94
tl1e'iia 1819,' t'&elegal title to the landtdtheigrantee, and not Itn equitable'interest orily, as oohten<led.('byithe defendant. The :contention of:courisel for the defenddeed'sl"teJDofproperly executed, because the seals do not witnesseS, WPPlll,\l<cknowl,eagEld, cannot be.sllstamed. We 'ro:ust,! !time the$,e ,deeds were: executed the usual way of affixing.& seal :was by an impression in wax. The scroll, as used use. The seals, being of wax, were liable now, hadln.'Ot come irito tobeeffacedor hence the, necessity of having witnesses to the signihg!lUd sooIfng.: If, at this remote dll,y from ,1he execution of these ancient documents, we are at liberty to ignore their sanctity as sealedinstrtmlents, beefliuse the impression in wax is not to be, found on thein; oHhe scroll, its legally authorized substitute, in Hastead, though we haVe thehighest'tecord evidence 'that the seals wereattachedto the t,he execution and'delivery, it would go very far ibto equitable, what have been for a century reo gardepa,s, titles. "A deed executed in Boston in, December, 1798, by parties living there Conveying land in Virginia, is properly admitted to record upon a certificate of the proof of its execution by the subscribing witnesses before the court' of Suffolk county,signed by a person describing himself as clerk of the court, though no seal is attached to it." Smith v. OhapmQ.n; lP 445. The instructions asking the conrt to constrae these deeds aBcoDveling only:aquitable interests must be refused.
et :
TDAEl
& P. Ry.Co. e. No. 86.
LUDLAM.
CoW1. qf Appeau"Il'flt'h C(rouu. June, so. 1891.) OAJlaIlOll-JCnIeonOll' OJ' P.lllSJIlNGJIlB-MBUtm.,O. D.UlAGBL
In an .J)y a against a for belnjf put oft at K., utue mUea from her 4/H1Unation, because, under rules of the company, the tralll did not ltop at the' latter place, the oourt, without objection, gave an instruotion whioh Il1bst&tttia11y deolared tke oompany's liability j and further stated that the measwas the price of the tioketahe purohased aext morning from K. to her destinatlOn, and theinoreased, damage. Buffered by reason of be,lng left at K.., instel!od of. at some earlier place, provided that the oonductor, by promptly informingher the, train did not stop at her destination, would bave enabled her to stop at; SOdle other station, where sbe would bave suffered less tban she suffered at K. HeZd, the,mle as to the measure of damages was favorable to the company, as autboriZing a leie8ning of :tbeactual damages suffered, and the instruotion was, Pr9t ,oWeotionable as stating a conjectural or hypothetical case.
" In Error to the, CirCuit Court of United states for the Eastern Dis'. Affirmed. .' "· ..' trict of W. W. l1(Y1J)8, (R. 8. Lovett arid PrendergaSt, on the brief,) for plaintiff in'erior. J. A. Armwead, for defendant in errot. Before PARDEE and MCCORMICK, 'Circuit Judges, andLocu:, Distriot Judge.
the
TEXAS & P, RY·. CO. V. LUDLA¥.
