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of the verbal notice was not sufficient, because they say, if the contract and stipulation as to written notice is valid, then the inability to procure writing materials at the instant of unloading the cattle is no excuse for not giving notice for more than a year afterwards; and in this case, no notice was given at the time that the stock arrived at the destination, and were found to be injured, by the agent of the consignor, nor at any time prior to the commencement of this suit. In the case of Express Co. v. Caldwell, reported in 21 Wall. 264, 22 L. Ed. 556, the Supreme Court of the United States say, on page 267 of 21 Wall. (22 L. Ed. 556) of the opinion: "Hence, as we have said, it is now the settled law that the responsibility of a common carrier may be limited by an express agreement with his employer at the time of his accepting goods for transportation, providing the limitation be such as the law can recognize as reasonable, and not inconsistent, with sound public policy." In the case of York Company v. Central Railroad Company, 3 Wall. 107, 18 L. Ed. 170, the court says: "The common-law liability of a common carrier may be limited and qualified by special contract with the owner, provided such special contract do not attempt to cover losses by negligence or misconduct." In the case of Railroad Company v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, the court says: "A common carrier is always responsible for his own negligence, no matter what his stipulations may be. But an agreement that in case of failure by the carrier to deliver the goods, a claim shall be made by the bailor, or by the consignee, within a specified period, if that period be a reasonable one, is altogether of a different character. contravenes no policy. It excuses no negligence. It is perfectly consistent with holding the carrier to the fullest measure of good faith, of diligence and of capacity, which the strictest rules of the common law ever required. And it is intrinsically just as applied to the present case. The defendants are an express company. We cannot close our eyes to the nature of their business. They carry small parcels, easily lost or mislaid, and not easily traced. They carry them in great numbers. Express companies are modern conveniences, and notoriously they are very largely employed. They may carry, they often do carry hundreds, even thousands of packages, daily. If one is lost, or alleged to be lost, the difficulty of tracing it is increased by the fact that so many are carried, and it becomes greater the longer the search is delayed. If a bailor may delay giving notice to them of a loss, or making a claim indefinitely, they may not be able to trace the parcels bailed, and to recover them, if accidentally missent, or if they have in fact been properly delivered. With the bailor, the bailment is a single transaction, of which he has full knowledge; with the bailee, it is one of a multitude. There is no hardship in requiring the bailor to give notice of the loss if any,

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or make a claim for compensation within a reasonable time after he has delivered the parcel to the carrier. There is great hardship in requiring the carrier to account for the parcel long after that time, when he has had no notice of any failure of duty on his part, and when the lapse of time has made it difficult, if not impossible to ascertain the actual facts. For these reasons, such limitations have been held valid in similar contracts, even when they seem to be less reasonable than in the contracts of common carriers. In Missouri Pac. Ry. v. Scott, 2 Willson's Civ. Cas. Ct. App. § 324, the court says: "A shipper must allege and prove giving of notice as a condition precedent. Where there was a stipulation in the contract of shipment between plaintiff and defendant railroad company that, as a condition precedent to plaintiff's right to recover any damage for any loss or injury to stock, he would give notice in writing of his claim therefor to some officer of the company or its nearest station agent before removing said stock from the place of destination, a verbal notice given to the superintendent of the stockyard and the conductor of the train of his claim for damage is not sufficient. Where a shipping contract provides that the shipper will give written notice of any injury to stock carried thereunder, a verbal notice is not sufficient to entitle plaintiff to recover."

Now, in the light of these decisions, we think that the demurrer interposed by the defendant at the conclusion of the plaintiff's evidence should have been sustained. To hold that the facts as developed in this record constitute either a substantial compliance with the terms of the contract, or a waiver thereof on the part of the company, would be to allow a party to disregard a substantial and material part of a valid binding contract without the consent of the other party. It is the duty of the court to construe the contract as made by the parties, and not to attempt to make contracts for them. In this case, it is apparent from the record that this contract was fairly and understandingly entered into by and between the parties. That it was done for the purpose of securing a reduced rate for the transportation of the stock, and contains unambiguous, clear, and concise agreements on the part of the shipper, among which was, that he would, within 30 hours from the time of the arrival of the stock at its destination, give notice in writing to the company, or its agent, of any claim he might have for any damages, and he expressly provides that this shall be a condition precedent to his right to recover. There is no claim made that this was a provision that could not be complied with, neither is any claim made that any attempt was made to comply with this condition of the contract according to the terms thereof. The condition of the stock at its destination was known to the consignee. He had the opportunity and the facilities of giving the notice required by the contract,

