purely out of
kindness to his friend, should be chargeable at allevents . But then it is answered to that
,that the
bailee might take them specially . There are manylawy ers do not know that difference ; or however itmay be with them, half mankind never heard of it .So, for these reasons , I think a general bailment isnot
,nor cannot be taken to be, a special undertaking
to keep the goods bailed safely against all events . Butif a man d oes undertake specially to keep goods safely,that is a warranty, and will oblige the bailee to keepthem safely against perils , where he has his remedyover
,but not
.
against such where he has no remedy
over.Holt
,C . J . The case is shortly this . This
defendant undertakes to remove goods from one cellarto another
,and there lay them down safely ; and he
managed them so negligently, that for want of care in
him some of the goods were spoiled . Upon not guilty
1 06 BAILMENTS .
by the person who delivers them to the bailee, who isto do the thing about them . The sixth sort is whenthere is a delivery of goods or chattels to somebodywho is to carry them, or do something about themgratis
,without any reward for his work or car
riage, which is this present case . I mention thesethings, not so much that they are all of them necessaryin order to maintain the proposition which is to beproved
,as to clear the reason of the obligation which
is upon persons in cases of trust .2 .
“As to the first sort , where a man takes goods
in his custody to keep for the use of the bailor, I shallconsider for what things such a bailee is answerable .
He is not answerable if they are stolen without anyfault in him
,neither will a common neglect make him
chargeable,but he must be guilty of some gross neglect .
There is,I confess, a great authority against me ; where
it is held,that a general delivery will charge the bailee
to answer for the goods if they are stolen,unless the
goods are specially accepted to keep them only as youwill keep your own . But my Lord Coke has improvedthe case in his report of it ; for he will have it, thatthere is no difference between a special acceptance tokeep safely, and an acceptance generally to keep . Butthere is no reason nor justice , in such a case of a generalbailment
,and where the bailee is not to have any
reward,but keeps the goods merely for the use of the
bailor,to charge him without some fault in him . For
if he keeps the goods in such a case with an ordinarycare, he has performed the trust reposed in him. Butaccording to this doctrine the bailee must answer forthe wrongs of other people, which he is not, nor cannotbe
,sufficiently armed against . If the law be so
,there
must be some just and honest reason for it,or else
COGGS vs . BERNARD . 7
some universal settled rule of law upon wnich it isgrounded ; and therefore it is incumbent upon themthat to advance this doctrine
,to Show an undisturbed
rule and practice of the law according to this position .
But to show that the tenor of the law was alwaysotherwise
,I shall give a history of the authorities in
the books in this matter,and by them show that there
never was any such resolution given before Southworth ’s case . The 29 As s
,28, is the first case in the
books upon that learning ; and there the opinion isthat the bailee is not chargeable if the goods are stole .
AS for 8 Edw.,2 Fitzh . Detinue
, 59 , where the goodswere locked in a chest, and left with the bailee, andthe owner took away the key
,and the goods were
stolen,it was held that the bailee should answer for
the good s ; that case they say differs because the bailordid not trust the bailee with them . But I cannot seethe reason of that difference
,nor why the bailee should
not be charged with goods in a chest, as well as withgoods out of a chest ; for the bailee has as little powerover them
,when they are out of a chest
,as to any
benefit he might have by them,as when they are in a
chest ; and he has a great power to defend them in onecase as in the other . The case of 9 Ed w. ,
4,40b, was a
debate at bar ; for Danby was but a counsel then,though he had been chief justice in the beginning ofEd .
,4,yet he was removed and restored again upon
the restitution of Hen ., 6, as appears by Dugd ale
’s
Chronica Series . So that what he said cannot betaken to be any authority, for he spoke only for hisclient ; and Genny for his client, said the contrary .
The case in 3 Hen ., 7, 4, is but a sudden opinion, and
that by half the court ; and yet that is the only groundfor this opinion of my Lord Coke , which besides he
1 08 BAILMENTS .
has improved . But the practice has been always atGuildhall
,to disallow that to be a suflicient evidence to
charge the bailee . And it was practiced so before mytime
,all Chief Justice Pemberton ’s time, and ever
since,against the Opinion of that case . When I read
Southcote’s case heretofore I was not so discerning as
my brother Powys tells us he was,to disallow that case
at first ; and came not to be of this opinion till I hadwell considered and digested that matter. Though Imust confess, reason is strong against the case, to chargea man for doing such a friendly act for his friend ; butso far is the law from being unreasonable
,that such a
bailee is the least chargeable for neglect of any. Forif he keeps the goods bailed to him but not chargeablefor them, for the keeping them as he keeps his own isan argument for his honesty . A fortiori , he shall notbe charged where they are stolen without any neglectin him. Agreeable to this is Bracton, lib .
,3,c . 2
, 99 , b .
‘Is apud quem res d eponi tur, re obligatur, et d e ea re,
quam accepit, resti tuend a tenetur, et etiam ad id , si
quid in re d eposita d ole commiserit; cupae autemnominenon tenetur, solicit d esid iae vel negligentiae; fatui tatihoc d ebet impu tare.
’As suppose the bailee is an
idle, careless, drunken fellow,and comes home
drunk, and leaves all his doors open, and by reasonthereof the goods happen to be stolen and his own ; yethe shall not be charged, because it is the bailor
’s ownfolly to trust such an idle fellow. So that this sort ofbailee is the least responsible for neglects
,and under
the least obligation of any one, being bound to noother care of the bailed goods than he takes of his own .
This Bracton I have cited is, I confess, an old author ;but in this his doctrine is agreeable to reason
,and to
what the law is in other countries . The civil law is
1 1 0 BAILMENTS .
bailee be guilty of the least neglect he will be answerable : as if a man should lend another a horse to gowestward
,or for a month ; if the bailee go northward,
or keep the horse above a month, the bailee will bechargeable ; because he has made use of the horsecontrary to the trus t he was lent to him under ; and itmay be if the horse had been used no otherwise thanhe was lent
,that accident would not have befallen
him . This is mentioned in Bracton, ubi supra : hiswords are : ‘
is autem cui res aliqua utenda datur, re
obligatur, quae commoda te est,sed magma d ifieren tia
est inter° mutuum et commod atum; quia is qui rem
mutuam accepi t, ipsam restituend am tenetur, vel
ejus pretium,si forte incend io, ruina, naufragio, aut
la tronum vel hostium incursa ,consump ta fuerit
,vel
d eperd i ta , subtracta vel oblata . Et qui rem a tend am
accepi t, non sufiicit ad rei custod iam, quod talem d i li
gentiam ad hibea t, qualem suis rebus propriis ad hi
bere solet,si alias cum d iligen tius potuit custod ire; ad
quis , nisi cu lpa sua intervenerit. Ut si rem sibi com
modatam d omi , secum d etulerit cum peregre pro/“ectus
fueri t, et i llam incursa hostium vel praed onum, vel
naufragio, amiseri t, non est d ubium gain ad rei resti
tu tionem tenea tur.
’I cite this author
,though I
confess he is an old one,because his opinion is reason
able,and very much to my present purpose , and there
is no authority in the law to the contrary . But if thebailee put his horse in the stable
,and he were stolen
from thence, the bailee shall not be answerable forhim . But if he or his servant leave the house or stabledoors open, and the thieves take the opportunity ofthat and steal the horse
,he will be chargeable, because
the neglect gave the thieves the occasion to steal the
COGGS vs . BERNARD . 1 1 1
horse . Bracton says, the bailee must use the utmostcare ; but yet he shall not be chargeable, where thereis such a force as he cannot resist .
“ As to the third sort of bailment, scilicet locatio,or lending for hire
,in this case the bailee is also bound
to take the utmost care, and to return the goods whenthe time of hiring is expired . And here again I mustrecur to my old author
,fol . 62, b . :
‘!ui pro usu vestimentorum auri vel argenti , vel alterius ornamen ti ,vel jumenti , merced em d ed erit vel promiserit, talis
ab cc d esid eratur cus tod ia, qualem d iligentissimus
paterfamilias suis rebus ad hibiet, quam si praesti teri t
et rem aliquo casu amiserit, ad rem resti tuend am non
tenebi tur. Ncc suflici t aliquem ta lem d iligen tiam ad
hibere, qualem suis rebus propriis ad hiberet, nisi talem
ad hibuerit, d e qua superius d ictum est. From whenceit appears
,that if the goods are let out for a reward ,
the hirer is bound to the utmost diligence, such as themost diligent father of a family uses ; and if he usesthat
,he shall be discharged . But every man
,how
diligent soever he be,being liable to the accident of
robbers,though a diligent man is not so liable as a
careless man,the bailee shall not be answerable in this
case, if the goods are stolen .
“As to the fourth sort of bailment, viz .
, vad ium,
or a pawn,in this I shall consider two things : first,
what property the pawnee has in the pawn or pledge ;and, second ly, for what neglects he shall make satisfaction . As to the first
,he has a special property, for
the pawn is a securing to the pawnee, that he shall berepaid his debt, and to compel the pawnor to pay him .
But if the pawn be such as it will be the worse for using,the pawnee cannot use it
,as clothes
,etc .
,but if it be such
aswill never be the worse,as if jewels for the purpose
2 BAILMENTS .
were pawned to a lady, She might use them ; but then She
must do it at her peril ; for whereas, if she keeps themlocked Up in her cabinet, if her cabinet shall he brokeOpen
,and the jewels taken from thence, she would be
excused ; if she wears them abroad, and is there robbedof them
,she will be answerable . And the reason is
because the pawn is in the nature of a deposit,and
,as
such,is not liable to be used . And to this effect is
CW. 1 23. But if the pawn be of such a nature,
as the pawnee is at any charge about the thing pawned,to maintain it, as a horse , cow, etc ., then thepawnee may use the horse in a reasonable manner
,or milk the cow
,etc .
,in recompense for
the meat . As to the second point, Bracton,
9 9 , b .,gives you the answer : ‘
Cred i tor, qui pignus
accepi t, re obligatur, et ad i llam resti tuend am tenetur;
et cum hujusmod i res in pignus d ata sit utriusque
gratia, scilicet d ebi toris, quo magis ci pecunia cred er
etur, et cred i toris quo magis et in tuto sit cred i tam,
sufiicit ad ejus rei custod iam d iligentiam exactam ad
hibere, quam si praesti teri t, cl rem casu amiseri t,securus esse possit, nec imped ietur cred i tam petere.
’
In effect,if a creditor takes a pawn , he is bound to
restore it upon the payment of the debt ; but yet itis sufficient, if the pawnee use true diligence, and hewill be indemnified in so doing, and notwithstandingthe loss
,yet he shall restore to the pawnor for his debt .
Agreeable to this is 29 Ass ,28, and Southcote
’s case is .
But,indeed, the reason given in Southcote
’s case is,
because the pawnee has a special property in the pawn .
But that is not the reason of the case ; and there isanother reason given for it in the book of As size,which is indeed the true reason of all these cases
,that
the law requires nothing extraordinary of the pawnee,
1 1 4 BAILMENTS .
persons that had any dealings with them,by combining
with thieves,etc . ,
and yet doing it in such a clandestinemanner as would not be possible to be discovered .
And this is the reason the law is founded upon thatpoint . The second sort are bailees
,factors and such
like . An d though a bailee is to have a reward for hismanagement, yet he is only to do the best he can ;and if he be robbed
,etc .
,it is a good account . And
the reason of his being a servant is not the thing ; forhe is at a distance from his master
,and acts at d iscre
tion,receiving rents and selling corn
,etc . And yet
,
if he receives his master ’s money,and keeps it locked
up with a reasonable care, he shall not be answerablefor it
,though it be stolen. But yet this servant is not
a domestic servant,nor under his master’s immediate
care . But the true reason of the case is, it would beunreasonable to charge him with a trust
,further than
the nature of the thing puts it in his power to performit . But it is allowed in the other cases
,by reason of
the necessity of the thing . The same law of a factor.“As to the sixth sort of bailment, it is to be taken,
that the bailee is to have no reward for his pains,and
yet that by his ill management the goods are spoiled .
Secondly,it is to be understood, that there was a
neglect in the management . But thirdly,if it had
appeared that the mischief happened by any personthat met the cart on the way, the bailee had not beenchargeable . As if a drunken man had come by in thestreets
,and had pierced the cask of brandy ; in this
case the defendant had not been answerable for it,
because he was to have nothing for his pains . Thenthe bailee having undertaken to manage the goods
,
and having managed them ill, and so by his neglect adamage has happened to the bailor, which is the case
COGGS vs . BERNARD . 1 1 5
in question,what will you call this? In Bracton
,lib .
3, 1 00, it is called mand atum. It is an Obligationwhich arises exmand ate . It is what we call in Englishan acting by commission . And if a man acts by commission for another gratis
,and in the executing his
commission behaves himself negligently, he is answerable . Vinnius in his commentaries upon Justinian ,lib . 3, tit . 27, 684, defines mand atum to be con tractus
quo aliquid gratuito gerend um commi tti tur ci accipi
tur. This undertaking obliges the undertaker to adiligent management . Bracton , ubi supra, says ,
‘Con
trahi tur etiam obligatio non solum scrip to et verbis,
sed et consensu,sicut in contractibus bonae fid ei; a t
in emp tionibus, vend itionibus,locationibus , cond uc
tionibus, societa tibus , et mand atis .
’ I do not findthis word in any other author of our law
,besides in
this place in Bracton,which is a full authority
,if it
be not thought too old . But it is supported by goodreason and authority .
“ The reasons are,first
,because in such a case , a
neglect is a deceit to the bailor . For,when he entrusts
the bailee upon his undertaking to be careful, he hasput a fraud upon the plaintiff by being negligent
,his
pretence of care being the persuasion that inducedthe plaintiff to trust him. And a breach of a trustundertaken voluntarily will be a good ground for anaction . 1 Roll . Abr .
,1 0, 2 Hen .
, 7, 1 1 , a strong caseto this matter. There the case was an action againsta man who had undertaken to keep an hundred sheep,for letting them be drowned by his default . An d
there the reason of the judgment is given, becausewhen the party has taken upon him to keep the sheep,and after suffers them to perish in his default ; inasmuch as he has taken and executed his bargain, and
1 1 6 BAILMENTS .
has them in his custody, if, after, he does not look tothem
,an action lies . For here is his own act
,viz .
,
his agreement and promise, and that after broke ofhis side
,that shall give a sufficient cause of action .
“ But secondly, it is objected, that there is no consideration to ground this promise upon
,and
,therefore
,
the undertaking is but nud um pactum. But to thisI answer, that the owner
’s trus ting him with the goodsis a suflicient consideration to oblige him to a carefulmanagement . Indeed , if the agreement had beenexecutory, to carry these brandies from the one placeto the other such a day, the defendant had not beenbound to carry - them . But this is a different case,for assumpsit does not only signify a future agreement
,
but in such a case as this , it signifies an actual entryupon the thing, and taking the trust upon himself .And if a man will do that, and miscarries in the performance of his trust, an action will lie agains t himfor that, though nobody could have compelled himto do the thing. The 1 9 Hen ., 6, 49 , and the othercases cited by my brothers, show that this is thedifference . But in the 1 1 Hen .
,4, 33, this difference
is clearly put,and that is the only case concerning
this matter, which has not been cited by my brothers .There the action was brought against a carpenter, forthat he had undertaken to build the plaintiff a housewithin such a time, and had not done it, and it wasad judged the action would not lie . But there thequestion was put to the court—what if he had builtthe house unskilfully?—and it is agreed in that casean action would have lain . There has been a questionmad e
,if I deliver the goods to A
,and in consideration
thereof he promises to re-deliver them, if an actionwill lie
.for not re-delivering them ; and in Yelv.
,4,
judgment was given that the action would lie . But
1 1 8 BAILMENTS .
The case of Coggs vs . Bernard, is one of the mostcelebrated ever decided in Westminster Hall, andjustly so
,since the elaborate judgment of Lord Holt
contains the first well-ordered exposition of the English law of bailments . The point which the decisiondirectly involves
,viz .
,that if a man undertake to carry
goods safely,he is responsible for damage sustained
by them in the carriage through his neglect, thoughhe was not a common carrier and was to have nothingfor the carriage
,is now clear law
,and forms part of a
general proposition in the law of principal and agent,which may be stated in the following words, vizThe confid ence ind uced by und ertaking any service foranother is a suflicient legal consid eration to crea te a
d uty in the performance of i t. And this propositionincludes cases stronger than that reported in the text .For there Bernard had undertaken to lay the goodsdown safely , whereby he introduced a special terminto his contract ; for it will be seen from the judgments,particularly Lord Holt ’s, that notwithstanding whatwas said by Lord Coke in Southcote’s case, there is adifference between the effect of a gratuitous undertaking to keep or carry goods , and a gratuitous undertaking to keep or carry them safely . But
,under the
rule just laid down, a gratuitous and voluntary agentwho has given no special undertaking
,though the
degree of his responsibility is greatly inferior to thatof a hired agent
,is yet bound not to be guilty of gross
negligence . This proposition is affirmcd by severalrecent cases . In Wilkinson vs . Coverdale
,1 Esp .
, 74,
it was alleged that the defendant had undertakengratuitously to get a fire-policy renewed for the plaintiff,but had
,in doing so, neglected certain formalities, the
omission of which rendered the policy inoperative .
COGGS V S . BERNARD .
Upon its being doubted at Nisi Prius whether an actionwould lie under these circumstances, Erskine cited aMS . note of Mr. J . Buller in Wallace vs . Telfair
,
wherein that judge had ruled, under similar circumstances
,that though there was no cons ideration for
one party ’s undertaking to procure an insurance foranother
,yet
,where a party voluntarily undertook to
do it,and proceeded to carry his undertaking into
effect by getting a policy underwritten, but did it sonegligently or unskilfully that the party could deriveno benefit from it, in that case he should be liable toan action ; in which distinction Lord Kenyon ao
quiesced . So in Beauchamp vs . Powley, 1 M . Rob .
,
38, where the defendant, a stage-coachman, receiveda parcel to carry gratis, and it was lost upon the road ,Lord Tenterden directed the jury to consider whetherthere was great negligence on the part of the defendant ,and the jury thinking that there was, found a verdictagainst him . So, too, in Doorman vs . Jenkins, 2Adol . Ell., 256, in assumpsit agains t the defendant,as bailee of money entrusted to him to keep withoutreward
,it was proved that he had given the following
account of its loss, viz . : that he was a coffee-housekeeper
,and had placed the money in his cash-box in
the tap room, which had a bar in it, and was open onSunday
,though the other parts of his house were not
,
and out of which the cash-box was stolen upon aSunday . The Lord Chief Justice told the jury thatit did not follow, from the defendant
’s having lost hisown money at the same time as the plaintiff’s
,that
he had taken such care of the plaintiff’s money as areasonable man would ordinarily take of his own ; andhe added , that the fact afforded no answer to the action,
1 20 BAILMENTS .
negligence . The jury having found a verdict for theplaintiff
,the court refused to set it aside .
It is clear,from the above decisions
,that a gratu
itous bailee or other agent is chargeable when he hasbeen guilty of gross negligence ; and it is equally clear,both from the words of the judges in several of theabove cited cases, and also from express decisions ,that for no other kind of negligence will he be liable
,
except in the single case which shall by and by bespecified . In Doorman vs . Jenkins
,Patteson
,J
says It is agreed on all hands that the defendantis not liable
,unless he has been guilty of gross negli
gence .
“ The counsel,” says Taunton
,J “ prop
erly admitted, that as this bailment was for the benefitof the bailor, and no remuneration was given to thebailee
,the action could not be maintainable except
in the case of gross negligence . In Shields vs . Blackburne
,1 H . BL
,1 58, the defendant having received
orders from his correspondent in Madeira to send aquantity of cut leather thither
,employed Goodwin
to execute the order . Goodwin accordingly preparedit,and sent it
,along with a case of leather of the same
description belonging to himself,to the defendant
,
who,to save the expense of two entries
,voluntarily
and without compensation, by agreement with Goodwin
,made one entry of both cases, but entered them
by mistake as wrought leather, ins tead of dressedleather
,in consequence of which mistake the cases
were both seized ; and an action having been broughtby the assignees of Goodwin, who had become bankrupt
,against the defendant
,to recover compensation
for the loss, the general issue was pleaded, and therewas a verdict for the plaintiff, which the court set
aside, and granted a new trial , upon the ground that
1 22 BAILMENTS .
less . From the latter of these propositions there is,
however,as has been already stated, one exception,
and it is contained in the following words of LordLoughborough
,when delivering judgment in Shields
vs . Blackburne :“ I agree,
” said his lordship,
“ withSir William Jones, that when a bailee undertakes toperform a gratuitous act
,from which the bailor alone
is to receive benefit, then the bailee is only liable forgross negligence . But if a man gratuitously undertakes to do a thing to the best of his skill, when hissituation or profession is such as to imply skill
,an
omission of that skill is imputable to him as grossnegligence . If
,in this case
,a ship-broker or a clerk
in the custom-house, had undertaken to enter thegoods
,a wrong entry would in them be gross negli
gence,because their situation and employment neces
sarily imply a competent degree of knowledge in making such entries . ” It perhaps may be more correctto call this a d istinction engrafted on the generaldoctrine
,than an exception from it ; since it does not
render any unpaid agent liable for less than grossnegligence ; but renders that gross negligence, in someagents
,which would not be so in others .
The case of Coggs vs . Bernard derives most of itscelebrity from the elaborate dissertation upon thegeneral law of bailments delivered by Lord Holt inpronouncing judgment . His lordship, as we haveseen
,distributes all Bailments into the following Six
classes,viz
1 . Depositum; or a naked bailment of goods, tobe kept for the use of the bailor .
2 . Commod atum. Where goods or chattels thatare useful are lent to the bailee gratis, to be used by
COCGS vs . BERNARD . 1 23
3. Locatio rei . Where goods are lent to thebailee , to be used by him for hire .
4 . Vad ium. Pawn .
5 . Locatio operis faciend i . Where goods aredelivered to be carried
,or something is to be done
about them, for a reward to be paid to the bailee .
6. Mand atum. A delivery of goods to somebody, who is
'
to carry them,or do something about
them,gratis .
Sir William Jones,in his Treatise on Bailments
,
objects to this division ;“ for
,says he
,
“ in truth,
his fifth tort is no more than a branch of the third,
and hemight with equal propriety have added a seventhsince the fifth is capable of another subdivision .
The fifth of the classes enumerated by Lord Holt is,
as we have seen,Locatio operis faciend i, i . e.
,where
goods are delivered to be carried,or something is to be
done about them for reward to be paid to the bailee .
And this, with due submission to so great an authorityas Sir William Jones
,cannot be reasonably treated
as a branch of the third,which is Locatio rei , i . e.
,
where goods are lent to the bailee,to be used by him
for hire ; for there exists between them this essentialdifference, viz . , that in cases falling under the thirdclass, or locatio rei , the reward is paid by the baileeto the bailor ; whereas in cases falling under the fifthclass, or locatio Operis faciend i, the reward is alwayspaid by the bailor to the bailee . It is true that inLatin both classes are described by the word locatio,which probably gave rise to SirWilliam Jones’ opinionthat both ought to be included under the same head ;but then in the third class
, locatio vei , the word locatiois used to describe a mode of bailment
,viz .
,by the
hiring of the thing bailed ; whereas in the fifth class,
1 24 BAILMENTS .
locatio operis faciend i , the same word locatio is used ,not to describe any mode of bailment
,but to signify
the hiring of the man’s labour who is to work uponthe thing bailed
,that is not hired at all
,as it is in
cases falling within the third class . If,indeed
,Lord
Holt had been enumerating the different sorts of hirings
,not of bailments
,he would no doubt
,like the
civilians,have classified both locatio rei and locatio
operis under the word hiring, since in one case goodsare hired
,and in the other labour . But he was mak
ing a classification,not of hirings
,but of bailments ;
and since in cases of locatio rei there is a hiIing of thething bailed
,and in cases of locatio operis no hiring
of the thing bailed,it was impossible to place
,with
any degree of propriety,two sorts of bailments under
the same class, one of which is, and the other of whichis not
,a bailment by way of hiring . As to the objec
tion that Lord Holt ’s fifth class of bailments is capableof another subd ivision
,there is no doubt but that it
may be split,not only as Sir W. Jones suggests
,into
locatio Operis faciend i, where work is to be done uponthe goods
,and locatio operis mercium vehend arum
,
where they are to be carried,but into as many different
subdivisions as there are different modes of employinglabour upon goods ; and, in point of fact, the civilians,in their division of hirings, enumerate another class , viz .
,
locatio custod iae, or the hiring of care to be bestowedin guaid ing a thing bailed, which was omitted by SirW . Jones . For these reasons, it is submitted thatLord Holt ’s classification is the correct one .
C H A P T E R I V .
CREATION AND GENERAL INCIDENTS OF THEBAILMENT RELATION .
SECTION 8. CREATION OF THE BAILMENT RELATION .
A delivery to the bailee,either actual or con
structive 7 is always necessary in order to constitutea contract of bailment .There is an actual delivery where the acts of the
parties Show an intention on the one part to makedelivery then and there
,and on the other part to accept
delivery then and there?A bailment without delivery is void as against
subsequent bona fid e purchasers, and generally asagainst creditors . On the other hand, a bailment withdelivery is valid against purchasers and creditors .“
Delivery of possession is not necessary where theparties have agreed that the possession of the thingbailed Should remain with the bailor .“
It is also essential to the creation on a bailmentthat the subject matter of the bailment should beaccepted by the bailee .
SECTION 9 . SUBJECT MATTER OF BAILMENT .
Any kind of personal property may be the subjectof bailment unless otherwise provided by statute ; and
Sanders vs . Davis,1 3 B . Mon . ,
432. See also Hamiltonvs . Wagner, 2 A. K . Marsh
331 .
Collin’s A al
,1 07 Pa. St . , 590;
52 Am . p . 479 .
Cent . R . 00 . vs . Carrow ,348; Z4 Am. Rep . ,
2
BAILMENTS .
such property need not be corporeal,because a chose
in action may be bailed .
7 Property whi ch is not inexistence, or which is to be acquired by a person in thefuture
,is not bailable ?
A chose in action arising out of a personal wrong,
and not being for the recovery of damages for propertyillegally taken out of a person’s possession or unlawftwithheld from him, cannot be the subject of a bailment .
SECTION 1 0. PARTIES To THE BAILMENT .
“ Any one having contractual capacity may be abailee, but no persons , with the exception perhapsof inn keepers
,common carriers
,wharfingers, or ware
housemen,can be compelled to be bailees
,since a
person has the same right to decline becoming a baileeas he has to decline becoming a purchaser.
“
“It is not essential that the bailor should hav e an
absolute title to the subject-matter of the bailment,it being sufficient if he is invested with such possessoryinterest in the subject matter as will entitle him toassert his interest agains t all the world except therightful owner . ” 1 “
SECTION 1 1 . INCIDENTS OF THE CONTRACT OF BAILMENT .
An express contract is not necessary to the creationof the bailment relation . This form of contracts, likeothers
,may be created by implication . It is essential
that the parties to the contract should have intended7 Loomis vs . Stowe , 72 Ill. , 623; Ki vs. R ichards , 6 Whart .Shaw vs . Wilshire , 65 Me . , 485 ; a ) , 41 8 37 Am. Dec . ,
420.
Jarvis vs . Rogers , 1 5 Mass . 7“ Tatum vs . Shar less , 6 Ph ila .
(Pa . 1 8 ° 22 . Int .
5 Cy c , ,1 66 ; G itt ings vs . Nelson , Caldwell v
gsi Eaton , 5
59 1 ; Macombe vs . Mass , 399 .
Parker, 1 4 Pick. (Mass ) 49 7.
C H A P T E R V .
BAILMENTS FOR THE BAILOR ’S SOLE BENEFIT .
SECTION 1 3. DEGREE OF CARE AND NEGLIGENCE .
Where the bailment is for the bailor ’s sole benefit,the bailee is only called upon to exercise slight care ,and is only answerable for gross negligence?Where the property is stolen
,it has been held that
the bailee is not liable unless the loss is the result ofgross negligence on his part ? But it was held inState vs . Meagher,
“ that the fact of theft was presumptive evidence of carelessness or fraud under the civillaw
,and that a bailee having reason to believe that there
is danger of robbery who takes no precautions againstit,is negligent .“ And where a bailee used the prop
et ty and substituted other property of a similar kindand value
,which was stolen, he was held liable for the
loss to the bailor .“
Mere knowledge by the bailor of the mode in whicha bailee cares for property intrusted to him will notabsolve the latter from liability for want of due carein keeping the property . Such knowledge
, accom
panied by evidence of long acquiescence withoutobjection, might Show an agreement as to the nature7 Chase vs . Maberry
, 3Harr . stolen without the knowledge of266 ; Dunn vs . Kyle , 1 4 Bush . the ba ilee , is not an excuse,
1 34 ; Schermer vs . but that it must ap r thatrat 54 Md .
,49 1 . it was lost without negl i
7 Whitne vs . Lee,8 Meto. (Mass ) , gence or fault .
9 1 ; anoil vs . Seaton , 28 Gratt .
7 44 Mo .,356 ; 1 00 Am . Dec. 29 8.
601 , 26 Am . Reap ,
Henkins vs . Motlow,1 Sneed
But see Huxley vs . artzell, 60Am.Dec.,1 54.
44 Mo . , 370, holding that the 7 Anderson vs. Foresman, Wrightmere fact that an article was (Ohio ) , 598.
1 32 BAILMENTS .
and degree of care which the bailee was to use, butbeyond this it would not be safe to go .
“
In Louisiana, under the code, the bailee must takethe same care of the subject-matter of the bailmentas he uses with respect to his own property ? Proofthat the bailee so dealt with the property raises a pre
Bailments for the bailor ’s sole benefit include the
SECTION 1 4 . DEPOSITUM .
The d epositum is the simplest form of bailmentsfor the bailor’s sole benefit, being a simple deposit ofthe goods for safekeeping .
An important species of the d epositum at thepresent time is that of the special bank deposits . Thiskind of bailment arises where banks receive for depositin their safe boxes or packages, containing the moneyor other valuables of favored individuals . The bankreceives no compensation for this particular service ;it has no right to use such deposits, and upon thedemand of the depositor, must return the specificvaluables in bulk as they were deposited . Such specialdeposits form no part of the bank’s regular business
,
and no bank officer has any authority to bind the bankto such a bailment without the express or implied
SECTION 1 5 . MANDATUM .
A mand atum is the name given to any bailmentwhere the bailee gratuitously does some work on thebailed article . Reimbursement for actual necessary
Conway Bank vs . Ameri can Ex 7 Mechanics ’, etc. ,
AnnBank vs . Gor
ress Cc . ,5 1 2 ; don , 5 La
William , Rob . 31 6. onBaiIments , Sec. 46.
C H A P T E R V I
BAILMENTS FOR THE BAILEE ’S SOLE BENEFIT
SECTION 1 6 . DEGREE OF CARE AND NEGLIGENCE .
Where the baihnent is for the sole benefit of thebailee
,he is bound to great care or extroard inary
diligence and is responsible for slight neglect in relationto the subject-matter of the bailment? He is notrespons ible
,however
,for reasonable wear and tear
of what is loaned,
2 or for its utter loss or damagewithout blame or neglect attributable to himself
A bailee who is driving his own horse in the carriage of the bailor
,at the request of the latter
,merely
as a means of recreation and amusement for both ofthem
,is liable for damage to the carriage if he does not
use common prudence and is careless and negligent .“
Bailments of this character correspond to thecommod atum under the Roman law classification .
“ Use is the gist of this bailment, and the bailee has theright to use the chattel in accordance with the termsof the bailment contract . A slight departure from thebailment purpose is at the peril of the bailee and makeshim absolutely liable for any damage to the property .
There is even greater reason why the borrower shouldbe strictly confined to the contemplated use of thechattel than exists in the case of other bailees .7 Cullen vs. Lord , 39 Iowa , 302
° Parker vs . Gaines (Ark. 1 899 ;Casey vs. Sutei , 36 Md 1 . 1 .S W. ,
96 3.
Blakemore vs. Bi istol R . Co . 8 Carpenter vs . Branch , 1 3Vt 1 6 1 ;E . & B . , 92 E . 0. . c.De , 587.
1,035 .
7 Goddard on Bailments, Sec. 6 1 .7 Fortune vs . Harris , 5 1 N. C. , 532 ;
1 38 BAILMENTS .
compensation to the bailee that are distinctive of thisbailment and mark it off from all the others . Thecontract for services as a contract does not differ fromcontracts in general.
’ 7
The bailee in this Class of bailments is alwaysentitled to compensation for the work he has done . Ifthe work is completed according to the terms of thecontract, the bailee can recover the amount fixed bythe contract . If the work is completed
,but not
according to the terms of the contract,the bailee may
recover on a quantummeruit . If the deviation fromthe terms of the contract was with the consent of thebailor, occasioned by his fault, the bailee can recoverthe reasonable worth of his services . If the breachOf the terms of the contract was the fault of the baileehimself, the bailor can recoup any damages he hassustained by the breach of the contract .
The question as to the right of recovery of a baileeon a contract only partially completed presents somedifficulties . At present, if the property is destroyed,before the completion of the work
,without the fault
of either party, the bailee will generally be allowed torecover pro tanteo for the labor and work which he hasalready expended on the thing . Under the old commonlaw rule that there could be no recovery, where thecontract was an entire one and the workman, for anycause
,left the work incomplete . The present tendency
of the law is to modify this rule,and to construe con
tracts for services as divisible ones . The cases on thispoint
,however, are at present in hopeless confusion .