9&
PARDEE, Circuit Judge. Thisjs a suit instituted in the circnit court by Emma Ludlam to recover damages from the Texas & Pacific Railwll.,. Company for violation of contract. From an adverse jUdgment the railway compll.ny prosecutes this writ of error. . . '." The case is sufficiently in the following bill of exceptions. taken on the wit: . ..Bp. it remembered, that on the trial of the above cause on February 9, 1892,
the following facts were proven: Emma Ludlam. theplaintifl',' an unmarried female. 21 years old, was traveling 'from ArkansBsto' Louisiana. her home, and desired to stop at Stalls. astatiooon the Texas & Pacific Railway. 53 miles Bouth of Texarkana, to visit her brother. Shfl had With her four small children nnder seven years old, and she had no other' company or escort. On the ,evening of February 24, 1890, just after her arrival at Texarof the train to Stalls, she bought a kana, a few minutes before the ticket over the Texas & Pacific Railway from Texarkana to Stalls. and boarded the night train which leaves Texarkana at nine o'clock at night. and arrivel':. at Stalls at eleven o'clock at night. Soon after leaVing Texarkana, the conductor took up her ticket, and kept it. Just before the train arrived at Kildare. a station between Texarkllona and Stalls, and nine miles from Stalls,the conductor informed her that his train did not stop at Stalls, and that she would have to get o11'at Kildare. She offered to pay the conductor to allow her to allow her to go on to Stalls. The conductor told her that he' could 'not stop at Stalls; that, if he stopped there. soml'body would be cutting up about it. She then asked him to take her to Lodi, a station between Kildare and Stalls. The conductor said he could not stop at, I"odi either. The conductor put the plainti11' and ,children off at Kildare. She remained itl the depot until moming, and then took the next train, and went to Stalls, paying twentyfive cents for her ticket, and arrived at Stalls twelve hours later than sbe Stalls is only a way station,-'a would if she· had gone on the former side track. There is. no depot or bouse there, the nearest house being one half mile, where plaintiff's brother lived; but her brother was to meet her. at Stalls, and was there to receive her if she had come, and lived a half mile from the station at 8talls. There was a clepot at Kildare, and an hotel thirty or forty steps of the depot. Atlanta. is a stlltlon between Kildare and Texar. kana, and is a town of about 3,000 inhabitants, and has. hotels and depot. Plaintiff was a stranger, and unacquainted in that part of the country.. Plaintiff did not know that the night train did not stop at Stalls. She suffered from cold at Kildare. There was no fire in the depot, and it was a cold night. Plaintiff further proved that it was dark at Kildare.. There was no light at the station at Kildare, and no one there at the depot to tell her where any hotel was; and, on account of the four small children being asleep. she could not leave them to hunt an hotel. Defendant proved that the night train that passed Stalls at elE\ven o'clock at night was a through fast train, and carried slepping carsfrotil St. Louis to EI Paso; and by a rule and regulation of the company that train was not to stop at Stalls, but the day train did stop at Stalls. Plaintiff then proved that the night train did sometimes stop at Stalls to receive.and put off passengers. Thereupon the court chargt'd the jury as follows: · The railway company had the right to run through trains that did not stop at Stalls, and it was the duty of plaintiff to inqUire if the train on which she was about to take passage stopped at Stalls; but alter she had boarded the train by mistake it was the duty of the conductor to act promptly, and inform her of her mistake, and give her an opportunity to get off at any station between Texarkana and Kildare. Now, it appears that the plaintiff was put QUat Kildare. The measure of damages is the twenty-five cents she paid for the ticket at Kil4areirom thereto Stalls, and also the damage she
96
1I'EDEltAL REPORTER,
vol. .52.
suffered byieasOD of being left at Kildare, instead of being left at some other place betweenl{ildare. and Texarkana; that is, that if the conductor. by informing plldntuf that his train did not stop at Stalls,would have enabled her to have stopped at some othe,r station before reaching Kildare, where she would have suffered less than she suffered at Kildare. then she can recover the increased damage she suffered at Kildare over what. she would have suffered at some other place.' The defendant, at the time said charge wasg\ven,exct>pted,tothat part of the above charge which gives theplaillright to recover for the additional suffering caused by her being left at Kildlue, instead of, some· other station between Kildare and Texarkana. (1) \>ecausethere is no pl£'llding raising such an issue, or justifying a recovery on above ground; (2) and because there was no evidence th"t, there was any place, between Kildare and Texarkana :where plaintiff W0111d have suffered Ipss.than she suffered at Kildare; (3) and because there was no evidence that she would have stopped at any station before reaching Kildare if the condlict()rhad promptly informed her that the. train did not stop at StaUs. 