get from having a railroad in Allen's avenue?" It was immaterial what benefit he was going to get. (3) In permitting the witness Almy to answer (page 126): "Q. Why did you, locate there?" His reasons for locating there were immaterial. (4) In not permitting the witness Horton to answer (page | 163): "C. Q. Suppose that land on Allen's avenue, a large business was established on, we will say, Mr. Tiffany's land where it is located, had a great deal of freight was coming by water, and that freight was being distributed around in the city of Providence, being used in the city of Providence, that there was no spur track on Mr. Tiffany's land, or you could not get a spur track, that the 40 feet in the middle of Allen's avenue was occupied by the railroad for railroad purposes-that is, the whole 40 feet used, filled with tracks, and that Allen's avenue was the only outlet from Mr. Tiffany's land to the city-would you say in that case that the location of the railroad was a benefit?" The question did not assume any condition that was not possible under the railroad's location in Allen's avenue, and was proper in crossexamination. (5) In permitting the witness Rhodes to answer (page 173): "Q. What has the effect of laying that railroad in 1891 been on property abutting on Allen's avenue so far as the net result has obtained after deducting the special damage from the special benefits, or vice versa." The witness had been called to testify as to real estate values, and had been an assessor of taxes in Providence for many years. He could not well be expected, however, to know and discriminate between the terms "special" and "general" as applied to benefits and damages. The question as to the net result "after deducting the special damages from the special benefits, or vice versa," would be for the jury, under proper instructions by the court as to what would constitute special damages and special benefits. (6) In not permitting the witness Todd to answer (page 179): "C. Q. They always get spur tracks, do they, when they ask for them?" The witness had just said, in answer to the preceding question, "Of course, having a railroad there, they would naturally get a spur track for your manufacturing concern there by asking for it"; and the question under the circumstances was entirely proper. The appellant's exceptions to the above rulings are sustained.

The claimant took many other exceptions to the admission and rejection of evidence. They are covered, however, by the discussion of points hereinbfore considered, and are overruled.

The appellant requested the court to charge the jury as follows: (1) "That, in estimating the damages of the claimant, the jury are to allow him the full fair value of the land taken in Allen's avenue for railroad purposes, which lies in front of his land and east of the cen

ter line of Allen's avenue; and are also to allow him one-half of the full fair value of the land taken in Allen's avenue for railroad purposes, which lies east of the center line of Allen's avenue, and in front of the lands of which he owns an undivided one-half part. And in estimating such values they are to take into consideration the value of the claimant's land bounding on said Allen's avenue." This request was properly refused. It should have been qualified by the statement that the value to be allowed was the value subject to the easement of the public highway. In the form in which it was presented it was very likely to mislead the jury. The exception is overruled. (2) "That the railroad company has the exclusive right to the use of its location, 40 feet in width, taken by it in Allen's avenue, and the public have no right to use it for highway purposes, and, in estimating the damages to the claimant's lands, not taken by the railroad, the jury should estimate such damages as though the railroad company had inclosed such location and excluded the public therefrom." This request was properly refused. This question has been passed upon supra. The exception is overruled. (3) "That in estimating the damages to the claimant's lands, not taken by the railroad, the jury should not deduct from such damages any benefit to such lands, resulting from the location of the railroad in Allen's avenue, which are shared generally by other lands along the line of such location." This was refused as having been already charged, and the claimant was not harmed thereby. The exception is overruled. (4) "That, in computing the claimant's damages, all doubts as to the amount of such damages are to be resolved in favor of the claimant." This request was properly refused. The exception is overruled.

The

The claimant also excepted to the following portions of the charge of the court: (1) "That the possibility, the right which the abutting owners on this street had to put a spur track in there, is a special benefit to the abutting owners different from the benefit of increased facility to the general public; and it is a benefit for which you should allow the railroad whatever it is worth." This instruction was erroneous in assuming that the abutting owners had a right to put in a spur track. exception is sustained. The possibility of a spur track would be a proper subject for consideration, but the right to demand a spur track did not exist. (2) "That no damages are to be allowed for inconvenience suffered in common with the rest of the public." This instruction was proper. The exception is overruled. (3) "That you are not to consider the tide-flowed lands in estimating damages." This instruction was proper. The exception is overruled.

The cause is remanded to the superior court for a new trial.

(106 Md. 190) MURPHY & HUTT v. AMERICAN CAN CO. (Court of Appeals of Maryland. May 17, 1907.) 1. SALES-OPERATION AND EFFECT-TRANSFER OF TITLE AS BETWEEN PARTIES-ACCEPTANCE OF BILL OF LADING.