If the completion of the work is prevented by thefault of the bailor, the bailee may recover quantummeruit 7 for the value of the services rendered and7 Goddard on Bailments , Sec. 1 27. subject of Common Law Plead7 For meaning of the terms quan ing , Volume XI, Subject 34.tum meruit and recoup, see
BAILMENTS FOR MUTUAL BENEFIT. 1 39
also for any losses caused by the fault of the bailor .If the bailee abandons the work
,some cases allow
him to recover the value of his services,less the loss
to the bailor .“ Other cases deny any right of recoveryin such cases .“
SECTION 1 9 . PIGNUS OR PLEDGE .
A pignus or pledge is a bailment to secure theperformance of an obligation
,with the power of sale
,
in case of default .“
In such a bailment the contract of bailment is asecondary one
,incidental to the main contract whose
performance it is intended to secure .
The principal difference between a pledge and achattel mortgage is that while the mortgagee acquiresthe legal title, the pledgee only acquires a specialproperty in the property . Furthermore
,the title of
the mortgagee becomes absolute at law upon breachof the condition
,while the title of the pledgee never
can become absolute , a breach of conditions merelygiving to the pledgee a power of sale .
It has been doubted whether incorporeal thingslike debts
,money and stock
,etc . , which cannot be
manually delivered,were the proper subjects of a
pledge . It is now held that they are so,and there
seems to be no reason why any legal or equitableinterest whatever in personal property may not bepledged
,provided the interest can be put
,by actual
delivery or by written transfer,into the hands or
within the power of the pledgee .
’’7
Incorporeal property is pledged by the delivery
Admr.,1 1 Goddard on Bailments
,Sec. 69 .
7 22 Am . and Eng . Eny . of Law,
846 ; W ilson vs. Little , 2N. Y . ,
443; Am . Dec. , 307.
1 40 BAILMENTS .
of the paper which represents the property . Inpledging corporate stock
,the rules contained in the
by-Iaws of the company must be followed . Bills and
notes can be pledged by indorsement and transfer.Property not yet in existence cannot be pledged,
but a contract of pledge of such property is valid, andwhen the pledgor comes into possession, the rights ofthe pledgee immediately attach and may be enforced .
The pledgee has the right to the exclusive possession of the thing pledged
,but
,under the modern View
has no right to use it . The pledge is an incident ofthe debt and may be
'
assigned with it .The pledgor may extinguish the bailment either
by performance of the obligation or default in performance . In the first case he is entitled to thereturn of the pledge ; in the second case, the pledgeemay sell the pledge . The pledgee may terminate thepledge either by voluntarily relinquishing it, or forfeitthe pledge by his own wrong . The destruction of thechattel works an extinction of the pledge relation byoperation of law.
The pledgee is not compelled to bring suit beforeselling the pledge ; he may demand payment and sellthe pledge at public sale . If he choose the pledgeemay bring a personal suit against the pledgor. Insuch a case the pledge security continues until he hasobtained not only judgment but satisfaction of thedebt
SECTION 20. LIEN .
The right to a specific lien on property in thehand s of a tradesman or artisan for the price of workdone upon it is of common-law origin
,
“ but the righthas been long extended to every bailee who has by his
Wilson vs. Guyton , 8 Gill (Md.) ,21 3; East vs. Ferguson, 59 Ind . 1 69 .
C H A P T E R V I I I .
BAILMENTS INVOLVING SPECIAL LIABILITY .
SECTION 2 1 . IN GENERAL .
Persons engaged in two important occupationsare subject to an especial degree of liability as baileeson account of the quasi public character of the business in which they are engaged
,and also on account
of the high degree of reliance which those dealing withthem are
,of necessity
,obliged to place in them .
These two occupations are those of common carriersand inn-keepers . The liability of common carriersis treated in the next subject ;
7 that of inn-keepers inthe next section .
SECTION 22 . INN-KEEPERS .
An inn-keeper is one who holds out that he willreceive all travelers and soj ourners who are willing topay a price adequate to the sort of accommodationprovided
,and who come in a situation in which they
are fit to be received ?
Keeping a house openly for the entertainmentand accommodation of travelers and others
,for a re
ward,is keeping an inn
,whether licensed or not
,and
whether or not liquors or wines are sold there ?
The business of an inn-keeper is viewed by thelaw as a public employment,
“ and accord ingly one ofthe distinguished characteristics of that business isthe obligation to receive and entertain, as guests , all
7 State vs. Stone , 6 Vt . ,
Hall vs. State , 4 Harr. (Del . 1 32.
1 44 BAILMENTS .
who choose to visit the house .
“ In this lies the distinction between an inn-keeper and the keeper of aboard ing house .
“
One of the essential characteristics of keeping aninn is that it shall be the regular business of the personso engaged and it is not sufficient that he sometimesfurnished travelers with the accommodations of aninn ;
7 but it is not necessary that inn-keeping shouldbe his exclusive occupation
,
“ nor does the fact that heis engaged in another kind of business
,which he con
ducts in connection with his in for the convenienceor pleasure of his guests
,impose on him the liabilities
of an innkeeper with reference to such other business .
“
The distinction as to the nature of the occupation
,between an inn-keeper and the keeper of a private
boarding house or lodging house,lies in this
,that the
latter is at liberty to choose his guests,while an inn
keeper is pledged to entertain all travelers of goodconduct and means of payment
,and furnish them
everything which they have occasion for as suchtravelers on their way .
SECTION 23. WHO ARE GUESTS .
A guest is a transient persons who resorts to,and
is received at an inn for the purpose of Obtaining theaccommodations which it purports to afford . Per
sons not travelers may be guests at an in or hotel?“
The essential point as to a guest is that he is a transientwhose stay is more or
‘
less temporary and uncertain .
A person may become a guest at an in before he7 People vs . Jones
, 54 Barb .
7 Com. vs . Wetherbee , 1 01 Mass ,
2 1 4.
Swarm vs. Smith, 1 4 Daly (N.
7 M inor vs . Staples , 7 1 Me . , 31 6,Am . Dec 31 8
1 K isten w O rchard vs B’
ush,
’
22 B . , 284,74, 48 Am. Dec., 4 1 5. 67 L. J. ,
2 B . , 650.
1 46 BAILMENTS .
legislation is with the second?“ In New York,after
the case of Hulett vs . Swift,the rule was modified by
statute so as to excuse inn-keepers from liability forloss by accidental fires .
”
The third rule was formerly universally recognized . This rule grew up in England during themiddle ages and was the result of the opportunitiesand temptations offered to the inn-keepers of theperiod to either rob their guests themselves or to assistin the robbery . For the protection of the guest it
,
therefore,became necessary to place a heavier degree
of responsibility on the inn-keeper. The hardship ofthis old rule has been constantly diminished as thenecessity for it passed away .
“ Both the authorities and the analogies of thelaw in other cases support the view that an inn-keepermay
,either expressly or impliedly, contract with his
guests for a limited liability in regard to the guest ’seffects
,and
,on principle, no good reason can be per
ceived why this should not be'
so. The transactionconcerns the parties only ; it involves simply rights ofproperty
,and the public can have no interest in re
quiring the responsibility of insurance to accompanythe accommodation of the guests, in the face of anagreement for its relinquishment . By such anagreement the inn-keeper becomes
,with reference to
the particular transaction, an ordinary bailee?“ Notice
to a guest,given by an inn-keeper, to the effect that
he will be liable for the guest ’s effects only to a certainextent
,or on certain conditions , is sufiicient,
” but aninn-keeper cannot limit his liability, in the absence ofstatutory authority
,by a general notice .
”
“7 Godd ard on Ba ilments , Sect . 1 81 . Richmond vs. Smith , 8 B . C. ,
7“ Sand ers vs. Spencer , 3 Dyer , 9,1 5 E . C. L . ,
1 44 .
266b.
7“ Stanton vs . Leland,4 E . D.
Smith (N . 88.
C H A P T E R I X
TERMINATION OF THE BAILMENT RELATION .
SECTION 25 . BY TERMS OF CONTRACT OR BY NEWAGREEMENT .
The fulfillment of the terms of the bailment contract will terminate the bailment .
1 The mere lapseof time
,when the bailment is for a definite period will
be sufficient ? Upon the fulfillment of the bailmentthe bailor is entitled to the immediate return of theproperty . A contract of bailment like any other contract can be rescinded or altered by the agreement ofthe parties to the contract ?
SECTION 26 . BY BREACH OF CONTRACT OR DESTRUCTION OF BAILED PROPERTY .
A bailment may also be determined by rescissionof the contract of bailment on grounds recognized incontracts generally,
“ by the total or partial destructionof the subject-matter, as where a chattel is lost ordestroyed
,
“ or it becomes unfit and unsuitable for theuse for which it was hired,
“ or by any act of the baileewhich is inconsistent with the bailment or which tendsto defeat the bailor ’s right to the property
,
’ as wherethe bailee
,when not authorized so to do
,sells
,
“ misuses,
7 Morse vs . And rascoggin R . Cc . ,R . Co . Cic. App . 1 900;
39 Me . Sessions vs . West 55 8.W. ,
tern R . Corp . 1 6 Gray (Mass ) , New York R . Co ., .Vs New Jersey
1 32. Electric R . Cc ., 60 N. J. L.
338 ; 38 Atl. 828.
7 Ripley vs . Dolbier,1 8 Me
, 328.
7 Dunlap vs . Gleason, 1 6 M ich .
,
1 49 ; 93 Am. Dec. ,2
7 New York , etc ,R . Co . vs . New
Jersey ElectrIc R . Co . , .GON J .L .
,338; 38 Atl. , 828
BAILMENTS .
or in any way converts,” the property, purchases it
from the bailor,“ or does not perform the conditions
of the contract?“
1 ° Ca5t
6
1 id geqSloan
,1 24 Ala . , Otis vs. Wood, 3Wend. (N .
7 )
77 Dunlap vs. Gleason , 1 6 Mi ch. ,1 58; 93 Am. Dec., 231 .
C H A P T E R I .
INTRODUCTORY .
SECTION 1 . A BRANCH OF BAILMENTS .
The subject of carriers is a branch of the largersubject of bailments . On account of its importance
,
and the many striking differences between the bailments of goods to common carriers and other speciesof bailments
,it is made a separate subject in this work .
A bailment to a carrier is,ordinarily
,a bailment for
mutual benefit,and under the Roman law classification
is the locatio Operis faciend i mercium vehend arum.
Although this is bailment for mutual benefit,the lia
bility of common carriers, exceeds that of the baileein ord inary bailments for the bailee ’s sole benefit .
SECTION 2 . DEFINITION AND CLASSIFICATION OF CARRIERS .
A carrier is one who undertakes the transportation of persons or movable property
,
“ and the authorities
,both elementary and judicial
,recognize two kinds
or classes of carriers,viz .
,private carriers and common
carriers .
“ While a common carrier has been defined asone who holds himself out to the public to carry personsor freight for hire
,
“ the term did not,at the common law,
embrace a carrier of passengers,“ and is commonly
confin ed to carriers of goods,
“ as d istinguished fromcommon carriers of passengers .“ A private carrier is7 Abbott L . Dict . Georgia Cent . R . 00 . vs . Li7 Varble vs . Bigley
,1 4 Bush . man ,
1 1 0Ga . , 665 , 672 , 36 8.
698, 702 , 29 Am. Rep .
,435 ; 202 ; L . R . A 673,
Astor vs .Verner vs . Sweitzer
,32 Pa. St . ,
Heaven,2 Esp . 533
,5 Rev.
208,2 1 2 . Rep .
, 750.
7 Naugatuck R . Co. vs . Waterbury See infra ,1 1 A . ,
1 a .
Button Co . , 24 Conn . , 468. See infra, 1 1 1 A . , 1 a.
1 52 CARRIERS .
one who,without being engaged in such business as a
public employment,undertakes to deliver goods in a
particular case for hire or reward .
7 A common carrierdiffers from a private carrier in two important respects ;1 ) in respect of duty, he being obliged by law to undertake the charge of transportation
,which no other
person, without a special agreement is,8 and (2) in
respect of risk,the former being regarded by the law
as an insurer,the latter being liable like ordinary
bailees . ’ 9
SECTION 3. CARRIER OF PASSENGERS .
There cannot be a bailment of a person, and therefore carriers of passengers are not bailees as to thepassengers themselves . Carriers of passengers, however
,are engaged in a quasi public occupation, similar
to that of common carriers,and their liabilities are
,
therefore,properly treated under this subject . Carriers
of passengers also,are bailees as to the baggage of their
passengers . Carriers of Passengers will be the subjectof Chapter IV of this Subject .7 Piedmont Mfg. Co. vs Columbia
,
5 Varble vs . B igle,1 4 Bush .
etc.,R . Co . , 1 9 S . C.
, 353; 69 , An Repvs. Bernard , 2 Ld . ,
9 Fish vs9
01?rk,49 N
43
Y. , 1 22 , 6909 , 9 1 7. Cy c 9 3
1 54 CARRIERS .
with the private business of those who publicly solicitemployment from him? They offer themselvesto him as competent to perform the service re
quired and in the absence of express reservation
,they contract to perform it on the usual
terms,and under the usual responsibility . Now,
what is the case here? The defendant,is a far
mer,but has occasionally done jobs as a carrier . That
,
however,is immaterial . He applied for the transporta
tion of these goods as a matter of business and sonsequently on the usual conditions . His agency was notsought in consequence of a special confidence reposedin him —there was nothing special in the case— on thecontrary
,the employment was sought by himself
,and
there is nothing to Show that it was given on terms ofdiminished responsibility . There was evidence of negligence before the jury ; but, independent of that, weare of opinion that he is liable as an insurer .
The more modern,and probably better opinion on
this point is expressed in the following quotation :“ A common carrier is one who holds himself out asready to engage in the transportation of goods for hireas a public employment, and not as a casual occupation .
2 It is sometimes said that one who undertakesfor a single occasion only to carry goods for any personwho desires to employ him for that occasion is a common carrier for that transportation .
3 But the cases ofthis kind will be perhaps the principal business of theone sought to be charged as carrier
,it is incidentally
his business for the time being . In general the liabilityof carrier does not attach to one who does not holdhimself out as pursuing that business
,but in the
F ish vs Chapman 2 Ga . , 349 , 463 Harrison vs . Roy , 39 M iss , 396 ;
Am. Dec. , 393; Roussel vs . Au Hayn ie vs . Baylor , 1 8Team, 498.
ma is,1 8Quebec Super. Ct . ,
474.
COMMON CARRIERS . 1 55
particular case,and in each particular case
,acts only
in consequence of a special employment .
” 4 5
“What constitutes a common carrier is a questionof law. Whether the person comes under the definitionis one of fact .6 Whether a contract of carriage changesthe relation of the carrier from that of a common carrierto that of a private carrier is one of law.
7 Whetherthe facts shown establish the legal position of commoncarrier is a question for the jury .
” 8
The following are common carriers : railroadcompanies
,
9 carriers by boat or vessel,
1 0 ferrymen,
draymen or truckmen,and express companies .
Carriers of live stock are generally held to have theliability of common carriers
,
1 4 although there are somedecisions to the contrary .
1 5 A receiver appointed bya court to operate a railroad is a common carrier
,the
same as the corporation which he represents .
1 6 Forwarding agents,
1 7 and owners or operators of tugboats, are not common carriers .
1 8
4 Sumner vs . Caswell,20 Fed . ,
249 .
5 6 Cy c.,366 .
Remnewill vs . Cullen,5 Harr .
238.
7 Kimball vs . Rutland, etc. ,
R .
Co .,26 Vt 247.
8 Avinger vs . South Carolina R .
Co. ,29 S . C. 265, 7 S . E .
,493
1 3 Am . St . Re 7 1 6 .
9 Bausemer vs. oledo , etc.,R
Co . ,25 In d . ,
434 ; Heineman vsGrand Trunk R . Co . ,
1 0 Biss(U . S . ) 70, 7 Fed. Rep . , 68.
verpoo etc .,Steam . CO . vs .
Phenix Ins Co .,1 29 U. S . , 39 7 ,
9 S . Ct .,469 ; Brown Vs Clay
ton,1 2 Ga . . 564 ; Swindler vs .
H illard,2 R ich . (S . 286 45
Am . Dec.,732 .
1 3
fl
1 0
Gull iver vs . Adams Express Co. ,
289 Ill.,503; Christenson vs .
American Express Co.,1 5
M inn . ,270, 2 Am. Rep .
,1 22 .
Ch icago,etc. ,
R . 00 . vs . W ill iams,
6 1 Nebr. , 608; 85 N. W. , 832 ;Wilson vs . Hamilton
,4 Ohio
St . , 722 .
Heller vs . Chicago,etc. ,
R . Co .,
1 09 M ich .
,53
, 66 N. W. , 667 ,63 Am . S t . Rep . , 541 .
Paige vs . Smith,99 Mass
,39 5 .
Roberts vs . Turner,1 2 Johns
(N. 232, 7 Am . Dec. , 31 1 .
Where,however
,the goods are
received by the carrier fortransportation
,and del ivered
to a connect ing carrier, the firstcarrier is not a mere forwardingagent . Buckland vs . AdamsExpress Co . , 9 7 Mass ,
1 24, 93
Am . Dec. 68 .
Knapp vs . McCofi'
rey , 1 78 Ill.,
1 07, 52 N. E . ,898.
1 56 CARRIERS .
SECTION 5 . DUTY TO RECEIVE GOODS FROM ALLPERSONS .
The great duty which a common carrier owesto the public is that of receiving and carrying thegoods of all persons indis criminately . Carriers arebound to receive and transport all freight tenderedaccording to the custom and usage of their bus iness .
It is the specific duty of carriers to serve all alike .
Favors and preferences are to be avoided . A commoncarrier cannot carry for one and refuse to carry foranother . A railroad is without right to grant privilegeswhere the public is concerned .
20
A common carrier,however
,may restrict the scope
of his business,either as to location
,or as to the class
of goods transported ; for example, a common carrieris not bound to receive dangerous articles
,such as nitro
glycerine,dynamite, gunpowder, oil of vitriol, matches ,
etc .
”1 But as to kinds of property,which the carrier
is in the habit of carrying in the prosecution of hisbusiness, he is bound to serve all customers alike .
22
In order to be a refusal to transport,there must be a
tender of goods for shipment .23
SECTION 6 . WHEN AND WHERE DELIVERY MUST BEMADE .
The question as to when and where delivery ofgoods intrusted to a common carrier must be made
,is
one to which no general answer can be made and whichmust depend upon the particular facts of each individIll inois Central R . R . CO . vs. 329
,45 Pac. , 69 1 , 36_L. R . A .,
Frankenberg , 54 Ill. , 88, 5 Am . 648.
Rege , 92 Louisville
, etc.,R . 00 . vs . Queen
” Cum rland Tel. Go . vs. Texas ,etc. R . Co .
,52 La . Am. , 93
2S SO . ,284 ” Little Rock , etc. R . CO . vs.
1 1 California Powder Works vs . Conatser, 6 1 Aria , 560, 33 S .
Atlantic P. R . Co .,1 1 3 Cal.
, W . 1 057.
1 58 CARRIERS .
changes .32 The present state of the law governingthe bailment liabili ty of common carriers will be consid ered in the following chapter .
The following ext ract from Note in Smith ’s Lead ing Cases to case ofCoggs vs. Bernard will show the state of the law on common carriers as itexisted half a century ago:
A common carrier is a person who undertakes to transport fromlace to place for hire , the goods of such persons as think fit to employuch is a proprietor of wagons , barges , lighters, merchant-shi or otherinstruments for the publ ic conveyance of goods . Forward vs. ittard
,1 T.
R . ,27 ; Mors vs. Slew , 2 Lev. , 69 ; 1 Vent . , 1 90,
238, commented on In thetext by Lord Holt ; R ich vs. Kneeland , Cro. Jac .
,330; Maving vs. Todd , 1Stark. ,
72 ; Brook vs . Pickwick , 1 Bin 2 1 8. A person who conveys passengers only is not a common carrier. II vs. Heaven , 2 Esp . ,
533; Christ ievs. Griggs , 2 Camp , 79 ; see Sharpe vs . Grey
,9 B ing .
, 460. Nor is a towncarrnan so , who does not ly from one fixed terminus to another , but undertakes casual jobs . Brin vs . Dale , 2 M . Rob .
, 80. A railway companyare common carriers unless exempt
33some spec ial provision . Palmer vs.
Grand Jun ction Canal Co . ,4 M . 749 . The extraordinary liab ilit ies
of a carrier were imposed u n him in consequence of the publ ic nature ofhis employment , which ren ered h is good conduct a matter of importanceto the whole community. He is bound to convey the ood s of an personoffering to pa his h ire , unless h is carriage be already fufi, or the ris so htto be impo upon him extraordinary, or unless the goods be of a sort t chhe cannot convey, or is not in the hab i t of conveying . Jackson vs . Rogers , 2Show . 327 ; Riley vs. Home , 5 B ing ,
2 1 7 ; Lane vs . Cotton,1 Lord Ray . ,
646 ; wards vs. Sherratt , 1 East . , 604; Batson vs. Donovan , 1 B . A .,32
While the goods are in his custody, he is bound to the utmost care of them ;and , unl ike other bailees falling under the same class , he is, at common law ,
responsible for every in jury susta ined by them occas ioned by any meanswhatever , except only the act of God or the King ’s enemies . I Inst . , 89 ;Dale vs. Hall , 1 Wils , 28 1 ; Covington vs. Willan ,
Gow,1 1 5 ; see Davies vs .
Garrett , 6 Bing . 7 1 6 . However, when the increase of personal propertythroughout the '
ngd om,and the frequency with which art icles of great
value and small bulk were transmitted from one place to another, had begunto rend er this degree of l iab ility intolerably dangerous , carriers
,on their
part , began to insist that their employers should , in all cases , either d iminishIt,by entering into special contracts to that effect upon depositing their
goods for conveyance , or should pa 2 rate of remunerat ion proport ionableto the risk undertaken . To this en they posted up and distributed writtennotice s , to the effect that they would not be accountable for pro t ty ofmore than specific value , unless the owner had insured and pa id an d itionalpremium for it . If th is not ice was not communicated to the employer
,it
was,of course , ineffectual . Kerr vs . Willan , 6 M . S .
,1 50 But i f it could
be brought home to his knowledge , it was looked upon as Incorporated intohis agre ement with the carrier , an d he became bound by its contents . Mayhew vs. Eames , 6 B . dz C. , 601 ; Rowley vs . Horne , 3 Bing . 2 ; Nicholson vs .Willan ,
5 East . 507. St ill the carrier, notwithstanding his protect ion bythe notice
,was und to avoid negl igence ; and if the property was lost
or injured by such negligence , e was res neible . Smith vs . Home , 2 B .
M. ,1 8; Duff vs . Budd , 3 B . B . ,
1 77 ; Birkett vs . Willan ,2 B . A . ,
356 ;Garnett vs. Willan , 5 B . A . , 53; Sleat vs. Fagg , Ih . , 542 ; Wright vs. Snell ,Ib . , 350; see Owen vs. Burnett , 4 Ty rwh .
,1 43. Unless , indeed , the em
ployer had lulled his vigilance b an undue concealment of the nature of thetrust
1 11 1
2306“ upon him ,
for suc conduct would have exonerated the carrier ,even he given no notice . Batson vs . Donovan
,4 B . A . ,
2 1 ; Miles vs .Cattle , 6 B ing ,
743; Sec. 4 Burr , 2301 ; B . N. P . , 7 1 . Very many quest ions .
COMMON CARRIERS . 1 59
as was naturally to be expected , having arisen upon the const ruct ion of thesenot ices , and whether they had come to the customer ’s knowled ge the leg islature has thought proper to step in ,
an d by several enactments to regulatethe respons ibili of carriers by land and water. The land-carrier act is S t .
1 1,Geo. 4 6: 1 ill.
,4,Cap . 68, which enacts th at no common carrier b y
land for hire , shall be liable for los or injury to any gold or silver co in . goldor silver in a manufactured or unmanufactured state , prec ious stones , jewelry ,
watches, clocks, t ime pieces , trinkets , b ills ,bank-notes
,orders , notes or
securit ies for payment of monev,stamps , maps , writ ings ,
t itle-d eed s,pa int
ings,engravings , pictures , gold or silver plate or pla ted art icle , glass {see
Owen vs Burnett , 4 Ty rwh.,
china ,silks—manufactured or unmann
factured—wrought-up or not. wrought-up wi th other ma terials , furs (seeMayhew vs. Nelson , 6 C. P .
,or lace
,contained in an y parcel , when
the value exceeds the sum of unless at the t ime of delivery the valueand nature of the art icle shall have been declared , and the increased charges ,or an ent to pay the same
,accepted by the person rece iving the
parcel . Sec . 2 , the carrier may demand for such parcels an increasedrate of charge , which is to be notified by a not ice affixed in his office and
customers are to be bormd thereby , without further proof of the not ice havingcome to their knowled ge. Carriers who omit to affix the not ice are ,
by Sec . 3,
precluded from the benefit of this act , and ,b y Sec . 4 . they can no longer by
a notice limit their responsib ility in respect of art icles not wi thin the act .
8 ial cont racts , however, between the carrier an d his employer are st illowed
,and are not afl
'
ected by this statute . By Sec . 5,the act is not to
protect carriers from their liability to answer for loss occa s ioned by the
felonious acts of the ir own servants , nor is it to protect the se rvant fromanswering for his own neglect or misconduct . And it has been held th a t ,notwith standing the statute the carrier is st ill answerable for gross negligenceon his part
,which has occasioned a lom of pro perty such as the act directs
to be insured,even although the owner has neglected to insure it ; for the
protect ion given to the carrier b the act is subst ituted for the protect ionwhich he formerly derived from own not ice
,and the former
,there fore ,
will not now protect him, in a case in which the la tter would not have beenallowed to do so in consequence of his misconduct. Owen vs. Burnet t ,
4
to a greater extent than the value of the ship and fre ight (see Sutton vs.Mitchell
,1 T . R . , 26 Geo. , 3, ca 86 , sec . 1 , which extends the above
enactment to all cas es of losse s by to ry by whomsoever committed , an d53 Geo . , 3, cap . 1 59 , which extends to all cases of loss occasioned withouttheir default or privity ; but this act does not extend to vess els used solely inmere or inland navigat ion , nor to any ship not duly registered according to
CARRIERS .
law ; nor do any of the acts extend to l ighters and abberts. Hunter vs.M’Gown , l Bl igh , 573. It should also be observed t t the benefit of thethree last ment ioned acts extends to owners only, not to masters , and thatthe last contains an exp ress clause against relieving the mas ter, though hemay hafi
n also to be a part-owner. See W ilson vs Dickson,2 B . A . ,
2 .
ere good s consigned to a vendee are lost througll
‘
i
3
the default ofthe carrier , the cons i cc is the proper person to sue , for t consignor wash is agent to retain t e carrier. Dawes vs . Peck , 8 T . R . ,
330 ; Dutton vs .Solomonson 3 B. P . ,
582 ; K ing vs. Meredith , 2 Camp . , 639 ; Brown vs.Hodgson
,Ih . ,
36 . But it is otherwise where the goods were sent merely fora
pproval
,Swain vs. Shepherd , 1 M . Rob . ,
224,or the consignee is the agent
0 the consignor , Sargent vs . Morris , 3 B . A . ,277
,or the carrier has con
t racted to be liable to the consignor in consideration of the latter ’s becoming responsible for the price of the carriage . Moore vs . W ilson , 1 T . R .
, 659 ;Davis vs. James , 5 Burn ,
2680. See Freeman vs . Birch , l Nev. dz M.,
In the case of an action brought against a carrier,it is sufficient prima
facie evidence of a loss by his negl igence to show that the goods never reachedthe consignee . But where they are ba iled to a booking-office keeper to bedel ivered to a. carrier , the plaintiff must show by direct evidence , that theywere not del ivered to one . G il bart vs . Dale , 5 A. E . , 540; Griffi th vs. Lee ,1 T . R .
,659 . W ith regard to the:mod e of declaring against a carrier , formerly ,
the pract ice was to set out the custom of the realm ; that has been di scont inned
,because the custom of the realm bei the law of the realm
,the courts
take notice of it . Afterwards the pract ice came to state the defendantsto be common carriers for hire , tot idem verb is , that was , however , departedfrom to some extent in Botherton vs. Wood , 3 B . B . , 58 ; and st ill more inPozzi vs. Shipton , 8 A . E . , 9 74 , where a declaration stating that the plaintiffdel ivered
,and that the defendant accepted the goods in quest ion , to be
carried for reward from A to B , was held sufficient upon the custom of therealm to warrant a verdict against one of two defendants u n evidence ofh is being a common carrier . The court , however, doubted w ther it wouldhave been good on special demurrer.”
1 62 CARRIERS .
other hand, a contrary rule is laid down in a largenumber of cases . The authorities are so conflictingthat it is difficult to say which rule is the sounderone, but it may be remarked that the one holding thatthe carrier is not liable has received the approvalof the leading recent writer on this branch of thelaw .
4
The two following cases will serve as illustrationsof cases where the damage has been held to have beencaused by the act of God and not due to the negligenceof the carrier A canal company which as commoncarrier
,had undertaken to convey plaintiff’s goods
negligently started the boat on its voyage with a lamehorse
,by reason Of which the transportation of the
goods was considerably delayed . It so happened thatwhen the boat thus delayed was at a particular pointon its way, an extraordinary flood occurred by whichthe boat was wrecked and plaintiff’s goods lost . Butfor the delay which was caused by the lameness of thehorse as aforesaid
,the boat would have escaped the
disaster . It was held that the damage in this couldnot be attributed to the starting of the boat with thelame horse as its proximate or legal cause .
” 5
“ The defendant company received wool of theplaintiff for transportation from N . to B . By reasonof a failure on the part of the company to exercisereasonable diligence the wool in question was detainedat station S for several days . It was then dispatchedto station A and there to a connecting carrier to beconveyed to B . While so stored the wool was damagedby an extraordinary rise in a river . It was held that
4 See American and Eng . Anno taken from Street ’s Foun d atated Cases , Vol . VIII , p . 48 . t ions of Legal Liab il ity
,Vol .
20 Pa . St .,374
,375. This and I
,p . 1 1 8.
the following illust rat ions are
BAILMENT LIABILITY OF COMMON CARRIERS . 1 63
the negligent delay in forwarding the wool could notbe considered the proximate
,or legal
,cause of the
damage .
”
SECTION 1 0. DAMAGE CAUSED BY PUBLIC ENEMIES .
The rule has always been that a carrier is notresponsible for a loss or delay caused by an act of thepublic enemy . A capture
,by public enemies
,of
property intrusted to a carrier for transportation,
releases him from further obligations respecting it,
since such an act puts it out of his power to do whathe had undertaken to do .
" In Lewis vs . Ludwick,8
it is said that the term public enemies ” meansthose with whom the nation is at war, and doesnot include thieves
,robbers
,rioters
,insurgents
,or
an irresistible mob . In this case it was held thatMorgan and his band Of confederates were “ publicenemies ” in the technical sense
,and a loss
caused by them would not render the carrier
The early rule was that a mob or riot could notproperly come within the term public enemy
,but this
doctrine has been abandoned in America,where it is
held that in the case of a mob of such magnitude asto be beyond the control of the ordinary authorities,a carrier is not liable for delay in transportation
,
” oreven for the destruction of the goods1 0 where he hastaken all such precautions as ordinary care or prudence
Co . , 1 02 N. Y. , 563. Thecontrary rule
lsprevails in Ar
kansas . See iseonri Pac. R .
vs . Nevill , 60 Ark . ,375 .
M issouri Pac. R . Co . ,vs . Levi , 4
Tex. App . Civ. Cas . ,8.
1 39 .
1 64 CARR IERS .
SECTION 1 1 . DAMAGE CAUSED BY THE ACT OF THE
SHIPPER .
A carrier is never liable for losses wnich are occasioned by the act Of the shipper himself . This phaseof the subject of the carrier ’s liability is discussed bythe court in the case of Miltmore vs . Chicago, etc ., R .
Co.,
1 1 in the following word s :“ The evidence shows
,beyond all doubt or question
,
that the plaintiffs themselves chose an open or platform car upon which to transport the wagon to Chicago . .They did not wish to have the wagon takenapart so that it could be transported in a box car
,but
chose the platform car,upon which the wagon could be
carried standing,as the cheaper mode of conveyance .
The company certainly was not at fault for this mannerof transporting the wagon . The evidence clearlyshows that the plaintiffs assumed the labor andresponsibility of loading the wagon . Ripley was toldwhen he bargained for the car
,by the agents Of the
company, that if he got the wagon to the cars beforefive o ’clock, they would help him load it, but if he gotthere after that time
,he would find his car by the
freight-house platform,upon which to place the wagon .
He got to the freight depot late,but met a couple of
workmen coming away,who went back and aided him
in load ing the wagon . But Ripley,himself
,took the
entire charge and responsibility of load ing the wagon,as it was understood he would do
,and of securing it
to the car. Whatever means and appliances bedeemed necessary
‘
and proper to be used to secure theproperty while in transit
,he used
,or might have used,
without the control or interference of any one . Thestate of the weather
,the nature of the property, its
1 1 37 Wis , 1 90.
1 66 CARRIERS .
cattle shipped by railroad,who had undertaken to put
them on the car,knew that the door of the car was in
an unsafe condition, but neglected to inform the stationagent
,who was ignorant of the fact ; and it was held
that he could not recover for injuries received by thecattle in escaping from the car in consequence of suchdefect . SO, under the circums tances of this case, itseems to us
,the company was not obliged to take
further precautions to fasten or secure the wagon onthe car . The plaintiffs had taken upon themselvesthat care and responsibility
,and if they failed properly
to secure it against the violence of the wind,and it
was injured,the loss is attributable to their fault . ”
SECTION 1 2 . DAMAGE CAUSED BY INHERENT DEFECTSIN THE ARTICLES SHIPPED .
