of connecting carriers, for transportation, upon the following terms and conditions, which are admitted and accepted by me as just and reasonable:

"First. To pay the freight thereon to said company at the rate of ninety-four (94) cents per one hundred pounds (company's weight), and all back freight and charges paid by them, on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding two hundred dollars each; if cattle or cows, not exceeding seventy-five dollars each; if fat hogs or fat calves, not exceeding fifteen dollars each; if sheep, lambs, stock hogs, or stock calves, not exceeding five dollars each; if a chartered car, on the stock and contents in same, twelve hundred dollars for the car-load. But no carrier shall be liable for the acts of the animals themselves, or to each other, such as biting, kicking, goring, and smothering, nor for loss or damage arising from condition of the animals themselves, which risks, being beyond the control of the company, are hereby assumed by the owner, and the carrier released therefrom.

Second. Upon the arrival of the cars or boats containing said stock at point of destination, the shipper, owner, or consignee shall forthwith pay said freights and charges, and receive said stock therein, and unload the same therefrom; and if from any cause, he or they shall fail or refuse to pay, receive, or unload, as aforesaid, then said company or other carrier, as the agent of such shipper, owner, or consignee, may thereupon have them put and provided for in some suitable place, at the cost and risk of such shipper, owner, or consignee, and at any time or times thereafter may sell the same, or any number of them, at public or private sale, with or without notice, as said agent may deem necessary or expedient, and apply the proceeds arising therefrom, or so much thereof as may be needed, to the payment of such freight and charges, and other necessary and proper costs and expen

ses.

"Third. When necessary for said stock to be transported over the line or lines of any other carrier or carriers to the point of destination, delivery of the said stock may be made to such other carrier or carriers for transportation, upon such terms and conditions as the carrier may be willing to accept; provided that the terms and conditions of this bill of lading shall inure to such carrier or carriers, unless they shall otherwise stipulate; but in no event shall one carrier be liable for the negligence of another.

"Fourth. All live-stock transported under this contract shall be subject to a lien, and may be retained and sold for all freight or charges due for transportation on other live-stock or property transported for the same owner, shipper, or cousignee.

Fifth. This company's liability is limited to the transportation of said animals, and shall not begin until they shall be loaded on board the boats or cars of the company. The owner of said animals, or some person appointed by him, shall go with, and take all requisite care of, the said animals during their transportation and delivery, and any omission to comply herewith shall be at the owner's risk. Witness my hand and seal, this twentieth day of October, 1879. LAWRENCE HART, Shipper. [L.S.]

"Attest:

"E. BUTTER.

"W. J. CHARMERS, Company's Agent."

At the trial the plaintiff put in evidence the bill of lading, and gave testimony to prove the alleged negligence, and how the loss and injury occurred. He then offered to show that the actual value of the horse killed was $15,000; that the other horses were worth from $3,000 to $3,500 each; and that they were ren

dered comparatively worthless in consequence of their injuries. The defendant objected to this testimony, on the ground that it was not competent for the plaintiff to prove any damage or loss in excess of that set out in the bill of lading. The court sustained the objection and the plaintiff excepted. It appeared on the trial that the horses were race-horses, and that they and the other property were all in one car. It was admitted by the defendant that the damages sustained by the plaintiff were equal to the full amount expressed in the bill of lading. The court charged the jury as follows: "It is competent for a shipper, by entering into a written contract, to stipulate the value of his property, and to limit the amount of his rceovery in case it is lost. This is the plain agreement that the recovery shall not exceed the sum of $200 each for the horses, or $1,200 for a car-load. It is admitted here by counsel for the defendant, under this charge, that the plaintiff is entitled to recover a verdict for $1,200, and also under the charge of the court the plaintiff agrees that that is all. It is simply your duty to find a ver dict for that amount." The plaintiff excepted to this charge. The errors assigned are that the court erred in refusing to permit the plaintiff to show the actual damages he had sustained, and in so charging the jury as to restrict their verdict to $1,200.

