44
FEDER4LREPORTER.
these ,matters, the evidence of negligence would ha.ve been stronger, but it is very clear it should not have been taken from the jury. 10. There was po error in charging that the burden of proof of contributory negligence was upon the defendant. This was settled in Rail,road Co. v. Gladmon, 15 WalL 401; in Secord v. Railroad Co., 18 Fed. Rep. 221; and in Conroy v. Oregon Canst. Co., 23 Fed. Rep. 71. There is nothing inconsistent with this case in Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. Rep. 369. 11. Considering the physical wreck of the plaintiff, the damages were not excessive; at least not so excessive as to justify the court insetting aside, the verdict upon that ground. The motion for It new trial must be denied, and judgment will be entered upon the verdict.
FRENca SPIRAL SPRING
Co., Limited, 11. and others.
NEW ENGLAND CAR TRUST
(Oircuit Oourt, D. Connecticut. 1887.)
1.
ORDERS-CONSTRllCTION.
The defendants accepted an order of a third person in favor of plaintiffs to the amount of $2,300, payable out of certificates due the third person under a contract between him and the defendants, and specified in the order, "the same not to be due until September 1st." Held, the words, "the same not to be due, " referred to certificates, and not to the order, and that defendants paid at their peril any person other than plaintiffs for work, the certificates for "':Vhich, under the contract, would not become due until on and after Sep· tember 1st. An acceptance of an order by the New England Car Trust, to pay money already provided for by a contract with the company, does not come .within article 4 of the articles of association of the car trust, providing that, in order to bind the company, all contracts involving liabilities for the payment of money shall be in writing, and signed by at least three members of the board of managers. CORPORATIONS-By·LAWS-CORPORATE CONTRACT.
2.
Intervening Petition in Brassey v. New York &: N. E. R. Co. Henry M. Rogers, for petitioner. Simeon E. BaJ,dwin, for defendant SHIPMAN,J; The question in this case arises upon the petitioner's demurrer to the defendant's answer. The New England Car Trust entered into It contract with Blain Bros., by which the latter agreed to make and to furnish to the car trust 500 cars, to be delivered to its trustee at the average rate of 48 cars per week,. beginning on May 15, 1883, and tlie car trust agreed t() pay for the same at the rate of $446.31 per car, payable in its certificates,as the cars were delivered in lots of 10, within one week after the receipt of three specified documents. Blain Bros. desired to purchase springs for said cars from the petitioner,but said company
FRENC,1! 6'PIRAL SPRING
00. V.
NEW ENGLAND CAR TRUST.
45
refused to sell zaid' springs upon the sole security of said Blain Bros., but agreed to sell them unto the said firm, provided they would assign to the petitioner a portion of the price to be paid by said car trust to them upon the delivery of said cars, and provided the order making said assignment should be accepted in advance by the said car trust. Thereupon Blain Bros. delivered to the spring company the following order upon the New England Railroad Company, the company ,which was, to lease and purchase said cars from the car trust: HUNTINGDON,PA., June 30,1883. DEAR SIR: Please pay the French Spiral Spring Co., Limited, or order hundred dollars (2,300) out of the proceeds September 5th inst., of our settlement for coal cars to be furnished your company upon our pres8I'.t c,ontract, it being understood, we have sixty days' time upon the purchase. Very respectfully, BLAIN BROS. S. M. FELTON, Jr., General Manager N. Y. &; N. E. R. R. Co., Boston. The car trust returned to' the spring company the following acceptance; , BOSTON, July 14, 1883. :French Spiral Spring Oompan1/, Limited, Pittsburgh, Ra.-GENTLEMEN: In answer to your favor of. the second instant, inc!osing order from Blain Bros., the managers of the New England Car Trust accept the order ,for <;ert.ificates to the amount oftwenty-three hundred dollars, (2,300,) payable out of certificates due B1<tin Bros. under the contraclt between Blain Bros.' and said car trust; the same not to be due until September 1st. ... ... ... Yours, ,truly, WILLIAM CALEB.LoRING, Secretary. Blain Bros. delivered no cars to the car trust after August 24, 1883; on which date they had deliv.ered in all 370 cars. On August 29, 1883, the car trust paid for the last lot of cars, 10 in number,{which were delivered on said August 24th, by'which payment it paid in full,according to the terms of said contract, for all said 370 cars, and neither on September 1st nor on September 5th owed Blain Bros. anything. The question in the case arises upon the terms of the acceptance. The petitioner claims that it was a present acceptance for the sum of $2,309 due Blain Bros., but, if not, that it was a present acceptance for the sum of $2,300, payable on September 1st, the money to be paYl:!