A carrier is not liable for losses caused by defectsinherent in the goods shipped
,and which ordinary
care on his part could not have prevented .
1 2
The case of Evans vs . Fitchburg R . Co.,
1 3 was anaction agains t the defendant as a common carrier, torecover for injuries to the plaintiff ’s horse . Thedecision in this case was as follows :
“ According to the established rule as to theliability of a common carrier
,he is understood to
guarantee that (with the well-known exception of theact of God and of public enemies) the goods intrustedto him shall seasonably reach their destination, andthat they shall receive no injury from the manner inwhich their transportation is accomplished . But heis not necessarily and under all circumstances, respons ible for the condition in which they may be found upon‘2 Amer . Eng . Ency of Law ,
Vol . CO . vs . Smith , 33Ohio St . ,51 1 .
V,p . 242 ; American Express 31 Am . Rep . , 661 .
1 3 1 1 1 Mass , 1 42 .
BAILMENT LIABILITY OF COMMON CARRIERS . 1 67
their arrival . The ordinary and natural decay offruit
,vegetables
,and other perishable articles ; the
fermentation,evaporation
,or unavoidable leakage of
liquids ; the spontaneous combustion of some kinds ofgoods
,are matters to which the implied obligation of
the carrier, as an insurer, does not extend . Story onBailments
,Secs . 492a, 576. He is liable for all acci
dents and mismanagement incident to the transportation and to the means and appliances by which it iseffected ; but not for injuries produced by, or resultingfrom
,the inherent defects or essential qualities of the
articles which he undertakes to transport . The extentof his duty in this respect is to take all reasonable careand use all proper precautions to prevent such injuries
,
or to diminish their effect, as far as he can ; but hisliability
,in such cases, is by no means that Of an
insurer .“ Upon receiving these horses for transportation
,
without any special contract limiting their liability,the
defendants incurred the general obligation of commoncarriers . They thereby became responsible for thesafe treatment of the animals, from the moment theyreceived them until the carriages in which they wereconveyed were unloaded . Moffat vs . Great WesternRailway Co.
,1 5 Law T . n . s . 630. They would be
unconditionally liable for all injuries occasioned bythe improper construction or unsafe condition of thecarriage in which the horses were conveyed, or by itsimproper position in the train, or by the want ofreasonable equipment
,or by any mismanagement, or
want of due care,or by any other accident (not within
the well-known exception) affecting either the traingenerally or that particular carriage . But the trans
portation of horses and other domestic animals is not
8 CARRIERS .
subject to precisely the same rules as that of packagesand inanimate chattels . Living animals have excitabilities and volitions of their own which greatly increasethe risks and difficulties of management . They arecarried in a mode entirely opposed to their instinctsand habits ; they may be made uncontrollable byfright, or, notwithstanding
“
every precaution,may
destroy themselves in attempting to break loose,or
may kill each other. If the injury in this case wasproduced by fright, restiveness, or viciousness of theanimals, and if the defend ant exercises all possiblecare and foresight to prevent it
,it would be unreason
able to hold them responsible for the loss . Clark vs .Rochester Sycamore Railroad Co.
,4 Kern .
, 570.
Thus it has been held that if horses or other animalsare transported by water, and in consequence of astorm they break down the partition between them
,
and by kicking each other some of them are killed,the
carrier will not be held responsible . Laurence vs .Aberdein
, 5 B . Ald ., 1 07. Story on Bailments
,
Sect . 576. Angell on Carriers, 2 1 4a. The carrier ofcattle is not responsible for injuries resulting fromtheir viciousness of disposition, and the question whatwas the cause of the injury is one of fact for the jury .
Hall vs . Renfro, 3 Met . 5 1 And in aNew York case, Conger vs . Hud son River RailroadCo.
, 6 Duer, 375, Mr . Justice Woodruff says, in behalfof the court : ‘We are not liable to perceive anyreason upon which the shrinkage of the plaintiff ’scattle
,their disposition to become restive, and their
trampling upon each other when some of them liedown from fatigue
,is not to be deemed an injury
arising from the nature and inherent character of theproperty carried
,as truly as if the property had been
of any description of perishable goods . ’
1 70 CARRIERS .
permitted to get to the jury upon the question whetherthere had been reasonable care on their part . ”
SECTION 1 3. LIMITATION OF LIABILITY BY NOTICE .
It is possible for common carriers to limit theirbailment liability to a certain extent, either by generalnotice
,or by special contract .
The extent to which liability may be limited bythe first method is very slight . Although isolatedcases may be found to the contrary, the better viewunquestionably is that there is only one class of casesin which a carrier may limit its liability by a noticepublicly posted but not shown to have been called tothe attention of the particular shipper whom it is soughtto affect, namely where the carrier has posted anotice to the effect that the true value of all articlesshipped must be declared at the time the shipmentis made
,or else the carrier will be liable only for the
apparent value of such articles . 1 4
SECTION 1 4 . LIMITATION OF LIABILITY BY SPECIALCONTRACT.
The right of a common carrier to limit his liabilityby special contract is much broader . The only limitation upon such right is that the limitation shall not beillegal or unreasonable and that no unfair advantagebe taken of the shipper. In the United States thecourts have held, in the great majority of cases, thatwhen a shipper accepts a bill of lading containingprovisions for a limitation Of the common law liabilityof the carrier, such provision is binding upon him.
1 5 A
common carrier cannot exempt himself from liability
American and Eng . Ency. of Law,
Mfg . Co.,1 6 Wall .
Vol . V p . 289 ° S outhern Ex 329 ; Levering vs .press (50 . vs . Newby , 36 Ga.
,Transp. , etc Co. ,
Mo . , 88, 9 7 Am . Dec. , 320.635.
M ich igan Gent . R . 00 . vs. Mineral
BAILMENT LIABILITY OF COMMON CARRIERS . 1 71
for losses caused by his own negligence . Such acontract is clearly against public policy . This questionwas discussed by the Supreme Court of the UnitedStates, in the case of Liverpool Steam CO . vs . PhenixIns . Co. ,
1 6 in the following words : “ The employmentof a common carrier is a public one
,charging him with
the duty of accommodating the public in the line ofhis employment . A common carrier is such by virtueof his occupation, not by virtue of the responsibilitiesunder which he rests . Even if the extent Of theseresponsibilities is restricted by law or by contract
,the
nature of his occupation makes him a common carrierstill . A common carrier may become a private carrier
,
or a bailee for hire,when
,as a matter of accommodation
or special engagement, he undertakes to carry something which it is not his business to carry . But whena carrier has a regularly established business for carrying all or certain articles, and especially if that carrieris a corporation created for the purpose of the carryingtrade
,and the carriage of the articles is embraced
within the scope of its chartered powers , it is a commoncarrier
,and a special contract about its responsibility
does not divest it of that character .“ The fundamental principle
,upon which the law
of common carriers was established, was to secure theutmost care and diligence in the performance of theirduties . That end was effected in regard to goods, bycharging the common carrier as an insurer, and inregard to passengers by exacting the highest degreeof carefulness and diligence . A carrier who stipulatesnot to be bound to the exercise of care and diligence,seeks to put off the essential duties Of his employ
1 29 U. S .,397.
1 72 CARRIERS .
Special contracts between the carrier or thecustomer
,the terms of which are just and reasonable
and not contrary to public policy, are upheld ; suchas those exempting the carrier from responsibility forlosses happening from accident, or from dangers ofnavigation that no human skill or diligence can guardagainst ; or for money or other valuable art icles,liable to be stolen or damaged—unless informed oftheir character and value ; or for perishable articlesor live animals, when injured without default or negligence of the carrier . But the law does not allow apublic carrier to abandon altogether his obligations tothe public; and to stipulate for exemptions which areunreasonable and improper, amounting to an abnegation of the essential duties of his employment .
“It being against the policy Of the law to allow
stipulations which will relieve the railroad companyfrom the exercise of care and diligence
,or which in
other words,will excuse it for negligence in the per
formance of its duty the company remains liable forsuch negligence .
“ This analysis of the opinion in Railroad CO . vs .Lockwood shows that it affirms and rests upon thedoctrine that an express stipulation by any commoncarrier for hire, in a contract of carriage, that he shallbe exempt from liability for losses caused by thenegligence of himself or his servants is unreasonableand contrary to the public policy
,and consequently
void . And such has always been the understandingof this court
,expressed in several later cases . Express
CO . vs . Caldwell, 21 Wall, 264 , 268 RailroadCo . vs . Pratt
,22 Wall .
,1 23, 1 34 Bank of Kentucky
vs . Adams Express Co. , 93 U . S . , 1 74, 1 83; Railway ,
Co . vs. Stevens, 95 U . S . , 655 ; Hart vs . Pennsylvania
1 74 CARRIERS .
to them,that they are liable for losses occurring from
any accident which may befall the goods,during the
transit,except those arising from the act of God or a
public enemy . It is not necessary now to inquire intothe weight of those considerations of reason and policy
,
on which the rule is founded, nor to cons ider whatcasualty may be held to result from an act of God
,or
a public enemy ; because the present case does notturn on any such distinction . It is sufficient
,there
fore,to state and affirm the general rule . In the
present case , the loss resulted from a fire,of which
there is no ground to suggest that it was an act ofGod ; and it is equally clear that it d id not result fromany default or negligence on the part of the company ,though the goods remained in their custody . If
,at
the time of the loss, they were liable as common carriers,they must abide by the loss ; because , as commoncarriers
,they were bound as insurers to take the risk
Of fire, not caused by the act of God, and in such caseno question of default or negligence can arise . Proofthat it was from a cause for which they, neither bythemselves nor their servants, were in any degreechargeable
,could amount to no defence
,and would
therefore be inadmissable in evidence . If,on the
contrary,the transit was at an end
,if
-the defendantshad ceased to have possession of the goods as commoncarriers
,and held them in another capacity
,as ware
housemen,then they were respons ible only for the
care and diligence which the law attaches to thatrelation ; and this does not extend to a loss by accidental fire, not caused by the default or negligenceof themselves , or of servants, agents, or others, forwhom they are responsible .
“ The question then is, when and by what act the
BAILMENT LIABILITY OF COMMON CARRIERS . 1 75
transit of the goods terminated . It was contended,in
the present case,that
,in the absence of express proof
of contract or usage to the contrary,the carrier of
goods by land is bound to deliver them to the consignee,
and that his obligation as carrier does not cease tillsuch delivery .
“ This rule applies,and may very properly apply
,
to the case of goods transported by wagon and othervehicles, traversing the common highways and streets,and which, therefore, can deliver the goods at thehouses of the respective consignees . But it cannotapply to railroads, whose line of movement and pointof termination are locally fixed . The nature of thetransportation
,though on land
,is much more like
that by sea, in this respect, that from the very natureof the case, the merchandise can only be transportedalong one line
,and delivered at its termination
,or at
some fixed place by its side, at some intermediatepoint . The rule in regard to Ships is very exactlystated in the opinion of Buller
,J in Hyde vs . Trent
Mersey Navigation, 5 T . R .
, 397‘A ship trading
from one port to another has not the means of carryingthe goods on land ; and, a ccording to the establishedcourse of trade
,a delivery on the usual wharf is such
a delivery as will discharge the carrier . ’“An other peculiarity of transportation by railroad
is that the car cannot leave the track, or line of railson which it moves ; a freight train moves with rapidity ,and makes very frequent j ourneys, and a loaded car,whilst it stands on the track
,necessarily prevents
other trains from passing or coming to the same place ;of course, it is essential to the accommodation andconvenience of all persons interested
,that a loaded
car,on its arrival at its destination
,should be un
1 76 CARRIERS .
loaded,and that all the goods carried on it to whom
soever they may belong, or whatever may be theirdes tination, should be discharged as soon and as rapidlyas it can be done with safety. The car may then passon to give place to others, to be d ischarged in likemanner . From this necessary cond ition of the bus iness
,and from the practice of these transportation
companies to have platforms on which to place goodsfrom the cars, in the first ins tance, and warehouseaccommodation by which they may be securely stored
,
the goods of each cons ignment by themselves,in
accessible places, read y to be delivered, the court areof the opinion that the duty assumed by the railroadcorporation is— and this, being known to owners ofgoods forwarded , must, in the absence of proof to thecontrary
,be presumed to be assented to by them
,so
as to constitute the implied contract between themthat they will carry the goods safely to the place ofdestination, and there d ischarge them on the platform,
and then and there deliver them to the consignee orparty entitled to receive them, if he is there ready totake them forthwith ; or if the consignee is not thereready to take them, then to place them securely andkeep them safely a reasonable time, ready to be deliveredwhen called for. This, it appears to us, is the spiri tand legal effect of the public duty of the carriers
,and
of the contract between the parties when not alteredor modified by special agreement, the effect and operation of which need not here be cons idered .
“ This we consider to be one entire contract forhire ; and although there is no separate charge forstorage, yet the freight to be paid, fixed by the company as a compensation for the whole service
,is paid
as well for the temporary storage as well as for the
1 78 CARRIERS .
compensation for the entire service, if they store thegoods
,are paid for that service ; they are depositaries
for hire, and of course respons ible for the security andfitness of the place, and all precautions necessary tothe safety of the goods, and for ordinary care andattention of their servants and agents
,in keeping
them and delivering them when called for. Thisenforces the liability of common carriers to the extentto which it has been uniformly carried by the commonlaw
,so far as the reason and principle of the rule
rendered it fit and applicable,that is
,during the
transit ; and affords a reasonable security to the ownerof goods for their safety
,until actually taken into his
own custody .
“ The principle,thus adopted
,is not new ; many
cases might be cited ; one or two will be sufficient .Where a consignee of goods
,sent by a common carrier
to London,had no warehouse of his own
,but was
accustomed to leave the goods in the wagon office,or
warehouse of the common carrier, it was held, that thetransit was at an end, when the goods were receivedand placed in the warehouse . Row vs . Pickford
,
8 Taunt . , 83. Though this was a case of stoppage intransitu, it decides the principle . But another casein the same volume is more in point . In re Webb
,
8 Taunt . , 443. Common carriers agreed to carry woolfrom London to France
,under a stipulation that when
the cons ignees had not room in their own store toreceive it, the carriers, without additional charge, wouldretain it in their own warehouse
,until the consignor
was read y to receive it . Wool thus carried, and placedin the carrier’s warehouse , was destroyed by an accidental fire ; it was held that the carriers were notliable . The courts say that this was a loss which
BAILMENT LIABILITY OF COMMON CARRIERS . 1 79
would fall on them,as carriers
,if they were acting in
that character, but would not fall on them as warehousemen .
“ This view of the law,applicable to railroad
companies, as common carriers of merchandise, affordsa plain
, precise, and practical rule Of duty,of easy
application,well adapted to the security of all persons
interested ; it determines that they are responsible ascommon carriers until the good s are removed from thecars and placed on the platform ; that if, on accountof their arrival in the night, or at any other time,when
,by usage and course of business
,the doors of
the merchandise depot or warehouse are closed,or for
any other cause, they cannot then be delivered ; or if,for any reason
,the consignee is not there ready to
receive them,it is the duty of the company to store
them and preserve them safely,under the charge of
competent and careful servants, ready to be delivered,and actually deliver them when duly called for by parties authorized and entitled to receive them ; and forthe performance of these duties after the good s aredelivered from the cars, the company are liable, as
warehousemen, or keepers of goods for hire .
” 2’
SECTION 1 7 LI EN OF COMMON CARRIERS .
Common Carriers have a lien on all goods transported by them and still in their possession for allcharges due for transportation or storage .22 Thisright to a lien covers charges for money advanced forthe payment of custom duties,
” but does not cover
2‘ 1 Gray (Mass ) 263. W II vs . Lancaster, 732 Fed .
Gisbourn vs. Hurst , 1 Salk 249 ; p . , 72 .
Gracie vs . Palmer , 8 Wheat . : East Tennessee, etc. ,
R . Co635 Ohio , etc. ,
R . 00 . vs. Noe ; Hunt, 1 5 Les . 26 1 .
77 Ill. , 5 1 3.
1 82 CARRIERS .
SECTION 1 9 . PASSENGERS .
A passenger is a person who undertakes,with
consent of the carrier, to travel in the conveyance provid ed by the latter, otherwise , than in the service ofthe carrier as such . The question whetherone is a passenger or not is one of mixed law and fact ;but the law being tolerably clear, it may be said, as ageneral rule
,that the issue upon any conflict of evidence
is one for a jury to decide,and not one to be passed
upon as a matter of law by the court . ” 5
.A carrier Of passengers is bound to receive forcarriage all proper persons who desire to becomepassengers .“ A carrier of passengers may refuse toreceive as passengers those coming under the followingclasses : intoxicated persons ,
7 persons infected witha contagious d isease ,
8 persons too feeble or infirm totake care of themselves
,unless accompanied by a
Higley vs . Gilmer , 3 Mont . , 90, who is drunk to such a degree35 Am . Re p . 450 A passen as to be disgust ing , offensiveger has also been defined as a disagreeable
,or annoying , an
person conveyed for hire from a person so drunk as to beone place to another, RapaljeLawr. L . Dict . ; one who hastaken a place in a public con
veyance for the purpose ofbe ing transported from oneplace to another
,and has , in
the course of the performanceof that contract rece ived und er its care e ither upon themeans of conveyance or at thepoint of departure of thatmeans of conveyance . Black .
L. Dict . ; Penn sylvania R . Co.
vs . Price 96 Pa . St .,267 ; 1 Am.
Eng . Gas ,234.
Hannibal,etc. ,
R . Co . vs. Swift ,1 2 Wall . (U. 262 ;Chavin , 7 Iowa ,
204 ; Bennettvs . Dutton , 1 0N. H.
,481 .
7 Lemont vs . Was hington , et c.
,R .
Co.,1 Mackey (D . C. , 1 80, 47
Am . Rep ., 238:
“ A railroadcompany is not bound to t e
ceive any person as a passenger
likely to violate the commonproprieties , civil it ies , an d decencies of life has no right to a
while in that condition .
he comfort and convenience ofpassengers enerally must berotected , t eir opinions andeelings regard ed ,
and pro rd ecomm Observed ; and alt oughin a railroad passenger car
neither the highest breeding ofthe drawing-room nor thefast idious del ica of the parloris required
,yet t e behavior of
all persons therein should bebecoming to the place and thegeneral character of the passengers. ” Pittsburg etc. ,
R .
Co . vs. Vandyne , 57 576 ;26 Am . Rep . , 68 ; 1 8 Am. Ry .
Rep . ,454 .
4 Dill (U. 321 .
CARRIERS OF PASSENGERS . 1 83
proper attendant,9 persons soliciting business in conflict
or competition with the carrier,
1 0 persons to a number beyond the capacity of the facilities of the carrier . 1 1
Persons cannot be discriminated against on ao
count of their color .
SECTION 20. LIAB ILITY OF CARRIERS OF PASSENGERSFOR INJURIES To PASSENGERS .
The rule as to the liability Of carriers of passengersfor personal injuries to passengers is thus stated in thecase of Meier vs . Pennsylvania R . Co. :
1 3
“Agnew, J . It is agreed on all hands
,says Judge
Red field , in his work on Railways, ed . 1 867, p . 1 74,
that carriers of passengers are liable only for negligenceeither proximate or remote , and that they are notinsurers of the safety of their passengers , as they are
as carriers of goods and baggage of passengers . Thenumerous cases cited from which this result is drawn
,
justify this statement . Alden vs . N. Y. Central Railroad CO .
,26 N . Y .
,1 02, holding that a carrier is bound
absolutely to provide a safe vehicle, irrespective ofany question of negligence, is not in accord with theAmerican cases generally, or the modern English decieions . It is reviewed in Redhead vs . Midland RailroadCo.
,2 Law Rep . C . B ., 41 2, and therein said not to be
founded in good reason . See the cases collected inShearman Red field on Negligence 299 , Sect .267
The language of Judge Gibson, taken from NewJersey Railroad Co . vs . Kennard, 9 Harris, 204, that acarrier of either goods or passengers is bound to provide° Croom vs. Chi
52 Minn . ,296
, S Am. S t . Rep . 28 Ind .,441
, 9 2 Am. Dec. , 322.
‘2 64 Pa. S t . ,225.
Barney vs. Oy ster Bayetc
‘3 1 05 Va.,809 , 54 S . E . 879 .
Steamboat Co., 7 .N 301 .
1 84 CARRIERS .
a carriage or vehicle perfect in all its parts, in defaultof which he becomes responsible for any loss or in jurythat may be suffered, has no relation to the questionnow before us . The case he was considering was thatof a car made without guards at the window to preventthe arms of passengers being thrust out, to their injury,which he considered a defect in the construction of thecar, making the carrier liable for negligence . The carwas not perfect in its parts, as he thought. The carwas imperfect in construction, and therefore notadapted to the end to be attained, to-wit, security . Itmay not be amiss to say that this opinion of the ChiefJustice as to window guards was not sustained by thecourt in banc, and has since been overruled in PittsburgConnellsville Railroad Co . vs . McCleary , 6 P . F .
Smith,294 . The doctrine we are now asked to sustain
is that,though the car is perfect in all its parts
,if
imperfect from some latent and undis coverable defect,
which the utmost Skill and care could neither perceivenor provide against, the railroad company must stillbe held responsible for injury to passengers, on theground of an absolute liability for every defect . Theplaintiff in error in effect contends that the defendantswere warrantors against every accident, but even in thecase referred to, Judge Gibson denied this rule . Hesaid of the carrier, he is bound to guard him (thepassenger) from every danger which extreme vigilancecan prevent . This expresses the true measure of responsibility . He answered a point in these words‘That the company is responsible only for defectsdiscoverable by a careful man after a careful examination and exercise of judgment .
’ Thus : ‘This is true,but were there such an examination and exercise of
judgment? The defective construction of the carmust
1 86 CARRIERS .
bility differs from the rule of evidence . Prime facie,
where a passenger, being carried on a train, is injuredwithout fault of his own , there is a legal presumptionof negligence, casting upon the carrier the onus ofdisproving it . Laing vs . Colder
,8 Barr . , 482 ; Sullivan
vs . Philadelphia Reading Railroad Co., 6 Casey, 234 ;
Shearman Red field on Negl .,Sect . 280; Red field on
Railways,Sect . 1 760, and notes . This is the rule when
the injury is caused by a defect in the road,cars
,or
machinery,or by a want of diligence or care in those
employed,or by any other thing which the company
can and ought to control as a part of its duty to carrythe passengers safely ; but this rule of evidence is notconclusive . The carrier may rebut the presumptionand relieve himself from responsibility by showing thatthe injury arose from an accident which the utmostskill
,foresight, and diligence could not prevent .
”
In the United States, at least it is well settledthat a carrier of passengers is liable in damages forpersonal injuries inflicted on its passengers by intruders
,
strangers,or fellow passengers, if it knew or ought to
have known that the danger existed, or was reasonablyto be apprehended, and could, by the use of the agenciesat its disposal, have prevented the mischief. In thereported case it is held that a street railway companyis not liable to a passenger for an injury inflicted bya missile thrown by a stranger, standing in the street,for the purpose of injuring the motor man of one of itscars as a punishment for the motorman’s refusal tostop the car at a place where it was not required bylaw or custom to stop . The decision is based on theground that the motorman was not bound to anticipatethat the stranger who was hailing the car would beguilty of a criminal assault upon the motorman or the
CARRIERS OF PASSENGERS . 1 87
passengers, particularly in view of the fact that thestranger was standing at a point where the companywas not required to stop its cars and where it was notin the habit of stopping them . This holding seemsto be sound in principle, is supported by authority,and is not in conflict with the general rule statedabove .
In the present case of Norfolk,etc .
,R . Co . vs .
Birchfield ,“ it is held that when the conductor of a
train hears an altercation between two passengers,it
is his duty to interpose in order to prevent trouble,
and that if he fails to do so the railroad company isliable for an assault by one of the passengers upon theother ; and that this is especially true where there isa statute making conductors conservators of the peaceand empowering them to make arrests on board theirrespective trains . It is also held in that case that it isthe duty of the conductor to prevent an as sault
,even
though he believes that the assaulting passenger is aspecial officer of the railroad company .
The liability of carriers of passengers for tortscommitted by their employees is considered in the caseof Marion vs . Chicago, etc . , R . CO 1 5
“ The rule is familiar that an employer is liablefor the torts of an employe only when they are committed in the course of his employment . The difficultyhas been to determine what acts should be deemedwithin the course of his employment . If, in this case,the conductor had forced the plaintiff from the trainwhile in motion, and while crossing a bridge, the actvery clearly would, under the circumstances, be deemedto be in the course of his employment, and that, too,
1 88 CARRIERS .
structed to eject no person from the train when inmotion
,and especially when crossing a place as danger
ous as a bridge . In one sense, the specific act wouldnot be in the course of his employment, but his generalemployment to remove trespassers from the trainwould be sufficient to render the company liable .
But it appears to us that the act of an employeof a railroad company in removing a trespasser froma train cannot be considered the act of the company
,
unless he was engaged generally to remove trespassers,
or specifically to remove the particular trespasser.The court below appears to have thought otherwise .
The instruction given proceeds upon the theory thatwhere a person is employed to do one thing, and hevolunteers to do another, his act Shall neverthelessbe deemed to be within the scope Of his employment,if his purpose was to serve his employer. But in ouropinion the purpose of the employe is not in a caselike the one at bar, material . The court
,we think
,
was misled by a distinction which has been d rawn bycourts in a different class of cases . Where the question is as to whether the employer is liable for a wilfulinjury done by an employe
,it is sometimes important
to inquire whether the employe ’s purpose was to servehis employer by the wilful act . Illinois Central Railroad Co . vs . Downey, 1 8 Ill . , 259 ; Wright vs . Wilcox,1 9 Wend .
, 343; Moore vs . Sanborn, 2 Mich .
, 5 1 9 ; Croftvs . Alison
,4 B . Ald .
, 590; Johnson vs . Barber, 5Gilman
,425 ; Foster vs . Essex Bank, 1 7 Mass ,
479 .
The rule is that an employer is not liable for a wilfulinjury done by an employe
,though done while in the
course of his employment, unless the employe’s pur
pose was to serve his employer by the wilful act .Where the employe is not acting within the course of
1 90 CARRIERS .
liability,by the carrier, apply in the case Of carriers of
passengers as in the case of common carriers . Anylimitation assented to by the passenger, and whichis not illegal, and does not go to the extent ofrelieving the passenger from responsibility for hisown negligence, is valid . Public notices are notbinding except to the same extent as in the caseof the common carriers . The practically universalcustom of common carriers at the present time isto restrict their liability for baggage to liability forthose articles which are naturally and properly necessary for the use of the passenger on his j ourney .
CH A P T E R I .
INTRODUCTORY .
SECTION 1 . PROPERTY .
The word property may be defined briefly as theexclusive right of possessing
,enj oying and disposing
of lands and chattels .l
SECTION 2 . REAL AND PERSONAL PROPERTY .
Property is divided into real property and personal property . The distinction between these twokinds of property is in some respects a very artificialone ; this being mainly due to the connection of thelaws of property with the Feudal System . The d istinction will be more fully treated under the subject ofReal Property .
’ In general,it may be said, that real
property includes immovable objects,
“ lands,tene
ments,and hereditaments
,
” and all interests in themwhich in quantity amount to a life estate or greater .Personal property includes all immovable objects , allinterests or rights in immovable objects, intangiblerights such as choses in actions
,and estates or inter
ests in real property less than a life estate . A greatdeal of the confusion existing on this subject arisesfrom the use of the term “ property both to describethe tangible object itself and the interest which a person has in such property .
SECTION 3. ABSOLUTE AND!UALIFIED PROPERTY .
Absolute property, is one which consists of a com
plete title to, and control over, a certain thing . !ualiHousel , 1 7 John s , 281 , 283.
Volume VI,Sub ject 1 7.
1 96 PERSONAL PROPERTY
fied property is a special, temporary, or conditionalinterest in a thing . The right of a bailee representsone of the most common species of qualified property .
Certain restrictions exist even upon absoluteownership . All property is subject to the States ’
power of taxation and eminent domain,“ and no person
has the right to use his property to aid in any violationof the law.
‘
SECTION 4 . PORTIONS OF THE SUBJECT OF PERSONALPROPERTY TREATED ELSEWHERE .
A large part of the subject of Personal Propertyis treated elsewhere in this work
,Sales
,
5 and Bailments“ of Personal Property
,have already been dis
cussed . Patents7 and Copyrights,8 are two forms of
intangible personal property which are also treated asseparate subjects . The interests in real propertywhich are classed as personal property will be takenup under the subject of Real Property .
°
Withers vs . Buckley,20How . ,
84 ; Property . This form of stateCharles R iver Bri e vs. War ment is misleading . See Torts
,
ren Ave . Brid ge,7 ick.
,344. Sect ion 69 .
This prohib it ion is sometimes 5 Volume V,Subject 1 1 .
st ated as follows “ A person Volume V,Sub j ect 1 2 .
is not at liberty to so use his 7 Volume V,Sub ject 1 5 .
own as to injure the rights of 8 Volume V,Sub ject 1 6 .
another. Smith ’s Personal Volume V , Sub ject 1 7
98 PERSONAL PROPERTY
in war was formerly of great importance . The rightis now generally limited to captures on water
,and the
extent of the application of this right is being constantly more and more res tricted .
1
(2) and (3) Goods lost or abandoned becomethe property Of the finder
,if the former owner has en
tirely abandoned the intention of reclaiming them .
2
Until such abandonment on the part of the owner,
he may retake his lost chattels,whenever and wherever
he may find them, even in the possession of a bonafid e purchaser .
(4) _Waifs, are stolen goods thrown away by athief in his flight . Formerly
,such goods belonged
to the government if seized by anyone but theowner. At the present time, the government is heldto hold such goods in trust for the true owner .3
(5) Wild animals , or animals ferae natume,
belong to no one . Any person may become the ownerof such animals by reducing them to possession .
Such property is a qualified one,however
,which is
lost upon the escape of the animal . It is said that ifthe animal becomes so far tamed that it will returnto its master ’s house of its own accord
,the qualified
property becomes an absolute one .
SECTION 8. ACCESS ION .
Property may be acquired by accession in thefollowing cases :
( 1 ) The fruits of the earth,either produced
naturally, or by human industry .
(2) The increase of animals .
(3) Materials of one person united to the materials of another .1 See subject of Public White
, 74 Me ., 456.
ticnal Law, Vol . VII , Sub . 38. Kent Com p . 358.
2 Kent , Gom., pp. 356, 357; Liver
METHODS OF ACQUIRING 9 9
(4) Confusion of goods .
( 1 ) The productions of the earth, whether prod uced naturally
,or as a result of human labor
,belong
to the owner of the soil or the person rightfully inin possession thereof.
(2) The increase of animals belong to the ownerof the mother . If domestic animals are hired for alimited period
,their increase during such special period
belongs to the hirer .4
(3) Where materials are furnished by one person,or several
,and are united by the labor of another
,the
joint produce will, in the absence of any agreement,belong to the contributor of the most important orvaluable constituent
,whether it be materials or labor .5
(4) Where a person wrongfully so mingles hisown goods with those of another person
,that they
cannot be separated , the wrongdoer loses his goods,which become the property of the other person .
SECTION 9 . PRODUCTS OF INTELLECTUAL LABOR.
Under the products of intellectual labors are included
, ( 1 ) patents ; (2) copyrights ; (3) letters, and
(4) lectures .
(I) and (2) Patents and copyrights are treatedelsewhere in this volume .
“
(3) Where a letter is written and sent by oneperson to another, the right of property in the letteras a tangible piece of property is in the party receivingit,while the right of property in the letter as an in
tellectual production is in the writer . The receiverof a letter has no right to publish it, without the consent of the writer
,unless such publication is necessary
for the defense of the party receiving it .
Putnam vs . Wile 8 Johns , 432 ; Patents , Subject 1 5, Copyrights,Stewart vs . Be 33 M iss ,
1 54 . Subject 1 6Smith on Personal Property, 341
200 PERSONAL PROPERTY
(4) Lectures are a product of intellectual labor.The party who composed them has a property rightin them and they cannot be published without his consent .
SECTION 1 0. TRADE-MARKS .
A trade-mark has been defined as the name,symbol, figure , letter, form or device , adopted andused by a manufacturer
,or merchant
,in order to
designate the goods that he manufactures, or sells ,and distinguish them from those manufactured orsold by another ; to the end that they may be knownin the market as his, and thus enable him to securesuch profits as result from a reputation for superiorskill
,industry
,or enterprise .
” 7
Unlike patents and copyrights,the right in a
trade-mark is given by the common law instead of bystatute .
“As a general rule
,any name
,mark
,symbol
,or
device which is capable, when known in the market,of distinguishing one person
’s goods from those ofanother, and which other persons cannot use withequal truth as applied to their own goods , may beappropriated as a trade-mark .
8 But no Sign,symbol
,
or form of word s can be appropriated,as a valid trade
mark,which
,from the fact conveyed by its primary
meaning,others may employ with equal truth and
with equal right for the same purpose .
9 Such words ,which may not be monopolized as technical trademarks
,may by use acquire a secondary meaning, as
designating the goods of a particular person,whi ch
Will entitle him to protection against their use by
Upton on Trade-Marks,p . 9 . Babb itt vs . Brown
,68 Hun .
Shaver vs . Shaves , 54 Iowa , 208, (N. 5 1 5 .