It is contended for the plaintiff that the bill of lading does not purport to limit the liability of the defendant to the amounts stated in it, in the event of loss through the negligence of the defendant. But we are of opinion that the contract is not susceptible of that construction. The defendant receives the property for transportation on the terms and conditions expressed, which the plaintiff accepts " as just and reasonable." The first paragraph of the contract is that the plaintiff is to pay the rate of freight expressed "on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding $200 each; * * *if a chartered car, on the stock and contents in same, $1,200 for the car-load." Then follow, in the first paragraph, these words: "But no carrier shall be liable for the acts of the animals themselves, or to each other, such as biting, kicking, goring, or smothering, nor for loss or damage arising from condition of the animals themselves, which risks, being beyond the control of the company, are hereby assumed by the owner, and the carrier released therefrom." This statement of the fact that the risks from the acts and condition of the horses are risks beyond the control of the defendant, and are therefore assumed by the plaintiff, shows if more were needed than the other language of the contract, that the risks and liability assumed by the defendant in the remainder of the same paragraph are those not beyond but within the control of the defendant, and therefore apply to loss through the negligence of the defendant. It must be presumed from the terms of the bill of lading, and without any evidence on the subject, and especially in the absence of any evidence to the contrary, that as the rate of freight expressed is stated to be on the condition that the defendant assumes a liability to the extent of the agreed valuation named, the rate of freight is graduated by the valuation. Especially is this so, as the bill of lading is what its heading states it to be, "a limited liability live-stock contract," and is confined to live-stock. Although the horses, being race-horses, may, aside from the bill of lading, have been of greater real value than that specified in it, whatever passed between the parties before the bill of lading was signed was merged in the valuation it fixed; and it is not asserted that the plaintiff uamed any value, greater or less, otherwise than as he assented to the value named in the bill of lading by signing it. The presumption is conclusive that if the

liability had been assumed on a valuation as great as that now alleged, a higher rate of freight would have been charged. The rate of freight is indissolubly bound up with the valuation. If the rate of freight named was the only one offered by the defendant, it was because it was a rate measured by the valuation expressed. If the valuation was fixed at that expressed, when the real value was larger, it was because the rate of freight named was measured by the low valuation. The plaintiff cannot claim a higher valuation on the agreed rate of freight.

It is further contended by the plaintiff that the defeudant was forbidden, by public policy, to fix a limit for its liability for a loss by negligence, at an amount less than the actual loss by such negligence. As a minor proposition, a distinction is sought to be drawn between a case where a shipper, on requirement, states the value of the property, and a rate of freight is fixed accordingly, and the present case. It is said that while in the former case the shipper may be confined to the value he so fixed, in the event of a loss by negligence, the same rule does not apply to a case where the valuation inserted in the contract is not a valuation previously named by the shipper. But we see no sound reason for this distinction. The valuation named was the "agreed valuation," the one on which the minds of the parties met, however it came to be fixed, and the rate of freight was based on that valuation, and was fixed on condition that such was the valuation, and that the liability should go to that extent and no further. We are therefore brought back to the main question. It is the law of this court that a common carrier may, by special contract, limit his common-law liability; but that he cannot stipulate for exemption from the consequences of his own negligence or that of his servants. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; York Co. v. Central R. R., 3 Wall. 107; Railroad Co. v. Lockwood, 17 id. 357; Express Co. v. Caldwelt, 21 id. 264; Railroad Co. v. Pratt, 22 id. 123; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; Railway Co. v. Stevens, 95 id. 655.

In York Co. v. Central R. R., 3 Wall. 107, a contract was upheld exempting a carrier from liability for loss by fire, the fire not having occurred through any want of due care on his part. The court said that a common carrier may "prescribe regulations to protect himself against imposition and fraud, and fix a rate of charges proportionate to the magnitude of the risks he may have to encounter."

In Railroad Co. v. Lockwood, 17 Wall. 357, the following propositions were laid down by this court: (1) A common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. (2) It is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. (3) These rules apply both to carriers of goods and to carriers of passengers for hire, and with special force to the latter. The basis of the decision was that the exemption was to have applied to it the test of its justness and reasonable character. It was said that the contracts of the carrier "must rest upon their fairness and reasonableness," and that it was just and reasonable that carriers should not be responsible for losses happening by sheer accident, or chargeable for valuable articles liable to be damaged, unless apprised of their character or value. That case was one of a drover traveling on a stock train on a railroad to look after his cattle, and having a free pass for that purpose, who had signed an agreement taking all risk of injury to his cattle and of personal injury to himself, and who was injured by the negligence of the railroad company or its servants.