Where a bill of lading was received and held for several days, with the intention of receiving the goods when they arrived, and no objection was made until after learning of an injury to the goods, the conduct of the consignee constituted a ratification of the delivery to the carrier and an acceptance of the goods, even if a delivery to the carrier had not been authorized.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 377, 451.]

2. APPEAL-HARMLESS ERROR-ADMISSION OF

EVIDENCE.

The admission of the testimony of an employé of defendant as to the contents of a letter sent through him to an illiterate person, to whom he read it, is not reversible error, where the contents were communicated to that person only through the reading, and it amounted simply to a repetition of another letter written to defendant which was already in evidence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4161, 4162.]

Appeal from Superior Court of Baltimore City; C. E. Phelps, Judge.

Action by Murphy & Hutt against the American Can Company. From a judgment for defendant, plaintiffs appeal. Affirmed. Argued before BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. Wm. Edwin Bonn and Fleet W. Cox, for appellants. Charles Markell, Jr., for appellee.

SCHMUCKER, J. The appeal in this case is from a judgment of the superior court of Baltimore City in favor of the appellee as defendant below, in an action of assumpsit for an alleged failure to deliver certain tin cans sold by it to the appellants. It appears from the record that in January, 1903, the appellants, who are packers at Mt. Holly, Va., purchased from the appellee a lot of tin packing cans, with the wooden cases in which they are transported, to be delivered f. o. b. at Baltimore, Md. Before the end of March, 1903, the appellants had received and paid for all of the cans except 1,000 cases. On March 31st, desiring to get the remainder of the cans, they sent the contract price for them to the appellee in a letter, which said: "Enclosed find check for five hundred and eighty dollars for which please deliver to schooner Irene, Capt. Frank Gibson, 1,000 cases and cans No. 3 lb." On April 4th the appellee acknowledged the receipt of the letter, and the check was paid in due course. In the letter acknowledging the receipt of the check, the appellee informed the appellants that Capt. Gibson had called at its office on that day, and said he would take the cans on board as soon as he had finished getting some salt loaded which he was to take with him; but the vessel had not yet reached the appellee's dock. Gibson did not

67 A.-2

in fact take the cans on that trip and explained to the appellants when he returned to Mt. Holly that his failure to bring them was due to the fact that the vessel could not carry both the salt and the cans on the same trip. The appellants, on April 11th, answered the appellee's letter of the 4th, saying in their reply, after referring to Gibson's failure to get the cans: "The schooner 'Isabel' will be with you about the 15th and bring all of the 3,500 cans now due that she can bring. I have instructed the captain with your help to secure a vessel to bring bal. freight 14 cents, but if he can't get a vessel for that pay 12 cents. If you cannot secure a vessel I will send for balance shortly. If convenient for you to hold the lot until the last of this month I will have a vessel there with ties that will bring them. As soon as I knew that the Irene had not gotten them I wrote to a captain, that I had sent with ties, to get them, but I am afraid the letter reached Baltimore too late to catch him this trip." On April 13th. Capt. Gibson called at the appellee's office in Baltimore, saying that the appellants had sent him for the cans, but not saying what vessel he had with him. He was told to go to the factory and get them. The appellee's manager, Daugherty, testified that he did not hesitate to direct the cans to be delivered to Gibson, because the appellants had not only directed the appellee to make such delivery to him by their letter of March 31st, but had inclosed in their own letter a sealed letter directed to Gibson to be delivered to him, which he, being illiterate, requested Daugherty to read for him, and which on being read was found to contain a direction to Gibson to get the cans from the appellee. Daugherty further testified that the appellee had received no notice from the appellants of the revocation of Gibson's authority, nor any request to send the goods only by any particular schooner, and Gibson had, for four or five years, been hauling cans for the appellants and others. Gibson, having been thus authorized on April 13th by the appellee to go to the factory and get the cans, loaded them on the schooner Progress, which he commanded on that trip, and started with them for Mt. Holly, Va. Shortly after the Progress left the harbor of Baltimore, she encountered high winds, which increased to a storm, and she was driven ashore above Annapolis, and the cans were damaged, and the appellants refused to receive them. The appellee, on the 13th of April, promptly advised the appellants by mail of the delivery of the cans to Gibson, and inclosed the bill of lading in the letter. On April 17th the appellee again wrote to the appellants informing them of the receipt of a telephone message that the schooner Progress, Capt. Frank Gibson, had gone ashore in a storm near Annapolis. On April 21st, after the receipt from the appellee of the letters of the 13th and 17th, the ap