37 Am . Rep . ,1 9 4.
202 PERSONAL PROPERTY
such case the resulting inconvenience or loss is d am
It may be that a trade is of such a nature thatthe products of that trade
,when used in connection
with a particular trade-name, have become almostindissolubly connected with the business carried onby a certain manufacturer who has created that particular business . But still, even though that may beso
,and even though the nature of the trade must be
taken into consideration in an action for an injunction,
there never has been a case yet where an order hasbeen made restraining a man altogether from carryingon a particular trade in his own name . Every decisionup to the present time has been limited to restraininghim from carrying on a trade which has thus becomeso identified:with the business of another person,without taking Such steps as any honest man wouldwish to take to prevent his good s being confound edwith the other person ’s goods which have become soidentified with the name.
” 23
“ A person who uses his own name in connectionwith an article manufactured by him cannot
,by ex
tensively advertising such article, acquire the rightto an injunction restraining another person with thesame name from manufacturing and selling a similararticle under his own name, when such other personhas been engaged in such manufacture for many years
,
and there is nothing to indicate a purpose on his partto confuse the two products with each other.
"
But although a person may use his name honestly in his business or on his goods, he cannot resortto any artifice or do any act calculated to delude thepublic into the belief that his business or goods are
”3 Cash vs . Cash,86 L . T . N. S . ,
2 1 1 . Pett i j ohn Cereal Co. , 72 Fed.3‘ American Cereal Co, vs. Eli Rep., 903.
METHODS OF ACQUIRING 203
those of some other person, and thus cause an injuryto the latter beyond that which necessarily resultsfrom the mere similarity of name .
”
It is unfair competition for a person to adopt as abusiness name for his good s a personal name otherthan his own
,when the name so adopted is that of a
business rival,his predecessor in the field
,and has
been used by such rival to designate his own goodsof a similar character .25
An injunction will be granted on the ground ofunfair competition, when the defendant
’s right to usea name similar to the plaintiff ’s rests solely on anagreement with a third person of that name permittingits use
,and the right to use the name was thusprocured
for the purpose of deceiving prospective purchasersas to the identity of the goods designated thereby .
Trade-marks may be acquired by any person,either natural or artificial, who 1 8 capable of acquiringand possessing other kinds of personal property .
2°
SECTION 1 1 . TRANSFER BY ACT OF PARTIES .
Transfer of personal property by the act of theparties may take place through any of the following
( 1 ) Gifts,inter m
'
eos .
(3) Will or testament .
(4) Sales .
(5) Indorsements .
204 PERSONAL PROPERTY
ment will be considered under the subject Wills ,27 and
that by indorsements under the subject Of Bills andNotes .28
SECTION 1 2 . GIFTS .
Gifts are of two kinds : inter vivos and causa
A gift inter vivos is a voluntary,actual and im
mediate transfer Of a thing by one living person toanother living person . Actual delivery is essentialto complete the transfer . Neither the common lawor the equity courts, will attempt to enforce anexecutory promise of a gift .
A gift once completely executed is binding on theparties and cannot be revoked by the donor ; it maybe set aside, however, if in fraud of creditors .
29
Gifts causa mortis are gifts of personal property,
made in prospect of death at no very remote period,
and which are dependent upon the condition of deathoccurring substantially as expected by the donor
,
and that the same be not revoked before his death .
“0
Gifts causa mortis were introduced into the common law from the civil law.
Three elements are necessary in every gift of causa.mortis . (1 ) The donor must make the gift in antici
pation Of his own death ; (2) the donor must actuallydie from the cause from which he expected death ;(3) the property must be delivered .
A gift causa mortis is a conditional gift,the donor
may revoke such a gift at any time before his death,and his recovery always revokes it . Gifts of thischaracter are not favored by the law .
”7 Volume X,Sub . 32.
3° Reed vs . Spaulding,42 N. H. ,
93 Vol . IX,Sub . 26 . 1 1 4 ; Carpenter vs . Dodge , 20
3" Smith on Personal Property, Vt . 59 5 ; Wallace vs . Burdell ,Sec. 78 9 7N. Y . ,
1 31 .
C HA P T E R I I I
PERSONAL PROPERTY—HOW HELD .
SECTION 1 4 . INDIVIDUAL OWNERSHIP.
The most common form of ownership is individualownership . This form of ownership presents no legaldifficulties and requires no explanation .
SECTION 1 5 . JOINT OWNERSHIP.
Joint ownership in its broadest sense,includes all
cases where two or more persons have a commoninterest in the ownership of property . In this senseit includes both j oint tenancy and ownership in common . In the case of j oint tenancy there must existthe four unites of time, title, interest, and possession .
In the case of ownership in common, only unity ofpossession is necessary .
‘
The principle incidents of ownership of personalproperty in common have been summed up as follows
First . The possession of one is the possession ofall
,and allare equally entitled to possession .
Second . One cannot maintain an action againsthis co-tenant to recover possession of the commonproperty ; but he may have an action of tort againsthim for its conversion or destruction .
Third . The interest of one is subject to levy andsale by execution for his debts ; but if the officer sellsthe whole property
,and not merely the interest of the
judgment debtor,he will be liable to an action by the
other cc-owner for his undivided interest .
For a more thorough discussion common , see subject of Realof jo int tenancies and estates in Property, Vol . IV,
Sub . 1 7.
208 PERSONAL PROPERTY .
Fourth . One owner in common of chattels mayrecover from another any money properly expended onit beyond his due proportion ; but there must havebeen a previous request to j oin in making the necessaryrepairs
,unless there exist some agreement or prescrip
tion binding either party exclusively to make repairs .Fifth . Where personal property in common bulk
and of the same quality, severable in its nature, isowned by two or more persons in common
,each may
sever and appropriate his share if it can be determinedby measurement or weight, without the consent of theothers and without liability to an action for the conversion of the common property .
Sixth . Owners in common of personal propertymay maintain a suit in equity for partition ; and incase a division be impracticable they may have a decreefor the sale of the common property
,and a division of
the proceeds .
SECTION 1 6. PARTNERS AND CORPORATIONS .
Property may be owned not only by individualseither severally nor j ointly
,but also by partnership
and corporations . The ownership of personal propertyby partnership or private corporations will be treatedunder these subjects .2
Private Co rations,Vol . VIII , Vol. VIII, Sub ject 24 .
Subject 23,'vate Corporat ions ,
2 1 4 PATENTS .
the Office shall be appointed by the Secretary of theInterior
,upon the nomination of the Commissioner of
Patents .SALARIES .
SECTION 477. The salaries of the officers mentioned in the preceding section shall be as follows
The Commissioner of Patents,
a year .The Assistant Commissioner of Patents,
a year .Three examiners-in-chief
,a year each
BONDS OF COMMISSIONER AND CHIEF CLERK .
Sec. 479 . The Commissioner Of Patents and thechief clerk
,before entering upon their duties
,shall
severally give bond,with sureties
,to the Treasurer of
the United States,the former in the sum of
and the latter in the sum Of conditioned for thefaithful discharge of their respective duties
,and that
they shall render to the proper officers of the treasurya true account of allmoney received by virtue of theiroffices .
RESTRICTIONS UPON OFFICERS AND EMPLOYES .
Sec. 480. All officers and employes of the PatentOffice shall be incapable
,during the period for which
they hold their appointments,to acquire or take,
directly or indirectly,except by inh eritance or bequest,
any right or interest in any patent issued by the Office .
DUTIES OF COMMISSIONER .
SECTION 481 . The Commissioner of Patents,under the direction Of the Secretary of the Interior,shall superintend or perform all duties respecting thegranting and issuing Of patents directed by law ; andhe shall have charge of all books, records, papers,
PATENTS . 2 1 5
models, machines, and other things belonging to thePatent-Office .
DUTIES OF ASSISTANT COMMISSIONER .
SECTION 1 . (Duties of Assistant Commissioner)Patent Office . Assistant Com
missioner, shall perform such duties pertainingto the Office of commissioner as may be assigned tohim by the Commissioner .
DUTIES OF EXAMINERS-IN-CHIEF .
SECTION 482 . The examiners-in-chief Shall bepersons of competent legal knowledge and scientificability
,whose duty it shall be
,on the written petition
of the appellant, to revise and determine upon thevalidity of the adverse decisions of examiners uponapplications for patents
,and for re- issues of patents
,
and in interference cases ; and, when required by theCommissioner
,they Shall hear and report upon claims
for extensions,and perform such other like duties as
ESTAB LISHMENT OF REGULATIONS .
SECTION 483. The Commissioner of Patents,
subject to the approval of the Secretary of the Interior,
may from time to time establish regulations,not in
consistent with law, for the conduct of proceedingsin the Patent-Office.
ARRANGEMENT AND EXHIBITION OF MODELS,ETC .
SECTION 484 . The Commissioner of Patents Shallcause to be classified and arranged in suitable cases
,
in the rooms and galleries provided for that purpose,
2 1 6 PATENTS .
the models,specimens of composition, fabrics, manu
factures,works of art
,and designs
,which have been
or shall be deposited in the Patent-Office ; and therooms and galleries shall be kept open during suitablehours for public inspection .
DISPOSALS OF MODELS ON REJECTED APPLICATIONS .
SECTION 485 . The Commissioner of Patents mayrestore to the respective applicants
,such of the models
belonging to rejected applications as he shall not thinknecessary to be preserved
,or he may sell or otherwise
dispose of them after the application has been finallyrejected for one year, paying the proceeds into thetreasury
,as other patent moneys are directed to be
paid .
LIBRARY .
SECTION 486. There shall be purchased for theuse of the Patent Office
,a library of such scientific
works and periodicals,both foreign and American
,as
may aid the officers in the discharge of their duties,
not exceeding the amount annually appropriated forthat purpose .
PATENT AGENTS MAY BE REFUSED RECOGNITION .
SECTION 487. For gross misconduct,the Com
missioner of Patents may refuse to recognize any person as a patent agent, either generally or in any particular case ; but the reasons for such refusal shall be
d uly recorded , and be subject to the approval of theSecretary of the Interior.
PRINTING OF PAPERS FILED .
SECTION 488. The Commissioner of Patents mayrequire all papers filed in the Patent-Oflice
,if not
21 8 PATENTS .
JOINT RESOLUTION RELATIVE To THE DISPOSITION OFPATENT SPECIFICATIONS AND DRAWINGS IN
THE WESTERN DISTRICT OFPENNSYLVANIA .
(Res . NO . 35 of June 28, 1 902, 32 Stat . L .
(DISPOSAL OF PATENT SPECIFICATIONS AND DRAWINGSIN THE WESTERN DISTRICT OF PENNSYLVANIA . )
That the set of United States patent specificationsand drawings now on deposit in the clerk ’s office of theUnited States District Court for theWestern District ofPennsylvania, pursuant to section four hundred andninety
,Revised Statutes
,be removed therefrom and
deposited in the patent department of the CarnegieLibrary
,in the City of Pittsburg
,Pennsylvania
,subject
to the uses Specified in sections four hundred and
ninety and eight hundred and ninety—four,Revised
Statutes ; and that hereafter the said patent department of the said Carnegie Library of Pittsburg shallbe the place of deposit for the United States patentspecifications and drawings referred to in section fourhundred and ninety
,Revised Statutes
,instead of the
Clerk ’s office of the United States Disrtict Court forthe Western District of Pennsy vania .
ADDITIONAL SPECIFICATIONS AND DRAWINGS .
SECTION 49 1 . The Commissioner of Patents isauthorized to have printed such additional numbersof copies of Specifications and drawings
,certified as
provided in the preceding section, at a price not toexceed the contract price for such drawings
,for sale
,
as may be warranted by the actual demand for thesame ; and he is also authorized to furnish a completeset of such specifications and drawings to any public
PATENTS . 2 1 9
library which will pay for binding the same into volumes to correspond with those in the Patent—Office
,
and for the transportation of the same,and which shall
also provide for proper custody for the same,with
convenient access for the public thereto,under
such regulations as the Commissioner shall deemreasonable .
LITHOGRAPHING AND ENGRAVING .
SECTION 492 . The lithographing and engravingrequired by the two preceding sections shall be awardedto the lowest and best bidders for the interests of theGovernment
,due regard being paid to the execution
of the work,after due advertising by the Congressoinal
Printer under the direction of the Joint Committee onPrinting ; but the Joint Commi ttee on Printing mayempower the Congressional Printer to make immediatecontracts for engraving
,whenever
,in their opinion
,
the exigencies of the publi c service will not justifywaiting for advertisement and award ; or if, in thejudgment of the Joint Committee on Printing
,the work
can be performed under the direction of the Commissioner of Patents more advantageously than in themanner above prescribed
,it shall be so done
,under
such limitations and conditions as the Joint Committeeon Printing may from time to time prescribe .
The Co-power to waive advertisement arises inthe case of an exigency of the public service ?
PR ICE OF COPIES OF SPECIFICATIONS AND DRAWINGS .
220 PATENTS .
shall be determined by the Commissioner of PatentsProvided , That the maximum cost of a copy Shall beten cents .
SECTION 494 . ANNUAL REPORT OF COMMISSIONER .
CUSTODY OF COLLECTIONS OF EXPLORING EXPEDITIONS .
SECTION 495 . The collections of the ExploringExped i tion, now in the Patent-Office, shall be underthe care and management of the Commissioner ofPatents .
DISBURSEMENTS FOR PATENT-OFFICE .
SECTION 496. All disbursements for the PatentOflice shall be made by the disbursement clerk of theInterior Department .
AN ACT FOR REVISING AND PERFECTING THE CLASSIFICATION OF LETTERS PATENT AND PRINTEDPUBLICATIONS IN THE PATENT OFFICE .
(Act of June 1 0, 1 898, ch . 423, 30 Stat . L .
SECTION 1 . Classification of Letters Patent andPrinted Publications . That for the purpose of determining with more readiness and accuracy the noveltyOf inventions for which applications for letters patentare or may be filed in the United States Patent Office
,
and to prevent the issuance of letters patent of theUnited States for inventions which are not new
,the
Commissioner of Patents is hereby authorized anddirected to revise and perfect the classification
,by
subjects-matter,of all letters patent and printed
publications in the United States Patent Office whichconstitute the field of search in the examination as tothe novelty of invention for which applications forpatents are or may be filed .
222 PATENTS .
equity to cancel a patent obtained by fraud,mistake
or accident .7
CONTENTS AND DURATION .
SECTION 4884 . Every patent shall contain ashort title or description of the invention or discovery
,
correctly indicating its nature and design,and a grant
to the patentee,his heirs or assigns
,for the term of
seventeen years,of the exclusive right to make
,use
,
and vend the invention or discovery throughout theUnited States
,and the Territories thereof
,referring to
the specification for the particulars thereof . A copyof the specification and drawings Shall be annexed tothe patent and be a part thereof .
A patent can cover only one invention ?
“Patents Should be construed liberally
,in accord
ance with the design of the Cons titution and the patentlaws of the United States , to promote the progress ofthe useful arts
,and allow inventors to retain to their
own use,not anything which is matter of common
right,but what they themselves have created .
” 9
DATE OF PATENT .
SECTION 4885 . Every patent shall bear date asof a day not later than six months from the time atwhich it was passed and allowed
,and notice thereof
was sent to the applicant or his agent ; and if the finalfee is not paid within that period the patent shall bewithheld .
A patent takes effect from the time when it isgranted and cannot be antedated .
7 United States vs . American Be ll W inans vs . Denmead ,1 5 How . ,
Telephone Co .,1 28 S . ,
31 5. 341 .
Sessions vs. Romad ka , 2 1 Fed .Rep . ,
1 24 . noux Elec. Co. , 1 7 Fed . Rep.,
PATENTS . 223
WHAT INVENTIONS ARE PATENTABLE .
SECTION 4886 . Any person who has invented or
discovered any new and useful art,machine
,manufac
ture, or composition of matter, not known or used byothers in this country
,before his invention or discovery
thereof,and not patented or described in any printed
publication in this or any foreign country,before his
invention or discovery thereof,or more than two years
prior to his application,and not in public use or on
sale in this country for more than two years prior to hisapplication
,unless the same is proved to have been
abandoned,may upon payment of the fees required
by law,and other due proceeding had
,obtain a patent
therefor.
A patent is void if it is not issued to one who isthe original inventor of the patented device or to onewho claims under the right of the inventor . 1 1 Wherethere are rival inventors
,the one who first conceives
the idea is entitled to a patent if he uses reasonablediligence to perfect the invention and adapt it to use
,
and in reality does SO adapt it,although he may not
be the first to reduce the invention to actual use .
1 2
The only patentable inventions are those belonging to the classes stated in the statute .
1 3 It is not theobject of the patent laws to grant a monoply for everytrifling device which would naturally and spontaneouslyoccur to any skilled mechanic .
“
The product and the process constitute one discovery .
1 5
Invention is any new arrangement or combination
Allen vs . Gilman , 2 Pat . of Laz . ,Upton
, I. B . A. Pat . Cas .
9 607.
Slawson vs. t . .R Co. ,
1 07 U. S . ,649 .
Mosler Safe , etc. , Co. ,1 27 U. S .,
Co. vs. 354.
224 PATENTS .
of Old or new material prod ucing a new and usefulresult .“ It is the work of the head as distinguishedfrom the work of the hands .
An invention to be patentable mus t have utility .
By a useful invention is meant one which may beapplied to some beneficial use to society ; an inventionwhose use would bemischievous or injurious to moralscannot be patented .
1 9
An invention must also be novel 2° and not havebeen in public use .
2 1 As a general rule a single un
restricted sale by the patentee of his patented deviceembodying his completed invention, is a public useor sale within this section .
22
Abandonment is the dedication or relinquishmentto the public by the inventor of his exclusive rights tothe invention .
”
PATENTS FOR INVENTIONS PREVIOUSLY PATENTEDABROAD .
SECTION 4887. N0 person otherwise entitledthereto Shall be debarred from receiving a patent forhis invention or discovery
,nor Shall any patent be
declared invalid,by reason of its having been firs t
patented or caused to be patented by the inventor orhis legal representatives or assigns in a foreign country,unless the applicatoin for said foreign patent wasfiled more than seven months prior to the filing of theapplication in this country
,in which case no patent
shall be granted in this country .
McCormick vs. Seymour , 1 5 Fed .
”0 Wh itney vs. Emmett,Baldw.
Cas . No. 8 S . )‘7 Blandy vs . Guffith
,3 Fed . Pat . Henry vs . Providence Coal Co. ,
3B . & A . Pat . Gas . l l Fed .
Atlantic Works vs. Brady, 1 07 Gas . No. 6 , 384,S 1 92 3’ Egbert vs . Lippman ,
1 04 U. S . ,
‘9 Bedford vs
o
. Hunt, 1 Mason 333.
(U. 302. United States vs. Hall , 8D.C. ,1 9 .
226 PATENTS .
the licensee may know how to use and practice the invention during the term of the patent ; and that subsequent inventors may know what portion of the fieldof invention has been occupied .
27
The object or purpose of a claim is to secure to theinventor all of that to which he is entitled and also toinform the public of what is still open to them .
“8
DRAWINGS,WHEN REQUISITE .
SECTION 4889 . When the nature Of the caseadmits of drawings
,the applicant shall furnish one
copy Signed by the inventor or his attorney in fact,and attested by two witnesses
,which shall be filed in
the Patent-Office, and a copy of the drawing, to befurnished by the Patent-Office shall be attached tothe patent as a part of the specification .
SPECIMENS OF INGREDIENTS,ETC .
SECTION 4890. When the invention or discoveryis of a composition of matter, the applicant, if re
quired by the Commissioner,shall furnish specimens
of ingredients and of the composition,sufficient in
quantity for the purpose of the experiment .
MODEL,WHEN REQUISITE .
SECTIO N 489 1 . In all cases which admit of presentation by model, the applicant, if required by theCommissioner, shall furnish a model of convenientsize to exhibit advantageously the several parts ofhis invention or discovery .
OATH REQUIRED FROM APPLICANT .
SECTION 4892 . The applicant shall make oaththat he does verily believe himself to be the original
Tucker vs. Tucker Mf Co . , 4 Brooks vs. Fiske, 1 5 How., 21 2.
Cliff. (U. 397, 24 ed . Gas.
0. 1 4, 227.
PATENT S . 227
and first inventor or discoverer of the art,machine
,
manufacture , composition, or improvement for whichhe solicits a patent ; that he does not know and doesnot believe that the same was ever before known orused ; and shall state of what country he is a citizen .
Such oath may be mad e before any person within theUnited States authorized by law to administer oaths
,
or when the applicant resides in a foreign country,
before any minister,charge d ’affaires
,consul
,or com
mercial agent, holding commission under the Government of the United States, or before any notary publicof the foreign country in which the applicant may be .
But where a patent is granted without an oath,
its omission does not affect the validity of the patent .”
EXAMINATION AND ISSUING PATENT .
SECTION 4893. On the filing of any such application and the payment of the fees required by law
,the
Commissioner of Patents shall cause an examinationto be made of the alleged new invention or discovery ;and if on such examination it shall appear that theclaimant is justly entitled to a patent under the law
,
and that the same is sufficiently useful and important,the commissioner shall issue a patent therefor.
The determination of all questions of law or factinvolved in the allowance or rejection of an application is primarily within the jurisdiction of the patentoffice ?O
3° Hunt vs . Howe,Mac.A. Pat . Cas . ,
366 , 1 2 Fed . Gas. No. 8, 89 1 .1 7, 600.
228 PATENTS .
LIMITATION UPON THE TIME OF COMPLETING APPLICATIONS .
SECTION 4894. All applications for patents shallbe completed and prepared for examination withinone year after the filing of the application, and in default thereof
, or upon failure of the applicant to prosecute the same within one year after any action therein,of which notice shall have been given to the applicant,they shall be regarded as abandoned by the partiesthereto, unless it be shown to the satisfaction of theComm issioner of Patents that such delay was un
avoidable .
Under such circums tances it is not the inventionwhich is regarded as abandoned
,but the application .
31
PATENTS To GOVERNMENT OFFICERS FOR INVENTIONSTO BE USED IN PUBLIC SERV ICE .
The Secretary of the Interior and theCommissioner of Patents are authorized to grant anyofficer of the government
,except officers and em
ploy es of the Patent Office, a patent for any inventionof the classes mentioned in Section 4886 of the RevisedStatutes, when such invention is used or to be usedin the public service
,without the payment of any fee :
Provided,that the applicant in his application Shall
state that the invention described therein,if patented
,
may be used by the government or any of its Officersor employes in the prosecution of work for the government, or by any other person in the United States,without the payment to him of any royalty thereon,which stipulation Shall be included in the patent .
Lindsay Vs. Ste in , 1 0 Fed . Rep ., 907.
230 PATENTS .
No assignment of an unpatented invention is requiredto be recorded unless it is an assignment on which apatent is to be issued to the assignee .
33
WHEN AND ON WHAT OATH EXECUTOR OR ADMINI S
TRATOR,GUARDIAN
,ETC .
, OF INSANEPERSON MAY OBTAIN PATENT .
SECTION 4896 . When any person, having madeany new invention or discovery for which a patentmight have been granted , d ies before a patent isgranted
,the right of applying for and obtaining the
patent shall devolve on his executor or ad ministrator,in trust for the heirs at law Of the deceased
,in case he
shall have died intestate ; or if he shall have left a will,disposing of the same, then in trust for his deviseesin as full manner and on the same terms and conditions as the same might have been claimed or enjoyedby him in his lifetime ; and when any person havingmade any new invention or discovery for which apatent might have been granted becomes insane beforea patent is granted, the right of applying for andobtaining the patent shall devolve on his legally appointed guardian, conservator, or representative intrust for his estate , in as full manner and on the sameterms and conditions as the same might have beenclaimed or enjoyed by him whi le sane ; and when theapplication is made by such legal representatives
,the
oath or aflirmation required to be mad e shall be sovaried in form that it can be made by them .
The foregoing section, as to insane persons, is tocover all applications now on file in the Patent Office
,
or which may be hereafter made .
5 Wright vs. Randell , 8 Fed . Rep ., 59 1 .
PATENTS . 231
RENEWAL OF APPLICATION IN CASES OF FAILURE To
PAY FEES IN SEASON .
SECTION 4897. Any person who nas an interestin an invention or discovery
,whether as inventor,
discoverer,assignee
,for which a patent was ordered ,
to issue upon the payment of the final fee,but who
fails to make payment thereof within Six months fromthe time at which it was passed and allowed
,and
notice thereof was sent to the applicant or his agent,
shall have a right to make an application for a patentfor such invention or discovery the same as in thecase of an original application . But such secondapplication must be made within two years after theallowance of the original application . But no personshall be held respons ible in damages for the manufacture or use of any article or thing for which apatent was Ordered to issue under such renewed ap
plication prior to the issue of the patent . And uponthe hearing of renewed applications preferred underthis section, abandonment shall be considered as aquestion of fact .
PERSONS PURCHASING OF INVENTOR,BEFORE AP
PLICATION, MAY USE OR SELL THE THINGPURCHASED .
SECTION 4899 . Every person who purchases ofthe inventor
,or discoverer
,or with his knowledge and
consent constructs any newly invented or discoveredmachine
,or other patentable article
,prior to the
application by the inventor or d iscoverer for a patent,.or who sells or uses one so constructed
,shall have the
right to use and vend to others to be used, the specificthing so made or purchased
,without liability therefor .
232 PATENTS .
This section does not grant the right to an invention any further than to the extent of the machinesconstructed pri or to the application for the patent ?4
FILING AND EFFECT OF CAVEATS .
SECTION 4902 . Any citizen of the United Stateswho makes any new invention or discovery
,and de
sires further time to mature the same,may
,on pay
ment of the fees required by law,file in the Patent
Ofli ce, a caveat setting forth the design thereof, andof its distinguishing characteristics
,and praying pro
tection of his right until he shall have matured hisinvention . Such caveat shall be filed in the confid ential archives of the Office and preserved in secrecy
,
and shall be operative for the term of one year fromthe filing thereof ; and if the application is made withinthe year by any other person for a patent with whichsuch caveat would in any manner interfere
,the Com
missioner shall deposit the description,specification,
drawings,and model of such application in like manner
in the confidential archives of the Office,and give notice
by mail thereof,to the person by whom the caveat
was filed . If such person desires to avail himself ofhis caveat
,he shall file his description, specifications,
drawings, and model . within three months from thetime of placing the notice in the post-office in Washington, with the usual time required for transmittingit to the caveator added thereto ; which time Shall beindorsed on the notice . An alien Shall have the privilege herein granted, if he has resided in the UnitedStates one year next preceding the filing of his caveat,and has made oath of his intention to become a citizen .
The purpose of this section is to secure an oppor
Birckill vs. New York , 7 Fed . Rep ., 479 .
234 PATENTS .
proceed to determine the question of priot of invention . And the Commissioner may issue a patent tothe party who is adjudged the prior inventor
,unless
the adverse party appeals from the decision of theprimary examiner, or of the board of examiners-inchief as the case may be, within such time, not lessthan twenty days, as the Commissioner shall prescribe .
An interference means a dispute on the questionof priority of invention?“ A failure to declare aninterference is not conclusive .
AFFIDAVITS AND DEPOSITIONS .
SECTION 4905 . The Commissioner of Patentsmay establish rules for taking affidavits and depositionsrequired in cases pending in the Patent-Office, andsuch affidavits and depositions may be taken beforeany Officer authorized by law to take depositions tobe used in the courts of the United States, or of theState where the officer resides .
SUBPOENAS TO WITNESSES .
SECTION 4906 . The clerk of any court of theUnited States
,for any district or Territory wherein
testimony is to be taken for use in any contested casepending in the Patent-Office, shall, upon the application of any party thereto, or of his agent or attorney,issue a subpoena for any witness residing or beingwithin such district or Territory, commanding himto appear and testify before any officer in such districtor territory authorized to take depositions and affi
davits,at any time and place in the subpoena stated .
But no witness Shall be required to attend at any3“ United States vs . Salamander Hicks Vs . Shawer, 3 App . Con.
Felting Co. vs. Asbestos Felt Pat 439,1 2 Fed . Gas. No. 6,
ing Co. ,4 Fed . Rep . , 81 3.
PATENTS . 235
lace more than forty miles from the place where the.ibpoena is served upon him.
WITNESS FEES .
SECTION 4907 . Every witness duly subpoenaednd in attendance shall be allowed the same fees as.re allowed to witnesses attending the courts Of thelnited States .
)ENALTY FOR FAILING To ATTEND OR REFUSING To
TESTIFY .
SECTION 4908. Whenever any witness, after beingluly served with such subpoena neglects or refuses0 appear, or after appearing refuses to testify , theud ge of the court whose clerk issued the subpoenanay
,on proof of such neglect or refusal
,enforce
ibed ience to the process, or punish the disobedience ,LS in other like cases . But no witnesses shall beleemed guilty of contempt for disobeying such sub>oena, unless his fees and traveling expenses in going.0,and returning from,
and one day ’s attendance at.he place of examination
,are paid or tendered him at
he time of the service of the subpoena ; nor for re'
using to disclose any secret invention or discovery
APPEALS FROM PRIMARY EXAM INERS TO EXAMINERSIN-CHIEF .
SECTION 4909 . Every applicant for a patent oror the re-issue of a patent
,any Of the claims of which
236 PATENTS .
FROM EXAMINERS-IN-CHIEF To COMMISSIONER .
SECTION 49 1 0. If such party is dissatisfied withthe decision of the examiners-in—chief
,he may
,on
payment of the fee prescribed,appeal to the Com
missioner in person .
FROM THE COMMISSIONER To THE SUPREME COURT .
SECTION 49 1 1 . FROM THE COMMISSIONER TOTHE SUPREME COURT OF APPEALS
,D . C .
SECTION 9 . That the determination of appealsfrom the decision of the Commissioner of Patents
,now
vested in the general term of the supreme court of theD istrict of Columbia, in pursuance of the provisionsof section seven hundred and eighty of the RevisedStatutes of the United States
,relating to the District
of Columbia,shall hereafter be and the same is hereby
vested in the court of appeals created by this act ; andin addition
,any party aggrieved by a decision of the
Commissioner of Patents in any interference case mayappeal therefrom in said court of appeals .
NOTICE OF SUCH APPEAL .
SECTION 49 1 2 . When an appeal is taken to theSupreme Court Of the District of Columbia, the appellant shall give notice thereof to the Commissioner, andfile in the Patent-Office, within such tirne as the Commissioner shall appoint
,his reasons of appeal
,spe
cifically set forth in wri ting .
PROCEEDINGS ON AP PEAL To SUPREME COURT .
SECTION 49 1 3. The court shall, before hearingsuch appeal
,give notice to the Commissioner Of the
time and place of the hearing, and on receiving such
238 PATENTS .
by the supreme court of the District of Columbia uponappeal from the Commissioner, the applicant mayhave remedy by bill in equity ; and the court havingcognizance thereof
,on notice to adverse parties and
other due proceed ings had, may ad judge that suchapplicant is entitled
,according to law,
to receive apatent for his invention, as specified in his claim, orfor any part thereof, as the facts in the case mayappear. And such adjudication, if it be in favor ofthe right of the applicant
,shall authorize the Com
missioner to issue such patent on the applicant filingin the Patent-Office a copy of the adjudication, andotherwise complying with the requirements of law. Inall cases
,where there is no opposing party
,a copy of
the bill shall be served on the Commissioners ; and allthe expenses of the proceeding Shall be paid by theapplicant
,whether the final decision is in his favor or
not .
RE-ISSUE OF DEFECTIVE PATENTS .
SECTION 49 1 6. Whenever any patent is inoperative or invalid, by reason of a defective or insuflicientspecification, or by reason of the patentee claiming
as his own invention or discovery more than he had a
tight to claim as new, if the error has arisen by inadvertence, accident, and without any fraudulentor deceptive intention, the Commissioner shall, onthe surrender of such patent and the payment of theduty required by law, cause a new patent for the sameinvention
,and in accordance with the corrected
specification,to be issued to the patentee
,or
,in the
case of his death or Of an assignment of the whole orany undivided part Of an original patent
,then to his
executors,administrators, or assigns , for the unexpired
PATENTS . 239
part of the term of the original patent . The Commissioner may, in his discretion, cause several patentsto be issued for distinct and separate parts of the thingpatented
,upon demand of the applicant
,and upon
payment Of the required fee for a re- issue for each ofsuch re-issued letters-patent . The specifications andclaim in every such case shall be subject to revisionand restriction in the same manner as original applications are . Every patent so re-issued
,together with
the corrected specification,shall have the same effect
and operation in law,on the trial of all actions for
causes thereafter arising, as if the same had beenoriginally filed in such corrected form ; but no newmatter shall be introduced into the specification
,nor
in case of a machine-patent Shall the model or drawingsbe amended
,except each by the other ; but when
there is neither model nor drawing, amendments maybe made upon proof satisfactory to the Commissionerthat such new matter or amendment was a part of theoriginal invention
,and was omitted from the specifi
cation by inadvertence , accident, or mistake, as afore
The object of this section of the statute is toenable patentees to remedy accidental mistakes andthe law is perverted when any other end is secured bythe re-issue.
“l A commissioner of patents has no discretion to refuse a re-issue in a proper case .
DISCLAIMER .
SECTION 49 1 7. Whenever, through inadvertence,accident
,or mistake
,and without any fraudulent or
deceptive intention,a patentee has claimed more than
Eames vs. Andrews, 1 22 U. S . 40. Exp . Dry son ,3 Ap Com. Pat . ,
375, s Fed. Gas. 130 . 4, 228.
240 PATENTS .
that of which he was the original or first inventor ordiscoverer
,his patent shall be valid for all that part
which is truly and justly his own, provided the sameis a material or substantial part of the thing patented ;and any such patentee
,his heirs or assigns , whether
of the whole or any sectional interest therein,may
,on
payment of the fee required by law,make disclaimer
of such parts of the thing patented as he shall notchoose to claim or hold by virtue of the patent orassignment
,stating therein the extent of his interest
in such patent . Such disclaimer Shall be in writing,attested by one or more witnesses, and recorded in thePatent-Office ; and it shall thereafter be cons ideredas part of the original specification to the extent of theinterest possessed by the claimant and by those claiming under him and after the record thereof . But nosuch disclaimer Shall affect any action pending at thetime of its being filed, except so far as may relate tothe question of unreasonable neglect or delay in filingit .