In Express Co. v. Caldwell, 21 Wall. 264, this court held that an agreement made by an express company, a common carrier in the habit of carrying small packages, that it should not be held liable for any loss or damage to a package delivered to it, unless claim should be made therefor within ninety days from its delivery to the company, was an agreement which the company could rightfully make. The court said: "It is now the settled law that the responsibility of a common carrier may be limited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reasonable, and not inconsistent with sound public policy." It was held that the stipulation as to the time of making a claim was reasonable and intrinsically just, and could not be regarded as a stipulation for exemption from responsibility for negligence, because it did not relieve the carrier from any obligation to exercise diligence, fidelity, and care.

On the other hand, in Bank of Kentucky v. Adams Express Co., 93 U. S. 174, it was held that a stipulation by an express company that it should not be liable for loss by fire could not be reasonably construed as exempting it from liability from loss by fire occurring through the negligence of a railroad company which it had employed as a carrier. To the views announced in these cases we adhere; but there is not in them any adjudication on the particular question now before us. It may however be disposed of on principles which are well established, and which do not conflict with any of the rulings of this court. As a general rule, and in the absence of fraud or imposition, a common carrier is answerable for the loss of a package of goods, though he is ignorant of its contents, and though its contents are ever so valuable, if he does not make a special acceptance. This is reasonable, because he can always guard himself by a special acceptance, or by insisting on being informed of the nature and value of the articles before receiving them. If the shipper is guilty of fraud or imposition, by misrepresenting the nature or value of the articles, he destroys his claim to indemnity, because he has attempted to deprive the carrier of the right to be compensated in proportion to the value of the articles and the consequent risk assumed, and what he has done has tended to lessen the vigilance the carrier would otherwise have bestowed. 2 Kent Comm. 603, aud cases cited; Relf v. Rapp, 3 Watts & S. 21; Dunlap v. Steamboat Co., 98 Mass. 371; Railroad Co. v. Fraloff, 100 U. S. 24. This qualification of the liability of the carrier is reasonable, and is as important as the rule which it qualifies. There is no justice in allowing the shipper to be paid a large value for an article which he has induced the carrier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claimed after a loss. It is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen the freight and secure the carriage, if there is no loss; aud the effect of disregarding the agreement, after a loss, is to expose the carrier to a greater risk than the parties intended he should assume. The agreement as to value in this case stands as if the carrier had asked the value of the horses, and had been told by the plaintiff the sum inserted in the contract.

The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The

articles have no greater value for the purposes of the contract of transportation between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss. This principle is not

a new one.

In Gibbon v. Paynton, 4 Burr. 2298, the sum of £100 was hidden in some hay in an old nail-bag and sent by a coach and lost. The plaintiff knew of a notice by the proprietor that he would not be answerable for money unless he knew what it was, but did not apprise the proprietor that there was money in the bag. The defeuse was upheld, Lord Mansfield saying: "A common carrier, in respect of the premium he is to receive, runs the risk of the goods and must make good the loss, though it happen without any fault in him, the reward making him answerable for their safe delivery. His warranty and insurance is in respect of the reward he is to receive, and the reward ought to be proportionable to the risk. If he makes a greater warranty and insurance he will take greater care, use more caution, and be at the expense of more guards or other methods of security, and therefore he ought, in reason and justice, to have a greater reward." To the same effect is Batson v. Donovan, 4 Barn. & Ald. 21.

