Page images
[ocr errors]

established by a very peculiar exception to consideration to enable a subsequent holder
the law of contracts, an exception resting to recover ;l6 and that where a guaranty is :
upon usage so ancient and universal as to separate instrument, the title to it will pass
show a distinct and urgent need of it, still with the note for a good consideration."
the negotiability of a guaranty has no such Decisions against Negotiability.-On the
usage in its favor, and as indorsement gives other hand in cases wbich decide in general
all the advantages the negotiability of guar-against the negotiability of guaranties it has
anties would, there is no necessity for such been held: That a guaranty is a separate
rule. Randolph, Edwards and others adhere and distinct undertaking, and as such is non-
to the general doctrine that a guaranty is not negotiable, and action can be maintained
negotiable. Brandt dismisses the matter by thereon only by the party with whom the con.
saying” that there is an irreconcilable conflict tract is made, and consequently, in the case
of authorities on the subject with no pre- of the guaranty of the note, not by a subse.
ponderance one way or the other, and in quent holder ;18 tbat a guarantor of a note is
Tiedeman and Kent the various views that not liable as an indorser thereof, nor as
have been advanced on the subject are dis- maker of a new note ;19 that to make a guar-
cussed and cases are cited on both sides of anty negotiable as a part of the note to which
the question. 8

it relates, it must be on the note itself, or an.
Decisions Favoring Negotiability. In the nexed to it in the nature of un allonge, or
decisions favoring the negotiability of guar-eking out of the paper on which the note is
anties it has been beld: That a general guar-
anty addressed to no particular person, or

written ;20 that a guaranty is not made negoone addressed to a certain person or bearer,

tiable by being written on a negotiable in. written on the back of a negotiable instru

strument;21 that a guaranty is not a negotia

tion of a billor note ;22 tbat a special guaranty ment runs with the instrument;' that a guar

is limited to the person to whom addressed anty operates as an assignment of the note; 10 ) and cannot be assigned until a right of action that a guarantor is liable as upon a common indorsement; that

accrues, and tbat where there is no privity of à guarantor can be

contract, no action can be maintained ;23 that charged as an indorser with enlarged liabil

a guaranty cannot be made to refer to the ity;"? that a guaranter is liable as an absolute principal contract for consideration ;* that a promisor or as maker of a new note;13 that a

guaranty, not in negotiable terms, on a mortguaranty to pay a debt should go with the

gege, is not negotiable ,25 and that a guaranty note it secures, even if not in terms trans

on the back of a bond, which is no part of the ferred ;15 that a guaranty need not express a

bond, does not pass by assignment thereof, 6 Randolph on Commercial Paper, secs. 860 861;

and that a guarantor may make any defense Edwards on Bills and Notes (30 Ed.), sec. 314; Nor.

to an action by the transferee of the bonds ton on Bills and Notes (1893), p. 111; American & English Ency. of Law, vol. 9, p. 76. 7 Brandt on Surety and Guaranty (2d Ed.), sec. 47.

16 Durham y. Manrow, 2 Comst. 533; Huut v. Adams, 8 Tiedeman on Commercial Paper, sec. 419; Kent,

6 Mass. 519. vol. 3, p. 123.

17 Gould v. Ellery, 39 Barb. 163. 9 Partridge v. Davis, 20 Vt. 500; Ketchell v. Burns,

18 Lamourieux v. Hewit, 5 Wend. 307; Brewster F. 24 Wend. 456; Lemmon v. Strong, 59 Cond. 448;

Silence, 11 Barb. (S. C.) 144; Northumberland Co. Bk. Webster v. Cobb, 17 III. 456; Harbord v. Cooper, 43

v. Eger, 58 Pa. St. 97; Tinker v. McCauley, 8 Mich. Minn. 466; Nevins v. Bk. ol Lansingburgh, 10 Mich.

188; Thomas v. Dodge, 8 Mich.51; Higgins v. Watson, 547; Baldwin v. Dow, 130 Mass. 416; Donley v. Camp,

1 Mann, 420; McDoal v. Yeomans, 8 Watts (Pa.), 361; 22 Ala, 659; Claflin v. Ostrom, 54 N. Y. 581.

Irish v. Cutter, 31 Me. 536; Bissell v. Gowdy, 31 Cond. 10 Heaton v. Hurlbut, 3 Scam. 469; Childs v. David.