This statute is remedial in its nature and shouldbe liberally cons trued?“ A disclaimer is necessary tokeep the patent valid where the part claimed Withoutright is a material and substantial part of the invention .
‘4
SUITS TOUCHING INTERFERING PATENTS .
SECTION 49 1 8. Wherever there are interferingpatents
,any person interested in any one of them
,or
in the working of the invention cla imed under eitherof them
,may have relief against the interfering paten
tee,and all parties interested under him
,by suit in
equity against the owners of the interfering patent ;‘3 O
’Reilly vs. Morse, 1 5 How. , 62. Vance vs . Campbell, 1 Black., 427
242 PATENTS .
tained value of the invention or discovery,and of
his receipts and expenditures on account thereof,
sufficiently in detail to exhibit a true and faithfulaccount of the loss and profit in any manner accruingto him by reason of the invention or d iscovery . Suchapplication shall be filed not more than Six months norless than ninety days before the expiration of theoriginal term of the patent ; and no extension shall begranted after the expiration of the original term .
WHAT NOTICE OF APPLICATION FOR EXTENSION MUSTBE GIVEN .
SECTION 4925. Upon the receipt of such application
,and the payment of the fees required by law
,the
Commissioner shall cause to be published in one newspaper in the City of Washington
,and in such other
papers published in the section of the country mostinterested adversely to the extension of the patent ashe may deem proper, for at least sixty days prior tothe day set for hearing the case
,a notice of such appli
cation,and of the time and place when and where the
same will be considered, that any person may appearand Show cause why the extension should not begranted .
APPLI CATIONS FOR EXTENSION, To WHOM To BE RE
FERRED .
SECTION 4926. Upon the publication of thenotice of an application for an extension
,the Commis
sioner shall refer the case to the principal examinerhaving charge of the class of inventions to which itbelongs
,who Shall make the Commissioner a full
report of the case , stating particularly whether theinvention or discovery was new and patentable whenthe original patent was granted .
PATENTS . 243
COMMISSIONER To HEAR AND DECIDE THE!UESTIONOF EXTENSION .
SECTION 4927 . The Commissioner Shall,at the
time and place designated in the published notice,hear
and decide upon the evidence prod uced, both for andagainst the extens ion ; and if it shall appear to thesatisfaction of the Commissioner that the patentee
,
Without neglect or fault on his part,has failed to Obtain
from the use and sale of his invention or discovery areasonable remuneration for the time, ingenuity, andexpense bestowed upon it
,and the introduction of it
into use,and that it is just and proper, having due
regard to the public interest,that the term of the
patent Should be extended,the Commissioner shall
make a certificate thereon,renewing and extending
the patent for the term of seven years from the expiration Of the first term . Such certificate shall be recordedin the Patent-Office ; and thereupon such patent shallhave the same effect in law as though it had beenoriginally granted for twenty-one years .
OPERATION OF EXTENSION .
SECTION 4928. The benefit of the extens ion Of apatent shall extend to the assignees and grantees ofthe right to use the thing patented , to the extent of
ASSIGNMENTS OF PATENTS .
SECTION 4898 . Every patent or any interesttherein shall be assignable in law by an instrument in
244 PATENTS .
subsequent purchaser or mortgagee for a valuableconsideration, without notice, unless it is recordedbefore any notary public Of the several States orTerritories or the District of Columbia
,or any Com
missioner of the United States circuit court,or before
any secretary of legation or consular officer authorizedto administer oaths or perform notarial acts undersection seventeen hundred and fifty of the RevisedStatutes
,the certificate of such acknowledgment
,under
the hand and Official seal Of such notary or other Officer,shall be prima facie evidence of the execution of suchassignment
,grant or conveyance .
An assignment of a patent may be compelled bya bill in equity,
45 or under supplementary proceedings,
“
but cannot be sold on execution .
47
An agreement to assign a patent,whether made
before or after its issuance is an agreement toassign a patent
,is not within the provisions of the
Statute of frauds,and need not be in writing
,
“ but theassignment itself must be un der the form prescribedby the Federal statutes?“
PATENTED AR TICLES MUST BE MARKED AS SUCH .
SECTION 4900. It Shall be the duty of all patentees
,and their assigns and legal representatives
,and
of all persons making or vending any patented articlefor or under them to give sufficient notice to the publicthat the same is patented : either by fixing thereon theword “ patented
,
” together with the day and year thepatent was granted ; or when, from the character of“5 Ager vs . Murray , 1 05 U. S . ,
1 26 . Nesmith vs . Calvert , 1 Wood b .
Newton vs . Buck,77 Fed . Rep . ,
M . (U. 34 .
6 1 4. Dalzell vs. Dueber Watch Case‘7 Peterson vs . San Francisco
,1 1 5 Mfg . Co .
,1 49 U. S . , 31 9 .
Cal .
,2 1 1 . Jewett vs . Atwood Suspender
Co . , 1 00 Fed . Rep . , 647.
246 PATENTS .
SUITS FOR INFRINGEMENT—DAMAGES .
SECTION 49 1 9 . Damages for the infringement Ofany patent may be recovered by action on the case , inthe name of the party interested, either as patentee,assignee, or grantee . An d whenever in any suchaction a verdict is rendered for the plaintifl , the courtmay enter jud gment thereon for any sum above theamount found by the verdict as the actual damagessustained
,according to the circumstances Of the case,
not exceeding three times the amount of such verdict,together with the costs .
AN ACT DEFINING THE JURISDICTION OF THE UNITEDSTATES CIRCUIT COURTS IN CASES BROUGHT
FOR THE INFRINGEMENT OF LETTERS
(INWHAT DISTRICT SUI T MAY BE BROUHT—SERVICEOF PROCESS .)
That in suits brought for the infringement ofletters patent the circuit courts of the United Statesshall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant
,or in any
d istrict in which the defendant, whether a person,partnership, or corporation, shall have committed actsof infringement and have a regular and establishedplace of business . If such suit is brought in a districtof which the defendant is not an inhabitant, but inwhich such defendant has a regular and establishedplace of business , service Of process , summons , orsubpoena upon the defendant may be made by serviceupon the agent or agents engaged in conducting suchbusiness in the district in which the suit is brought .
PATENTS . 247
PLEADINGS AND PROOF ON ACTIONS FOR INFRINGEMENT .
SECTION 4920. In any action for infringementthe defendant may plead the general issue
,and
,having
given notice in writing to the plaintiff or his attorneythirty days before, may prove on trial any one or moreof the following special matters :
First . That for the purpose of deceiving thepublic the description and specification filed by thepatentee in the Patent Office was made to contain lessthan the whole truth relative to his invention ordiscovery
,or more than is necessary to produce the
desired effect ; orSecond . That he has surreptitiously or unjustly
obtained the patent for that which was in fact inventedby another, who was using reasonable diligence inadapting and perfecting the same ; or
Third . That it has been patented or described insome printed publication prior to his supposed invention or discovery thereof, for more than two years priorto his application for a patent therefor ; or
Fourth . That he was not the original and firstinventor or discoverer of any material and substantialpart of the thing patented ; or
Fifth . That it had been in public use or on salein this country for more than two years before hisapplication for a patent
,or had been abandoned to
the public .And in notices as to proof of previous invention
,
knowledge, or use of the thing patented, the defendantshall state the names of the patentees and the datesof their patents , and when granted, and the names andresidences Of the persons alleged to have invented or tohave had the prior knowledge of the thing patented
,
and where and by whom it had been used ; and if any
248 PATENTS .
one or more Of the special matters alleged shall befound by the defendant
,judgment shall be rendered
for him with costs . And the like defenses may bepleaded in any suit in equity for relief against analleged infringement ; and proofs of the same may begiven upon like notice in the answer of the defendant,and with the like effect .
TRIAL BY JURY OF!UESTIONS OF FACT IN EQUITYCASES .
That said courts (circuit courts of the UnitedStates) , when sitting in equity for the trial of patentcauses
,may impanel a jury of not less than five and
not more than twelve persons,subject to such general
rules in the premises as may, from time to time, bemade by the Supreme Court
,and submit to the court
such questions of fact arising in such cause as suchcircuit court shall deem expedient ; and the verdictof such jury Shall be treated and proceeded upon in thesame manner and with the same effect as in the caseof issues sent from Chancery to a court Of law andreturned with such find ings .
POWER OF COURTS TO GRANT INJUNCTIONS AND ESTIMATE DAMAGES .
SECTION 4921 . The several courts ves ted withjurisdiction of cases arising under the patent laws Shallhave power to grant injunctions according to thecourse and principles of courts of equity
,to prevent
the violation of any right secured by patent,on such
terms as the court may deem reasonable ; and upon adecree being rendered in any such case for an infringement the complainant shall be entitled to recover, inad dition to the profits to be accounted for by the
250 PATENTS .
costs shall be recovered unless the proper disclaimerhas been entered at the Patent-Office before the commencement Of the
’
suit . But no patentee shall beentitled to the benefits of this section if he has un
reasonably neglected Or delayed to enter a disclaimer.
PATENTS FOR DESIGNS AUTHORIZED .
SECTION 4929 . Any person who has invented anynew
,original and ornamental design for an article of
manufacture not known or used by others in thiscountry before his invention thereof, and not patentedor described in any printed publication in this or anyforeign country before his invention thereof, or morethan two years prior to his application, and not inpublic use or on sale in this country for more thantwo years prior to his application
,unless the same is
proved to have been abandoned,may , upon payment
of the fees required by law and other due proceedingshad , the same as in cases of inventions or discoveriescovered by section forty-eight hundred and eighty-sixobtain a patent therefor .
MODELS OF DESIGNS .
SECTION 4930. The commissioner may dispensewith models of designs when the design can be sufliciently represented by drawings or photographs .
DURATION OF PATENTS FOR DESIGNS .
SECTION 4931 . Patents for designs may be
granted for the term of three years and S ix months, orfor seven years
,or for fourteen years
,as the applicant
may,in his application
,elect .
EXTENSION OF PATENTS FOR DESIGNS .
SECTION 4932. Patentees of designs issued priorto the 2d day of March, 1 861 , sha ll be entitled to ex
PATENTS . 251
tension Of their respective patent for the term ofseven years in the same manner and under the samerestrictions as are provided for the extension of patents for inventions or discoveries
,issued prior to the
2d day of March,1 861 .
PATENTS FOR DESIGNS SUBJECT To GENERAL RULESOF PATENT LAW .
SECTION 4933. All the regulations and provisionswhich apply to obtaining or protecting patents forinventions or discoveries not inconsistent with theprovisions of title, Shall apply to patents for designs .
AN ACT To AMEND THE LAW RELATING TO PATENTS,
TRADE-MARKS,AND COPYRIGHTS .
SECTION 1 . (Unauthorized use of patented design— penalty and liability —suits .) That, hereafter,during the term of letters patent for a design
,it Shall
be unlawful for any person other than the owner ofsaid letters patent
,without the license of such owner,
to apply the design secured by such letters patent,or
any colorable imitation thereof, to any article Ofmanufacture for the purpose of sale
,or to sell or expose for
sale any article of manufacture to which such designor colorable imitation shall, without the license of theowner
,have been applied, knowing that the same has
been so applied . Any person violating the provisions ,or either of them
,of this section, shall be liable in the
amount of $250; and in case the total profit made byhim from the manufacture or sale, as aforesaid, of thearticle or articles to which the design or colorableimitation thereof has been applied
,exceeds the sum Of
3250, he Shall be further liable for the excess of suchprofit over and above the sum of 3250. And the full
252 PATENTS .
amount of such liability may be recovered by theowner of the letters patent
,to his own use
,in any
circuit court of the United States,or upon a bill in
equity for an injunction to restrain such infringement .
SECTION 2 . (Remedy by existing law.) Thatnothing in this act contained shall prevent, lessen,impeach, or avoid any remedy at law or in equitywhich any owner of letters patent for a design
, ag
grieved by the infringement of the same,might have
had if this act had not been passed ; but such ownershall not twice recover the profit made from the infringement .
FEES IN OBTAINING PATENTs ; ETC .
SECTION 4934 . The following Shall be the ratesfor patent fees :
On filing each original application for a patent,
except in design cases, 31 5 .
On issuing each original patent,except in design
cases, 820.
In design cases : For three years and Six months,
31 0; for seven years, 31 5 ; for fourteen years, 330.
On filing each caveat, $ 1 0.
On every application for the re- issue Of a patent,
On filing each disclaimer, $ 1 0.
On every application for extension of a patent, $50.
On the granting Of every extension of a patent, $50.
On an appeal for the first time from the primaryexaminers to the examiners-in—chief
, $ 1 0.
On every appeal from the examiners-in-chief tothe Commissioner, 820.
For certified copies -
of patents and other papers,
58 COPYRIGHTS .
be under the control Of the Librarian of Congress,
and kept and preserved in the Library of Congress ;and the Librarian of Congress shall have the immediatecare and supervision thereof, and, under the supervision of the j oint committee of Congress on the Library
,
shall perform all acts and duties required by law touching copy rights .
PERSONS AND PUBLICATIONS ENTITLED TO COPYRIGHTS .
Sec. 4952 . The author,inventor
,designer
,or
proprietor of any book, map chart , dramatic, or musicalcomposition, engraving, cut, print, or photograph,or negative thereof, or of a painting, drawing, chromo,statue
,statuary
,and of models or designs intended
to be perfected as works of the fine arts,and the
executors,administrators, or assigns of any such person
shall,upon complying with the provisions Of this
chapter,have the sole liberty of printing
,reprinting
,
publishing,completing
,copying , executing , finishing
,
and vending the same ; and, in the the case of dramaticcomposition
,of publicly performing or representing it
or causing it to be performed or represented by others ;and authors or their assigns shall have the exclusiveright to dramatize and trans late any Of their works forwhich copyright shall have been Obtained under thelaws of the United States .
Books rest safely under copyright which showonly ordinary Skill and diligence in their preparation .
The courts will not undertake to assume the functions ofcritics or to measure carefully the degree of originalityor literary training involved .
4
Henderson vs. Tompkins , 60 Fed . Rep . , 758.
COPYRIGHTS . 59
There can be no precise rule laid down as a test oforiginality ; a book may be original in the eye of thelaw when it is not in the eye of the critic .
“
A copyright may be taken out in the name of atrustee,
“ a corporation,7 or in the name or style under
which a person is carrying on bus iness .“
An abridgement Of another book,
“ an articleforming part of an encyclopaedia , or a single pagecomplete in itself “1 are all proper subjects of copyright . So, also is a photograph of such a character asto be considered as a product of the plaintiff’s intellectual invention .
Legal blanks may be copyrighted,
” and alsothose parts of annotated state statutes which are thework of the author .“
Some things which have been held incapable ofcopyright are the following
An inchoate and intended publication .
The labor done by judicial officers in the dischargeor their judicial duties?“
The laws and public records Of a state .
A particular method of making maps,or a
particular plan for gathering information?“
The title as distinct from the work which it isused to designate .
“0
Boucicault vs. Fox , 5 Blatcf.(U. 87.
Hanson vs . Jaccard Jeneby Co . ,
32 Fed . Rep . , 20
Mutual Advertising Co . vs . Reioed 96 1 .76 FHpScribner vs . enry G
49 Fed . Re 854.
Ho combe , 4 McLean ,
Black vs .49 Fed .
Scovilel vs West . L. J84 Fed . Gas . No.
1 1 1 U. S 53.
‘3 Br
figehtley vs . Littleton , 37 Fed .
p . ,
Howell vs . M iller , 9 1 Fed . Rep . ,
1 29
Centennial Catalogue CO . vs .Porter
,3 Cent . L . J. ,
5 Fed . Cas . No.
Banks vs . Manchester,1 28 U S . ,
244 .
‘7 Davidson vs . Wheelock , 27 Fed .
Rep .
, 6 1 .
‘8 Perris vs . Hexamer,99 U. S . 674.
‘9 Bumell vs. Chawn , 69 Fed . Rep . ,
9 93.
Donnelly vs. Ivers,1 8 Fed . Rep . ,
260 COPYRIGHTS .
TERM OF COPYRIGHTS .
Sec. 4953. Copyrights shall be granted for theterm of twenty-eight years from the time Of recordingthe title thereof
,in the manner hereinafter d i rected .
FURTHER TERM OF EXCLUSIVE RIGHT—PUBLICATIONOF RECORD .
Sec. 4954 . The author, or designer, if he be stillliving , or his widow or children, if he be dead, Shallhave the same exclusive right continued for the furtherterm of fourteen years
,upon recording the title of the
work or description of the articles so secured a secondtime
,and complying with all other regulations in regard
to original copyrights,within six months before the
expiration Of the first term ; and such persons Shall,within two months from the date of said renewal,cause a copy of the record thereof to be published inone or more newspapers printed in the United Statesfor the space of four weeks .
ASSIGNMENT OF COPYR IGHTS AND RECORDING .
Sec. 4955. Copyrights shall be assignable in law,
by an instrument of writing, and such assignment shallbe recorded in the office of the Librarian of Congresswithin Sixty days after its execution ; in default ofwhich it shall be void as against any subsequent purchaser or mortgage for a valuable cons ideration,without notice .
Before copyright,the rights of an author may be
assigned by parol .
DEPOSIT OF TITLE AND PUBLISHED COPIES— IMPORTATIONS .
Sec. 4956. NO person shall be entitled to a copyright unless he shall
, on or before the day of publication’1 Callaghan vs. Myers, 1 28 U. S . , 1 67.
262 COPYRIGHTS .
in paragraphs five hundred and twelve to five hundredand sixteen, inclusive, in section two of the act entitled“ An act to reduce the revenue and equalize the dutieson imports
,and for other purposes
,
” approved Octoberfirst
,eighteen hundred and ninety ; and except in the
case of persons purchasing for use and not for sale,
i
whoimport subject to the duty thereon
,not more than two
copies of such book at any one time ; and except in thecase of newspapers and magazines
,not containing in
whole or in part matter copyrighted under the provisions of this act
,unauthorized by the author
,which
are hereby exempted from prohibition of importation ;Provided
,nevertheless
,That in the case of books in
foreign languages , on which only translations in Englishare copyrighted the prohibition of importation shallapply only to the trans lation of the same, and theimportation of the books in the original language shallbe permitted .
To secure a copyright of a book or a dramaticcomposition
,the work must be published within a
reasonable time after the filing Of the title page .
”
The requirements of the statutes as to filing,must
be strictly complied with?“
RECORD OF ENTRY AND ATT ESTED COPY.
Sec. 4957. The Librarian of Congress shall recordthe name of such copyright book or other article
,
forthwith,in a book to be kept for that purpose
,in the
words following : “Library of Congress , to-wit : Be it
remembered that on theA . D
hath deposited in22 Boucicault vs. Hart
,1 3 Blatcf . ,
Wheaton vs. Peters , 8 Pet . , 599 7. vs . Hubbard ,
1 31
COPYRIGHTS . 263
this office the title of a book, (map, chart , or otherwise,
as the case may be,of description of the article) the
title or description of which is in the following words,
to-Wit : (here insert the title or description) , the rightwhereof he claims as author
, (originator, or proprietor,as the case may be) , in conformity with the laws of theUnited States respecting copyrights . C . D . Librarianof Congress . ” And he shall give a copy of the titleor description
,under the seal of the Librarian Of Con
gress,to the proprietor whenever he shall require it .
FEES OF LIBRARIAN— IMPORTATION OF BOOKS,ETC .
Sec. 4958. The Librarian of Congress shall receive from the persons to whom the services designatedare rendered the following fees :
First . For recording the title or description of anycopyright book or other article, fifty cents .
Second . For every copy under seal of such recordactually given to the person claiming the copyright, orhis assigns , fifty cents .
Third . For recording or certifying any instrument of writing for the assignment of a copyright
,one
dollar.Fourth . For every copy of an assignment, one
dollar.All fees so received shall be paid into the Treasury
of the United States :Provided, That the charge for recording the title
or description of any article entered for copyright, theproduction of a person not a citizen or resident of theUnited States
,Shall be one dollar
,to be paid as above
into the Treasury of the United States, to defray theexpenses of lists of copyrighted articles as hereinafter
264 COPYR IGHTS .
An d it is hereby made the duty of the Librarian ofCongress to furnish to the Secretary of the Tfi'easurycopies of the entries of titles of all books and otherarticles wherein the copyright has been completed bythe deposit of two copies of such book printed fromtype set within the limits of the United States, inaccordance with the provis ions Of this act and by thedeposit of two copies of such other article made orproduced in the United States and the Secretary of theTreasury is hereby directed to prepare and print
,at
intervals of not more than a week,catalogues of such
title-entries for distribution to the collectors of cus tomsof the United States and to the postmasters of all postOffices receiving foreign mails , and such weekly lists, asthey are issued, shall be furnished to all parties desiringthem
,at a sum not exceeding five dollars per annum ;
and the Secretary and the Postmaster-General are hereby empowered and required to make and enforce suchrules and regulations as shall prevent the importationinto the United States
,except upon the conditions
above specified, of all articles prohibited by this act .
A COPY OF SUBSEQUENT EDITIONS TO BE DEPOSITEDIN CONGRESSIONAL LIBRARY— ADDITIONS BY
FOREIGN AUTHORS .
Sec. 4959 . The proprietor of every copyrigh tbook or other article shall deliver at the Office of theLibrarian of Congress
,or deposit in the mail
,addressed
to the Librarian of Congress, at Washington, Districtof Columbia
,a copy of every subsequent edition
wherein any substantial changes shall be made :Provided, however, That the alterations, revis ions andadditions made to books by foreign authors heretoforepublished, of which new editions shall appear sub
266 COPYRIGHTS .
copyright,or shall knowingly issue or sell any article
bearing a notice Of United States copyright which hasnot been copyrighted in this country ; or shall importany book
,photograph, chromo, or lithograph or other
article bearing such notice of copyright or words of thesame purport
,which is not copyrighted in this country
,
Shall be liable to a penalty of one hundred dollars,
recoverable one-half for the person who shall sue forsuch penalty and one-half to the use of the UnitedStates ; and the importation into the United States ofany book
,lithograph, or photograph, or other article
bearing such notice of copyright,when there is no
existing copyright thereon in the United States, isprohibited ; and the circuit courts Of the United Statessitting in equity are hereby authorized to enj oin theissuing
,publishing
,or selling Of any article marked or
imported in violation Of the United States copyrightlaws
,at the sui t of any person complaining of such
violation : Provided , That this Act shall not applyto any importation Of or sale of such goods or articlesbrought into the United States prior to the passagehereof .
When the word copyrighted is impressed on alarge number of chromos of the same kind, that havenot in fact been copyrighted and the impression uponeach and all is mad e under the same circumstances ,and at or about the same time, SO that the act is praotically “ a single continuous act, only one penaltyis recoverable .
” 25
FORFEITURE AND DAMAGES FOR VIOLATIONS OF COPYRIGHT .
Sec. 4964 . Every person,who after the recording
Of the title of any book and the deposition of two copies
Taft vs . Stephens Lithographing, et c. , Co.,38 Fed . Rep. ,
28.
COPYRIGHTS . 267
of such book,as provided by this act, shall, contrary
to the provisions of this act,within the term limited,
and without the consent of the proprietor of the copyright first obtained in writing Signed in the presence oftwo or more witnesses
,print , publish, dramatize,
trans late,or import
,or knowing the same to be so
printed,published
,dramatized, translated, or imported,
Shall sell or expose to sale any copy of such book,shall
forfeit every copy thereof to such proprietor,and shall
also forfeit and pay such damages as may be recoveredin a civil action by such proprietor in any court of competent jurisdiction .
Parties who procure the infringing act to be doneare liable as j oint tort-feasors .
” Both the printer andpublisher are equally liable to the owner of the copyright for an infringement .” The rule in estimating thedamages that may be recovered is to ascertain the profits the defendants made by their piracy of the complainant ’s work, and fix that as the measure Of the complainant ’s damages .”
PENALTY FOR VIOLATIONS OF COPYRIGHT OF MAPS,
CHARTS,COMPOSITIONS , PRINTS, ETC .
Sec. 4965. If any person, after the recording ofthe title of any map, chart , dramatic or musical composition
,cut
,engraving, or photograph, or obro
mo,or of the description of any painting
,drawing
,
statue,statuary
,or model or design intended to be
perfected and executed as a work of the fine arts,as
provided by this Act,Shall
,within the term limited
,
contrary to the provisions of this Act, and without theconsent of the proprietor of the copyright first obtained
268 COPYRIGHTS .
in writing, signed in presence of two or more witnesses,engrave
,etch
,work
,copy
,publish
,dramatize
,
translate, or import , either in whole or in part, copy,print, publish, dramatize, translate, or by varying themain design
,with intent to evade the law
,or
,knowing
the same to be SO printed, published, dramatized, translated
,or imported, shall sell or expose to sale any copy
of such map or other article,as aforesaid
,he Shall for
feit to the proprietor all the plates on which the sameshall be copied
,and every Sheet thereof
,either copied or
printed,and Shall further forfeit one dollar for every
sheet of the same found in his possession,either printing
,
printed,copied
,published, imported, or exposed for sale ;
and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession
,or by him sold or exposed for sale : Prviod ed
,how
ever,That in case of any such infringement of the copy
right of a photograph made from any Object not a workof fine arts
,the sum to be recovered in any action brought
under the provisions of this section Shall be not less thanone hundred dollars, nor more than five thousanddollars
,and : Provided, further, That in case of any
such infringement of the copyright of a painting,
drawing,statue
,engraving, etching, print, or model
or design for a work of fine arts or of a photographof a work of the fine arts, the sum to be recovered in anyaction brought through the provisions of this sectionshall be not less than two hundred and fifty dollars
,and
not more than ten thousand dollars . One-half of allthe foregoing penalties shall go to the proprietors of thecopyright and the other half to the use of the UnitedStates .
A demand and refusal are not necessary beforebringing an action to recover penalty and forfeiture .
”
‘9 Hegena vs . Springer, (C. C. A . ,1 1 0 Fed . Rep . , 374.
270 COPYRIGHTS .
in the action . The circuit courts or judges thereofShall have jurisd i ction to enforce said injunction andto hear and determine a motion to dissolve the same,as herein provided
,as fully as if the action were pending
or brought in the circuit in which said motion is made .
The clerk of the court,or judge granting the injunction,
shall,when required so to do by the court hearing the
application to d issolve or enforce said injunction,transmit without delay to said court a certified copyof all the papers on which the said injunction wasgranted that are on file in his Office .
An action under this section is not one to recovereither a penalty or a forfeiture?“ The purpose Of thesection is to provide for the recovery by the proprietorof full compensation from the wrongdoer for the damages sustained by the wrongful act, and in the face ofthe difficulty of determining the amount of such damages in all cases the statute provides a minimum Sum
for the recovery in every case,leaving it open for a
larger recovery upon proof of greater damage in thosecases where such proof can be mad e?1
DAMAGES FOR PRINTING OR PUB LISHING MANUSCRIPT .
Sec. 4967. Every person who shall print or publishany manuscript whatever without the consent of theauthor or proprietor first obtained
,shall be liable
to the author or proprietor for all damages occasionedby such injury .
Such publication may be restrained by an injunction .
“2
‘0 Brad y vs . Daly , 1 75 U. S . , 1 48. Boucicault vs. Hart, 1 3 Blatcf. ,47.
" Id . See also Balles va
’
tou ing
COPYRIGHTS
LIMITATION OF ACTION IN COYPRIGHT CASES .
Sec. 4968. No action shall be maintained inany case of forfeiture or penalty under the copyrightlaws
,unless the same is commenced within two years
after the cause of action has arisen .
Sec. 4969 . In all actions arising under the lawsrespecting copyrights
,the defendant may plead the
general issue,and give the special matter in evidence .
Sec. 4970. The circuit courts,and district courts
having the jurisdiction of circuit courts,shall have
power,upon bill in equity
,filed by any party aggrieved
,
to grant injunctions to prevent the violation of anyright secured by the laws respecting copyrights
,accord
ing to the course and principles Of courts of equity,
on such terms as the court may deem reasonable .
For rules governing the use of injunctions in copyright cases
,see subject of Equity Jurisprud ence ?“
AN ACT To AMEND THE LAW RELATING TO PATENTS,
TRADE MARKS AND COPYRIGHTS .
Sec. 1 . (Notice of Copyright .) That no personShall maintain an action for the infringement of hiscopyright unless he shall give notice thereof by insertingin the several copies of every edition published
,on
the title page or the page immediately following, if itbe a book
,or if a map
,chart
,musical composition
,
print, out , engraving, photograph, painting, drawing,
chromo, statue , statuary, or model or design intendedto be perfected and completed as a work of the fine arts
,
272 COPYRIGHTS .
by inscribing upon some Visible portion thereof,or of
the substance on which same shall be mounted,the
following words, viz : Entered according to act ofCongress
,in the year by A . B .
,in the Office
of the Librarian of Congress, at Washington ; or,at
his option the word,“ Copyright,
” together with theyear the copyright was entered, and the name of theparty by whom it was taken out ; thus—
“ Copyright,
1 8 by A . B .
It is not necessary that the two copies of the bookfor whi ch copyright is sought, which are to be depositedwith the librarian of Congress, should contain anynotice of the copyright .
Sec. 2. (Fee for recording assignment or for copy .)That for recording and certifying any instrument ofwriting for the assignment of a copyright the Librarianof Congress shall receive from the persons to whomthe service is rendered, one dollar ; and for everycopy of an assignment, one dollar ; said fee to cover,in either case
,a certificate of the record
,under seal of
the Librarian of Congress ; and all fees so received shallbe paid into the Treasury of the United States .
Sec. 3. (Engravings, Cuts, and Prints .) That inthe construction of this act, the words
“ Engraving,
”
“ Cut ” and “ print ” shall be applied only to pictorialillustrations or works connected with the fine arts
,
and no prints or labels designed to be used for anyother article of manufacture shall be entered underthe copyright law
,but may be registered in the Patent
Office . And the Commissioner of Patents is herebyu Osgood vs . A. S. Aloe Instrument Co. ,
69 Fed . Rep .,29 1 .
274 COPYRIGHTS .
volumes are published separately and the first oneshall not have been issued before this act shall takeeffect
,and each number Of a periodical Shall be con
sid ered an independent publication, subject to theform of copyrighting as above .
WHEN ACT TAKES EFFE CT .
Sec. 1 2. That this act Shall go into effect on thefirst day of July
,anno Domini eighteen hundred and
ninety-one .
APPLICABLE To CITIZENS OF FOREIGN COUNTRIES PERMITTING SIMILAR RIGHTS .
Sec. 1 3. That this act Shall only apply to a citizenor subject of a foreign state or nation when such foreignstate or nation permits to citizens Of the United Statesof America the benefit of copyright on substantiallythe same basis as its own citizens ; or when such foreignstate or nation is a party to an international agreementwhich provides for reciprocity in the granting of copyright, by the terms of whi ch agreement the UnitedStates of America may
,at its pleasure
,become a
party to such agreement . The existence Of either ofthe conditions aforesaid shall be determined by thePresident of the United States by proclamation madefrom time to time as the purposes of this act mayrequire.
H
j.
!UEST IONS .
SALES .
CHAPTER I .
Define a sale .
State the necessary elements of a sale .
How is a sale to be distinguished from a bailment?What is the distinction made in the case of Mallory
Where there is a delivery of goods on trial,is this
to be considered a bailment or a sale?In any case
,how far does the intention of the
parties control,in determining what the con
tract agreement amounts to?
How is a sale to be distinguished from a mortgage ?When the facts are not clear, as to whether or notan actual sale was intended
,how will a decision
be reached as to whether the contract is a saleor mortgage?
Give a definition of a chattel mortgage ?HOW is a sale distinguished from a consignment
Page 1 6.
276
1 .
H
!UESTIONS .
Page 1 7.
How is a sale to be distinguished from a barter, orexchange?
Page 1 9 .
Are the principles of sale of recent or ancient development?
Page 20.
Give the requisites of a valid contract Of sale .
What parties in a contract of sale would be moreor less incapacitated to contract?
Page 22.
Would an insane person’s contract of sale ever beallowed to stand?
What may the consideration consist of in a contract Oi sale? How may the price to be paidbe shown?
What is a bill of sale? What form ought it tobe in?
Ought the bill of sale to be delivered?What things may cause a sale to be illegal?
Page 25.
What exceptions exist to the rule of law, that acourt of law will not come to th e assistance ofeither Of the parties to an illegal contract?
278 QUESTIONS .
Page 35.
What is the measure of damages to the purchaserin case of breach of implied warranty in a contract Oi sale ?
What warranty does a sale by description carrywith it ?Wh at language is sufficient to constitute a sale
“ by description ” ?
Page 37.
What is necessary to cons titute a sale of goods,
“ by sample ” ? What is the accompanyingwarranty?
CHAPTER V .
Page 39 .
Why is it of importance to distinguish between anexecuted and executory contract of sale
,in the
matter of the transfer Of title?
Page 40.
How far does the intention of the parties controlin determining whether a contract is one Of saleor a contract to sell?
Page 41 .
What are Judge Cooley ’s ideas on the question ofdetermining whether the contract is to be consid ered a sale , or a contract to sell?
Page 42.
What rules of construction have been adopted bythe courts
,where the parties fail to clearly ex
press their intention?
SALES . 279
Will the fact that the goods are retained by thebuyer for security raise a presumption for oragainst a sale ?