pellants wrote acknowledging the arrival of the letters and bill of lading, but denying that they had authorized the cans to be shipped by the Progress, and asserting that Gibson knew that he could not have taken the goods on board with their consent. Other corres pondence between the parties followed without changing their attitude to each other; the appellants refusing to accept the cans or to acknowledge Gibson's authority to get them from the appellee, and finally bringing the present suit. Robert Murphy, the member of the appellant firm who conducted the correspondence and intercourse with the appellee, testified that he was not at home when the appellee's letter of the 13th of April with the bill of lading arrived; that he received that letter and the one of the 17th on his return. He did not reply to the letter with the bill of lading before April 21st, because he did not think it necessary to do so, as he said that he had not ordered the appellee to deliver the cans to Gibson, and did not think he had anything to do with them. He admitted that he had sent Gibson for the cans on April 4th, and did not afterwards notify the appellee that his authority to get them had been withdrawn. He further admitted that, if the cans had arrived in good order on the Progress with Capt. Gibson, he would have accepted them. When asked why, when he got the bill of lading issued without his authority by Gibson, he did not return it to the appellee, he replied: "Because, if the cans came, what was the use of returning it? I was going to receive them." And further said that if the cans came he was going to accept the bill of lading, and if they did not come he didn't want it. He subsequently said that he did not retain the bill of lading for more than two days after he received it on his return home, but he admitted that he did not make any objection to it until he heard the goods were lost. Capt. Gibson testified positively that he was directed by the appellants to go for the cans, not only the first time, when he failed to bring them, but also the second time, when he did get them. Mr. Murphy, on re-examination, denied the truth of Gibson's statement, and for the purpose of this opinion Murphy's testimony must be taken to be true.

Upon that state of the case the learned judge below, as we think correctly, granted the defendant's tenth prayer, instructing the jury that it appeared from the plaintiffs' own testimony that after the cans were shipped on the schooner Progress the bill of lading was sent to the plaintiffs and was accepted by them with full knowledge of the manner in which the cans were shipped, and that the title to them thereby became vested in the plaintiff's, and therefore their verdict must be for the defendant. The granting of that prayer necessarily involved the rejection of the plaintiff's' first and second prayers, which were based upon the opposite theory of the

case. The record contains two bills of exceptions. One is to the action of the court in permitting Daugherty, the appellee's manager, to testify to the contents of the letter sent through him by the appellants to Capt. Gibson, directing him to get the cans from the appellee. The other exception is to the court's rulings on the prayers. The question upon which the whole case depends is that of the ownership of the cans at the time of the accident by which they were damaged. The suit is not one in tort against the appellee for causing the injury to the cans. It is for the failure to deliver them. The loss caused by the accident must fall upon the one who owned the cans when they were injured. They had been purchased and paid for by the appellants f. o. b. at Baltimore, and were delivered to Gibson for their account at that place. If, therefore, the appellants either affirmatively authorized the delivery to him, or accepted the bill of lading when it was received by them, or so dealt with it as to ratify the delivery, they must, for the purposes of this case, be regarded as having been the owners of the goods when the schooner went ashore, and

must bear the loss.

The testimony to which we have referred, together with other evidence in the record, goes far toward establishing an affirmative authorization by the appellants of the delivery of the cans to Gibson; but we do not regard it as essential to pass upon that proposition. Their conduct after receiving the bill of lading, and the information by letter of the delivery of the cans to Gibson, as disclosed by the testimony of Murphy, one of the members of the appellant firm, shows an acceptance of the goods in transit, or, in any event, such a ratification of their delivery to Gibson as to estop the appellants from maintaining this suit. The dates of the letters constituting the correspondence between the parties and the testimony of the witnesses show that it ordinarily requires from two to three days for the transmission of letters by mail from Baltimore to Mt. Holly. The letter from the appellee to the appellants, informing them of the delivery of the cans to Gibson, and containing the bill of lading, which disclosed the particulars of the shipment with the name of the vessel, was mailed to the appellants at Baltimore on April 13th, and should have reached Mt. Holly on the 15th or 16th, and it was not answered until the 21st. The appellant Murphy asserts that he was not at home when the letter arrived, and that he does not think that he retained it more than two or three days before replying to it. If he intended to repudiate Gibson's authority to take the goods, or to reject the delivery of them to him, it was his duty to promptly notify the appellee of that fact. A bill of lading represents the goods described in it, and an acceptance of the bill by the consignee therein named or the indorsee thereof,