47; Jacques v. McKnigbt, 2 Dutch, 92 n. son, 38 III. 437; McPherson Nat. Bk. v. Veide, 49 III.

19 Belcher v. Smith, 7 Cusb. 482; Tuttle v. BartholoApp. 21; Packer v. Wetherell, 44 Ill. App. 95. 11 Prosser v. Luqueer, 4 Hill, 420; am v. Prince,

Denio, 484; Brown v. Curtis, 2 Comst. 225. 12 Mass. 14.

20 M Laren v. Watson's Exrs., supra. 12 Robinson v. Lair, 31 Iowa, 9; Heard v. Dubuque

21 True v. Fuller, 21 Pick. 140. Co. Bk., 8 Neb. 15.

22 Trust Co. v. Nat. Bk., 101 U. S. 70. 18 Miller v. Gaston, 2 Hill, 189; Studebaker v. Cody, 54 Ind. 586; Curtis v. Brown, 2 Barb. (N. Y.) 61.

Kauffman, 93 N. Y. 273; Campbell v. Lacock, 40 Pa. 14 Anchor Inv. Co., V. Kirkpatrick (Minn.), 61 N.

St. 448. W. Rep. 29.

24 Draper v. Snow, 20 N. Y, 331. 15 Couper v. Dedrick, 22 Barb. 5:6; Craig v. Parkis,

25 Briggs v. Latham, 36 Kans. 205. 40 N. Y. 181.

il benade had be been sued that first

lease in 11, :-The fact that a guar.

case shota aid of accompanied a

fined to of exchange or other the thing de cont negotiability was an collateral

9 valuable character tended for to a great part of the gotiable,

in the opinions and able, if the

en considered. When any inden and under discussion the found all

edition are not so great and per til
ve of credit for instance, more than

to a special letter of credit of a coleu
10:26har person cannot be lesseé anilo

Errent person, that there covenant al Au contract; that letters lease." T: la trial guaranties are not enant to it Astrits and that a guarantor that a obtend the scope of his en

men held that where al Court of 11 per a general letter of credit, the payii.t: tzapent of whatever goods of the cost antise in New York and the

an entire u dvads on the strength of obligation t

tapeedil recorer, although other upon extri har sold goods to the same ing, and met pat same letter.27

assignee ca 1142.-Another class of | The findin

pass. In

no doubt lui


In the question of the negotia. | the agree'll en sumes importance arises other than par le plates, sed as the subject of var i continually becoming this connes

hale with the increasing there must Hai iba kases, and as the cus: plaintiff an pitautees of leases is be- nant, when

en gammalt will in all probability to be done waarin of great and increas. the meiliui

emide in what cases such that assign Pientale. The subject really guarantoro interation of what covenants - Mr. Justice Jewett says.


ment of rer after assig

eller i Pa. st. 299; East Tp. Bk. ¥.

[ocr errors]

supra; Bleecker v. Hyde, 3 Paper Bailie, 10 Jobos. 179; Penofer tract; tbat tt

A. : NeNaughton v. Conkling, 9 | anty is wholl!

covenants. I realty, any w personal con tractee can 21

mew, 12 Met. 452; Taylor v. Binney, 7 Mass, 479; Ten
Eyck v. Brown, 4 Chand. W. 151; Hall v. Farmer, 5

[ocr errors]

enig, 1. A recent case, re.

appears to be geree, is Walsh v. Packard, I the land cani

be quotes Lor

- a tha latter case, while the exact

acbusetts Supreme Court is dep's Vendor lessor may maintain an ac.

will run with

23 Everson v. Gere, 122 N. Y. 290; E. N. Bk. v.

pentru purety" for the prompt pay.

upance of specified covenants, Az aequence of the opinion,

v. Wight, 153 Mass. 189, citi

riebts of assigns under sueh

2 117 Ill. 41

30 Bally v.

81 Farnbar



sideration to enable a subsequera recover; and that where a gut arate instrument, the title tori 2 tbe note for a good considez. Wcisions against Vegotiable er band in cases which decide inst the negotiability of gusto a held: That a guaranty is a

distinct undertaking, and ass otiable, and action can be ÉT eon only by the party with whom the t is made, and consequently