Where there is a sale of goods not specific, whendoes the title pass?
Where goods are in process of manufacture,and
the goods are sold,when may the title pass ?
What is meant by the reservation of the jus
How may the right be shown to have been reserved?
Page 47.
At what place is the title supposed to pass?
CHAPTER VI .
How far are payment and delivery concurrent con
280
1 .
2 .
1 .
2 .
QUESTIONS .
What is the proper time to make delivery?What is meant by the term,
“ time is of the essenceof the contract ” ?
How only can the seller satisfy the contract as toquantity or quality Of the goods sold?
Is there any way that delivery may be shown otherthan in the ways already mentioned?
What things will excuse the seller for his failure todeliver the goods ?
Page 55.
What things are necessary to constitute acceptance ?When will acceptance be implied?What things will excuse the purchaser for hisfailure to accept?
Page 56.
What rights may remain to either of the parties tothe sale contract, after the contract of sale itselfis completed?
CHAPTER VII .
Page 57.
When does the right to sue the purchaser arise tothe unpaid seller?What is the extent of this right?What is the extent of the right of action for damages against the purchaser for breach of thecontract of sale?
QUESTIONS .
CHAPTER IX.
Page 67.
In what way may the contract of sale be rescindedor modified ?
When may the seller rescind, of right?
When may the buyer rescind, of right?
CHAPTER X.
Page 7 1 .
What is the general rule, as to the right of the bonafid e purchaser of goods to retain them as againstthe true owner?
What exceptions are there to this general rule?
Where the seller’s title is a voidable one, does thepurchaser in good faith get a good title?
Page 73.
Who are bona fid e purchasers?What persons under a contract of sale may claimthe rights of a bona fid e purchaser?
Page 74.
What rights does a bona fid e purchaser acquireon a purchase of goods from a thief?
What rights does a bona fid e purchaser acquirefrom a life tenant, as against the remainderman?
SALES . 283
What are the rights of co-tenant as against thepurchaser
,who in good faith buys from the
other co-tenant the entire right in the property,
the selling co-tenant claiming exclusive ownership Of the property?
Can a mere bailee convey any title in the goods inhis possession to one who buys as a bona fid epurchaser?
Page 77.
Can a bona fid e purchaser from a leasee of propertyclaim a right to goods as against the owner of
Can a purchaser from the vendee,who bought at a
sale,fraudulent as to creditors
,acquire a title
,
as against the creditors?
Page 78.
What is necessary to constitute one a bona fid epurchaser of negotiable paper?
Page 79 .
purchaser
!UESTIONS .
CHAPTER XI .
Give the seventeenth section of the StatuteFrauds as given .
in the text .Has the statute been enacted in all the states?Does the statute include execirtory contractssale ?
Would the statute include a contract for sale, thatcontained also included
,
an ancillary agreement
,not within the statute ?
What is included in the term,goods
,wares, and
merchandise ”
Wh at is necessary to satisfy the statute on thematter of acceptance and receipt of the goods?
What would constitute an acceptance by implication?
Give the principle of the English rule,the Massa
chusetts rule , and the New York rule, as to whena contract for the sale of goods to be manufactured , is held to be within the statute?
Page 89 .
When is part payment necessary?At what time is it necessary to make the part payment?
When is the written memorandum required?When must the memorandum be made ?
!UEST IONS .
BAILMENTS .
CHAPTER I .
1 . Define bailments .2 . Give Sir William ‘
Jones ’ definition .
3. Give Blackstone ’s definition .
Give the Roman law classification bailments .Define depositum.
Define mandatum .
Define commodatum .
Define pignus .
Define locatio .
Define locatio rei .Define locatio operis .Define locatio custodiae .
Define Operis faciendi .
Page 97.
Define operis mercium vehend arum.
of bailments?
QUESTIONS .
CHAPTER III .
Page 1 25.
What is the modern classification of bailments ?Under which class of this modern classification dothe various forms of the Roman classificationfall ?
CHAPTER IV.
How is the bailment relation created?Is delivery essential for the creation of the bai lmentrelation?
Page 1 28.
What property may be the subject of a bailment?Who may be a bailor?Who may be a bailee ?Is an express contract necessary for the creation ofthe bailment relation?
What are the rights and liabilities Of the bailortowards third persons ?Wh at are the rights and liabilities of bailees towardsthird persons ?
CHAPTER V .
Page 1 31 .
What degree of care is required from a bailee for thebailor ’s sole benefit?For what degree Of negligence is such a baileeliable ?
290 QUESTI ONS .
Page 1 4 1 .
Describe the lien of the bailee .2 . When does such lien arise?z—l
CHAPTER VIII .
Page 1 43.
1 . Who are inn-keepers?
Page 1 44.
1 . Who are guests ?
Pages 1 454 46.
1 . What is the extent of the bailment liability of aninn-keeper?
CHAPTER IX.
Pages
1 . How may the bailment relation be terminated ?
!UEST IONS .
CARRIERS .
C H A P T E R I .
Of what larger branch of the law is the subject ofcarriers a sub-division?
Page 1 52.
Who are carriers of passengers?
C H A P T E R I I .
Page 1 53.
Page 1 54.
Is it.necessary for a person to be a common carrier
that he should make the carriage of goods his
Page 1 55.
as to the duty of a common
292
1 .
QUESTIONS .
Pages
Give a synopsis of the.
discussion of commoncarriers contained in Smith ’s Leading Cases .
C H A P T E R I I I .
Page 1 6 1 .
What is the general rule as to the bailment liabilityOf a common carrier?For what losses is a common carrier not liable?
What losses are considered as caused by the Actof God?
Page 1 63.
Who are public enemies?
Pages
Who is responsible for losses caused by the acts ofthe Shipper himself ?
Pages
Who is respons ible for losses occasioned by inherentdefects in the articles shipped .
Page 1 70.
To what extent can a common carrier limitbailment liability by general notice ?
Pages
To what extent can he limit such liabilityspecial contract?
Page 1 73.
Discuss the liability Of connecting carriers?
1 .
!UESTIONSPERSONAL PROPERTY.
CH A P T E R I .
Page 1 95.
Define property?2 . What is the distinction between real and personal
1 .
property?Page 1 96.
Distinguish between absolute and qualified property ?
CH A P T E R I I .
In what three general classes of ways may personalproperty be acquired?In what different ways may personal property beacquired by original acquisition?What is title by occupancy?
When may title to goods be acquired by capture?To whom do goods lost or abandoned by theirowner belong?
How may property in wild animals be acquired?What property is acquired by accession?
QUESTIONS .
To whom d o the increase of domestic animalsbelong?When materials belonging to one person are unitedby the labor of the other
,to whom does the com
pleted product belong?In whom is the title to letters ?
What property rights exist in lectures?Define trade-marks?
Pages 201—202.
What are proper and what are improper trademarks?
Page 203.
How may a person ’s right in a trade-mark be protected ?
Name the different classes of trans fers by act oftheparties?
What two kinds of gifts are there?What are gifts inter Vivos ?What are gifts causa mortis ?What are the essential elements in every gift causamortis?
How may personal property be transferred byoperation of law?
CH A P T E R I I I .
Distinguish between joint ownership and ownership in common?
!UESTIONS .
PATENTS .
Page 2 1 3.
Define patents?Is there a common law right in patents?
Pages 21 4—21 5.
Who are the principal officers of the patent office ?What are their respective duties?
Pages 2 1 6—2 1 9 .
What provisions are made for the printing ofpapers relative to patents, and for the disposalof such printed copies?
In what name are patents issued?By whom are they signed?How are patents construed?
On what grounds may the United States maintain a suit in equity for the cancellation of apatent?What is contained in a patent?Can a patent cover more than one invention?From what time does a patent take effect?
!UESTIONS
What are some of the qualities which an inventionmust have in order to be patentable ?
May a patent be issued on an invention previouslypatented abroad?
What are the requisites of an application for apatent?
Why is an exact description of a patent required?
Page 226.
When are drawings required?When are models required?
Describe the procedure in the examination andissuing of a patent?
May patents be issued to government officers forinventions to be used in the public service ?
Under what circumstances may a patent be issuedto an a ssignee ?
When may a patent be issued to an executor oradministrator?Wh en may a patent be issued to the guardian ofan insane person?
Page 231 .
May persons purchasing an invention before ap
plication for patent,use or sell the thing pur
chased?
302 QUESTIONS .
How may a patent be assigned ?
How must patented articles be marked?
What is the penalty for falsely marking or labelingarticles as patented?
What is the measure of damages which may berecovered in a suit for the infringement of apatent?
What matters may be pleaded in an action forinfringement of a patent?
When may injunctions be issued against the infringement of a patent?
Can a suit be maintained for the infringement of apatent in which the specifications were toobroad ?
Page 250.
Can a patent be secured for a design?
Page
What laws govern a patent for a design?
Page 252.
What fees are required in obtaining patents ?
Page 253.
When and how are such fees payable?
!UEST IONS .
COPYRIGHTS .
Page 257.
1 . Define copyright?2 . Is there any common law right of copyright?3. Under what authority are copyrights issued in the
United States?
Page 258.
What persons and publications are entitled tocopyrights ?
What degree of literary ability is required to entitle a person to a copyright?
Page 259 .
Can a copyright be taken out in the name of a
Can a copyright be taken out in the name of acorporation?
3. Name some things which have been held incapableof being copyrighted?
What is the term of a copyright?May this term be extended?Are copyrights assignable?
Page 26 1 .
What are the requirements for the deposit of titles
Page 262.
304 QUESTIONS .
Page 263.
What fees are required in obtaining a copyright?
Page 264.
Must copies of subsequent editions of a copyrightedwork be deposited in the Congressional Library ?
Page 265.
What is the penalty for the omission to depositcopies of books ?
What are the penalties for violations of a copyright ?
Pages
What are the penalties for violations of maps,
prints,etc ?
Pages
What are the penalties for unauthorized use ofdramatic or musical compositions ?
May the different volumes of a set be copyrightedseparately?
306 APPENDIX A .
de livery, elevation, and transfer in transit, ventilation, refrigeration or icing,storage and handling of property transported ; and it shall be the duty of everycarrier subject to the provisions of this Act to provide and furnish such transportation upon reasonable request therefor, and to establish through routesand just and reasonable rates applicable thereto.All charges made for any service rendered or to be rendered in the trans
portation of passengers or property as aforesaid, or in connection therewith,shall be just and reasonable ; and every unjust and unreasonab le charge forsuch service or any part thereof is prohib ited and dec lared to be unlawful.
No common carrier subject to the provis ions of this Act shall, afterJanuary first, nineteen hundred and seven, direct ly or indirectly, issue or giveany interstate free ticket, free pass, or free transportation for passengers,except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law ; to ministers of religion, traveling secretariesof railroad Young Men's Christian associations, inmates of hospitals and charitable and e leemosynary institutions, and persons exclusively engaged in charitable and e leemosynary work ; to indigent, destitute, and home less persons,and to such persons when transported by charitable societies or hospitals, andthe necessary agents employed in such transportation ; to inmates of thenational homes or state homes for disab led volunteer soldiers, and of soldiers’and sailors’ homes, including those about to enter and those returning homeafter discharge and boards of managers of such homes ; to necessary caretakersof l ive stock, poultry, and fruit ; to employees on sleeping cars, express cars,and the linemen of te legraph and telephone companies ; to railway ma il serviceemployees, postoffice inspectors, customs inspectors and immigration inspectors ; to newsboys on trains, baggage agents, w itnesses attending any legalinvest igation in which the common carrier is interested, persons injured inwrecks and physicians and nurses attending such persons : Provided
,That
this provision shall not be construed to prohib it the interchange of passes forthe officers, agents, and employees of common carriers, and their familiesnor to prohib it any common carrier from carrying passengers free with theobject of providing relief in cases of general epidemic, pestilence, or other calamitous v isitation. Any common carrier v iolating this provision shall bedeemed guilty of a misdemeanor, and for each offense, on conviction, shall payto the United States a penalty of not less than one hundred dollars nor morethan two thousand dollars, and any person, other than the persons exceptedin this provision, who uses any such interstate free ticket, free pass, or freetransportation, shall be subject to a like penalty . Jurisdiction of offensesunder this provision shall be the same as that provided for offenses in an Act
entitled “An Act to further regulate commerce with foreign nations and amongthe States,” approved February nineteenth, nineteen hund red and three, andany amendment thereof.
From and afterMay first, nineteen hund red and eight, it shall be unlawfulfor any railroad company to transport from any State, Territory, or the Districtof Columb ia, to any other State, Territory, or the District of Columbia, or toany foreign country, any article or commodity, other than timber and themanufactured products thereof, manufactured , mined , or prod uced by it, or
THE INTERSTATE COMMERCE ACT . 307
under its authority, or which it may own in whole, or in part, or in which itmay have any interest direct or indirect except such articles or commoditiesas may be necessary and intended for its use in the conduct of its business as acommon carrier.
Any common carrier subject to the provisions of this Act, upon applicat ion of any lateral, branch line of railroad, or of any shipper tendering interstatetraffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad,or private side track which may be constructed to connect with its railroad,where such connection is reasonably practicable and can be put in with safetyand will furnish sufficient business to justify the construction and maintenanceof the same ; and shall furnish cars for the movement of such traffic to thebest of its ab ility without discrimination in favor of or against any such shipper.If any common carrier shall fail to install and operate any such sw itch orconnection as aforesaid, on application therefor in writing by any shipper,such shipper may make complaint to the Commission, as provided in sectionthirteen of this Act, and the Commission shall hear and investigate the sameand shall determine as to the safety and practicab ility thereof and justificationand reasonable compensation therefor, and the Commission may make anorder, as provided in section fifteen of this Act, directing the common carrierto comply with the provisions of this section in accordance with such orderand such order shall be enforced as hereinafter provided for the enforcementof all other orders by the Commiss ion, other than orders for the payment of
!Section 1 . That the provisions of this Act sha ll apply to any com
mon carrier or carri ers engaged in the transportation of passengers orproperty wholly by railroad, or partly by railroad and partly by waterwhen both are used, under a common control, management , or arrangement, for a continuous carriage or shipment , from one State or Territoryof the United States , or the District of Columbia , to any other State orTerritory of the United States , or the District of Columbia , or from any
place in the United States to an adjacent foreign country , or from any
place in the United States through a foreign country to any other placein the United States
, and also to the transportation in like mann er ofproperty shipped from any place in the United States to a foreign countryand carri ed from such place to a port of transshipment , or shipped from a
foreign country to any place in the United States and carri ed to such placefrom a port of entry either in the United States or an adjacent foreigncountry : Provided, however, That the provisions of thi s Act shall notapply to the transportation of passengers or property, or to the receiving ,delivering
,storage, or handling of property, wholly within one State, an d
not shipped to or from a foreign country from or to any State or Territory
The term “ rai lroad” as used in this Act shall include all bridges andferries used or operated in conn ection with any railroad , and also all theroad in use by any corporation operating a railroad, whether owned oroperated under a contract , agreement , or lease ; and the term “ transportation” shall include all instrumentalities of shipment or carriage.
s APPENDIX A .
All charges made for any service rendered or to be rendered in thetransportation of passengers or property as aforesaid, or in conn ectiontherewith, or for the receiving , delivering , storage, or handling of suchproperty, shall be reasonable and just ; an d every unjust and unreasonablecharge for such service is prohibited and declared to b e unlawful!
UNJUST DISCRIMINATION DEFINED AND FORB IDDEN.
REPEALED
.
SECTION 2 . That i f any common carri er sub ject to the provi sionsof this Act , shall, directly or indirectly , by any special rate, rebate, drawback,or other device, charge, demand, collect , or receive from any person or pers onsa greater or less compensation for any service rendered , or to be rendered ,in the transportation of passengers or property, subject to the provisions ofthis Act , than i t charges, demands , collects, or rece ives from any other personor persons for doing for him or them a like and contemporaneous service inthe transportation of a like kind of traffic under substantially similar cir
cumstances and conditions , such common carrier shall be deemed guilty ofunjust discrimination, which is hereby prohibited and declared to be unlawful.
UNDUE OB UNREASONABLE PREFERENCE OR ADVANTAGE FORB IDDEN.
SECTION 3. That it shall be unlawful for any common carrier subjectto the provisions of this Act to make or give any undue or un reasonablepreference or advantage to any part icular person , company , firm, corporation ,or locali ty , or any particular description of traffic, in any respect whatsoever,or to subject any particular person , company , firm, corporation, or locality ,or any particular description of traffic, to any undue or unreasonable prejudiceor disadvantage in any respect whatsoever.Every common carri er subject to the provisions of thi s Act shall , accord
ing to their respective powers, afford all reasonable, proper, an d equal facili tiesfor the interchange of traffic between their respective lines, and for the receiving
,forwarding , and delivering of passengers and property to and from their
several lines and those connecting therewi th, an d shall not discriminate intheir rates and charges between such connect ing l ines ; but thi s shall notbe construed as requiring any such common carrier to give the use of itstracks or termina l faciliti es to another carrier engaged in like business .
LONG AND SHORT RAUL PROVISION.
SECTION 4 . That it shall be unlawful for any common carri er subjectto the provisions of this Act to charge or receive any greater compensationin the aggregate for the transportation of passengers or of like kind of property ,under substantially simi lar circumstances an d conditions , for a shorter thanfor a longer distance over the same line, in the same direction , the shorterbeing included wi thin the longer di stance; but thi s shall not b e construedas authorizing any common carrier within the terms of this Act to chargeand receive as great compensation for a shorter as for a longer distance :Provided
,however, That upon application to the Commission appointed
under the provi sions of this Act , such common carrier may , in spec ial cases,after invest igation by the Commission , be authori zed to charge less for longerthan for shorter distances for the transportation of passengers or property ;
31 0 APPENDIX A .
No change shall be made in the rates, fares, and charges or j oint rates,fares, and charges which have been filed and published by any common carrierin compliance w ith the requirements of this section, except after thirty days’notice to the Commission and to the public published as aforesaid, which shallplainly state the changes proposed to be made in the schedule then in forceand the time when the changed rates, fares, or charges will go into effect ;and the proposed changes shall be shown by printing new schedules, or shallbe pla inly indicated upon the schedules in force at the time and kept open topublic inspect ion : Provided , That the Commission may , in its discretion andfor good cause show, allow changes upon less than the notice herein specified,or modify the requirements of this section in respect to publishing, posting,and filing of tariffs, either in particular instances or by a general order applicableto special or peculiar circumstances or conditions.
The names of the several carriers which are part ies to any joint tariffshall be specified there in, and each of the parties thereto, other than the onefiling the same, shall file w ith the Commission such evidence of concurrencetherein or acceptance thereof as may be required or approved by the Commission,and where such evidence of concurrence or acceptance is filed it shall not benecessary for the carriers filing the same to also file copies of the tariffs inwhich they are named as parties.
Every common carrier subject to this Act shall also file with said Commiss ion copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the provisions of this Actto which it may be a party.
The Commission may determine and prescribe the form in which theschedules required by this section to be kept open to public inspection shall beprepared and arranged and may change the form from time to time as shall befound expedient.
No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act,unless the rates, fares, and charges upon which the same are transported bysaid carrier have been filed and published in accordance with the provisionsof this Act ; nor shall any carrier charge or demand or collect or receive agreater or less or different compensation for such transportation of passengersor property, or for any service in connect ion therewith, between the pointsnamed in such tariffs than the rates, fares, and charges which are specifiedin the tariff filed and in effect at the time ; nor shall any carrier refund orremit in any manner or by any device any port ion of the rates, fares, and chargesso specified, nor extend to any shipper or person any privileges or facilities inthe transportation of passengers or property, except such as are specified insuch tariffs : Provided, That wherever the word “
carrier ” occurs in thisAct it shall be held to mean “
common carrier.That in time of war or threatened war preference and preced ence shall,
upon the demand of the President of the United States, be given, over all othertraffic, to the transportation of troops and material of war, and carriers shalladopt every means w ithin their cont rol to facilitate and expedite the militarytraffic.
THE INTERSTATE COMMERCE ACT . 31 1
!Section 6 . That every common carrier subject to the provisionsof this Act sha ll print and keep Open to public inspection schedules showingthe rates and fares and charges for the transportation of passengers an dproperty which any such common carrier has established and which arein force at the time upon its route . The schedules printed as aforesa idby any such common carri er shall pla inly state the places upon its railroadbetween which property and passengers wi ll b e carried , and shall containthe classification of freight in force, and shall also state separately theterminal charges and any rules or regulations which in any wise change,affect , or determine any part or the aggregate of such aforesaid rates andfares and charges . Such schedules shall be pla inly printed in large typ e ,an d copies for the use of the pub lic shall be posted in two public an d con
spicuous places , in every depot , stat ion , or office of such carrier wherepassengers or freight , respectively, are received for transportation , insuch form that they shall be access ible to the public and can be conveniently
Any common carrier subject to the provisions of this Act receivingfreight in the United States to b e carri ed through a foreign country toany place in the United States shall also in like manner print and keepOpen to pub lic insp ection , at every depot or office where such freight isreceived for shipment , schedules showing the through rates establishedand charged by such common carri er to all points in the United Statesbeyond the foreign country to which it accepts freight for shipment ; an d
any freight shipped from the United States through a foreign countryinto the United States , the through rate on which sha ll not have beenmade pub lic as required by thi s Act , sha ll , before it is ad mitted into theUnited States from sa id foreign country , be subject to customs duties asif said freight were of foreign production ; and any law in conflict with thissection is hereby repealed.
No advance shall be made in the rates , fares , and charges which havebeen estab lished an d published as aforesaid by any common carrier incompliance with the requirements of this section , except after ten days’public notice, which shall plainly state the changes proposed to be madein the schedule then in force, and the time when the increased rates , fares ,or charges wi ll go into effect ; and the proposed changes sha ll be shownby print ing new schedules, or sha ll be pla inly indicated upon the schedulesin force at the time and kept open to pub lic inspection . Reductions insuch published rates , fares , or charges shall only be made after three days’previous public notice, to be given in the same manner that notice of anadvance in rates must be given .
And when any such common carrier shall have established and
published its rates, fares , an d charges in compliance with the provisionsof this section, it shall be unlawful for such common carrier to charge,demand, collect , or receive from any person or persons a greater or less
1 2 APPENDIX A .
of rates, fares , and charges which have been established and publi shed incompliance with the requirements of this section , and shall promptlynotify sa id Commission of all changes made in the same. Every suchcommon carrier shall also file with sa id Commission copies of all contracts,agreements , or arrangemen ts with other common carriers in relation toany traffic affected by the provisions of this Act to which itmay be a party .
And in cases where passengers an d freight pass over continuous lin es orroutes operated by more than one common carrier, and the several commoncarriers Operating such lines or routes establish joint tarifi's Of rates or faresor charges for such continuous lines or routes, copies of such joint tariffsshall also , in like manner, b e filed with sa id Commission . Such joint rates ,fares , and charges on such continuous lines so filed as aforesaid shall bemade pub lic by such common carriers when directed by sai d Commission ,in so far as may , in the judgment of the Commission , be deemed practicable; and sa id Commission shall from time to time prescrib e the measureof publicity which shall be given to such rates , fares , and charges , or tosuch part of them as it may deem it practicable for such common carriersto pub lish, and the places in which they shall be pub lished .
N0 advance shall be made in joint rates, fares, an d charges , shownupon joint tariffs, except after ten days’ notice to the Commi ssion , whichshall plainly state the changes proposed to be made in the schedule thenIn force, and the time when the increased rates, fares , or charges will. gointo effect . No reduction shall be made in joint rates, fares , and charges ,except after three days’ notice , to be given to the Commission as is aboveprovided in the case of an advance of joint rates . The Commission maymake public such proposed advances, or such reductions, in such manneras may , in its judgment , be deemed practicable, and may prescrib e fromtime to time the measure of pub licity which common carriers sha ll giveto advances or reductions in joint tariffs.
It shall be un lawful for any common carri er, party to any jointtariff, to charge, demand, collect , or receive from any person or personsa greater or less compensation for the transportation of persons or property ,or for any services in connection therewi th, between any points as to whicha joint rate, fare, or charge is named thereon , than is specified in theschedule filed wi th the Commission in force at the time .
The Commission may determine and prescribe the form in whichthe schedules required by this section to be kept Open to public inspectionshall be prepared and arranged, and may chang e the form from time totime as shall be found expedient .
If any such common carrier shall neglect or refuse to file or publishits schedules or tariffs of rates , fares, and charges as provided in thissection, or any part of the same, such common carrier shall, in additionto other penalties herein prescribed , be subject to a wri t of mandamus , tob e issued by any circuit court of the United States in the judicial districtwherein the principal office of said common carrier is situated , or whereinsuch offense may be committed, and if such common carri er be a foreigncorporation in the judicial circuit wherein such common carrier accepts
31 4 APPENDIX A .
must in each case elect which one of the two methods of procedure here in provid ed for he or they will adopt . In any such action brought for the recoveryof damages the court before which the same shall be pend ing may compel anydirector, ofi cer, receiver, trustee, or agent of the corporation or companydefendant in such suit to attend , appear, and testify in such case, and maycompel the production of the books an d papers of such corporation or company party to any such suit ; the claim that any such testimony or evidencemay tend to criminate the person giving such evidence sha ll not excuse suchwitness from testifying, but such evidence or testimony shall not be usedagainst such person on the trial of any criminal proceeding .
0
SECTION 1 0. That any common carrier subject to the provisionsof this Act , or, whenever such common carrier is a corporation
, any directoror officer thereof, or any receiver, trustee , lessee, agent , or person , actingfor or employed by such corporation , who , alone or with any other corporation ,company, person , or party , sha ll wi lfully do or caus e to be done, or shallwillingly suffer or permit to be done, any act
,matter
,or thing in this Act
prohib ited or declared to be unlawful , or who sha ll aid or abet therein , or shallwi lfully omit or fail to do any act , matter, or thing in this Act required tobe done, or shall cause or willingly suffer or permit any act , matter, or thingso directed or required by this Act to be done not to be so done
,or shall aid
or abet any such omission or failure, or sha ll be guilty of any infraction of thisAct , or shall aid or abet therein , shall be deemed guilty of a misdemeanor, andshall, upon conviction thereof in any d istrict court of the United States withinthe jurisdiction of which such offense was committed
,b e subject to a fine
of not to exceed five thousand dollars for each offense: Provided , That ifthe offense for which any person shall be convicted as aforesa id shall be anunlawful discrimination in rates , fares , or charges, for the transportation ofpassengers or property , such person shall , in addition to the fine hereinbeforeprovided for, be liable to imprisonment in the penitentiary for a term of notexceeding two years, or both such fine and imprisonment in the discretion ofthe court .
Any common carrier subject to the provisions of this Act , or, wheneversuch common carrier is a corporation, any officer or agent thereof, or anyperson acting for or employed by such corporation , who, by means of falsebilling, false classification , false weighing, or false report of weight , or byany other device or means, shall knowingly an d wi lfully assist , or shallwillingly suffer or permit , any person or persons to obtain transportationfor property at less than the regular rates then established and in force onthe line of transportation of such common carrier, shall be deemed guiltyof a misdemeanor, and shall , upon conviction thereof in any court of theUnited States of competent jurisdiction within the district in which such offense was committed , be subject to a fine of not exceeding five thousand dollars, or imprisonment in the penitentiary for a term of not exceeding twoyears , or both, in the discretion of the court , for each offense .
Any person an d any officer or agent of any corporation or companywho shall deliver property for transportation to any common carrier, subjectto the provisions of this Act, or for whom as consignor or consignee any such
THE INTERSTATE COMMERCE ACT . 31 5
carri er shall transport property , who shall knowingly and wilfully , by falsebilling
,false classification , false weighing , false representation Of the contents
of the package, or false report of weight , or by any other device or means ,whether with or without the consent or conn ivance of the carrier, its agentor agents
,Obtain transportation for such property at less than the regular
rates then establi shed and in force on the line of transportation , shall be deemedguilty of fraud , which is hereby declared to be a misdemeanor, and sha ll ,upon conviction thereof in any court of the United States of competentjurisdiction within the district in which such offense was committed
,b e
sub j ect for each offens e to a fine of not exceeding five thousand dollars or imprisonment in the penitent iary for a term of not exceeding two years , or both ,in the discretion of the court .
If any such person or any officer or agent of any such corporation orcompany, sha ll, by payment of money or other thing of value , solicitation ,or otherwise
,induce any common carrier sub ject to the provisions of this
Act , or any of its officers or agents , to discriminate un justly in his , its, or theirfavor as against any other consignor or consignee in the transportat ion ofproperty
,or shall aid or abet any common carrier in any such unjust dis
crimination, such person or such officer or agent of such corporation or company sha ll be deemed guilty of a misdemeanor, and shall , upon convict ionthereof in any court of the United States Of competent jurisdiction withinthe district in which such ofiense was committed , be sub ject to a fine of notexceeding five thousand dollars , or imprisonment in the penitentiary for aterm of not exceeding two years , or both, in the discretion of the court , foreach offense ; and such person , corporation , or company shall also , togetherwith said common carrier, be liable, jointly or severally , in an action on thecase to be brought by any consignor or consignee discriminated against inany court of the United States of competent jurisdiction for all damagescaused by or resulting therefrom .
INTERS TATE COMMERCE COMMISSION CREATED .
SECTION 1 1 . That a commission is hereby created and establishedto b e known as the Interstate Commerce Commission , which shall b e composedof five Commissioners, who shall be appointed by the President , by and withthe advice and consent of the Senate . The Commissioners first appointedunder this Act shall continue in Office for the term of two, three , four, fiveand six years , respectively, from the first d ay of January , anno Dominieighteen hund red and eighty-seven , the term of each to b e designated by thePresident ; but their successors shall be appointed for terms of six years,except that any person chosen to fill a vacancy sha ll be appointed only forthe unexpired time of the Commi ssioner whom he sha ll succeed . Any Commissioner may be removed by the President for inefficiency , neglect of duty ,or ma lfeasance in office . Not more than three of the Commi ssioners shallbe appointed from the same political party . No person in the employ of orholding any official relation to any common carrier sub ject to the provisionsof this Act , or own ing stock or bonds thereof, or who is in any manner peenniarily interested therein , shall enter upon the duties of or hold such office .Said Commissioners shall not engage in any other business , vocation, or
31 6 APPENDIX A .
employment . No vacancy in the Commission shall impa ir the right of theremaining Commissioners to exercise all the powers of the Commission .
POWER AND DUTY OF COMMISS ION TO IN!UIRE INTO BUSINESS OF CARRIERS .
SECTION 1 2 . That the Commission hereby created shall have authority to inquire into the management of the bus iness of all common carrierssub j ect to the provi sions of this Act , and sha ll keep itself informed as tothe mann er and method in which the same is conducted, and shall have theright to obtain from such common carri ers full an d complete informationnecessary to enable the Commission to perform the duties and carry out theob jects for which it was created ; and the Commission is hereby authorizedand required to execute and enforce the provisions of this Act ; and , uponthe request of the Commission , i t shall b e the duty of any d ist rict attorneyof the United States to whom the Commission may apply to institute inthe proper court an d to prosecute under the direction of the Attorney-Generalof the United States all necessary proceedings for the enforcement of theprovisions of this Act and for the punishment of all violations thereof, andthe costs and expen ses of such prosecution shall be paid out of the appropriationfor the expenses of the courts of the United States ; and for the purposesOf this Act the Commission shall have power to require, by subpoena , the attendance and testimony of witnesses and the production of all books , papers,tariffs, contracts, agreements, and documents relating to any matter underinvestigation .
Such attendance of Witnesses , and the production of such documentaryevidence, may be required from any place in the United States , at any d esignated place of hearing . An d in case of disobedience to a subpoena the Commission , or any party to a proceeding b efore the Commission , may invokethe aid of any court O f the United States in requiring the attendance and
testimony of wi tnesses and the production of books, papers , and documentsunder the provisions of t his section .
And any of the circuit courts of the United States wi thin the jurisdictionof which such inquiry is carri ed on may , in case of contumacy or refusal toob ey a subpoena i ssued to any common carrier subject to the provis ions ofthis Act , or other person , issue an order requiring such common carrier orother person to appear before said Commission (and produce books andpapers if so ordered) and give evidence touching the matter in quest ion ; and
any failure to obey such order of the court may be punished by such courtas a contempt thereof. The cla im that any such testimony or evidencemay tend to criminate the person giving such evidence sha ll not excuse suchwitness from test ifying ; but such evidence or t estimony sha ll not be usedagainst such person on the trial of any criminal proceeding .
The testimony of any witness may b e taken , at the instance of a partyin any proceeding or invest igation dep ending before the Commission , bydeposition , at any time after a cause or proceeding is at issue on petit ion andanswer . The Commission may also order testimony to b e taken by depositionin any proceeding or invest igation pending before it . at any stage of suchproceeding or invest igat ion . Such depositions may be taken before any
judge of any court of the United States, or any commissioner of a circuit, or
31 8 APPENDIX A .
No complaint shall at any time be dismissed because of the absenceof direct damage to the complainant .
REPORTS AND DECIS IONS OF THE COMMISSION.
SECTION 1 4. That whenever an investigation shall be made by saidCommission , it shall be its duty to make a report in writing in respect thereto,which shall state the conclusions of the Commission, together with its decision,order, or requirement in the premises ; and in case damages are awarded suchreport shall include the findings of fact on which the award is made.All reports of investigations made by the Commission shall be entered
of record, and a copy thereof shall be furnished to the party who may havecomplained, and to any common carrier that may have been complained of.