-ble in certificates. The defendant says that it was an acceptance for $2,300, payable only in certificates.which were to become due to Blain,Eros., under' the contract, on and after September 1st. On June 30th, the date of Blain Bros.' order, they were delivering cars under a contract for the purchase of 500 cars, which contract called for an average delivery of 8 oars per working day, and which provided for the-payment by the car trust, as the cars were delivered in lots of 10, within one week cars had then been after the. receipt of the specified papers. rlelivered. More than one payment, per week would, under thecontrl1ct, naturally be made. Blain Bros. were to have 60 days' credit, and payment to the spring company was to be by the terms of the order, on 5th. The car trust accepts the order "payable out of cer-
46
.. "
FEDERAL, REPORTER.
tifhraoosdue Blain Br()s. under tbe betweeDBlain Bros.:and said car trust; the same not to be due until September 1st." This was an acceptance of. an order payable September 5th, out of a: fund which was to beconle'due from week to week, if the contrackwas performed; and, in case of its:DOn-fulfillment bytBlain Bros., they wilre liable in a specified sum;aij, damages. Under these circumstances, the car trust acceptstheorder payable hi certificates, due under the contract, the same not to be due until September 1st. The intent of the acceptance was that the paYmentwas to be maqe in certificates which were to become but were not to be' due until September 1st. By the acceptapooj the Cal' trust promised to pay, but only from those certificat'es,i'.f 'any, which becatnedue on and after September 1st. The \Vortis. contract" do not imply that the certificates were due Jthe date of the acceptance, or that payment was to be made out payment was to of any certificates. the.r!Jafter to: be dlle, ,hilt mean be made out of certificates due Blain Bros. under the contract, when the order was !payable, and the "theisame not wbe due," refer to the certificates, and not to the order, and mean that the order was payable out of those certificates which were to become due on and after September 1st, and not out of anyeertiticateswhich should become due before that date. Theacceptancewaean agreement to pay in certificates Which becam(j, .due onandtlfter 1st. Blatn Bros. delivered at Huntingdon, L On the t;wen,ty-(Ourth. o!. l'ennsylvania, 10 for $4,463.10 'were due from the car trust for those cars, within. one week after the receipt of the .invoice of them, the bill of sale, and a certificate of the general manager of their acceptance. 'The answer does not sliow that the certificates for these cars were not due on September Ist,arid, allowinz the ordinary time for transmission of the· papers by mail,it would seem that they' would not natutally:have been'due under the chntract until September 1st. On August 29th, 30 certificates which paid fQr previous deliveries, and the last 10 cars, were delivered to the assignee of Blain Bros. I think that, by -the terms'of the;acoeptance, the car trust paid, at its peril, to any other person than the Elpring company, ·f0r any cars; the certificates for which 'did not becomedtre under the contraCt until September 1st. The answer sets up the faCt that article 4 of the article:,;· of association of the car trust, which was an iunincorporated aSl!lodiation, provided that "all contracts relating to the business of the aSsociation,involving-liabilities for the paymentitJf mOIieysl shall be in writing, and shall be iligned on behalf of .the association by at.least" three membe:rs of the hoard of managers, and by'ihe person witw whom such contract shall be made, and that this acceptancewas signed' by the secretary only, and 'consequently was not ,binding contract with Blain Bros. was signed acceptance:wRS not, within the intent of the articles of association, a contract i'llvolvinga liability' for the payment of money, but was simply an assent and agreement in regard to the diversion ofmoney already agreed. to be paid into another channel. It did not create a liability for additional money. The demurrer is'sustained.
at
PLINSXY V. ,GERMANI4 'F. '&; :¥. INS. CO. "
PLINSKY til GERMANIAF.,&:M. INS. I"
Co.
