Little Rock and Fort Scott Railway v. Dean. LITTLE ROCK AND FORT SCOTT RAILWAY V. DEAN. (43 Ark. 529.) Carrier - limited ticket over connectiny line, expiring on Sunday. Where a railway ticket over connecting lines is limited to a specified number of days, the last day falling on Sunday, and the last line runs no train on that day, the passenger is entitled to passage on the next day. Α CTION for unlawful ejection from a railway train. The opinion states the case. The plaintiff had judgment below. J. M. Moore, for appellant. H. 8. Carter, for appellee. COCKRILL, C. J. The appellee purchased a ticket from Middleton, Tennessee, from the agent of the Memphis & Charleston railway, via said railway, the Memphis and Little Rock railway, and the appellant's railway to Russellville, Arkansas, on the first day of September, 1882. The ticket was limited on its face to the third of September. According to the regulations of the several roads as to the time of running trains, appellee should have reached Little Rock at 1 A. M., on the second of September, and in time to take the morning train on appellant's road, but although he arrived on that day at Argenta, no train went out after his arrival, until the morning of the fourth of September. The third day of the month was Sunday and no trains were run on the appellant's road on that day. The appellee, not being provided with the means to pay the expense of the delay, walked to the house of a friend about ten miles out on his route, and on Monday morning boarded the first train going in the direction of his destination since his arrival at Argenta. The conductor refused to honor his ticket because the time limited had run out, and informed him that he must pay his fare or leave the train. Appellee protested and told him that he did not have the money to pay his fare, but finally gave the conductor all he had except ten cents, and a dollar that he borrowed for that purpose, and paid his fare to Pott's Station, which was short of his destination. On arrival at this station the conductor compelled him to leave the train, as he declined to pay any additional fare. Appellee being without money Little Rock and Fort Scott Railway v. Dean. was forced to walk from that point to his destination. He sued the railroad for ejecting him from the train, and had a verdict and judgment for $200. It is urged here that this judgment should be reversed because the conductor did nothing more than his duty, or if he did, the damages awarded appellee are excessive. It seems at first to have been doubted whether it was competent for a passenger carrier to enter into a contract limiting the time within which the holder of a ticket should avail himself of the right to use it, but the doubt has been definitely solved in favor of the contract. A passenger riding on a ticket limited as to the time within which it may be used, is bound by the terms of the contract he has made in that regard, and he cannot wait until the ticket has expired by its own limitation, and still be entitled to ride by virtue of it. He is bound too, to observe the reasonable regulations made for the running of trains and for facilitating the business of the carriage of passengers. The obligation bears upon the carrier with equal force. He must afford the purchaser of such ticket the necessary facilities for accomplishing his journey within the stipulated time, and upon his failure to do so, he is not in position to treat the contract of carriage as forfeited, and demand a repayment of fare for the same passage, at least if the ticket holder avail himself as in this instance, of the first opportunity to complete his journey after the expiration of the time limited. Auerbach v. N. Y. Cent. Ry., 60 How. Pr. 382; Stone v. C. & N. R., 47 Iowa, 82; s. c., 29 Am. Rep. 458. A party who has himself caused delay cannot inflict a forfeiture on another consequent on the latter failing to come up to time. When the appellee bought his ticket he was informed that it could be used on appellant's road on the third day of September. This in fact is embraced in the terms of the contract itself, for it specified that the ticket could be used on the first, second and third days of the month, and the last coupon was for use on appellant's road. The carrier selling the ticket was the agent of the appellant for that purpose, and the coupon attached for appellant's road was a contract by appellant as binding as if issued by its agent here. This is not disputed, but it is urged that the appellee should have presented himself to be carried on the train leaving Argenta on the morning of the second day. Appellee's contract did not require him so to do. The ticket named the third day and not the second VOL. LI-74 Little Rock and Fort Scott Railway v. Dean. as the limit. The holder of the ticket was not required to make a continuous trip from the starting point to the place of destination. All that could be demanded of him