'fhe court held the exceptions not well taken. and submitted the CRuse to the jury. The jury returned a verdict for plaintiff for $200.25. and the court rendered ju4gment accordingly." are two grounqs of complaint assigned aserrc;rs. The first is the charge of.thecourt to .the jury in the following language: . "Atter she [plaintiff] had boarded the train by, mistake, it was the duty of to act promptly and inform her of her mistake. and give her an the to.get off at any station Qeliween Texarkana and Kildare." trhe does not show that' a.ny exception taken to the part pf the.phltrgequoted at the time it was delivered, nor to the charge as it foUowsthat, whether erroneouS or not, it cannot be Gona whole; sidered here. The only exception to the charW3, or to a part thereof, taken in season, is the one referred to in the second assignment of errors, which relates. entirely to the measuraof damages, andls as follows: of damages is the twenty-five cents ;(25c.) she paid for the , ticket at E:iIdare from there to Stalls. and also the damage she suffered by reason of belngleft at Kildare; instead of being left at some other plac.e between Kildarl'l !lopdTeJ.{arkana; that is. that if the conductor. by promptly informing plaintiff his tr!J.in did not ,stop at Stalls, would have enabled her t9bave stopped,'at some other'statiqri before reaching Kildare. where she would hav,e. sl\:ff'ered less"then she can recover the increased damage she sufferedat what she would have suffered at some other place." It is urged that this was 'erroneous, because it is said the,re was no pleading in the case raising such an issue, or justifying a recovery OIl s'uch grounds; that was no evidence that there was any place between Kildare .and Texarkana where plaintiff, if put off there, would have suffered less than she suffered at Kildare; and that there was no evidence that she would have stopped at any station before reaching Kilhad promptly informed her that the train did not dare, if stop at Stalls' atation; and it is said that the rule of damages thus given was on a supposed or conjectural state of facts in regard to which no evidence hadbe,en offered. In U. S. v. Breitling, 20 How. 252-255, it ,is declared: , "It isclearlrerror to charge a jury upon a supposed or conjectural state 01 facts, of which: no evidence has 'been offered. The instruction presupposes , ,"" '. ,'" I , J . , , '
TEXAS & P. RY. CO. fl. LUDLAM:.
97
that there is some evidence before the jury which they may think to establish the facts hypothetically assumed in the opinion of the court; and, if there is no evidE!nce which they have a l'ight to consider, then the charge does not aid them in coming to correct conclusions, but its tendencyis to embarrass and mislead them. It may induce them to indulge in conjectures, instead of weighing the testimony." .
An examination of the record shows that the plaintiff sued for violation of a contract of carriage as a passenger from Texarkana to Stalls, and the damages she claims are for not being carried through to her destination, and for being put off at Kildare, an intermediate station; all in violation of the contract. The defense was substantially that the plaintiff had taken a train of the defendant which, under the rules of thz company, did not stop at Stalls; and that, as the conductor put plaintiff off at the nearest stopping station to Stalls, there could be no recovery. The facts recited in the bill of exceptions, as proven on the trial of the case, are not sufficiently full for this court to determine, even if the matter were open to inquiry, whether the plaintiff had made a case which would entitle her to go the jury upon the issues as made up in the pleadings. It does not appear that there were any public instructions posted at Texarkana as to whether the night train, or any other train of defend· ant, did or did not stop at Stalls station. It does not appear whether the plaintiff was or was not advised by any official of the company l;l.t Te::rarkana as to what train she should take to go to Stalls, other than the inference which can be drawn from the fact that a few minutes before the departure of the train the. ticket agent of defendant sold the plaintiff a ticket from Texarkana to Stalls. Nor does the record show at what time-whether in first taking up her ticket or later-the conductor of the train informed the· plaintiff she was un a through train, which would not stop at Stalls; and, finally, there is nothing in the record to show whether the defendant railway company operated any train from .Texarkana which stopped at Stalls, although there is a statement that a train did stop at Stalls, but from where it started does not appear. We infer, from the absence of exception to the cqarge of the court as given, that there was no objection on either side to the Jaw as given by the judge, "that the railway company had the right to run through trains that did not stop. at Stalls; and it was the duty of plaintiff to inquire if the train on which she was ahout to take passage stopped at Stalls; but, after she had boarded the train by mistake, it was the duty of the conductor to act, promptly, and inform her of her mistake, and give her an opportunity to get off at any station between Texarkana and Kildare." In other words, there seems to have been no objection on either side to the charge of the court substantially that the defendant was in fault, and for that fault plaintiff was entitled 10 recover; and this part of the charge, 810 we have said hefore, cannot be reviewed by this court. As the plaintiff' had sued for damages for being wrongfully put off at Kildare, and as, under the obligations of the defendant, as declared by court without objection, she had the right to recover for such damv.52F.no.1-7
98"
FEPERAL ,!JEfpR:r'J.11R,vol.