, in the je guaranty of the pote, not breez at holder ;18 that a guarantor of 11

liable as an indorser therevl. er of a new note;'* ibat to make

negotiable as a part of the note!. lates, it must be on the note ili d to it in the nature of U# dit

g out of the paper on which the ten;" that a guaranty is not more e by being written on a negociata ment;" that a guaranty is not of a billor note ;? that a special pe" pited to the person to whom afts: cannot be assigned until a right es ies, and that where there is no pi ract, no action can be maintaiat: aranty cannot be made to refer : ipal contract for consideration *-* anty, not in negotiable terms, oo s: . is not negotiable;- and that are le back of a bond, which is no puede

does not pass by assignment the bat a guarantor may make sos

action by the transferee of the

that he could have made had he been sued that every covenant that may find place in a by the original payee.

lease is not assignable. He adds: "Spencer's Letters of Credit.—The fact that a guar- case shows that the English statute was conanty was written upon or accompanied a fined to covenants touching or concerning promissory note, a bill of exchange or other the thing demised, and did not extend to paper of a kind whose negotiability was collateral covenants. The construction coninseparable or at least a valuable character- tended for here would make all covenants neistic tbereof, has led to a great part of the gotiable, or which is the same thing, assignconflict and confusion in the opinions and able, if the parties would but insert them in authorities that have been considered. When any indenture of demise, which would conother guaranties are under discussion the found all distinction between covenants real confusion and contradiction are not so great. and personal. I think the statute does no In the case of letters of credit for instance, more than to transfer the privity of contract it has been held that a special letter of credit of a covenant real between the lessor and addressed to a particular person cannot be lessee and does not affect a strictly personal enforced by a different person, that there covenant although it may be contained in a would be no privity of contract; that letters lease.” In this case it was held that a covof credit and commercial guaranties are not enant to replace chattels did not pass, but Degotiable instruments and that a guarantor that a separate covenant to pay rent did is not answerable beyond the scope of his en:

pass. In Potter v. Gronbeck, 29 the Supreme gagement. It has also been held that where a Court of Illinois held that the guaranty of defendant had given a general letter of credit, the payment of rent and of the performance guaranteeing the payment of whatever goods of the covenants of the lease generally, was a party might purchase in New York and the an entirety, that it was not an unconditional plaintiff had sold goods on the strength of obligation to pay money; that it depended the letter, they could recover, although other upon extrinsic proof before it became bindparties bad previously sold goods to the same ing, and so was not assignable, and Potter as party relying on the same letter. 27

assignee could not recover in his own name. Guaranties of Leases.—Another class of The finding is certainly logical, although if cases in which the question of the negotia

the agreement had contained no covenant bility of guaranties assumes importance arises other than for the payment of rent it would in relation to leases, and as the subject of

no doubt have been assignable. Further in landlord and tenant is continually becoming

this connection it has been held: That while of greater magnitude with the increasing there must always be a privity between the number and value of leases, and as the cus.

plaintiff and defendant in an action of covetom of requiring guarantees of leases is be

nant, when the thing to be done or omitted coming more general, it will in all probability

to be done.concerns the land or estate, this is continue a consideration of great and increas

the medium which creates such privity ;30 ing moment to determine in what cases such

that assignment does not operate to release a guaranties are negotiable. The subject really guarantor on a written guaranty for the payincludes a consideration of what covenants

ment of rent;81 that a guarantor is liable even fun with the land. Mr. Justice Jewett says, 28 after assignment of lease for default of lessee * Beckley v. Eckert, 3 Pa. St. 292; East Tp. Bk. v.

covenants. He says that although rent savors of the

realty, any warranty or insurance of rent is a purely * Birckbead v. Brown, supra; Bleecker v. Hyde,

personal contract, of which another than the conMcLean, 279; Walsh v. Bailie, 10 Jobos. 179; Penoyer

tractee can avail himself only on principles of con5. Watson, 16 Johns. 99; McNaughton v. Conkling, 9

tract; tbat the true question is whetber such a guar

anty is wholly analogous to covenants for title; and Allen v. Culver, 3 Denio, 284. A recent case, re

he quotes Lord St. Leonards to the effect that there terring to the Allen-Calver case, is Walsh v. Packard,

appears to be no direct authority that a stranger to the land can enter into covenants respecting it which will run with the land in the hands of assignees. Sug. den's Vendors and Pur. (14th Ed. 587.) See, also, King v. Wight, 155 Mass. 411, and Norcross V. James, 140 Mass. 189, cited by Mr. Justice Holmes.