The subject-matter of a contract may be valued, or the damages in case of a breach may be liquidated in advance. In the present case, the plaintiff accepted the valuation as "just and reasonable." The bill of lading did not contain a valuation of all animals at a fixed sum for each, but a graduated valuation according to the nature of the animal. It does not appear that an unreasonable price would have been charged for a higher valuation. The decisions in this country are at variance. The rule which we regard as the proper one in the case at bar is supported in Newburger v. Howard, 6 Phila. 174; Squire v. New York Cent. R. Co., 98 Mass. 239; Hopkins v. Westcott, 6 Blatch. 64; Belger v. Dinsmore, 51 N. Y. 166; Oppenheimer v. U. S. Exp. Co., 69 Ill. 62; Magnin v. Dinsmore, 56 N. Y. 168, and 62 id. 35, and 70 id. 410; Earnest v. Express Co., 1 Woods, 573; Elkins v. Empire Trans. Co., 81* Penu. St. 315; South & North Ala. R. Co. v. Henlein, 52 Ala. 606; Same v. Same, 56 id. 368; Muser v. Holland, 17 Blatchf. 412; Harvey v. Terre Haute R. Co., 74 Mo. 538; and Graves v. Lake Shore R. Co., 137 Mass. 33. The contrary rule is sustained in Southern Exp Co. v. Moon, 39 Miss. 822; The City of Norwich, 4 Ben. 271; U. S. Exp. Co. v. Backman, 28 Ohio St. 144; Black v. Goodrich Transp. Co., 55 Wis. 319; S. C., 13 N. W. Rep. 244; Chicago, St. L. & N. O. R. Co. v. Abels, 60 Miss. 1017; Kansas City R. Co. v. Simpson, 30 Kans. 645; S. C., 2 Pac. Rep. 821; and Moulton v. St. Paul, etc., R. Co., 31 Minn. 85; S. C., 16 N. W. Rep. 497. We have given consideration to the views taken in these latter cases, but are unable to concur in their conclusious. Applying to the case in hand the proper test to be applied to every limitation of the common-law liability of a carrier-its just and reasonable characterwe have reached the result indicated. In Great Britain, a statute directs this test to be applied by the courts. The same rule is the proper one to be applied in this country, in the absence of any statute.

As relating to the question of the exemption of a carrier from liability beyond a declared value, refer

ence may be made to section 4281 of the Revised Statutes of the United States (a re-enactment of § 69 of the act of February 28, 1871, ch. 100, 16 St. 458), which provides that if any shipper of certain enumerated articles, which are generally articles of large value in small bulk, "shall lade the same, as freight or baggage on any vessel, without at the time of such lading giv ing to the master, clerk, agent, or owner of such vessel receiving the same a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form or mauner, nor shall any such master or owner be liable for any such goods beyond the value and according to the character thereof 80 notified and entered." The principle of this statute is in harmony with the decision at which we have arrived.

The plaintiff did not, in the course of the trial, or by any request to instruct the jury, or by any exception to the charge, raise the point that he did not fully understand the terms of the bill of lading, or that he was induced to sign it by auy fraud or under any misapprehension. On the contrary, he offered and read in evidence the bill of lading as evidence of the contract on which he sued. The distinct ground of our decision in the case at bar is, that where a contract of the kind, sigued by the shipper, is fairly made, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability ouly to the extent of the agreed valuation, even in case of loss or damage by the negli gence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations. Squire v. New York Cent. R. Co., 98 Mass. 239, 245, and cases there cited.

There was no error in excluding the evidence offered, or in the charge to the jury, and the judgment of the Circuit Court is

care.

receivership, or even the corpus of the property, under the order of the court, with a priority of lien; yet the discretion to do so should be exercised with very great The payment of such debts stands, prima facie, on a different basis from the payment of claims arising under the receivership, while it may be brought within the principle of the latter by special circumstances. It is easy to see that the payment of unpaid debts for operating expenses, accrued within ninety days, bue by a railroad company suddenly deprived of the control of its property, due to operatives in its employ, whose cessation from work simultaneously is to be de

2. Claims for labor and supplies accruing since the default in payment of interest in 1881, more than two years prior to the appointment of the receiver, have been allowed by the master, and exceptions are taken to such allowance. In the order appointing a receiver no provision for the payment of claims was made, and it is conceded that there is nothing to show that since the default in the payment of interest there has been any diversion of income to permanent improvements. Now the broad proposition is laid down by counsel, that unless a diversion as stated is shown, or unless the court, as a condition of appointing a receiver, requires the payment of certain claims, none can be preferred to the mortgage debt; that when the mortgagees take possession by a receiver, the income, as well as the property of the company, becomes theirs. I think the Supreme Court has decided against this claim.

In Miltenberger v. Railway Co., 106 U. S. 286; S. C., 1 Sup. Ct. Rep. 140, it appears that the receiver was appointed August 26, 1874. On October 3, 1874, an order was made directing the payment of traffic balances accruing before the appointment of the receiver, and the order was sustained. I quote at length from the opinion, because it bears upon a question yet to be considered:

