Read v. City of Buffalo.

and pay his debt that he should be liable to a suit, before the holder of the paper comes and asks for his pay. This would be so, were it not for another rule, intended to protect such parties. It is this: if the maker of the note or the acceptor of the bill, be at the place of payment, with the funds, and ready to pay on the day of payment, he can, when sued, bring the money into court and plead his readiness to pay at the time and place of payment, in bar of damages arising from non-payment, but not in bar of a recovery for the debt due on the day named for payment. In such a case the creditor recovers no interest after the day of payment has passed, nor costs of suit; but the debtor has costs, in such a case. (See cases before cited.)

To make a practicable application of these propositions to this case; conceding the defendant was ready and willing to pay this order, at the time and place of payment, it is in no attitude to defeat a recovery of the face of the order and interest down to the day of trial, for the reason that it has not brought the money into court for the plaintiff.

The time of payment in this order was uncertain; it was drawn in the form, and upon the conditions named, to enable the defendant to be certain of funds, to be derived from a particular source, before its creditor could urge payment; and it is unreasonable to hold that the holder of such paper shall comply with all the rules applicable to strictly commercial paper. It appears that the city was in funds applicable to the payment of this order as early as the 15th of August, 1872. The plaintiff applied for payment some considerable time thereafter, and demanded interest up to that time. The treasurer refused to pay interest down to that day, but offered to pay the face of the order and interest to the said 15th of August, 1872. This the plaintiff manifested his unwillingness to accept.

The city had given a previous notice, in the city VOL. LXVII.

34

Read v. City of Buffalo.

paper, that it was in funds to pay orders of this series, but it does not appear that such notice ever came to the knowledge of the plaintiff, before he made the demand. Such notice cannot be regarded as sufficient as a notification that the city was in funds applicable to the payment of the order, and to effect the suspension of interest. It would be most unreasonable to uphold any such proposition.

The defendant, with a view of diminishing the recovery, insists that the city had the power to terminate the accruing of interest on these orders after the treasurer was in funds to pay them, on complying with the provision of the present charter bearing on that question, viz.: "The treasurer may at any time, when he shall have money in his hands applicable to the payment of such warrants, give notice in the official papers that he will pay all or any portion of such warrants, with accrued interest, on a day to be specified in said notice, and the interest upon such warrants shall cease from and after the day specified in such notice." Such a notice as is required by this provision of the statute was published in the city paper, and a day named for the payment of the orders was the one already stated, to wit, August 15, 1872.

The charter in force when the orders in suit were given contained no such provision, nor any of similar import. This regulation first appears in the charter of 1872. (Title 6, sec. 22.) It is very clear that this provision was intended to apply only to future orders and warrants. The scheme for assessing and collecting taxes for local improvements was, by this charter, very much changed, conferring upon the city additional powers, and making local assessments payable in a different manner, and requiring warrants issued in payment of the work and labor to take a particular form, and be payable on particular, days, and giving the city

Monell v. Northern Central Railroad Co.

the right to pay them before the day named therein for payment.

Orders or warrants issued under the charter as amended would be, beyond all doubt, subject to these special provisions, and they be regarded as incorporated into the agreement, and the holders bound to comply with them, and with the action of the city authorities acting in obedience to the charter.

The general rule of construction is, that statutes, in their effect, shall be prospective only; unless it appears that the legislature intended that it should have a retrospective operation. The reading of the section entire, from which the above quotation is copied out, does not suggest to my mind that the legislature intended to change the meaning and effect of outstanding contracts. It follows, from these views, that the plaintiff is entitled to recover the face of the order, and interest thereon up to the time of trial.

The other orders in suit are similar in all respects to the one set forth, and are embraced in the decision.

Judgment for the plaintiff.

[ERIE CIRCUIT AND SPECIAL TERM, February, 1877. Barker, Justice.]

HENRY MONELL vs. THE NORTHERN CENTRAL RAILROAD COMPANY.