29 117 Ill. 404.
Holmes, J., discusses the rights of assigns under such

30 Bally v. Wells, 3 Wilson, 25.
31 Farnham v. Monroe, 35 Ill. App. 115.

[ocr errors]

urham v. Marrow, ? Comst. 52: N. 519. ould v. Ellery, 39 Barb. 163. amourieux v. Hewit, 5 Wend. 57; Bek P, 11 Barb. (S. C.) 144; Northumberland er, 58 Pa. St. 97; Tinker vi Melaka homas v. Dodge, 8 Mich. 51; Higit n, 420; McDoal y. Yeomaps, 8 7. Cutter, 31 Me. 536; Bissell v. (6951, cques v. Mch'night, 2 Dutch, 24. elcher v. Smith, 7 Cush. 48%; Turek i, en

St. J., etc. R. R. Co., 40 Fed. Rep. 423.


Wis. 321; Lowry v. Adams, 22 Vt. 160.

12 Met. 452; Taylor v. Binger i

v. Brown, 4 Chånd. W. 151; Hallr say 484; Brown v. Curtis, 2 Comsto

Laren v. Watson's Exrs., supru. "ue v. Fuller, 21 Pick. 140. ust Co. v. Nat. Bk., 101 U. S. 11.

42 N. E. Rep. 577. In this latter case, while the exact
point decided by the Massachusetts Supreme Court is
that the administrator of a lessor may maintain an ac-
tion on a covenant of "surety” for the prompt pay.
ment of rent and performance of specified covenants,
to complete the logical sequence of the opinion,

Yerson v. Gere, 122 N. Y. 20:19 181, 93 N. 1. 273; Campbell F. 13:38

raper v. Snow, 20 X. 1. 331. iggs v. Latham, 36 kans. 225.


10any other

in the payment of rent as the lessee still re.

gotiability of bills and notes taken from that mains liable therefor ;32 that where a lease al- of 3 & 4 Anne, c. 9, does not extend to other lowed its assignment upon the written con- instruments, and consequently not to the sent of the lessor, the guarantors were bound guaranty in question, and that the bank to know this and were not released by the could enforce simply Barlow's rights. Ungiving of such consent ;88 that the assent of der the Michigan statutes a transfer of a note the guarantor to the assignment of a guaranty assigns all guaranties thereof, whether infor rent is not necessary. 34

dorsed on the note or written on a separate Cases in Equity.—There are cases in which, paper, and the holder of the note may mainwhile it might be at least doubtful whether or tain an action on a guaranty thereof subject not an action at law would lie against the to the equities between the guarantor anil guarantor, he is still bound to defend in the person to whom the guaranty was made.* equity. An illustration is the case of Arents | By the New York code of procedure any v. Commonwealth.36 The city of Wheeling party acquiring an interest in a guaranty can issued bonds, and the guaranty of the State bring an action thereon provided the aswas given to promote their credit. Joynes, J., signor had a right of action.37 The statutes in the opinion, says, in substance: ""The right or codes that relate to guaranties are freto enforce the guaranty may not pass to each quently construed,88 and it will be observed successive holder so as to entitle him to that while the negotiability or assignability maintain an action at law in his own name. It has even been held that a guaranty on a ne

of guaranties is as a general rule promoted by

the statutes enacted in relation thereto, still gotiable note is not negotiable along with the note,

in many cases ij is provided that the assignee In this case, by the transfer of the bonds and coupons to different persons, the

shall have no greater rights or equities than

the assignor had, and the guarantor is thus contract of guaranty on the bonds would be severed into parts and enure to the benefit of

protected from injury by the change of par

ties. We are not called upon to decide this question.

Conclusions.-In forning conclusions as to An interest in the contract of guaranty passes in equity.”

the law upon the negotiability of guaranties,

consideration should be bad of the nature Statutory Provisions.- In the statutes and codes of many of the States as above indi

and scope of the contract of guaranty. And

first as a guaranty is a contract, it is proper cated, provisions have been incorporated relative to the negotiability of guaranties as a

for the guarantor to impose such restraints

and assume such liabilities as he sees fit. result of the tendency to aid the convenience

This principle was announced by Pothier, of the commercial world without regard to

If &

and is maintained in recent decisions. 40 the spirit or letter of legal doctrines and decisions. It would extend this article beyond negotiable he can certainly do so, and in the

guarantor sees fit to make the guaranty nonproper limits to enumerate all these provis

case of a special guaranty, the great weight ions, and moreover they are continually be

of authority is that it is limited to the par. ing changed. Of course the practitioner ticular person to whom given.