when it has been issued to the order of another person, amounts to an acceptance of the goods represented by it. Bank of Bristol V. B. & O. R. R., 99 Md. 661, 59 Atl. 134; B. & O. R. R. v. Wilkens, 44 Md. 11, 22 Am. Rep. 26; Farmers' Phosphate Co. v. Gill, 69 Md. 537, 16 Atl. 214, 1 L R. A. 767, 9 Am. St. Rep. 443; 24 A. & E. Encycl. of Law (2d Ed.) 1085; 6 Cyc. 417, 418. Murphy's own admissions when on the stand conclusively show that, after he had been fully informed as to the person and vessel to whom the cans had been delivered, not only made no objection to the delivery, but held on to the bill of lading with the intention of receiving the goods when they arrived, and made objection only after he had been informed that the schooner had gone ashore with the cans on board. If the appellants had not authorized the delivery to Gibson, or to Gibson on that particular schooner, this conduct of theirs after receipt of the letter of April 13th with the bill of lading would, under the circumstances of this case, have amounted to a ratification of the delivery.

There was no reversible error in permitting Daugherty to testify as to the contents of the letter sent by the appellants through him to Gibson. In the first place, Gibson being unable to read or write, the order or direction therein contained was communicated to him only through the reading of the letter. In the second place, no injury resulted to the appellants from the admission of the evidence, because the contents of the letter amounted simply to a repetition of what the appellants had written directly to the appellee in their letter of March 31st, which was already in evidence.

For the reasons stated in this opinion, the Judgment appealed from must be affirmed. Judgment affirmed, with costs.

75 N. J. L. 230)

BRAND v. AUTO SERVICE CO. (Supreme Court of New Jersey. June 10, 1907.) 1. CORPORATIONS WHEN

MAINTAINABLE.

ATTACHMENT

The statutory test provided by the attachment act of 1901 (P. L. p. 158) for an attachment against a corporation is not whether it be a resident or nonresident, but whether it be a corporation created or recognized as a corporation of this state by the laws of this state. 2. SAME-AFFIDAVIT.

An affidavit stating that the defendant in attachment "is not, to deponent's knowledge or belief, resident in this state at this time," is legally insufficient to warrant the writ of attachment against a corporation under the attachment act of 1901 (P. L. p. 158).

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 2637.]

(Syllabus by the Court.)

Certiorari by Isidor Brand against the Auto Service Company to review an order quashing an attachment. Affirmed.

Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ.

Weller & Lichtenstein, for prosecutor. Mc Dermott & Enright, for defendant.

TRENCHARD, J. The prosecutor, Isidor Brand, procured a writ of attachment to be issued out of the Hudson county circuit court. Property of the defendant, the Auto Service Company, was attached under the writ, and released by the sheriff upon the filing of a bond. The defendant entered no appearance, but moved to quash the writ; appearing specially for that purpose, and not otherwise. The circuit court made an order quashing the writ of attachment, and this writ of certiorari brings up such order for review.

The validity of the attachment was challenged on the ground that there was no sufficient affidavit. The affidavit of the plaintiff says "that the Auto Service Company, a body corporate, owes him a debt founded upon contract, amounting to the sum of eleven hundred and thirty-two dollars and fifty cents, as nearly as deponent can specify, and that said Auto Service Company is not, to deponent's knowledge or belief, resident in this state at this time." It is contended that the writ of attachment was properly quashed for the reason that the affidavit failed to state that the corporation was "not created or recognized as a corporation of this state by the laws of this state." The attachment act of 1901 (P. L. p. 158), under which the proceeding was admittedly had, provides in section 1 that attachments shall issue at the suit of any plaintiff against his debtor in the following cases: (1) Upon affidavit that defendant is an absconding debtor; (2) where the plaintiff, his agent or attorney, shall make affidavit that the debtor is not, to deponent's knowledge or belief, resident in this state at the time; (3) where the court or judge or Supreme Court commissioner shall make an order for the issue of an attachment upon proof, by affidavit, of fraud which would warrant an order for a capias ad respondendum. The affidavit in question was apparently framed to comply with section 1, subd. 2. It apparently was not intended to comply with section 4, which provides that "attachments may issue against * corporations not created or recognized as corporations of this state by the laws of this state." Section 1, standing alone, however, does not warrant the issue of an attachment against a corporation. That section originated in the attachment act of 1798, and, as pointed out by Chief Justice Depue in Goldmark v. Magnolia Metal Company, 65 N. J. Law, 341, 47 Atl. 720, "that statute provided only for writs of attachment against absconding debtors or debtors residing out of the state. The act provided a complete method of procedure, substantially the same as the statute now in force. It did not authorize a writ of attachment against a corporation." It necessarily follows that the sole authority for an attachment against a corporation under the act of 1901 is to be found in section 4, which limits and defines the class of cor