Where a contract is made, by a shipper of goods, with one of several connecting railroad companies forming a continuous line of carriers between the place of shipment and the place of delivery, for the transportation of goods and delivery thereof at the place of destination, the service performed by the other companies in the line is deemed to be done by, and at the request of the contracting company, and as its agents.

The acts and management of such connecting roads are, in law, the doings of the contracting company; and if they are such as to work a breach of the

Monell v. Northern Central Railroad Co.

contract for transportation, the shipper has a right of action therefor, against the contracting company.

When the contract of a carrier is silent in respect to the time of delivery, the law requires him to use due diligence. The want of due diligence is the ground of the carrier's liability.

What is sufficient evidence to be submitted to the jury, upon the question of due diligence in delivering perishable property.

The defendant, a common carrier of goods for hire, contracted to transport a quantity of potatoes from Batavia, N. Y., to the city of Philadelphia. The potatoes were in good order, when shipped. The cars containing them arrived at G., a place within three miles of the place of delivery, within the usual time, but were left on the tracks at G. for at least fourteen days, before being taken to the city; and during that period the potatoes were frozen. It appeared that the company employed by the defendant to aid in the transportation and delivery of this freight had no warerooms in Philadelphia for storing freight temporarily, with a view to hasten and facilitate delivery; and that there was, at the time, a great accumulation of freight, both at that place and at G. Held, that upon the evidence, it was a fair question for the jury to say whether or not due diligence was used by the defendant, in delivering the freight; and that the judge properly refused to take the case from the jury by granting a nonsuit, or ordering a verdict for the defendant.

Held, also, that if the potatoes were frozen at G., after a reasonable time for delivery had elapsed, the defendant was chargeable with the loss. That nothing short of a calamity would justify the holding of the cars at G. for so long a time.

Receipts for freight, given by a consignee to the carrier, stating the goods to

be in good order, are evidence in favor of the latter that the freight was delivered in good order. But, as between the parties, they are not conclusive on the question.

When it appears that the carrier demanded that the receipts should be put in

that form, as a condition to the delivery of the goods; and that the receipts were signed under a protest that the goods were not in good order; it is a fair question of fact for the jury, on the evidence, and cannot be disposed of in favor of the carrier, as a question of law.

ON

N the trial, a verdict was rendered for the plaintiff, and the defendant moved for a new trial on a case containing exceptions.

John Hubbell, for the defendant.

George Bowen, for the plaintiff.

Monell v. Northern Central Railroad Co.

BARKER, J. It is admitted by the pleadings that the defendant is a common carrier of goods for hire, between the village of Batavia, N. Y., and the city of Philadelphia, Pa.; and that it received the goods in question for transportation from Batavia to Philadelphia. It is also admitted that the defendant is a foreign corporation, created by and under the laws of Pennsylvania.

The case does not disclose what part of the connecting line of railroads, between the places mentioned, is owned and managed by the defendant. It is not at all important to know, in the determination of the plaintiff's rights and the defendant's obligations under the contract admitted; as the contract was entire, to deliver the goods at the place of destination. The service performed by the other and connecting roads was done by and at the request of the defendant, and as its agents. They simply aided the defendant to perform its agreement. The acts and management of such roads were in law the doings of the defendant; and if they were such as worked a breach of the defendant's contract, it gives the plaintiff a right of action for the damages he has sustained. (Manhattan Oil Co. v. Camden & Amboy R. R. &c. Co., 54 N. Y., 197.)

The rights, franchises and privileges conferred on the defendant by the law of its creation are not disclosed, and it will therefore be presumed, as against the corporation itself, that the act gave it full power and authority to make the contract it did with the plaintiff.

The chief question in the case is this: Was it fairly proved, on the trial, that the defendant failed to perform its contract, in not making a timely delivery of the goods, and that in consequence of the delay the property was injured by frost?

In respect to the time of delivery, when the contract is silent on the subject, the law requires the carrier to use due diligence, in the performance of his agreement