and no excuse is offered by him why he did not at that time comply with the terms of his own contract; and we cannot hold that in the face of the plain, unmistakable terms of this contract that the party can bring suit and recover for damages against the company without any written notice of any kind or character, or without making any claim upon the company for damages prior to the bringing of this suit. The evidence of the plaintiff expressly admits the execution of this contract and the shipment of the horses in question under it. IIe also admits that no written claim for damages was made as required by the contract, and in that evidence no excuse is offered why such claim should not have been made in the manner, and within the time, as provided thereon. The evidence does not show that any verbal claim for any specific amount of damages, or that a claim for damages which in any way itemized the kind and character of damages, was made by the defendant in error within the time provided by the contract, or at any time prior to the commencement of this suit.

Now we are unable to see how there is anything unjust, inequitable, or unfair in this provision of the contract. These parties were parties of mature age, and experience. They were capable of making a contract. As such, they entered into a contract which was clear and unequivocal in its terms. By the very terms of that contract, it was expressly stipulated that this plaintiff would bring no action for damages against the company, unless he first notified the company, or its agent, in writing of his claim for damages. Now if this contract was between two individuals, we are unable to see how a court could possibly hold that such an agreement was not a condition precedent to be performed by the

injured party prior to his bringing any suit thereon, and we can see no difference in principle whether the contract is between a railroad company on one side, and an individual on the other, than if it were between two individuals. If the contract is a hardship, it is a hardship which the plaintiff has put upon himself, and he must abide the consequences. He has expressly agreed that, before he shall commence any suit against the company for damages, he would file his claim for damages in writing, which he has not done; for that reason, we think the demurrer of the defendant should have been sustained. A reversal of this case is asked for on several other grounds, among which is the fact that the court overruled the motion of the defendant for judgment on the special findings, notwithstanding the general verdict. Also, that the court erred in giving instructions to the jury; but as we think the grounds already discussed are sufficient for a reversal of this case, it is not necessary to enter into a discussion of the other points raised.

For the reasons herein expressed, this case is reversed, and remanded to the probate court of Oklahoma county, with directions to that court to sustain the motion of the defendant for a judgment on the pleadings, at the costs of the defendant in error. All the Justices concurring, except PANCOAST, J., who qualifies his concurrence as below.

PANCOAST, J. I concur in the opinion in this case except upon the question of notice. The plaintiff should have pleaded the verbal notice shown by the evidence to have been given. Had this been done, I am of the opinion that it should be held to be equivalent to the written notice provided for in the contract, and a sufficient compliance therewith with reference to notice.

(44 Wash. 397)

CITY OF BELLINGHAM v. CISSNA. (Supreme Court of Washington. Nov. 14. 1906.) MUNICIPAL CORPORATIONS-USE OF STREETS -VALIDITY OF ORDINANCE.

Under Bal. Ann. Codes and St. § 739. granting to cities the power to control the use of their streets, an ordinance, making it unlawful to drive an automobile on the street at a greater speed than six miles per hour, is valid, notwithstanding Sess. Laws 1905, p. 293. c. 154, providing that no driver in charge of an automobile shall permit it to be driven in the thickly settled portion of any city at a greater speed than one mile in 5 minutes, nor over any crossing faster than one mile in 15 minutes, and also providing that cities shall have no power to pass any ordinance requiring of any operator of an automobile any license or permit to use their streets or prohibiting any automobile "the free use of such" streets.

[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations. § 1311.]

Appeal from Superior Court, Whatcom County: Jeremiah Neterer, Judge.

Ray Cissna was convicted of violating an ordinance of the city of Bellingham, forbidding the driving of automobiles on its streets at a greater speed than six miles per hour, and appeals. Affirmed.

Hardin & Hurlbut, for appellant. Henry C. Beach, for respondent.