Furthermore, must follow the statute or code under which

a guaranty is a collateral or accessory underhe practices. East Tp. Bk. v. St. J., etc. R.

taking ;41 it is a contract to fulfill the agree. R. Co., supra, was a case concerning a guar

ment of another if the latter does not; the anty to pay interest on bonds which one

guarantor may have no personal interest in Barlow got for building a railroad that he

the subject matter, and the consideration never built. It was held that the considera

supporting his contract may move to anotber. tion bad failed, that the guarantor was re

36 Green v. Burrows, 47 Mich. 70; Russell & Co. v. leased, and that plaintiff bank bad no

Klinck, 53 Mich. 161. greater rights than those of Barlow, unless

37 E. Nat. Bk. v. Kauffman, supra. the guaranty was negotiable, and it was fur

38 Killian v. Ashley, 24 Ark. 511; Weir v. Anthony,

35 Neb. 399; Cole v. Mer. Bk., 60 Ind. 350; Clay v. Ed. ther held that the statute declaring the ne

gerton, 19 Ohio St. 549; First Nat. Bk, V.

Iowa, 519, 32 Oswald v. Fratenburgh, 36 Minn. 270.

89 Pothier ou Obligations (Evans), vol. 1. p. 326. 33 Morgan v. Smith, 70 N. Y. 537.

40 E.O., Bray v. Marsh, 75 Me. 452. 34 Cunningham v. Norton (Cal.), 40 Pac. Rep. 491.

several persons.

form the basis of what 4. Where

bis arriva's! DIY that a contract of

In order to i streer construed and the the railroat

pl only according to the boukeman. 1203t containing his con

BATTIE. i ibereot will not be ex. Chiet Jum'

or otherwise. The t'o., L. R., aut oil tbe law and has a ger takes u

venien, di attestrict terms of his ob

particular ploche held liable to a pero reference to

caer than tbe one with ultimale porn 2 sguaranty was made. Mr. Ju siit Asunnoty is not by its terms Wall. 72. th Akar bade Degotiable by a


dertaking ! bit to the particular case,


articles ani regard the guaranty as tbeir person Les the safer practice. depending baer. Curtis, supra, it party, ibe out meeting to change a con

of this state. a one which it is not. od otroling construction in along with to

3 on las been suggested,” | additional c!

doktrisording of the parties. of bagga . oral tot die beld liable to usually carr. che il not contemplate

ing." Sach.

tion of the und god on the other hand

substantia partiled to a valid guar passenger, w la Wenred of its advan. supra. CYRC J. WOOD.

What is be

rier's liabi bileet of the liability of depends, ade pand in the CENTRAL LAW a be leading case of Crane the length. 1

upon the con Aled the notes thereon.

According to have been wearing app easel of an al

fishing tack E - LIABILITY – RE | ing or fi bine

of wealth, bi. ing on a r: which a com used in mahir

of a surgeon i e as baggage a passen, ment; and the

a few books Ware not so classified ordi) used in the

cases upon it



[ocr errors]
[ocr errors]

, January 9, 1897.

a la family offered for valuable treat 1940, txo trunks and three General Lia

ang over 50 pounds in

Frete of being packed with Baggage," in

When a pa transportationz known what or packs then cerned good I

35 allowing each passen.

as chargeable with 10

Sipastiri ibe ordinary luggage

Carpenter, 41

super and bia baggage they are not i il belock P. M. did not

41 Pothier, supra, p. 300. 35 18 Gratt. 770.

mands trans At the reasonable time for

and the carrie

VOL 44



Hility of bills and notes taken ter

These considerations form the basis of what & 4 Anne, c. 9, does not extend te is well established law that & contract of uments, and consequently see to

guaranty will be strictly construed and the anty in question, and that tu

guarantor beld bound only according to the 1 enforce simply Barlow's riets terms of the instrument containing his conhe Michigan statutes & transter da tract, and the terms thereof will not be exns all guaranties thereof, metz tended by implication or otherwise. The ed on the note or written on an guarantor is a favorite of the law and has a r, and the bolder of the pote maten right to stand upon the strict terms of his oban action on a guaranty thereof su ligation and will not be held liable to a pere equities between the guarantee son er corporation other than the one with erson to whom the guaranty was su which the contract of guaranty was made. 42 be New York code of proceder

. " When, therefore, a guaranty is not by its terms acquiring an interest in a guaranty negotiable, and is not made negotiable by a an action thereon provided to

statute applicable to the particular case, the r bad a right of action." The se:

better doctrine is to regard the guaranty as des that relate to guaranties :

non-negotiable. This is the safer practice. ly construed, and it will be olur

As announced in Brown v. Curtis, supra, it while the negotiability or seat

is a dangerous proceeding to change a coniranties is as a general rule promitei

tract of guaranty into one which it is not.
The guiding and controlling construction in

each individual case, as has been suggested, 43 bave no greater rights or equise should be the understanding of the parties.