(di?'cuit V01J,?'t, :E. D. Michigan.
FrnE INsURANCE-FoRFEITURE-INCREASE OF
An insurance policy provided that, if the risk should be increased by any means whlMver within the control of the assured, withqut the consent of the company. the policy should be void. The property, which consisted of a stock of was described as « contained in thQ first lloorand basem,enMf the buildmg," Held, that a removalof the entire property {rom the first floor to the would not avoid the policy, though the risk were increased bysuc.h removal. ' " '
,RiSK.
"
,
8:AME":"CONSTRUCTION 0:8' POLICV-Cl'lNFLICTlNG CAUSES..
Where a policy upon a ",stock of cl/.nqies, confectionery, toys, fruit, and aU such other stock as is usually keptfor sale in confElCtionery IItores, " ,provided that such policr. should" cea,se and determine if ' * * * ,'firecworkllsh,ouldbe kepttemporanly or otherwise in th'e 'stocks ofmerch.andlse; * * * i 1DSUlied he.r,eip., II it,' eld t,hlLt, ,if w, ere usu,ally kept of the kin!! -insurl!d,tp,e part of the pollc1 wlj>uld C?ntrol the'prlnted part, and the keeping of tire-works would not avold·tlie-pohcy. " I . ." · '.
'11.
8AMm:-Lol!8\.oo.FRAUDULENT 'BtJRNI1'lG.
Plaintiff's husband wall upon cross-examination, whether he wasnot out upbn bail,. charged with an assault with intent to,murder. ·Held. that such 'questiOn was within the discretion of the ,court, itll exclusion c9uld not be claimed as.error. ," ' (Syllabus by theOourt.) On' Motion for aNew Tri8.I. . This was a. policy i:lrty owned by the ' .' . ".', .',. : , .. 1 "$250 On her .stOck! of .. fruIt. anil all s1l,ch (ltherstock as is usually sale In Col1fecti9nery stores; $100 on her generators. and appurtenances belonging thereto; $400 on her store, ice-cream parlor, and shop furniture and lixllures, including brick oven and belongings ;$125 on her saloon furniture ,and. fixtures, beer-pump. mIrror, bottles, a.nd glass-ware; $10 on her a.wning outside of building; $25 on her, stock of "wines. beers" liqnors, and, cigars; and $100 on her pool-table, balls" and,c,ullll,-all contained in the first story!!ond basement of the threestory brick buildIng occupied by the insured as a confectionery store. bakery, saloon, "etc. ' The defenses were (1) that theriskhad been increased by the removal 'Qf the entire property from the first story to the basement of the building in which it was kept; (2) thattlre-works were kept in the stock con-
-t ,
Plaintiff was charged with the Jraudulent burning of the propel1l'; The only eviqence uponthis pqint was that there was a social gatherin ,in the ,store upon the evening b'efore the fire; that plaintiff and her husbah did not leave the place untiU'o'clock'in the morning;thakthe husband closed the store for night. took the ,key· with him; and that they went directly t() hQ\lsjl. The tire ,broke out a little, after II in the morning, in the bai\emetit. Th'e'evidence was clear that some one"hild'entered the building. ands.nhe property on :fire, and there was no eVidence that tblt building had been.broken Into,or tllat but pllJ,llltiff's husbapd had .the key the outer. door. Held, there was no evidehce thafplaintiff'herself'was privy to,the burning. sndthat she would not be affected'byth'6 fraudulent burning of the propertyby her husband. <..- , . : , r; CO:tJRT·. ,