CROW, J. In August, 1904, the city of Bellingham enacted ordinance No. 50, seetion 2 of which made it unlawful for any person to ride or drive an automobile on its public streets at a greater rate of speed than six miles per hour. On May 5, 1906, a complaint was filed before II. B. Williams, police judge of Bellingham, charging that the defendant, Ray Cissna, did, on May 4, 1906, ride and drive an automobile on IIolly street in the city of Bellingham at a greater rate of speed than six miles per hour. On trial before the police judge, and also on a second trial after appeal, in the superior court, the defendant was convicted and fined. From the final judgment of the superior court, this appeal has been taken.

Upon being arraigned, the appellant demurred to the complaint on the grounds, (1) that the court had no jurisdiction of the person of the appellant, or the subject-matter of the action; (2) that the respondent had no legal capacity to bring this action; and (3) that the complaint did not state facts sufficient to constitute a misdemeanor, offense, or cause of action. This demurrer which was overruled by the police judge, was afterwards urged in the superior court, and again overruled. Appellant assigns error on the order overruling the demurrer, and contends that it questions the validity of said section 2 of ordinance No. 50, which regulates speed in the driving of automobiles. He contends that the delegated power under which the city ordinance was originally passed has, in so far as automobiles kept for private use are concerned, been withdrawn by chapter 154, page 293, Laws of 1905, which act he insists de87 P.-31

clares the policy of the state in the matter of the regulation of such vehicles. The appellant further contends that section 12 of the act of 1905 deprives the city of any power to pass or enforce an ordinance requiring the owner of an automobile to obtain a license to use the streets; or excluding from such use of the streets any automobile whose owner has complied with the provisions of said act. There is no contention but that appellant was the owner of the automobile in question that he kept it for his private use; that he held a certificate from the Secretary of State under the act of 1905, and that he

rode or drove his automobile over Holly street at a greater rate of speed than six miles per hour. If section 2 of ordinance No. 50 is valid, then the appellant was rightfully convicted. Otherwise he should be discharged.

Chapter 154, p. 293, session laws of 1905, requires the owner of an automobile to file a description thereof with the Secretary of State, and obtain a numbered certificate for which he pays a certain fee. By section 10 it is provided that no driver or operator in charge of any automobile shall permit the same to be driven or operated within the thickly settled or business portion of any city or village at a greater speed than one mile in 5 minutes, nor over any crossing or crosswalk within the limits of any city at a rate faster than one mile in 15 minutes, when any person is upon the same. By section 12 it is provided that: "Cities, towns and counties shall have no power to pass, enforce, or maintain any ordinance, rule, or regulation requiring of any owner or operator of any automobile or motor vehicle, any license or permit to use the public roads, highways, park, or parkways, streets, or avenues, or excluding or prohibiting any automobile or motor vehicle whose owner has complied with sections 2, 4 and 5, of this act from the free use of such public road, highway, park or parkway, street or avenue, and all such ordinances, rules and regulations now in force. are hereby declared to be of no validity or effect: Provided, That nothing in this act shall be construed as limiting the power of local authorities to make, enforce and maintain ordinances, rules or regulations, in addition to the provisions of this act, affecting automobiles or motor vehicles which are offered to the public for hire."

The contention of the appellant is that as section 12 secures the free use of the public roads, highways, parks, streets, etc.. to the owners of automobiles, the city council is therefore prohibited from enacting any speed ordinance such as the one here involved. We do not interpret this language as it seems to be understood by the appellant. We understand the word "free" to be used for the purpose of prohibiting a city from collecting any additional license or fee from owners of automobiles kept for private use or making the payment of the same a condition precedent