A guarantor should not be held liable to
whom and for what he did not contemplate
extending his liability, and on the other hand

a party who is justly entitled to a valid guarw upon the negotiability of gus:z anty should not be deprived of its advan

Cyrus J. Woon.

[ocr errors]

tatutes enacted in relation thereie

, ny cases ii is provided that the me,

ssignor bad, and the guarantee ited from injury by the change of

clusions.-In forn'ing conclusie

4. Where a passenger fails to remove his baggage on his arrival at his destination, and it is destroyed by fire, in order to recover be must show such negligence on the railroad's part as would make it liable as ware. houseman.

BATTLE, J.: “Baggage,” as defined by Lord Chief Justice Cockburn in Macrow v. Railway Co., L. R. 6 Q. B. 612, is “whatever the passenger takes with him for his personal use or convenience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities or to the ultimate purpose of the journey." As said by Mr. Justice Field in Railroad Co. v. Swift, 12 Wall. 272, the contract of the carrier to carry a passenger, as to baggage, "only implies an undertaking to transport such a limited quantity of articles as is ordinarily taken by travelers for their personal use and convenience, such quantity depending, of course, upon the station of the party, the object and length of his journey, and many other considerations." Under the statutes of this State, "each passenger who shall pay fare

shall be entitled to have transported along with him, on the same train, and without additional charge, one bundred and fifty pounds of baggage, to consist of such articles as are usually carried by ordinary persons when traveling." Sand. & H. Dig. $ 6215. With the exception of the amount of the baggage, the statute is substantially the contract of the carrier with the passenger, as stated in Railroad Co. v. Swift, supra.

What is baggage, within the rule of the carrier's liability, is often difficult to determine. It depends, as already stated, in a great measure upon the condition in life of the passenger, and the length, nature, and object of his journey. According to this criterion, the following articles have been held to constitute baggage: The wearing apparel of the passenger in all cases; the easel of an artist on a sketching tour; the gun or fishing tackle of the sportsman when on a hunting or fishing excursion; the costly laces of a lady of wealth, high rank, and social standing, traveling on a railway; "a manuscript price book, which a commercial agent took in his valise, and used in making sales;" the surgical instruments of a surgeon in the army, traveling with troops; a few books carried for amusement or entertainment; and the manuscript books of the passenger used in the prosecution of his studies. Many cases upon this subject have been collected in a valuable treatise by Judge U. M. Rose upon the --General Liability of Carriers of Passengers for Baggage,” in 2 Am. & Eng. R. Cas. (N. S.) 1.

When a passenger presents to the carrier for transportation his goods and chattels, and makes known what they are, or exposes them to view, or packs them in a way to give to any one concerned good reason to understand and hnow that they are not usually carried as baggage, and demands transportation of them as his luggage, and the carrier receives and carries them accord


& This brauch of the subject of the liability of
guarantors is fully presented in the CENTRAL LAW
JOURNAL, vol. 38, p. 383, in the leading case of Crane
Co. v. Specht, 39 Neb. 123, and the notes thereon.
• Lee v. Dick, 10 Pet. 494.



leration should be had of the best cope of the contract of guarantf. 18 a guaranty is a contract, it is pon 2 guarantor to impose such fettu ssume such liabilities as be principle was announced bt Paris maintained in recent decisions: 1 itor sees fit to make the guarazi we able he can certainly do so, asi 53 f a special guaranty, the greates bority is that it is limited to it person to whom given. Fuez anty is a collateral or access to ;41 it is a contract to fulill | f another if the latter does ni tor may have no personal intes ibject matter, and the monks ting his contract may more to