The Commission may provide for the publication of its reports anddecisions in such form and manner as may be best adapted for public information and use, and such authorized publications shall be competent evidenceof the reports and decisions of the Commission therein contained in all courtsof the United States and of the several states without any further proof orauthentication thereof. The Commission may also cause to be printed forearly distribution its annual reports.!Section 1 4. That whenever an invest igation shall be made by said
Commission , it shall be its duty to make a report in writing in resp ectthereto, which shall include the findings of fact upon which the conclusionsof the Commission are based , together wi th its recommendation as towhat reparation , if any , should be made by the common carrier to anyparty or parti es whomay be found to have been injured ; and such findingsso made shall thereafter, in all judicial proceedings, be deemed prima facieevidence as to each and every fact found .
All reports of investigations made by the Commission shall beentered of record , and a copy thereof shall be furnished to the party whomay have complained, and to any common carrier that may have beencomplained of.
The Commission may provide for the publication of its reports anddecisions in such form and manner as may be best adapted for publicinformation and use, and such authori zed publications sha ll be competentevidence of the reports and decisions of the Commission therein con
tained , in all courts of the United States , and of the several states,wi thout any further proof or authentication thereof. The Commisd on
may also cause to be printed for early distribution its annual reports!
REPEA
COMMISSION GIVEN POWER TO FIX A REAS ONABLE MAXIMUM RATE.
SECTION 1 5. That the Commission is authorized and empowered , andit shall be its duty, whenever, after full hearing upon a complaint made asprovided in sect ion thirteen of this Act, or upon complaint of any commoncarrier, it shall be the opinion that any of the rates, or charges whatsoever,d emanded, charged, or collected by any common carrier or carriers, subject tothe provisions of this Act, for the transportation of persons or property as
defined in the first section of this Act, or that any regulations or practiceswhatsoever of such carrier or carriers affecting such rates are unjust or un
THE INTERSTATE COMMERCE ACT . 31 9
reasonable, or unjustly discriminatory, or unduly preferential or prejudicial,or otherwise in violation of any of the provisions of this Act, to determine and
prescribe what w ill be the just and reasonable rate or rates , charge or charges,to be thereafter observed in such case as the maximum to be charged ; andwhat regulation or practice in respect to such transportation is just, fair, andreasonable to be thereafter followed ; and to make an order that the carriershall cease and desist from such violation, to the extent to which the Commissionshall find the same to exist, and shall not thereafter publish, demand, or collectany rate or charge for such transportation in excess of the maximum rate orcharge so prescibed , and shall conform to the regulation or practice so pre=scribed. All orders of the Commission, except orders for the payment of money,shall take effect w ithin such reasonable time, not less than thirty days, andshall continue in force for such period of time, not exceeding two years, asshall be prescribed in the order of the Commission, unless the same shall besuspended or modified or set aside by the Commission or be suspended or setaside by a court of competent jurisdiction. Whenever the carrier or carriers, inobedience to such order of the Commission or otherwise, in respect to jointrates, fares, or charges, shall fail to agree among themselves upon the apportionment or division thereof, the Commission may after hearing make a supplemental order prescrib ing the just and reasonable proportion of such jointrate to be received by each carrier party thereto, which order shall take effectas a part of the original order.
The Commiss ionmay also, after hearing of a complaint, establish throughroutes and joint rates as the maximum to be charged and prescribe the divisionof such rates as hereinbefore provided, and the terms and conditions underwhich such through routes shall be operated, when that may be necessary togive effect to any provision of this Act, and the carriers complained of haverefused or neglected to voluntarily establish such through routes and jointrates, provided no reasonable or satisfactory through route exists, and thisprovision shall apply when one of the connecting carriers is a water line.
lf the owner of property transported under this Act directly or indirectlyrenders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no morethan is just and reasonable, and the Commission may , after hearing on a
complaint, determine what is a reasonable charge as the maximum to be paidby the carrier or carriers for the service so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order, which ordershall have the same force and effect and be enforced in like manner as theorders above provided for in this section.
The foregoing enumeration of powers shall not exclude any powerwhich the Commission would otherw ise have in the making of an order underthe provisions of this Act.!Section 1 5 . That if in any case in which an investigation shall be
made by sa id Commission it shall be made to appear to the satisfactionof the Commi ssion , either by the testimony of witnesses or other evidence,that anything has b een done or omitted to be done in violat ion of theprovisions of this Act , or of any law cognizable by sa id Commission , by anyR
EPE
ALED
.
320 APPENDIX A .
common carri er, or that any injury or damage has been sustained by theparty or parties compla ining , or by other part ies aggrieved in consequenceof any such violation , it shall be the duty of the Commission to forthwithcause a copy of its report in respect thereto to be delivered to such commoncarrier, together with a notice to sa id common carri er to cease and desistfrom such violation , or to make reparation for the injury so found tohave been done, or both, wi thin a reasonable time, to be specified by theCommission ; and if, within the time specified , i t shall be made to appearto the Commi ssion that such common carri er has ceas ed from such violationof law, an d has made reparation for the injury found to have been done,in compliance with the report an d notice of the Commission
,or to the
satisfact ion of the party compla ining , a statement to that effect shall beentered of record by the Commis sion , and the sa id common carri er shallthereupon be relieved from further liability or penalty for such particularviolation of law.!
COMMISSION MAY AWARD DAMAGES .
SECTION 1 6. That if, after hearing on a complaint made as provid edin section thirteen of this Act, the Commission shall determine that any partycomplainant is entitled to an award of damages under the prov is ions of thisAct for a violation thereof, the Commiss ion shall make an order directing thecarrier to pay to the complainant the sum to which he is entitled on or beforea day named.
If a carrier does not comply with an order for the payment of moneywithin the time limit in such order, the compla inant, or any person for whosebenefit such order was made, may fi le in the circuit court of the United Statesfor the district in which he resides or in which is located the principal operatingoffice of the carrier, or through which the road of the carrier runs, a petitionsett ing forth briefly the causes for which he claims damages, and the order ofthe Commission in the premises. Such suit shall proceed in all respects likeother civil suits for damages, except that on the trial of such suit the findingsand order of the Commission shall be prima facie evidence of the facts thereinstated, and except that the petitioner shall not be liable for costs in the circuitcourt nor for costs at any subsequent stage of the proceedings unless theyaccrue upon his appeal. If the petitioner shall finally prevai l he shall be alloweda reasonable attorney’s fee, to be taxed and collected as a part of the costs ofthe su it. All complaints for the recovery of damages shall be filed with theCommiss ion within two years from the time the cause of action accrues, andnot after, and a petition for the enforcement of an order for the payment ofmoney shall be filed in the circuit court w it hin one year from the date of theorder, and not after : Provided, That claims accrued prior to the passage ofth is Act may be presented within one year.
In such suits all parties in whose favor the Commission may have madean award for damages by a single order may be joined as plainti ffs, and all ofthe carriers parties to such order awarding such damages may be j oined asdefendants, and such suit may be ma intained by such joint plaintiffs and againstsuch joint defendants in any district where any one of such joint plaintiffscould mainta in such suit against any one of such joint defendants ; and service
322 APPENDIX A .
of such order, or to enjoin upon it, or them, obedience to the same ; and inthe enforcement of such process the court shall have those powers ordinarilyexercised by it in compelling obedience to its writs of injunction and mandamus.
From any action upon such petition an appeal shall lie by e ither partyto the Supreme Court of the United States, and in such court the case shallhave priority in hearing and determination over all other causes except criminalcauses, but such appeal shall not vacate or suspend the ord er appealed from.
The venue of suits brought in any of the circuit courts of the UnitedStates against the Commission to enjoin, set aside, annul, or suspend any orderor requirement of the Commiss ion shall be in the district where the carrieragainst whom such order or requirement may have been made has its principaloperating office, and may be brought at any time after such order is promulgated. And if the order or requirement has been made aga inst two or morecarriers then in the district where any one of said carriers has its principaloperating offi ce, and if the carrier has its principal operating officein the District of Columb ia then the venue shall be in the district wheresaid carrier has its principal of fice ; and jurisdict ion to hear and determine such suits is hereby vested in such courts. The provis ions of “AnAct to expedite the hearing and determination of suits in equity, and so forth,”approved February eleventh, nineteen hundred and three, shall be, and are
hereby, made applicable to all such suits, including the hearing on an appl ication for a preliminary injunction, and are also made applicable to any proceeding in equity to enforce any order or requirement of the Commission, or anyof the provisions of the Act to regulate commerce approved February fourth,eighteen hundred and eighty-seven, and all Acts amendatory thereof or supplemental thereto. It shall be the duty of the Attorney-General in every suchcase to file the cert ificate provided for in said expediting Act ofFebruary eleventhnineteen hundred and three , as necessary to the application of the provisionsthereof, and upon appeal as therein authorized to the Supreme Court of theUnited States, the case shall have in such court priority in hearing and d etermination over all other causes except criminal causes ; P rovi d ed , That no iajunction, interlocutory order or decree suspending or restraining the enforcement of an order of the Commission shall be granted except on hearing afternot less than five days’ notice to the Commission. An appeal may be takenfrom any interlocutory order or decree grant ing or continuing an injunct ionin any suit, but shall lie only to the Supreme Court of the United States : Provid ed further , That the appeal must be taken within thi rty days from the entryof such order or decree and it shall take precedence in the appellate court overall other causes, except causes of like character and criminal causes.
The copies of schedules and tariffs of rates, fares, and charges, and ofall contracts, agreements, or arrangements between common carriers filed withthe Commiss ion as here in provided, and the statist ics, tables, and figures contained in the annual reports of carriers made to the Commission, as requiredby the provisions of this Act, shall be preserved as publ ic records in the custodyof the secretary of the Commission, and shall be received as prima facie evid enceof what they purport to be for the purpose of investigations by the Commissionand in all jud icial proceed ings ; and copies of or extracts from any of said
THE INTERSTATE COMMERCE ACT . 323
sched ules, tariffs, contracts, agreements, arrangements, or reports made publicrecords as aforesaid, certified by the secretary under its seal, shall be receivedin evidence with like effect as the originals.
REHEARINGS BY THE COMMISSION.
Section 1 6a. That after a decision, order, or requirement has beenmade by the Commission in any proceeding any party thereto may at any
time make application for rehearing of the same, or any matter determinedtherein, and it shall be lawful for the Commission in its discretion to grantsuch a rehearing if sufficient reason therefor be made to appear. Applicationsfor rehearing shall be governed by such general rules as the Commission mayestablish. No such application shall excuse any carrier from complying withor obeying any decision, order, or requirement of the Commission, or operatein any manner to stay or postpone the enforcement thereof, without the specialorder of the Commiss ion. In case a rehearing is granted the proceedingsthereupon shall conform as nearly as may be to the proceedings in an originalhearing, except as the Commission may otherwise direct ; and if, in its judgment, after such rehearing and the consideration of all facts, including thosearising since the former hearing, it shall appear that the original decision,order, or requirement is in any respect unjust or unwarranted, the Commissionmay reverse , change, or mod ify the same accordingly. Any decision, order,or requirement made after such rehearing, reversing, changing, or modifyingthe original determination shall be subject to the same provisions as an original
!Section 1 6 . That whenever any common carrier, as defined in andsub ject to the provisions of this Act , sha ll violate or refuse or neglect toobey or perform any lawful order or requirement of the Commission createdby thi s Act , not founded upon a controversy requiring a trial by jury
, as
provided by the seventh amendment to the Constitution of the UnitedStates , i t shall b e lawful for the Commission or for any company or personinterested in such order or requirement , to apply in a summary way ,
bypetition
,to the circuit court of the United States sitting in equity in the
judicial d istricti n which the common carri er compla ined of has its principaloffice, or in which the violation or disobedience of such order or requirementshall happen , alleging such violation or disob ed ience, as the case may be ;and the said court sha ll have power to hear and determine the matter, onsuch short notice to the common carrier complained of as the court sha lldeem reasonable ; and such notice may be served on such common carri er,his or its officers , agents, or servants in such manner as the court shalld irect ; and said court shall proceed to hear and determine the matterspeed ily as a court of equity, and without the formal pleadings an d proceedings applicable to ordinary suits in equity, but in such manner as to dojust ice in the premises ; and to thi s end such court sha ll have power, i fit think fit , to direct and prosecute in such mode and by such persons asit may appoint , all such inquires as the court may think need ful to enableit to form a just jud gment in the matter of such petition ; an d on suchhearing the findings of fact in the report of said Commission shall be prima
324 APPENDIX A .
facie evidence of the matters therein stated ; and i f it be made to appearto such court , on such hearing or on report of any such person or persons,that the lawful order or requirement of sa id Commi ssion drawn in questionhas b een violated or disob eyed, i t sha ll be lawful for such court to issuea writ of injunction or other proper process, mandatory or otherwise, torestrain such common carrier from further cont inuing such violation or disobedi ence of such order or requirement of said Commission
, an d enjoiningObedience to the same; and in case of any disobedi ence of any such writof injunction or other proper process , mandatory or otherwise, it shall belawful for such court to issue writs of attachment , or any other processof sa id court incident or applicable to writs of injunction or other properprocess, mandatory or otherwi se , against such common carrier, an d if acorporation , agains t one or more of the directors, officers, or agents of thesame, or against any owner, lessee, trustee, receiver, or other person failingto obey such writ of injunction , or other proper process, man datory orotherwise ; and sa id courtmay , if it shall think fit , make an order d irectingsuch common carrier or other person so disob eying such writ of injunctionor other proper process , mandatory or otherwise, to pay such sum of money,not exceeding for each carrier or person in default the sum of five hundreddollars for every d ay , after a d ay to b e named in the order, that such carrieror other person sha ll fail to ob ey such injun ction or other proper process ,mandatory or otherwise ; an d such moneys shall be payable as the courtshall direct , either to the party compla ining or into court , to ab ide theultimate decision of the court , or into the Treasury ; and payment thereofmay , without prejudice to any other mode of recovering the same, beenforced by attachment or order in the nature of a writ of execut ion , inlike manner as if the same had been recovered by a final decree in personamin such court . When the subject in d ispute shall be of the value of twothousand dollars or more, either party to such proceeding before sa id courtmay appeal to the Supreme Court of the Uni ted States , under the sameregulations now provided by law in res pect of security for such appeal ; butsuch appeal shall not operate to stay or supersede the order of the courtor the execution of any writ or process thereon ; an d such court may , inevery such matter, order the p ayment of such costs an d counsel fees assha ll b e deemed reasonable. Whenever any such petition shall be filed orpresented by the Commission it shall be the duty of the district attorney,under the direction of the Attomey
-General of. the United States , toprosecute the same ; an d the costs and expenses of such prosecution shallbe paid out of the appropriation for the expenses of the courts of theUnited States .
If the ma tters involved in an y such order or requirement of saidCommi ssion are founded upon a controversy requiring a trial by jury, asprovided by the seventh amendment to the Constitut ion of the UnitedStates , and any such common carri er shall violate or refuse or neglect toObey or perform the same, after notice given by said Commission as providedin the fifteenth section of thi s Act , it shall be lawful for any company orperson interested in such order or requirement to apply in a summary1way by petition to the circuit court of the United States sitting as a court
326 APPENDIX A .
jud ges of the courts of the United States . The Commission shall appoint asecretary, who shall receive an annua l sa lary of three thousand five hun d reddollars, payable in like manner . The Commission shall have authority toemploy and fix the compensation of such other employees as it may findnecessary to proper performance of its duties . Until otherwise providedby law, the Commi ssion may hire suitable offices for its use and sha ll haveauthority to procure all necessary office supplies . Witnesses summonedbefore the Commission sha ll be paid the same fees and mi leage that are paidwitnesses in the courts of the United States .All of the exp enses of the Commission , including all necessary exp enses
for transportat ion incurred by the Commissioners, or by their employeesunder their orders , in making any investigations or upon official bus iness inany other places than in the city of Washington , shall be allowed and paidon the presentation of itemized vouchers therefor approved by the cha irmanof the Commission .
SESS IONS OF THE COMMISS ION .
SECTION 1 9 . That the principal office of the Commission shall bein the city of Washing ton , where its general session shall be held ; but whenever the convenience of the public or the parties may be promoted or delayor expens es prevented thereby, the Commi ssion may hold special sessionsin any part of theUnited States . Itmay , by one ormore of the Commissioners,prosecute any inquiry necessary to its dut i es , in any part of the United States,into any matter or quest ion of fact pertaining to the bus iness of any commoncarri er sub ject to the provisions of this Act .
COMMISSION AUTHORIZED TO RE!UIRE ANNUAL REPORTS .
SECTION 20. That the Commission is hereby authorized to requireannual reports from all common carriers subject to the provisions of this Act,and from the owners of all railroads engaged in interstate commerce as definedin this Act, to prescribe the manner in which such reports shall be made , andto require from such carriers specific answers to all questions upon whichthe Commisison may need information. Such annual reports shall show indetail the amount of capital stock issued, the amounts paid therefor, and themanner of payment for the same ; the dividends paid, the surplus fund, ifany , and the number of stockholders ; the funded and floating debts and theinterest paid thereon ; the cost and value of carrier’s property, franchises, andequipments ; the number of employees and the salaries paid each class ; theaccidents to passengers, employees, and other persons, and the causes thereof ;the amounts expended for improvements each year, how expended, and thecharacter of such improvements ; the earnings and receipts from each branchof business and from all sources ; the operating and other expenses ; the balancesof profit and loss ; and a complete exhib it of financial operations of the carriereach year, including an annual balance sheet. Such reports shall also containsuch information in relation to rates or regulations concerning fares or fre ights,or agreements, arrangements , or contracts affecting the same as the Commiss ionmay require ; and the Commission may , in its discretion, for the purpose ofenabling it the better to carry out the purposes of this Act, prescribe a period
THE INTERSTATE COMMERCE ACT . 327
of time within which all common carriers subject to the prov isions of this Actshall have, as near as may be, a uniform system of accounts, and the mannerin which such accounts shall be kept.
Said d etailed reports shall contain all the required statistics for theperiod of twelve months ending on the thirtieth d ay of June in each year, andshall be made out under oath and filed with the Commission, at its office inWashington, on or before the thirtieth d ay of September then next following,unless additional time be granted in any case by the Commission ; and if anycarrier, person, or corporation subject to the provisions of this Act shall fail tomake and file said annual reports within the time above specified, or within thetime extended by the Commission for making and filing the same, or shallfail to make specific answer to any question authorized by the provisions ofthis section within thirty days from the time it is lawfully required so to do,such parties shall forfeit to the United States the sum of one hundred dollarsfor each and every d ay it shall continue to be in default with respect thereof.The Commiss ion shall also have authority to require said carriers to file monthlyreports of earnings and expenses or special reports within a specified period,and if any such carrier shall fail to file such reports within the time fixed bythe Commission it shall be subject to the forfeitures last above provided.
Said forfeitures shall be recovered in the manner provided for the recoveryof forfeitures under the provisions of this Act.
The oath required by this section may be taken before any person authorized to administer an oath by the laws of the State in which the same is taken.
The Commission may , in its discretion, prescribe the forms of any and
all accounts, record s and memoranda to be kept by carriers subject to theprovisions of this Act, including the accounts, records, and memoranda of themovement of traffic as well as the receipts and expenditures of moneys. The
Commission shall at all times have access to all accounts, records , and memoranda kept by carriers subject to this Act, and it shall be unlawful for suchcarriers to keep any other accounts, records, or memoranda than those prescribed or approved by the Commission, and it may employ special agents orexaminers, who shall have authority under the order of the Commission toinspect and examine any and all accounts, records, and memoranda kept bysuch carriers. This provision shall apply to receivers of carriers and operatingtrustees.
In case of failure or refusal on the part of any such carrier, receiver,or trustee to keep such accounts, records , and memoranda on the books andin the manner prescribed by the Commission, or to submit such accounts ,records, and memoranda as are kept to the inspection of the Commission orany of its authorized agents or examiners, such carrier, receiver, or trusteeshall forfeit to the United States the sum of five hundred dollars for each andevery d ay of the continuance of such offense , such forfeitures to be recoverablein the same manner as other forfeitures provided for in this Act.Any person who shall willfully make any false entry in the accounts
of any book of accounts or in any record or memoranda kept by a carrier, orwho shall willfully destroy, mutilate, alter, or by any other means or devicefalsify the record of any such account, record, or memoranda, or who shall
328 APPENDIX A .
w illfully neglect or fail to make full, true, and correct entries in such accounts,records, or memoranda of all facts and transactions appertaining to the carrier’sbusiness , or shall keep any other accounts, records, or memoranda than thoseprescribed or approved by the Commission, shall be deemed guilty of a misdemeanor and shall be subject, upon conviction in any court of the UnitedStates of competent jurisdiction, to a fine of not less than one thousand dollarsnor more than five thousand dollars, or imprisonment for a term not less thanone year nor more than three years, or both such fine and imprisonment.Any examiner who divulges any fact or information which may come
to his knowledge during the course of such examination, except in so far as hemay be directed by the Commission or by a court or judge thereof, shall besubject, upon conviction in any court of the United States of competent jurisd iction, to a fine of not more than five thousand dollars or imprisonment fora term not exceeding two years, or both.That the circuit and district courts of the United States shall have juris
diction, upon the application of the Attorney =General of the United States atthe request of the Commission, alleging a failure to comply w ith or a violationof any of the provisions of said Act to regulate commerce or of any Act supplementary thereto or amendatory thereof by any common carrier, to issue awrit or writs of mandamus commanding such common carrier to comply withthe provisions of said Acts, or any of them.
And to carry out and give effect to the provisions of said Acts, or anyof them, the Commission is hereby authorized to employ special agents orexaminers who shall have power to administer oaths, examine witnesses, andreceive evidence.That any common carrier, railroad, or transportation company receiving
property for transportation from a point in one State to a point in anotherState shall issue a receipt or b ill of lading therefor and shall be liable to thelawful holder thereof for any loss, damage, or injury to such property causedby it or by any common carrier, railroad, or transportation company to whichsuch property may be delivered or over whose line or lines such property maypass, and no contracts , receipts , rule, or regulation shall exempt such commoncarrier, railroad, or transportation company from the l iab ility hereby imposed:Provided
,That nothing in this section shall deprive any holder of such receipt
or b ill of lading of any remedy or right of action which he has under existinglaw.
That the common carrier, railroad, or transportation company issuingsuch receipt or b ill of lading shall be entitled to recover from the commoncarrier, railroad, or transportation company on whose line the loss, damage,or injury shall have been sustained the amount of such loss, damage, or injuryas it may be;required to pay to the owners of such property, as may be evidencedby any receipt, judgment, or transcript thereof.!Section 20. That the Commission is hereby authorized to require
annual reports from all common carriers subject to the provisions of thi sAct , to fix the time and prescribe the manner in which such reports shallbe made , and to require from such carriers specific answers to all questionsupon which the Commission may need information. Such annual reportsR
EPEALED.
330 APPENDIX A .
and employees ; and nothing in this Act contained shall in any way abridgeor alter the remedies now existing at common law or by statute, but theprovisions of t his Act are in add ition to such remedies : Provided
,That no
pend ing litigation shall in any way be affected by this Act : Provided further ,That nothing in this Act shall prevent the issuan ce of joint interchangeablefive-thousand-mile tickets , with special privileges as to the amount of freebaggage that may be carri ed under mileage tickets of one thousand or moremiles . But before any common carrier , sub j ect to the provisions of this Act ,shall issue any such joint interchangeable mileage tickets wi th special privilegesas aforesa id, it sha ll file with the Interstate Commerce Commission copiesof the joint tariffs of rates, fares , or charges on which such joint interchangeablemileage tickets are to be based, together with specificat ions of the amount offree baggage permitted to be carried under such tickets, in the same manneras common carriers are required to do with regard to other joint rates bysection six of this Act ; and all the provisions of said section six relating tojoint rates, fares, and charges shall b e observed by said common carriers andenforced by the Interstate Commerce Commission as fully with regard tosuch joint interchangeable mileage tickets as with regard to other joint rates,fares, and charges referred to in sa id section six . It shall be unlawful forany common carrier that has issued or authorized to be issued any such jointinterchangeab le mileage tickets to demand, collect , or rece ive from any
person or persons a greater or less compensation for transportation of personsor baggage under such joint interchangeable mileage tickets than that requiredby the rate, fare, or charge specified in the copies of the joint tariff of rates,fares , or charges filed with the Commission in force at the time . The provisions of section ten of this Act shall apply to any violation of the requirements of this proviso .
JURISD ICTION OF COURTS TO ISSUE WRITS OF PEREMPTORY MANDAMUS COMMANDING THE MOVEMENT OF INTERSTATE TRAFFIC OR THE FURNISHING OF CARS OR OTHER TRANSPORTATION FAC ILITIES .
SECTION 23. That the circuit and district courts of the UnitedStates sha ll have jurisdiction upon the relat ion of any person or persons ,firm,or corporation , alleging such violation by a common carrier of any of
the provisions of the Act to which this is a supplement and all Acts amendatory thereof, as prevents the relator from having interstate traffic movedby sa id common carrier at the same rates as are charged, or upon terms orconditions as favorable as those given by sa id common carrier for like trafficunder simi lar cond itions to any other shipper, to issue a writ or writs of mandamus against said common carrier, command ing such common carrier tomove and transport the traffic, or to furnish cars or other facili ties for transportation for the party applying for the writ : Provided, That if any questionof fact as to the proper compensation to the common carrier for the serviceto b e enforced by the writ is raised by the pleadings, the writ of peremptorymandamus may i ssue, notwithstand ing such quest ion of fact is undetermined,upon such terms as to security, payment of money into the court , or otherwi se
, as the court may think proper, pending the determination of the quest ionof fact : Provided, That the remedy hereby given by writ of mandamus
THE INTERSTATE COMMERCE ACT . 331
shall be cumulative, and shall not b e held to exclude or interfere with otherremedies provided by this Act or the Act to which it is a supplement .COMMISSION ENLARGED To SEVEN MEMBERS WITH SALARIES OF
SECTION 24. That the Interstate Commerce Commission is herebyenlarged so as to consist of seven members with terms of seven years, and
each shall receive ten thousand dollars compensation annually. The qualifications of the Commissioners and the manner of the payment of their salariesshall be as already provided by law. Such enlargement of the Commissionshall be accomplished through appointment by the President, by and with theadvice and consent of the Senate, of two additional Interstate Commerce Commissioners, one for a term expiring December thirty -first, nineteen hundredand eleven, one for a term expiring December thirty s first, nineteen hundredand twelve. The terms of the present Commissioners, or of any successorappointed to fill a vacancy caused by the death or resignation of any of thepresent Commissioners, shall expire as heretofore provided by law. Theirsuccessors and the successors of the additional Commissioners herein providedfor shall be appointed for the full term of seven years, except that any personappointed to fill a vacancy shall be appointed only for the unexpired term ofthe Commissioner whom he shall succeed. Not more than four Commissionersshall be appointed from the same political party.!In the following sections—which are from the Hepburn Act- the
words,
“ this Act” refer only to the Hepburn Act .-Ed s .!
ATTENDANCE OF WITNESSES AND PRODUCTION OF EVIDENCE .
ADDITIONAL SECTION. That all existing laws relating to the attendance of witnesses and the production of evidence and the compelling of testimonyunder the Act to regulate commerce and all Acts amendatory thereof shallapply to any and all proceedings and hearings under this Act.ADDITIONAL SECTION. That all laws and parts of laws in conflict
with the provisions of this Act are hereby repealed, but the amendments hereinprovided for shall not affect causes now pending in courts of the United States,but such causes shall be prosecuted to a conclusion in the manner heretoforeprovided by law.
ADDITIONAL SECTION. That this Act shall take effect and be inforce from and after its passage.!Approved February 1 1 , 1 887 ; amended March 2 , 1 889 ; February 1 0,
1 89 1 ; Feb ruary 8, 1 895 ; and June 29 , 1 906 .
!Note.—By a joint resolution adopted after the passage of the HepburnAct , it was provided that this Act should go into effect sixty days after June29 1 906 .
334 APPENDIX B .
committed, or through which the transportation may have been conducted ;and whenever the offense is begun in one jurisdiction and completed in anotherit may be dealt with, inquired of, tried, determined, and punished in eitherjurisdiction in the same manner as if the offense had been actually and whollycommitted therein.
In constru ing and enforcing the provisions of this section, the act, omission, or failure of any officer, agent, or other person acting for or employedby any common carrier, or shipper, acting w ithin the scope of his employment,shall in every case be also deemed to be the act, omission, or failure of suchcarrier or shipper as well as that of the person. Whenever any carrier filesw ith the Interstate Commerce Commiss ion or publishes a particular rate underthe provisions of the Act to regulate commerce or Acts amendatory thereof, orparticipates in any rates so filed or published, that rate as against such carrier,its officers or agents, in any prosecution begun under this Act shall be conclusively deemed to be the legal rate, and any departure from such rate, orany offer to depart therefrom, shall be deemed to be an offense under this sectionof this Act.Any person, corporation, or company who shall deliver property for
interstate transportation to any common carrier, subject to the prov isions ofthis Act, or for whom as consignor or cons ignee, any such carrier shall transportproperty from one State, Territory, or the District of Columb ia to any otherState, Territory, or the District of Columb ia, or foreign country who shallknowingly by employee, agent, officer, or otherwise , directly or indirectly, byor through any means or device whatsoever, receive or accept from such common carrier any sum of money or any other valuable consideration as a rebateor offset against the regular charges for transportation of such property, asfixed by the schedule of rates provided for in this Act, shall in addition to any
penalty provided by this Act, forfeit to the United States a sum of money threetimes the amount of money so received or accepted and three times the valueof any other cons ideration so received or accepted, to be ascertained by thetrial court ; and the Attorney-General of the United States is authorized anddirected, whenever he has reasonable grounds to believe that any such persons,corporation, or company has knowingly received or accepted from any suchcommon carrier any sumof money or other valuable consideration as a rebate oroffset as aforesaid, to institute in any court of the United States of competentjurisdiction, a civil action to collect the said sum or sums so forfeited as aforesaid ; and in the trial of said action all such rebates or other considerations soreceived or accepted for a period of six years prior to the commencement of theaction, may be included there in, and the amount recovered shall be three timesthe total amount of money, or three times the total value of such consideration,so rece ived or accepted , or both, as the case may be.!Section 1 . That anything done or omitted to be done by a corpora
tion common carrier , subject to the Act to regulate commerce and theActs amendatory thereof which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent , or personacting for or employed by such corporation , would constitute a misd emeanoriund er said Acts or under this Act shall also be held to be a mis
REPEALED.
THE ELKINS ACT . 335
demeanor committed by such corporat ion , and upon conviction thereofit shall b e sub ject to like penalties as are prescrib ed in said Acts or by thisAct with reference to such persons except as such penalties are hereinchanged . The wi llful fai lure upon the part of any carrier subject to sa idActs to file and publish the tariffs or rates and charges as required by saidActs or strictly to observe such tariffs until changed according to law,
shall be a misdemeanor, and upon conviction thereof the corporat ion offending sha ll b e subject to a fine of not less than one thousand dollars nor morethan twenty thousand dollars for each offense ; and it shall b e unlawfulfor any person , persons, or corporation to offer, grant , or give or to solicit ,accept , or receive any rebate, concession , or discrimination in respectof the transportation of any property in interstate or foreign commerceby any common carrier subject to sa id Act to regulate commerce an d theActs amendatory thereto whereby any such property Sha ll by any devicewhatever be transported at a less rate than that named in the tarifispublished and filed by such carrier, as is required by sa id Act to regulatecommerce an d the Acts amendatory thereto, or whereby any other ad vantage is given or discrimination is practiced . Every person or corporationwho shall offer, grant , or give or solicit , accept or receive any such rebates ,concession , or discrimination shall be deemed gui lty of a misdemeanor,and on conviction thereof shall b e punished by a fine Of not less than onethousand dollars nor more than twenty thousand dollars . In all conviotions occurring after the passage of this Act for offenses under said Acts toregulate commerce, whether committed before or after the passage of thisAct , or for offenses under this section , no penalty shall be imposed on theconvicted party other than the fine prescribed by law, imprisonmentwherever now prescribed as part of the penalty being hereby abolished .
Every violation of this section shall be prosecuted in any court of theUnited States having juri sdict ion of crimes within the district in whichviolation was committed or through which the transportation may havebeen conducted ; an d whenever the ofiense is begun in one jurisdictionand completed in another it may be dealt wi th, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if theofi
'
ense had been actually and wholly committed therein .
In construing and enforcing the provisions of thi s section the act ,omission , or failure of any officer, agent , or other person act ing for or employ ed by any common carri er actin g within the scope of his employmentshall in every case be also deemed to be the act , omission , or failure of suchcarrier as well as that of the person . Whenever any carri er files with theInterstate Commerce Commission or publishes a part icular rate under theprovisions of the Act to regulate Commerce or Acts amendatory thereto ,or participates in any rates so filed or published , that rate as against suchcarrier, i ts officers , or agents in any prosecution b egun under this Act shallbe conclusively deemed to be the legal rate, an d any departure from suchrate, or any offer to depart therefrom ,
shall be deemed to be an offenseunder this section of this Act .
336 APPENDIX B .
PERSONS INTERESTED IN CASES MAY BE MADE PARTIES AND SHALL BE SUBJECTTO ORDERS OR DEGREES .
SECTION 2 . That in any proceeding for the enforcement of the provi sions of the statutes relating to interstate commerce, whether such proceedings be instituted before the Interstate Commerce Commission or be b egunoriginally in any circuit court of the United States, it Shall be lawful to includeas parties , in add it ion to the carri er, all persons interested, or affected by therate, regulation , or practice under cons ideration, an d inquiri es , investigat ions ,orders
, and decrees may be made wi th reference to an d against such additionalparties in the same manner, to the same extent , and subject to the sameprov ions as are or shall be authori zed by law with respect to carriers .