52. ': ','
ages, itwooldseem: that th-eohamEl cotnplained of". whi.ch gives the rule of damages' dtl beingpuhffat Kildare, is not open t6the chMge of 6'r Mnjectural! If the court was right the liability of the defendant. and as to the right ofthe' plaintiff to'recover damages for beitlg put oft' at Kildare, then it seemS clear that the rule of damages given by the CO\lrt was ]the defendant,as authorizing a lessening of the actual damages'sufl'ered:ny the ,plaintiff in being put off at Kildare, and gives phiintiff inel"l'bf'Do:ground :forcomplaint.ih this court.: the, i'ooord; asbrought.:to this' court; we see no other course than.to affirm thejudgtnent"and it is so ordered.:
:BANK oFEDGEFlELD -" t1. FARMERS' "Co-OPERAT;IVE MANUF'G .... ·'L.' "', , ... -" ;'.''
Co·
(Oircuit Oourt 'Of Appeat8,' Ff,ftfh, Circui" .Tune 13, 1892.)
, 1.
, in, a suit in 'a fede.ralcourt Oli certain notes, pleas filed alleging want of consider. ation; whicb: are "Verified by'an officer aUthorized under Code Ga. 53450, to admin· illwroatbs, to ,,,,it, justice tbe, p«illloQe"and afterwards:sw0!'H to at the trial belpre ,the clerk of the court ,and by'the direction of the court, aresufticielitly verified to niake ali illsUable defense; and'&uch -vel'Uication before a olerk at the trial is alQQdeGa. 58479 et seq., &lIweH as by Rev. St. U, S, § 954, providing the court "'may atany timeperinit either party to amend any defeot in process 'ol"'pleadhig tl on oertalnconditions.:' , ,,:. Wbere abwtaj,[es three negotiable notes before maturity as collateralfor "moneyloaned, tog-ether 'with three"other past-due protested notes by the same makers an,d being on the face of the notes to indicate that ,they were, given for the same consideration ,or formed part of one tranBaction, mere knOWledge' of the dishonor of the pallt-due notes will not operate as notice to the bank that tbe,threli' nQtesnot yet due were tainted by defective consideration, or Of any equities existing between theorilrinal parties thereto, and the bank is entitled to recover the whoie of the indebteaXless of the borrower to it in a suit on such notes, " " I' ,SAME-COr.rr.rEI;tOUL ,LAWrSTATIlI FIDB BOLDEIW-NoTJCE OF EQUlTIES, "
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I.;
a,
When a bank adv!inces mon'ey on certain negotiable notes, some of which are past due, the quest,id"n, O,f' D"oti,ce of a,n,y ities eXisting between the original parties,arising from, knQwledge on Part of, the bank of such overdue notes, is ,not a question of tbe constr#,dtion of a, Contraot, which is usually determined by the loC'U8 contt'act1.is,:but:is governed by the rule of commercial law whioh affects subReguent hoiderllin the of notice, of prior equities, and not by tbe statutes, rules, or decisions Of the j1articular such notes were executed. e q "U"
In Error to the Circuit Court of. the United States for the Northern District of Georgia. ,,:' ,: Action by the Bank of Edgefield against the Farmers' Compauyon,threepl'oil1isBory notes held as ,collateral sebUlityfor a loan of $1,239.77. Verdict and $475.65 for plaintiff, who R,evorsed. Statement Circuit Judge:: The plaintiff in- error BIeda suit on the common·law side of the circuit court of the United States for the northern district of Georgia against the defendant in error, being anactiotl u,poJ;). threepromis8ory notes, ag-