Supreme Court of Arkansas, January 9, 1897.
1. Where & carrier accepts as baggage a passen:
ger's goods, which it kaows are not so classified ordi.
barily, it is responsible for them as baggage.
2. Where tbree members of a family offered for

transportation, as their baggage, two trunks and three

Werebandise, and aggregating over 500 pounds in


, having the appearance of being packed with weight (Sand. & H. Dig. $ 6215, allowing each passenper 150 pounds), the carrier was chargeable with no. tice that the contents exceeded the ordinary luggage

en v. Burrows, 47 Mich. 70; Rew

13 Mich. 161.
at. Bk. v. Kauffman, suppy.

of three persons.

ian v. Ashler, 34 Ark. 511; Meteo

3:49; Cole v. Mer. Bk., 60 Ind. 3:14

8. The mere fact that a passenger and his baggage

9 Ohio St. 549; First Vat. Bk. I.

arrived at their destination at 11 o'clock P. M. did not
extend to the next morning the reasonable time for

the removal of the baggage.

2. nier ou Obligations (Evans), vol. 2.A.

Bray v. Marsh, 15 Me. 452. ller, supra, p. 300.

[ocr errors]

Tbe paint

2 su blivate that they were not

[ocr errors]

carried as his ordinary baggage, and further held ingly, he will be responsible for them as baggage,

2 50 therefrom that the railroad company, having this notice, nowithstanding he was not bound to accept and

3 00 surrourilis was responsible for the loss of the trunks and transport them as such. If he wisbes to avoid

? 00 sated, mutheir contents. responsibility for them as baggage, he must re

helt graphs) 10 00 97 lowa, ?! fuse to receive them in that way. Railway Co. Some courts bold that where a railroad com

6 00

In ml. v. Berry, 60 Ark. 433, 30 S. W. Rep. 764; Minter pany receives for transportation property which

9 70 tion for his v. Railroad Co., 41 Mo. 503; Sloman v. Railway it is not bound by its contract with the paşsenger

1 00 | upon it. 15: Co., 67 N. Y. 208; Railway Co. v. Shepherd, 8 to transport as personal baggage, of which it has

1 25 If such pada Exch. 30; Mauritz v. Railroad Co., 23 Fed. Rep. notice, it must be considered to assume, with ref

200 the

pamat! 765; Waldron v. Railroad Co. (Dak.), 46 N. W. erence to such property, the liability of a common

on ils arrr. Rep. 456; Oakes v. Railroad Co. (Or.), 26 Pac. carrier of merchandise (Railroad Co. v. Swift,

$119 13 tbereafter Rep. 230; Railroad Co. v. Swift, 12 Wall. 262; supra; Sloman v. Railway Co., supra); while

um aggregate value of five the circomRailroad Co. v. Capps, 16 Am. & Eng. R. Cas. others say that if it received the property, under

Antipation of the trucks and delivered. 118; Packet Co. y. Grattman, 127 Ill. 598, 20 N. such circumstances, as baggage, it will be respon. on it is evident that the liability of : E. Rep. 662.

sible therefor as a common carrier, and will be

In white been of a size very id-urer to !! In Railway Co. v. Berry, 60 Ark, 433, 30 S. W. estopped from denying that it was baggage.

Thomary to hold tbe ordi. Rotb v. R. Rep. 764, this court held 'that wbere a passen- Railroad Co. v. Capps, 16 Am. & Eng. R. Cas.

Huber of persons entitled to Heosbaw. 37 ger, who is ignorant of the rules or instructions 118; Minter v. Railroad Co., 41 Mo. 503; Hoeger

I ft te kete would amount to. of railway companies forbidding agents to receive v. Railroad Co., 63 Wis. 100, 23 N. W. Rep. 435;

but the plaintiff would strict ani ri money for transportation as baggage, delivers to Railroad Co. v. Conklin, 32 Kan. 55, 3 Pac. Rep.

up trunks and boxes for surers by pre the baggage agent more money than the carrier 762; Butler v. Railroad Co., 3 E. D. Smith, 571;

LITTLs such personal effects of sion of bra', is required to transport, and informs the agent of Railroad Co. v. Berry, 60 Ark. 433, 30 S. W. Rep.

abras entitled to have car

account of the amount (it being inclosed in the baggage,

764. It seems to us the latter view is sustained

care a tree tickets. The effects or his owo! and concealed from view), if he accepts it to ship by the better reason and weight of authority; but,

, bir tas thereby packed in | Co. v. Boris as baggage, and a loss occurs, the carrier's com

be that as it may, the liability of the carrier for mon-law liability will attach."