to the use of its streets. We understand that payment of the certificate fee to the Secretary of State entitles the owner of an automobile kept for private use to the free use of all streets and highways within the state, whether within or without the corporate limits of any municipality. Although section 10 limits the speed of automobiles to one mile in five minutes within the thickly settled or business portion of any city, section 11 provides that: "No person driving or in charge of any automobile, or motor vehicle, on any highway, townway, public street, avenue, driveway, park or parkway, shall drive the same. at any speed greater than is reasonable and proper, having regard to the traffic and use of the way by others, or so as to endanger the life or limb of any person; and racing any such vehicle on any such way or parks is hereby forbidden." This section was undoubtedly included in the act for the purpose of requiring drivers of automobiles to reduce their speed when necessary to even less than 12 miles per hour, and in its enactment the Legislature undoubtedly had in contemplation the safety of the general public upon streets and highways, which are more or less crowded according to the frequency of their use and the density of population. By section 739, Ballinger's Ann. Codes & St., power has been granted to the city of Bellingham to regulate and control the use of its streets, and that power still exists to its full extent as then granted, unless it has been limited by the act of 1905. As section 11 seems to contemplate that it may at times become necessary to require a less rate of speed than 12 miles an hour, we fail to understand why the council of the city of Bellingham is not still entitled, under section 739, Ballinger's, supra, to pass and enforce an ordinance for the reasonable regulation of such speed, even though fixed at less than 12 miles per hour. We think the evident purpose of the act of 1905 was to provide a uniform system for the regulation of automobiles, and a single certificate or license fee within the state. Otherwise the owner of an automobile kept for private use might be required to pay a license fee in every city of the state through which he might travel when using such vehicle. We do not understand that the words "free use of such public road," etc., as employed in section 12, conferred upon the owner of an automobile an absolute right to travel the streets of any city at such rate of speed as he might desire, provided he did not exceed 12 miles per hour, or that, by reason of such enactment, the municipal authorities could not by ordinance prevent him from so doing.

It might upon a casual examination of the act of 1905, appear from the proviso contained in section 12, that the state has reserved to itself the exclusive right to regulate the speed of all automobiles kept for private use only, while permitting local authorities to regulate the speed of those which

are offered to the public for hire, but the direct result of such an interpretation would be to hold that although one citizen, driving an automobile kept for private use only. would not be subject to municipal control in the matter of speed, yet another citizen would be subject to such control if he happened to drive an automobile which was offered to the public for hire. An ordinance, regulating speed in the one instance and not in the other, would be class legislation and invalid. and a statute, authorizing such class legislation, would also be void. It is our duty to construe the statute in such a manner as to sustain its validity if we can possibly do so. Our view is that the proviso does not contemplate ordinances, rules, or regulations pertaining to the speed of automobiles which are offered to the public for hire. Such automobiles are in many respects similar in their uses and purposes to other vehicles kept for hire. The Legislature evidently intended that they might be subjected to like rules and regulations by the local authorities in so far as the same might be practical. It is customary for municipalities to regulate the rates of fare charged by the owners of cabs, carriages, or other vehicles offered to the public for hire: and to designate the stands or locations which they may occupy upon the public streets. We think regulations such as these, and others that might be mentioned, are contemplated by the proviso contained in section 12. The ordinance in question was not annulled by the act of 1905. The statute merely prohibits the enactment of any ordinance requiring any license or permit to use the public streets. The ordinance in question does not provide for any such license or permit, nor does it exclude the appellant from the free use of the streets of the city of Bellingham. This being true, we are unable to understand how it comes into conflict with the act upon which the appellant relies. If it had been the intention of the Legislature to provide that no municipal ordinance, regulating speed of automobiles, should be permitted, it could have so stated. Having failed to do this, we think the construction contended for by the appellant cannot be sustained.

The judgment is affirmed.

MOUNT, C. J., and DUNBAR, HADLEY, FULLERTON, RUDKIN, and ROOT, JJ..

concur.

(44 Wash. 413) ROWLAND v. P. P. CARROLL LOAN & INVESTMENT CO.

(Supreme Court of Washington. Nov. 14, 1906.) CORPORATIONS - OFFICERS - EMPLOYMENT OF SERVANTS-AUTHORITY.

In an action by an employé for services rendered a corporation under a contract made with the president thereof, it appeared that the corporation maintained its office at the same place its president maintained his office; that he used the letter heads of the corporation in his

correspondence with the employé, that contracts | ployed by it. It admits that a town was to were entered into in the name of the corporation with the acquiescence of at least 3 of the 5 trustees; that the employé was to act as civil engineer for the company at a proposed town; that the secretary of the corporation prepared a price list of the lots platted in the town; that the company dealt with the state with reference to the purchase of lands at the piace of operation. It did not appear that the acts were authorized at any formal meeting of the trustees. Held, that the corporation was liable for the services rendered by the employé.