"In respect to the $1,000 due other and connecting lines of the road for materials and repairs, and for ticket and freight balances, a part of which, as stated, was incurred more than ninety days before the 26th of August, 1874, the first petition stated that payment of that class of claims was indispensable to the business of the road, and that unless the receiver was authorized to provide for them at once, the business of the road would suffer great detriment. These reasons were satisfactory to the court. In the examination by the master of the accounts of the receiver evidence was taken as to the payment by him of items due, when he took possession, for operating expenses, and of moneys due other and connecting lines for the matters named. The report of the master shows that he disallowed several items in the receiver's accounts, claimed under the above heads, where the claims were made on the ground that the creditors threatened not to furnish any more supplies on credit unless they were paid the arrears. His action, sanctioned by the court, in allowing items within the scope of the orders of the court, appears to have been careful, discriminating, and judicious, so far as the facts can be arrived at from the record. It cannot be affirmed that no items which accrued before the appointment of a receiver can be allowed in any case. Many circumstances may exist which may make it necessary and indispensable to the business of the road and the preservation of the property for the receiver to pay pre-existing debts of certain classes out of the earnings of the

the public, and the payment of limited amounts due to other and connecting lines of road for materials and repairs, and for unpaid ticket and freight balances, the outcome of indispensable business relations, where a stoppage of the continuance of such business relations would be a probable result in case of non-payment, the general consequence involving largely also the interest and accommodation of travel aud traffic, may well place such payments in the category of payments to preserve the mortgaged property in a large sense, by maintaining the good will and integrity of the enterprise, and entitle them to be made a first lien. This view of the public interest in such a highway for public use as a railroad is, as bearing on the maintenance and use of its franchises and property in the hands of a receiver, with a view to public convenience, was the subject of approval by this court, speaking through Mr. Justice Woods, in Barton v. Barbour, 104 U. S. 126."

I think therefore that the mere omission to make the payment of these claims a condition of the appointment of a receiver is no bar to their present allowance; and I may add this further suggestion: It is said that the court, as a condition of the appointment of a receiver, may in his discretion require the payment of certain claims; but that discretion is not an arbitrary one. It may not require the payment of any claims that it desires, but only such claims as it is equitable should be paid-claims that in equity are paramount to those of the mortgagees-and if it is equitable that these claims should be paid prior to the mortgage debt, then what difference can there be in the mere time of making an order therefor? In all cases the payment of such claims rests on the fact that it is equitable that they should be paid, and oftentimes this equity can only be determined upon a full investigation into their nature-an investigation which cannot be had at the time the receiver is appointed.

What claims are entitled to such equitable preference? The master has reported in favor of all claims accruing since the default in payment of the interest on the mortgage debt-a period of over two years. This seems to proceed upon the assumption that the mortgagees, by failing to take action, have made the mortgagor company their agent to incur debts; have impliedly consented that all such debts should take preference of their secured claims. I do not think that this principle is sound. There is no implied agency to that extent, and I do not think that the rulings of the Supreme Court are based upon any such doctrine. The idea which underlies them I take to be this; that the management of a large business, like that of a railroad company, cannot be conducted on a cash basis. Temporary credit, in the nature of things, is indispensable. Its employes cannot be paid every month. It cannot settle with other roads its traffic balances at the close of every day. Time to adjust and settle these various matters is indispensable. Because in the nature of things, this is so, such temporary credits must be taken as assented to by the mortgagees, because both the mortgagees and the public

are interested in keeping up the road, and having it preserved as a going concern, and whatever is necessary to accomplish this result must be taken as assented to by the mortgagees. In this view, such temporary credits accruing prior to the appointment of the receiver must be recognized by the mortgagees and such claims preferred. Now for what time prior to the appointment of a receiver may these credits be sustained? There is no arbitrary time prescribed, and it should be only such reasonable time as in the nature of things and in the ordinary course of business would be sufficient to have such claims settled and paid. Six months is the longest time I have noticed as yet given. Ordinarily I think that is ample. Perhaps in some large concerns, with extensive lines of road and a complicated business, a longer time might be necessary. Certainly so far as the present road is concerned, six months is ample. If any person permits a claim to continue longer than that he certainly has no right to be considered other than as a general creditor, with no preference over a secured debt. So I think the exceptions must be sustained as to all claims accruing prior to six months before the appointment of a receiver.