loss and damage in transportation in either case

esperantai baggage to be used is given a la In Minter v. Railroad Co., supra, a passenger is the same.

do merchandise would be reach hi-dedelivered his trunk and a piece of carpet to the

In the case under consideration, the plaintiff


not brave the baggage master of a railroad company. The car

McGahey, purchased for himself and his family, pet was exposed to view. The passenger received consisting of a wife and three small children,

wise be. a check for the trunk, but was told that none was three tickets, which entitled bim to transporta

In the cast necessary for the carpet, as it would go safely.

tion for himself and family and 450 pounds of The carpet was lost, and a suit was brought for

baggage over the railway of the defendant railthe recovery of its value. The court held that,

road company, from Sulligent, in the State of inasmuch as the railroad company had received Alabama, to Mammoth Springs, in this State. He

that hour and treated the carpet as personal baggage, it delivered to the company his baggage, which was

tance from was liable for the loss of it, although, by the

contained in two trunks and three boxes, and printed rules of the company, the baggage mas

weighed over 500 pounds, and paid the usual rate ter was forbidden to receive as passenger's bag

for the weight in excess of his baggage allow. gage articles of merchandise.

ance, and received checks for the trunks and

thin the owner at the place wbo stored i In Sloman v. Railroad Co., supra, the plaintiff's

boxes, which contained property of the following son, a lad 18 years of age, was employed by him as

discription and value: traveling agent, to sell goods by sample. He bad Four feather beds, 40 lbs. each, at 40cts...$ 61 00

According two large trunks containing the samples, and a

Ten pillows, 4 lbs. each, at 40 cts valise for his personal baggage. The trunks did Forty-five quilts, at $5

met toercise tbe same care, not present the appearance of ordinary traveling Three pair of blankets, at $5. trunks. They were 30 inches long, 27 deep, and Three bed ticks, at $2..

e of similar kind and except thel 24 wide. One was covered with oilcloth, and

Five double woven counterpanes, at $6... 30 00

beebited Co., 27 lowa, 22; Railthe other was of wood. "He delivered the trunks Fourteen bed sheets at 50 cts.

no vebicles to a baggage master at a railroad depot, and, Thirty pillow slips at 15 cis.

hemma i unable time and oppor- | This merely when asked where he wanted them checked to, Eight dresses (ladies') $2.

night, by v replied that he did not then know, as he had sent Thirty dresses (children).

Twenty-five shirts and under

il pation of fact and law. absence of a a dispatch to a customer at Fentonville to koow

per gate, the jury sbould extend the if he wanted any goods; if not, he wanted them

Twenty articles underwear... estimate to go to Rochester, where he expected to meet

(ladies) some customers. Soon after, he had them

Twelve pair of socks.
Twenty-five yards cloth.

PatRailroad Co.v. Boyce, came liable checked to Rochester, paying two dollars, and

Razor hone receiving a receipt ticket for them, headed Re

Knitting yarn.... ceipt Ticket for Extra Baggage and Days.?" The Three suits of clothing

a subject can be stated. | arrival of the court held that the jury were authorized by these Two pair of pants.

i passenger bas bad a facts to infer that the baggage master understood

Four cotton sbirts.. that the agent was traveling for the purpose of Four pair drawers (gents”).

of the railway and of arrival of the selling goods, and that these trunks contained his wares, and that he was not entitled to have them | Two razors.

4 of destination. From

na we think that the judge. tbe carrier 3Tbili in this case, was auterminale company was put opon

Sana paderstand, that the trunks gage arrive. * TALANA pere than the ordinary destination, 2. Was septed and treated the con

is that they might be, as Pa ni them accordingly.

Case Fisponsible as common although br nge of their passengers. made no dull Portimies until the baggage rival, but lef

were no cof

16.00 226 00 15 00 6 00

tatil be bas bad a reason. destroyed w Is to come and take it o'clock that

for in a reasonable time Det har ju in a secure warehouse plaintiff had CDK | By: warehouseman, and is with the uue

moved his pelisaris prudent men do in There is no ¢


sa a remove his baggage is, him to reino


Als ersions of the court as to plaintiff sbo

19 00
1 80
3 80
1 50
1 60

to ja question of law, and

so that, it no

19 7. Mahan, 8 Bush, 184:

24 00



was not the fendapt to do

2 00

1 60

[blocks in formation]
« PreviousContinue »