PROCEEDINGS TO ENJOIN OR RESTRAIN DEPARTURES FROM PUBLISHED RATESOR ANY DISCRIMINATION PROHIB ITED BY LAW AGAINST CARRIE RS AND
PARTIES INTERESTED IN TRAFFIC .SECTION 3. That whenever the Interstate Commerce Commission
shall have reasonable ground for beli ef that any common carrier is engag edin the carriage of passengers or freight traffic between given points at lessthan the publi shed rates on file, or is committing any discriminations forb iddenby law,
a petition may be presented alleging such facts to the circuit court ofthe United States sitting in equity having juri sdiction ; and when the actcompla ined of is alleged to have been committed or as being committed inpart in more than one jud icial district or State, it may be dealt with, inquiredof
,tri ed
, and determined in either such judicial d istrict or State, whereuponit shall b e the duty of the court summari ly to inquire into the circumstances,upon such notice and in such manner as the court shall direct and withoutthe formal plead ings an d proceedings applicab le to ordinary suits in equity ,and to make such other persons or corporations part ies thereto as the courtmay deem necessary, and upon being satisfied of the truth of the allegationsof said petition said court shall enforce an observance of the pub lished tariffsor direct and require a discontinuance of such discrimination by proper orders ,writs
, and process , which sa id orders, writs, an d process may be enforceableas well as against the parties interested in the traffic as against the carri er ,subject to the right of appeal as now provided by law . It sha ll be the dutyof the several d istrict attorneys of the United States, whenever the AttorneyGeneral shall direct , either of his own motion or upon the request of the Interstate Commerce Commission , to institute and prosecute such proceed ings ,and the proceedings provided for by thi s Act shall not preclude the bringingof suit for the recovery of damages by any party injured, or any other actionprovided by said Act approved February fourth, eighteen hundred and eightyseven
,entitled An Act to regulate commerce and theActs amendatory thereof.
And in proceedings under thi s Act and the Acts to regulate commerce thesaid courts shall have the power to compel the attendance of witnesses , bothupon the part of carri er and the shipper, who Shall b e required to answer onall subjects relating d irectly or indirectly to the matter in controversy, and tocompel the product ion of all b ooks and papers, both of the carri er and theshipper
,which relate d irectly or ind irectly to such transaction ; the claim
TABLE OF CASES .
CASES CITED IN ELEVENTH SUBJECT—SALES.
Allen vs Maine (Central R . Co. (79 Me . , 60.
And enreid vs . Betteley (8 Allen , 302 ) 1 5 .
Anderson vs . Roberts ( 1 8 John son (N. Y . 77 .
Artcher vs. Zeh . (5 H ill , 89 .
Baehr vs . Clark (83 Iowa , 7 1 .
Baldwin vs . W ill iams (3 Meto. , Mass . 27 85 .
Banta vs . Chicago ( 1 72 Ill.
Barber vs . Commercial Mutual L . Ins . Co . ( 1 5 Fed . Rep . 27.
Barnard vs . Cam bell (58N. Y .
Barrow vs . Wen ow (7 1 II!. 39 .
Bartlett vs . Smith (C. C. ( 1 3 Fed . 29 .
Beardsley Vs . Beardsley ( 1 38 U . S . 43.
Beaumont vs . Brengeri (5 C. B . 88
Belden vs . Perkins (78 Ill. 1 1 .
Blystone vs . Burgett (68 Am . Dec. 1 5.
Boardman vs . Cutter ( 1 28 Mass . 27.
Bracket vs . Edgerton ( 1 4 M inn . 63.
Bradford vs. Manly ( 1 3 Mass . 37 .
Brady vs . Yost (55 Pac. Rep . ,
5
65 .
Brett vs . Carter (2 Lowell (U . S .
Briggs vs . A Light Boat (7 Allen (Mass . 47 .
Brown vs . Allen (35 Iowa , 87 .
Brown vs . Farmer , L . T . Assn . ( 1 1 7 N. Y 83.
Bryant vs. Isburgh ( 1 3 Gray , 69 .
Buffin gton vs . Curtis ( 1 5 Mass . , 24.
Byles vs . Coll ier (54 M ich . , 41 .
Cake vs . Shull (45 N. J . 24.
Callaghan Vs . Meyers (89 , 5
Carlton vs. Jenks (80 Fed . Rep . , 35.
Carpenter vs . Carp enter (45 Ind . ,2 1 .
Carpenter vs . Galloway (73 Ind . 84.
Case vs . Hall (24 Wend .,
64 .
8) 2 1 .
HS,404
S32 .
( 1 2 1 U S 52 .
ding (20 Colo . , 45 .
4.
( 1 1 9 N. Y . ,1 3.
5.
(Mass ) , 84.
Y. ,73
Y. ,29 .
340 TABLE OF CASES .
D iem vs. Kobl itz (49 Ohio St . ,59 .
vs . Kellogg (44 Ill . , 5 1 .
Doane vs . Dun ham (65 1 11 .Dowl ing vs . McKenny ( 1 24 Mass . , 84.
Dud ley vs . Hawley (40 Barb ,2 1 .
Duncroft vs . Albrecht (3 M . W . 84 .
Dyer vs . Bean ( 1 5 Ark .
Edgerton vs. Hodge (41 Vt . ,89 .
Edwards vs . Cottre ll (43 Iowa ,1 7.
Evans Vs. Roberts (5 B . C. ,27.
Farrer vs . Nightingal (2 Esp . ,34 .
Faucett vs . Osborn (32 1 1 1 . 72 . 76 .
Fish vs . Benedict (74 N. Y . 1 6
46Flynn vs . Led ger (48 Hun . (N. Y .,46) 5) 68.
Forsy th Mfg . CO . Vs . Castlen ( 1 1 2 Ga . 29 .
Foster vs . Pettibone (57 Am . 1 2 .
Foster vs . Ropes ( 1 1 Mass .Frazier vs . Simmons (Ii
? Mass . 57.
Fuller vs . Bean (34 N. H
Gard ner vs. Adams ( 1 2 Wend . ,21 .
Gardner vs . Binney ( 1 1 5 Mass . , 88.
G ibson vs . Stevens (8 How . (U. S . 24.
G ibson vs . Warden ( 1 4 Wall . (U . S . 23.
Glover vs. Payne ( 1 9 Wendell , 1 .
G ilbert vs . D ickenson (7 Wend . 76 .
Goldsmith vs . Greenly (32 Atl. R8,
22 .
Gooch vs . Homes (4 1 Me .Graff vs . Fitch (58 Ill.Gray vs . Walton ( 1 07NY 49 .
Green vs . Van Buskirk (5YWall. 47 .
Greenwood vs . Law (55 N. J . L . 28.
Guy vs. United States (25 Ct . Cl. 44.
Hall vs. Gardner (2 N. Y . ,2 1 .
Hamble vs. M itchell ( 1 1 A. E . ,27.
Hamilton vs . McAlist er (49 S . Car. 69 .
Hamilton vs . Russell ( 1 Craven (U. S . 309 , 24.
Haren vs. Wakefield (39 III. 56 .
Harman vs. Reeve ( 1 8 C. B . 84 .
Haskins vs . Warren ( 1 1 5 Mass . 49
Hathaway vs . Bennett ( 1 0N Y 28.
Hawkins vs . Pemberton (51 N. Y . ,1 98 36 .
Hawkins vs . Chase ( 1 9 Pick . (Mass ) , 9 1 .
Hayden vs . Driving Park (63 Conn . , 73.
Henderson vs . Mahew (2 G ills 1 5.
Hoffman vs . Conn or (20Wend .
,4.
Holland vs . Swain (9 4 Ill. 72 .
Holland vs . Rea (48 M ich . 6 1 .
Holman vs. Johnson ( 1 Cow . 25 .
Holmes vs . Tyson ( 1 47 Pa . 32
Hopper vs . Callahan (78 Md . 77 .
Hoyt vs. Hally ( 1 22 Am . Ree
fi.
, 390
Hutchinson vs . Oswald ( 1 7 I App . 76 .
Hunt VS . Wyman ( 1 00 Mass .Hun t ington vs . Chisholm (61 Ga . 28.
Irons vs. Kentner (51 Iowa,InsuranceBankofColumbus vs. Bank of United States (4 Clark , 29 .
342 TABLE OF CASES .
!uarles vs. State (55 Ark ,25.
Redden vs. M iller (95 Ill. , 73.
Rennick vs. Sanford ( 1 20 Mass . , 86Rickert vs. People (79 Ill .
,1 7.
Rinker vs. Rinker (20 Ind .,
1 6 .
Riggs vs . Am . Tract Society (84 N. Y ., 22
Ropes vs. Lane (9 Allen (Mas s ) , 44.
Saltus vs . Everett (20 Wendell , 77.
Scott vs. Whitney (41 Wis . , 23.
Sed ell vs. McCoy’s Exrs . ( 1 5 La. 340, 28.
Sharp vs. Parks (48 III. 2 1 .
Sharp vs. Parks (48 III. 74.
hawhan vs. Van Nest (25 Ohio St . ,45.
Shaw vs. Lady Ensley Coal Co. ( 1 47 Ill. 61 .
Simmons vs. Woodard (6 1 N. J. Oh . , 23.
Small vs. Rob in (9 Nun . (N. 76 .
Smith vs . Beattie (31 N. Y .,
1 4 .
Smith vs. Wheeler (7 Oregon, 58.
Smith vs. Cuff (6 M . Sel. , 25 .
Smith vs. Countryman (30N. Y. , 67.
Smith vs . Gillett (50 Ill. , 50.
Smith vs. Dennie (6 Pick. (Mass ) , 59 .
Snow vs. Shomacker Mfg . Co . (69 Ala.
,34.
Spooner vs. Holmes ( 1 02 Mas s. , 27.
Stewart vs. Munford (9 1 Ill ,
Stone vs. Denison ( 1 3 Pick .,
Stoney vs. 4 Metc. (Mass ) ,Strickland vs. Traner (7 Exch .
Straus vs. Menzesheimer (78 Ill. 43.
S tuphen vs . Cushman (35 1 4.
Sweat vs . Shumway ( 1 02 Mass. , 36 .
Sweet vs. Pym ( 1 East, 60.
Taylor vs. Smith (2!. B ., 86.
Tempest vs. Kilner (3 C. B ., 84.
Tisdale vs. Harris (20 Pick .
,85 .
Thorndike vs. Bath ( 1 1 4 Mas s . , 44.
Thorne vs. McVeagh (75 Ill. 32.
Thornton vs . Davenport (2 Ill . 24.
Tome vs. Dubois (6 Wall. 2 1 .
Towell vs . Gatewood (3 Scam . (Ill. 33
Turner vs. Kerr (44 Mo . , 1 4.
Tyler vs. Carlisle (79 Me . , 25.
Ullman vs . Kent (60 Ill. , 61 .
Underwood vs. Wolf ( 1 31 Ill., 64.
Vail vs . Strong ( 1 1 Vt . ,1 7.
Valpy vs. G ibson (4 C. B . 22.
Van Hoozer vs. Corey (34 Barb .,
Van Winkle vs. (h owell ( 1 46 U. S . 55.
Vaulter vs . Griffin (40 Ind .,
84.
Ventress vs. Smith ( 1 0 Pet . , 7 1 .
Von Platen vs. Krueger ( 1 1 Ill. , App . 22.
Walden vs . Murdock (23 Cal. , 52.
Walker vs. M iller (59 Fed . Rep , 78.
Walker vs . 81 1 ple (54 Ga ,1 78
Wamsley vs.Horton (77Hun . (N.
8
Y.
SALES . 343
Wardell vs. Williams (62 M ich . , 90.
Warren vs. Buckminster (24 N. H . 54.
Washburne vs . Burke (84 Ill. Ap 23.
Way vs. Mart in ( 1 40 Pa. St ., 33.
Webbs vs. R . R . Co., (77 Md. 27 .
Weill vs. American Metal Co., ( 1 82 Ill. , 54.
Weill vs. Golden ( 1 4 1 Mass “ 48.
Westphal vs. S 1pe et al. (62 Ill. . 1 2 .
Whitehouse vs. Frost ( 1 2 East , 44.
Whitney vs. Boardman ( 1 1 8 Mass . 58.
Whitney vs. Eaton ( 1 5 Gray (Mass ) , 43.
Whittemire vs . G ibbs (24N. H., 27.
1 1 vs. Day (9 Gray, 73.
Wil nson vs. Heavenrich (58 M ich , 9 1 .
Wilkinson vs. Rex. (2 Camp .,
Williams vs. Berry (8 How . ,
Wilson vs. Herbert (41 N. J. L. 22.
Wilson vs. King (83 Ill. , 5 .
Winnow vs . Lombard ( 1 8 Pick . (Mass ) , 35.
Wolf vs. Dietzsch (75 Ill.Wright vs. Ross (36 Cal. , 1 5.
Wright vs. Wright (2 Litt . (Ky. 1 5.
Zoeller vs. Reilley ( 1 00N. Y 78.
oAS ES CITED IN TWELFTH SUBJECT— BAILMENTS .
Anderson vs . Foresman (Wright (Ohio ) , 1 31 .
Bacon vs . New York City Fourth National Bank (9 N. Suppl . ,Baggett vs. McConnack (73 M iss . , 1 29 .
Barker vs . Roberts (8 Me .Benje vs . Creagh (21 Ala . 1 47
9
.
Blakemore vs . Bristol R . Co. (8 E B . 1 35.
Bohannon vs . Springfield (9 AlaBritton vs. Turner (6 N. H. ,
1 39 .
Bushfield vs. Wheeler ( 1 4 Allen (Mass ) 1 41 .
1 32
344 TABLE OF CASES .
Garrard vs. Moody (48 Ga . 1 41 .
G ittings vs . Nelson (86 Ill. 1 28.
Glenn vs . Jackson (93 SIO . 1 45.
Gray vs . Merriam ( 1 43 1 37.
Hall vs . State (4 Harr.Hamilton vs . Wagner (2 A. K. Marsh (Ky .Hanna vs. Phelps (7 Ind . 1 4 1 .
Hard vs . Hunt ( 1 1 Cal. 1 29 .
Hear vs. Brewer (4 Daly (N. 1 36 , 1 41 .
Henkins vs . Motlow ( 1 Sneed (Tenn ) , 1 31 .
H illyard vs . Craleties (Admir. 1 1 ; Tes . ,1 39 .
Huxley vs . Hartzell (44 Mo . , 1 31
Jarvis vs. Rogers ( 1 5 Mass . , 1 28.
Jones vs . Morgan (90N. Y. ,1 37.
K isten vs . Hildebrand (9 B . Mon . (Ky .
K ing vs . Richards (6 Whart . (Pa .)Knight vs . Davis Carriage Co. (7 1 Fed . 1 29 .
Loomis vs. Stowe (72 Ill. , 1 28.
Macombe vs . Parker ( 1 4 Pick .
Mansfield vs . Commerce (8 Allen (Mass .Masterson vs . International , etc ,
R . Co. Cic . App . 1 47.
Mechanics ’ Bank vs . Gordon (5 La .,Ann . , ,
1 32.
M ichigan Central R . Co. vs . Carrow (73 Ill. , 1 27.
M inor vs . Staples (7 1 Me .Morgan vs . Congdon (4 N. Y . 1 41 .
Morse vs. And rascoggin R . Co. (39 Me . 1 47.
Nelson vs . Inerson ( 1 7 Ala . 1 29
New York , etc. R . Co . vs . New Jersey Electric R . Co. (60N. J . L
Orchard vs . Bush (22 B . 1 44.
Ot is vs . Wood (3Wend . (N.
Owens vs . Kiniseg (52 N. C. 1 27.
Parker vs . Gaines (Ark .
Pellettier vs . Roumiage (2 La . 1 33.
People vs . Jones (54 Barb . (N. Y . 1 44.
Reeves vs . per ( 1 Am . ,
Rindge vs . CoIeraine ( 1 1 Gray (Mas
z
s . 1 29 .
R ichmond vs. Smith (8 B . C. , 6.
R ipley vs. Dolb ier ( 1 8 Me , 1 47.
Samuels vs . McDonald (33N. Y. Super Ct . ,1 27.
Sanders vs . Davis ( 1 3 B . Mon . 1 27
Sanders vs . Spvncer (3 Dyer , 266b ) , 1 46 .
Schermer vs ewrath (54 Md . ,1 31 .
Sessions vs . Western R . Corp . ( 1 6 Gray 1 32,1 47
Shaw vs . W ilshire (65 Me . 1 28.
Shoecraft vs. Barley (25 Iowa ,
Small vs. Rob inson (69 Me .Stanton vs . Leland (4 E . D . Smith (N. Y .
State vs . Stone (6 Vt . 1 43.
Strong vs . Adams (30 Vt . 1 29 .
Swann vs . Smith ( 1 4 Daly (N. Y. 1 1 4 1 44.
346 TABLE or CASES .
Gallowat vs . Hughes ( 1 Barley (S . 1 57.
Garnett vs. Willan (5 B . A .,
1 58 .
Geismer vs . Lake Shore,etc.
,R . Co . ( 1 02N. Y . , 1 63.
Georgia Cent . R . Co . vs . Lippman ( 1 1 0 1 5 1 .
Gilbert vs . Gale (5 A. E . ,1 60.
Gisboume vs . Hurst ( 1 Salk .,
1 79 .
Gracie vs. Palmer (8Wheat . , 1 79 .
Griffith vs. Lee ( 1 T . R . ,1 60.
Guliver vs . Adams Ex. Co. (289 Ill. , 1 55.
Hannibal, etc. ,
R . 00 . vs. Swift (2Wall. (U. 1 82.
Harrison vs . Roy (39 M iss . ,1 54 .
Haynie vs . Baylor ( 1 8 Tex. ,1 54.
Hememan vs . Grand Trunk R . Co . ( 1 0 B iss . (U. 1 55 .
Heller vs . Chicago,etc. ,
R . Co . ( 1 09 M ich . ,1 55 .
H igley vs . G ilmer (3Mont . , 1 82 .
Howland vs . The Henry Hood ( 1 2 Fed . Gas . No. 6 , 1 57.
Hunter vs . M’Gown ( 1 Bl i h , 1 60.
Hunt vs . New York , etc. ,Co. ( 1 H ilt . (N. 1 73.
Illinois Central R . Co. vs . Frankenberg (54 Ill. , 1 56.
Jackson vs. Rogers (2 Show , 1 58.
Kerr vs .Willan (6 M . S .,
1 58.
Kimball vs . Rutland,etc.
,R . Co . (26 Vt . ,
1 55 .
King vs . Meredith (2 Camp . ,1 60.
Knapp vs . McCofirey ( 1 78 Ill.
,1 55.
Lane vs. Cotton ( 1 Lord Ray .,
1 58 .
Lang vs . Pennsylvania R . Co. (2 Pa . D ist . Rep .
,1 25, 1 6 1 .
Le Barron vs . East Boston Ferry Co . ( 1 1 Allen 1 55.
Lemont vs . Wash ington , etc. ,R . Co. ( 1 Mackey (D . 1 82.
Levering vs . Union Transp . , etc . , Co. (42 Mo . , 1 70.
Little Rock,etc .
,R . Co . vs. Conatser (6 1 Ark.
,1 56 .
Liverpool,etc. ,Steam Co . vs . Phenix Ins . Col. ( 1 29 U . S . ,
1 55 .
Louisville, etc. ,
R . Co. vs . Queen City Coal Co. ( 1 3Ky . ,L. Rep .
,1 56 .
Maving vs. ( 1 Stark , 1 58.
Mayhew vs . Eames (6 B . C.,
1 58.
Mayhew vs . Nelson (6 C. P . ,1 59 .
McCormick vs . Pennsylvania Cent . R . Co. (80N. Y 1 89 .
Merri ll vs . Grinnell (30N. Y .,
1 89 .
M ichigan Cent . R . Co. vs . M ineral Springs Mfg. Co . ( 1 6Wall . (U.
M iles vs . Cattle (6 B ing . , 1 58.
M issouri Pac . R . vs . Nevill (60 Ark 1 63.
M issouri Pac. R . Company vs . Lev1 (4 Tex. App . Civ. Gas ,1 63.
Moore vs . Wilson ( 1 T . R . ,1 60.
Mors vs . Slew (2 Lev . , 1 58.
Naugatuck R . Co . vs. Waterbury Button Co. (24 Conn . ,1 51 .
Nicholson vs .Willan (5 East 1 58.
Ohio,etc.
,R . Co. vs . Noe (77 Ill. , 1 79 .
Owen vs . Burnett (4 Ty rwh . ,1 58
,1 59 .
Paige vs . Smith (99 Mass . , 1 55 .
Palmer vs . Grand Junct ion Canal Co . (4 M . W. ,1 58.
Pennsylvania R . Co. vs . Price (9 6 Pa . St . ,1 82 .
Pickering vs . Weld ( 1 59 Mass . , 1 57.
Piedmont Mfg . Co . vs . Columb ia ,etc .
,R . Co . ( 1 9 S . C.
,1 52.
Pittsburg,etc . R . Co . vs . Nash (43 Ind . ,
1 57.
CARRIERS . 347
Pittsburg , etc .,R . Co . vs . Vandyne (57 Ind .
,1 82 .
Pozzi vs . Shipton (8 A. E .
,1 60.
Remnewill vs . Cullen (5 Harr 1 55 .
Rich vs . Kneeland (Cro. Jac.,
1 58
B 1 ley vs . Home (5 Bing . , 1 58.
Roberts vs . Turner ( 1 2 (John s) , 1 55 .
Roussel vs. Aumais ( 1 8 Quebec1Sper
. Ct . 1 54.
Rowley vs . Home (3 Bing” 2 ) 1 58.
Rowland vs . M iln (2 H ilt (N. Y .
Sargent vs . Morris (3 B . A .,
1 60.
Sharpe vs . Grey (9 Bin .
Shewalter vs . M issouri ac . Cc . (84 Mo . App .,
1 73.
Smith vs . Home (2 B . M . 1 58.
Smith vs.Western R . Co . (9 1 Ala.,
1 61 .
Sleat vs . Fagg (Ib . ,1 58.
Slimmer vs . Merry (23 Iowa ,1 55.
Southern Express Co. vs . Newby (36 Ga . ,1 70.
Spaid s vs . New York Mail Steamship Co . (3 Daly (N.
State vs . Chavin (7 Iowa ,1 82 .
St . Louis, etc .
,R . Co . vs. Piper ( 1 3 Kans . , 1 73.
Sumner vs . Caswell (20 Fed . ,1 55
Sutton vs . M itchell ( 1 T . R . ,1 59 .
Swain vs . Shepherd ( 1 M . Rob .
,1 60.
Swelinger vs. Simmons (8 Abb . Pr . N. S . (N. 1 57.
Swindler vs . H illard (2 Rich . (S . 1 55 .
Thurston vs . Union Pac. R . Co. (4 D ill (U . 1 82 .
Toledo,etc. ,
R . Co . vs . Tapp . (5 Ind . App .
,1 89 .
Erie R . Co . (4 Lans . (N. 1 81 .
Turner vs. Hufl'
(46 Ark . ,1 57.
Vaible vs . Bigley ( 1 4 Bush . 1 55 .
Varble vs . Bigley ( 1 44 Bush . 698, 1 5 1 , 1 52.
Verner vs. Sweitzer (32 Pa. S t . 208, 1 51 .
Walsh vs. The H . M . Wright , Newb . Abr . , 1 89 .
Dickson (2 B . A . ,1 60.
Hamilton (4 Ohio St . 1 55 .
Wright vs . Snell 1 bWyman vs. Lancaster (732 Fed . Rep . 1 79 .
CASES CITED IN FOURTEENTH SUBJECT— PERSONALPROPERTY .
American Cereal Co. vs . Eli Pett 1John Cereal Co. (72 Fed . Rep .,
202 .
(N. 200.
Burton vs . Stratton ( 1 2 Fed . Rep .,
201 .
Burt vs . Tucker ( 1 78Mass . , 201 .
(7 Pick. ,1 96 .
201 .I
348 TABLE OF CASES .
Harrington vs. Libly ( 1 4 201 .
Hier vs. Abrahams (82 N. Y .,
201 .
Hohner vs . Gratz (52 Fed . Re 203.
Hutchinson vs . Blunberg (5 1 ed . Rep . , 201 .
Jackson vs . Housel ( 1 7 Johns , 281 , 1 9 5.
Lawrence Mfg . Co. vs . Tennessee Mf Co. ( 1 30U. S .,Lever vs . Smith ( 1 1 2 Fed . Rep .
,998 201 .
Litchtenstein vs . Gold smaith (37 Fed . Rep .
,201 .
Livermore vs . White (74 Me . , 1 9 6.
Lorillard vs. Pride (28 Fed . Rep .,
201 .
Motley vs . Dawman (3Myl . C. 201 .
Putnam vs .W iley, (8 Johns , 1 99 .
Reed vs. Spaulding (42N. H.,
204.
Selchow vs . Baker (93N. Y .,
201 .
Shaver vs . Shaves (54 Iowa ,200.
Stewart vs . Bell (33M iss . , 1 9 9 .
Taylor vs . Carpenter (3 Story , 203.
Wallace vs . Burdell (9 7N. Y . ,204 .
Waterman vs . Shipman ( 1 30N. Y . , 201 .
Withers vs . Buckley (20How . ,1 9 6 .
CASES CITED IN FIFTEENTH SUBJECT —PATENTS .
Ager vs . Murray ( 1 05 U . S . ,244 .
AtlanticWorks vs . Brady ( 1 07 U. S .,
224.
Allen vs . G ilman (2 Pat . of Laz . ,223.
Bedford vs. Hunt ( 1 Mason (U. 224 .
Birckill vs . New York (7 Fed . Rep .
,479 ) 232 .
Blandy vs . Gufiith (3 Fed . Pat . Cas . ,224.
Brooks Vs . F iske ( 1 5 How .,
226 .
Cammey er vs . Newton (94 U. S .,
229 .
Chand ler vs. Todd (Mac. A. Pat Cas. ,233.
Dalzell vs . DueberWatch Case Mfg . Co . ( 1 49 U . S .,
244.
Eagleton Mfg . Co . vs . West Bradley , etc .
,Mfg . Co . ( 1 1 1 U. S . ,
225 .
Eams vs. Andrews ( 1 22 U. S . ,239 .
Egbert vs . Lippman ( 1 04 U. S . ,224 .
lectric R . Co . vs . Mamaica,etc.
,R . Co . (6 1 Fed . Rep .
,233.
Gramms Electrical Co. vs. Arnoux Elec . Co. ( 1 7 Fed . Rep .
,222.
Hartshorn vs . Saginaw Barrel Co . ( 1 1 9 U . S .,
223.
Heath vs . H ildreth (Mac . A. Pat . Case 1 2 , 1 1 Fed . Case No . 6,Henry vs . Providence Coal Co . (3 B . A. Cas .
,224.
H icks vs . Shawer (3App . Con . Par.,
234
Hogg vs . Emerson (6 How . ,225 .
Hunt vs . Howe (Mac . A . Pat . Cas .,
227.
Jewett vs . Atwood Suspender Co . ( 1 00 Fed . Rep .,
244.
L indsay vs. Stein ( 1 0 Fed . Rep . ,228.
350 TABLE OF CASES .
Mutual Advertising 00 . vs. Reio (76 Fed . Rep . , 259
Osgood vs. A. S . Aloe Instrument Co. (69 Fed . Rep .,
272.
Perris vs . Hexamer (99 U. S, .
259
Scovilel vs. Toland (6 West . L. J . , .84 Fed Gas . No. 1 2 ,Scribner vs . Henry G . Allen Co. (49 Fed . Rep . ,
259 .
Scribner vs . Clark (50 Fed . Rep .,
267.
Story vs. Holcombe , (4McClean ,259
Taft vs. Stephens Lithographing , etc.,Co . (38 Fed . Rep . ,
Thompson vs. Hubbard ( 1 31 U. S .,
262 .
Wheaton vs . Peters (8 Pet . 262
INDEX
INDEX TO ELEVENTH SUBJECT—SALES.
Acceptance,What Constitutes.
Acceptance, When ImpliedAcceptance and Receipt of Goods Under Statute 85
Who Entitled to Claim Right of.Rights of Bona Fide Purchaser
Rights of Purchaser from Vendee in
C“Chattels not yet in Existence , Sale of
46
23 24
7 1
73
7 1 73
73
74
74
74 75
75 76
76
77
Fraudulent as to Cred 1 tors77 78
78
79 80
352 INDEX
Time of. .
Of B i ll of Sale .
Description,Sale by
Ex Dolo Malo Non Oritur ActioExecuted Contracts of Sale .Executory Contracts to SellSomething Remaining to be Done
Excuse for Non-AcceptanceExcuse for Non-Del ivery
Formal Requisites of Sale ContractFructus Industriales
,May be Subject of Sale
Fructus Naturales,Not Personal Property
0
0 0 0 0 0 0 0 0 0 0 0
0 0 0 0 0 0 0 0 0 0 0
Goods,Wares and Merchandise ” —What Term
Goods to be Manufactured,Sale of
Engl ish Rule . .
Massach usetts Rule .New York Rule .
Illegality of Sale Contracts
As to Existence of ThingAs to Merchantabili ty
As to Quali ty
Effect of.
LLien of the VendorLocus Poenitentiae, Where Remains
Market Overt .Memorandum of Sale, When NecessaryWhat Memorandum Should Include .
Objects of Sale.
0 0 0 0 0 0 0 0 0 0 0
0 0 0 0 0 0 0 0 0
0 0 0 0 0 0 0 0 0 0 0
0 0 0 0 0 0 0 0 0
O O O O O O O O O O O
0 0 0 0 0 0 0 0 0
O O O O O O O O O O O
354 INDEX
TWELFTH SUBJECT—BAILMENTS .
Bailee, Relation to Third Parties.Recovery for Services Under Uncompleted Contract
Bailor, Re lation to Thi rd Parties
Roman Law Clas sification.Modern Classification.
Necessity for Delivery.
1 31 - 1 35—1 37
96
96- 1 05—1 22—1 32Delivery
,Necessity for, to Create Bailment 1 27
Lien of BaileeLocatio
BAILMENTS . 355
Locatio Operis Faciendi
96—1 23—1 32
Negligence, Degree of, Bailee Liable for 1 31—1 35—1 37
Pi gnus (See Pledge) .
What Property May be .
R
Roman Law,Influence on Common Law
,Principles of Bailments
THIRTEENTH SUBJECT —CARRIERS .
356 INDEX .
Termination of Special Liabil ity .
Lien ofContract, Limitation of Common Carrier’s Liability byLimitation of Carriers of Passenger’s Liabil ity by
Defects in Article Shipped, Loss Occasioned by.
Notice, Limitation of Common Carrier’s Liab ility byLimitation of Carriers of Passenger’s Liability by
FOURTEENTH SUBJECT— PERSONAL PROPERTY.
Accession
Domestic, increase of.Assignments
,Transfer of Personal Property by
B
G ifts,Inter vivos .
Gifts,Causa mortis.
358 INDEX.
Descriptive Words as
One’s Own Name as .
Geographical Name as
W
Will, Transfer of Personal Property by
FIFTEENTH SUBJECT— PATENTS .
Appeals,in General
From Examiner to Examiner-in—chief.From Examiner-in-chief to CommissionerR om Commissioner to Supreme CourtDetermination of.
Appl ications for Patents,Requisites of
Assignments of PatentsAssistant Commissioner of Patents
,Duties of
C
Caveats,Filing of
Effect of.Commissioner of Patents , Duties of
Disclaimer
E
Examiner-in-chief,Duties of
Extension of Patents,Application for
Commissioner to Decide
F
Fees,in Obtaining PatentMode of PaymentRefunding.
Infringement,Suit for
Measure of DamagesPleadings in Actions, for
PATENTS . 359
Notice, of Rejection of Claim for Patent
0
Officers and Employee of Patent Office,Salaries
For Inventions Previously Patented Abroad
Examination and Issuing of.
Patented Articles,Must be Marked as Such
SIXTEENTH SUBJECT— COPYRIGHTS
360 INDEX .
In Name of Trustee
In Abridgment of Another Book.
Extension of Term.
Assignment of.
Record of.
Damages,in Cases of Infringement Of Copyright
Deposit,of Copies of Copyri ghted Book
Dramatic Composition,Penalty for Unauthori zed Use of.
Forfeiture,in Case of Infringement of Copyright 266
LLegal Blanks, Copyright ofLibrarian of Congress
Copyri ght of,penalty for Violating
Mus ical .
Publications, Entitled to Copyri ghts
Extension of.Trustee
,Copyright in Name of
CHART OF THE LAW(Th e Roman Numeral after a sub j ect shows the number of such sub j ect
in the Law Library )
Uni ted States Const itutionalLaw, III
State Constitutions,IV
Statutory Construction, VPublic Corporations
,XXV
Constitutional andStatutory Law
Wrongs Againstt eh Public Criminal Procedure , XXXI
Real Propert ,XVII
Abstracts, X IIIMining Law,
XXIXProperty . Personal Property, XIV
PatentsCOElsy ri
§£XXXVI
Equity Jurisprudence, XXEqmty ” {Trusts, XXITorts, VIII
Domestic Relations,X
Publ ic, XXXVIIIInternatIOnal Law. Private , XXXIX
Introduction to the Study of Law, I
Legal H is tory, IIS anish-American Law . XL
ect ive
Contracts , VI
3522317 “
Partnership, XXIIIPrivate Corporations, XXIVB ills and Notes , XXVIGuaranty
;and Suretyship,
XXVInsurance, XXVIII
Common Law Plead in XXXIVEquit Plead in XXICode lead ing
,XXV
Federal Procedure,XXXVI
Evidence,XXXVII
Damages, IXAdministration, XXXIIIBankruptcy, XXIX
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