One other matter requires notice. Out of what shall these claims be paid? Primarily, of course, out of the earnings of the road, and ordinarily out of such earnings alone. It is true, as appears from the quotation just made from the Supreme Court, that cases may arise in which such claims will be made a lien upon the corpus of the property, and payable out of the proceeds of receiver's certificates. But this can be done only in exceptional cases, and where there is special equity therefor. Apparently this matter has not been considered by the master; and if any order is desired further than the payment of all these claims out of the earnings of the road, the matter will be referred back to the master for inquiry as to whether there exists any special equity justifying the payment of these claims, or any one of them, out of the proceeds of the receiver's certificates. The general rule, as I have stated, is that such claim should be paid out of the earnings. That is fair, because if no receiver were appointed, and the claimants attempted by legal process to enforce the collection of their claims, they could obtain no priority over the mortgages, but must still be subject to such mortgages. So the appointment of a receiver ought not to give them a priority which they had not before. It is true, a special equity, as stated by the Supreme Court, may exist, making such claims a prior lien upon the corpus of the property; but as I have said, such equity ought to be affirmatively shown. I believe this covers all the points that were argued before me. The order therefore will be that the exceptions will be maintained to all claims accruing more than six months prior to the appointment of a receiver. The exceptions to the other allowances will be overruled, and an order entered that they be paid out of the earnings of the road; and if in any particular claim it is thought by the claimant that there is a special equity which justifies its payment out of the proceeds of the receiver's certificates, such claims will be referred back to the master for examination in that respect.

[See 9 Biss. 549; 99 U. S. 392.]

promisee, on the plea that the promise was invalid under the statute of frauds, and which executory performance could not have been enforced by action. In 1864 M. purchased a lot of defendant and took a deed thereof in reliance upon a representation of the latter, that a strip of defendant's land, thirty-five feet wide, adjoining on the south, was a highway, and upon his promise that he would open the same as such for the use of M., his family and assigns, and the public. In the deed the lot was described by metes and bounds. No reference was made therein to any street or to any map. Plaintiff also in reliance upon said representation and promise built a house upon and near the south bounds of the lot, as was understood between the parties during the negotiations. Defendant also sold lots to other persons south of and abutting on said strip of land. Defendant soon after the conveyauce, opened said strip as a street, as agreed, and the same was thereafter used and enjoyed as a street by M. and by plaintiff, his grantee, and by the public until 1875, when defendant obstructed the entrance thereto and threatened to wholly close the same. In an action by a grantee from M. to restrain such obstruction, held, that although the promise, while executory, could not have been enforced, defendant, by opening the street in pursuance thereof, appropriated the space as a way appurtenant to the premises, and he could not subsequently recall the declaration. To permit him to do so would operate as a fraud upon his grantee and subsequent purchasers. The court will enforce their rights by injunction, without requiring them to proceed for specific performance, assuming that a formal grant could not be compelled at the instance of the owners of the lot. Hervey v. Smith, 22 Beav. 299; Talmadge v. East River Bank, 26 N. Y. 105; Dempsey v. Kipp, 61 id. 463. The right of the plaintiff to maintain the action is questioned on the ground that the right of way did not pass to her by the deed from the grantee, her husband. The way or street is not mentioned in the deed, nor is the word appurteuances" used. But the way was an apparent easement at the time the deed was executed, and if it was then legally appurtenant to the lot, or in other words, if it was enjoyed by right by the plaintiff's husband as an appurtenance to the land, it passed by the conveyance of the lot by metes and bounds, although not mentioued, and although the word " appurtenances was not used. Huttemeier v. Albro, 18 N. Y. 48; Wash. 279. Newman v. Nellis. Opinion by An

drews, J.

[Decided Nov. 25, 1884.]

CONTRACT-SERVICES-QUANTUM MERUIT.-Plaintiff contracted to varnish clock vases for defendant at specified prices per case. The work was done in defendant's factory. The plaintiff received pay on regular pay-days for work completed, which had been examined and pronounced satisfactory by defendant's agent. Defendant's factory was destroyed by fire, and a large number of the cases were burned upon which plaintiff had performed work; some were completed, but not inspected; the others were not finished. Held, that defendant was liable for the work done, and plaintiff was entitled to recover the contract price for the completed work, and upon a quantum meruit for that unfinished. It matters not whether the relation of master and servant existed between these parties, or whether the plaintiff was a contractor with the defendant to do the work upon the clocks. Upon the authority of the case of Niblo v. Binsse, 3 Abb. Ct. App. Dec. 375, the defendant was liable for the work done, as the clocks belonged to it, were in the possession and under its control, and it was under an implied obligation to furnish and keep them in hand, that the plaintiff could complete his work upon them, and thus