[Ed. Note. For cases in point, see Cent. Dig. vol. 12. Corporations, §§ 1598, 1615, 1616.]

Root, J., dissenting.

Appeal from Superior Court, King County; George E. Morris, Judge.

Action by O. O. Rowland against the P. P. Carroll Loan & Investment Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Walter B. Beals, P. P. Carroll, and John E. Carroll, for appellant. J. B. Alexander, for respondent.

DUNBAR, J. This action was brought by respondent against appellant to recover services as civil engineer alleged to have been rendered appellant at the proposed town of Harriman at what is called Dofflemyer's Point in Thurston county. Respondent claimed to have been employed by appellant on April 1, 1904, at the agreed salary of $300 per month, and to have continued in such employment until August 31, 1904; and demanded judgment for $1,355. The answer was a general denial. The case was tried by the court which found that the plaintiff at the special instance and request of the defendant, acting through its duly authorized president, P. P. Carroll, agreed to enter the employ of the defendant company as civil engineer, and the engineer to be placed in charge of the works and operations of the said company then and to be subsequently conducted at the proposed town of Harriman; that it was then and there agreed between the plaintiff and the defendant company that the plaintiff should be paid a salary by the defendant of $300 per month; that the plaintiff entered upon such employment and performed service for three months; that by reason of such contract and rendering of service there became due from the defendant to the plaintiff the sum of $900; that no part thereof had been paid except the sum of $145; that the sum of $755 is due from the defendant to the plaintiff, and concludes as a matter of law that the plaintiff was entitled to judgment against the P. P. Carroll Loan & Investment Company, a corporation, for the sum of $755 with costs and disbursements, and judgment was entered accordingly. From this judgment this appeal was prosecuted.

Defendant excepted to the findings of fact and conclusions of law made by the court. Appellant in its testimony denies that respondent or any other person was ever em

be built at Harriman, but claims that P. P. Carroll as an individual, and not the appellant corporation, was carrying on the work there, and that respondent if he was employed at all was employed by said Carroll. The P. P. Carroll Loan & Investment Company was incorporated under the laws of the state of Washington on July 30, 1903. The following were the officers elected: Trustees, P. P. Carroll, S. J. T. Carroll, F. M. Carroll, J. E. Carroll, O. G. Carroll; President, P. P. Carroll: vice president, F. M. Carroll; treasurer, O. G. Carroll; secretary, John E. Carroll. The main contention of the appellant is that the respondent does not show any authority in P. P. Carroll to employ him for the appellant corporation. But the record discloses that the appellant company maintained its office at the same place that P. P. Carroll maintained his office; that P. P. Carroll used the letter heads of the company in his correspondence with respondent; that contracts were entered into in the name of the company with the knowledge and acquiescence of at least three of the five trustees; that the other two trustees did not testify at the trial; that John E. Carroll, secretary of the company, and son of P. P. Carroll, president of the company. prepared a price list of the lots platted in the town of Harriman; that the appellant com-pany dealt with the estate of Washington with reference to the purchase of tide lands at the place of operation; that it took options on the land in its own name, and that the president and the respondent contracted for and purchased supplies for the enterprise at Dofflemyer's Point, with the knowledge of the president and secretary of the company. The record does not show that these particular acts were authorized at any formal meeting of the board of trustees, but it does show that by its action and acquiescence it clothed its officer the president with authority to act for it, and if a corporation intentionally or negligently clothes its officer or agent with authority to act for it in a particular matter it wil be estopped to deny its authority as against persons dealing with him in good faith. 3 Clark & Marshall on Corporations, § 697. The record shows conclusively by the whole course of conduct of the appellant company and its officers that at least a majority of the board were aware that P. P. Carroll was in charge of such an enterprise in the name of the appellant company, and that they consented to and acquiesced in his contracts and management and received the benefit of the contract of employment sued upon in this case. The record convinces us that the corporation authorized its president and manager to conduct and manage the business of the town of Harriman, and that the contract entered into with the respondent was within the scope and contemplation of such general management. "When an officer or agent is intrusted with the general

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