was that he should make a continuous trip under each coupon within the time limited. That is, when he started on his journey over any one of the connecting lines, he was bound to continue without stop to the point on that line named in his coupon. Hutch. Car., § 578; Auerbach v. N. Y. Cent. Ry., 89 N. Y. 281; s. c., 42 Am. Rep. 290. The appellee appears however to have made all the expedition in his power. He left Middleton on Friday, arrived at Memphis the same day, at Argenta the next, and boarded the first train leaving that place on appellant's road after his arrival. Appellant admits that no trains were run over its roads on a Sunday, and that appellee had no opportunity to use his ticket on the third day of the month in question on that account. It may be that appellant was under no obligation to run its trains for the accommodation of the public on that day. No breach of duty in that regard is complained of in this case. The appellant elected to treat Sunday as no day, and declined to execute its contract, the performance of which fell on that day, for that reason. Under these circumstances we can see no reason why the rule applicable to other contracts should not be enforced as to this, viz.: if a contract matures on Sunday the performance is to be exacted on the next day. 2 Whart. Cont., § 897; Cock v. Bunn, 6 Johns. 326; Perkins v. Dibble, 10 Ohio, 433; 36 Am. Dec. 97; Link v. Clemmens, 7 Blackf. 479. This rule is the more applicable to the case at bar for the reason that the time for the performance is imposed by the railroad by way of limitation, and the contract should be so construed as to save the right and prevent a forfeiture if it can be done. Barnes v. Eddy, 12 R. I. 25; Evans v. St. L., I. M. & S. Ry., 11 Mo. App. 463; Auerbach v. N. Y. Cent. Ry., 89 N. Y. 281; s. c., 42 Am. Rep. 290. The regulation of the company requiring the conductor to refuse such tickets after the last day of its limit could not affect appellee's legal rights. Burnham v. Railroad, 63 Me. 298; Jeffersonville R. Co. v. Rogers, 38 Ind. 116. The conductor doubtless thought he was performing his duty, but that does not help the appellant's case. [Omitting question of damages.] Judgment affirmed. Newton v. Snyder. NEWTON V. SNYDER. (44 Ark. 42.) Gift- -causa mortis — delivery. S., being informed of his approaching death, told his attendants that he had $1,600 in bank, $950 under his pillow and in his coat pocket, and several hundred dollars in the hands of different persons; that he desired $200 to go to a niece, and $100 to an old servant, and the rest to his wife. One of the attendants then found and counted the $950, to the knowledge of S., but he gave no further directions. Held, not a gift. E XCEPTIONS to administratrix's inventory. The opinion states the case. Martin & Taylor, for appellant. McCain & Crawford, for appellee. COCKRILL, C. J. O. P. Snyder died intestate. His widow, the appellee, became administratrix of his estate, and filed an inventory thereof in the Probate Court. The heirs of Snyder and distributees of his estate filed exceptions to the inventory, and charged that it did not include all of the assets. The omission of the property named was admitted by the administratrix, and was claimed by her in her own right. The Probate Court sustained the exceptions, and on appeal to the Circuit Court this judgment was affirmed, excepting as to an item of $953.50 in currency, which the court found had been delivered to the appellee by her deceased husband as a gift mortis causa. The correctness of this finding is the controversy here. The facts are these: At the time of Snyder's illness and death his wife was absent from home. Being informed of the near approach of death, he told his attendants that he had $1,600 in bank, $950 under his pillow and in his coat pocket, and several hundred dollars in the hands of different persons; that he desired $200 of this to go to a niece, and $100 to an old servant, and wanted his wife to have the residue of his money. There are three witnesses to the point of his directions as to the disposition of the money. He talked with them severally and collectively about his affairs a short time before his death. To Dr. Brunson he said the money was a part of his estate, and that he Newton v. Snyder. expected his wife to get his estate. Brunson called Tannehill into the room, expecting him to draw a will. Snyder told Tannehill that he wanted his wife to have all of his property except the money that was to go to his niece and servant; that he wanted his wife to have the money and wanted it put where it would do the most good. He told John M. Clayton where his money was, and said he wanted it to go to his wife. A paroxysm of pain prevented him from finishing his conversation with Clayton, and it was never resumed. After this the money de quo agitur was found and counted, and Snyder was apprised of the fact, but gave no other direction in regard to it. Brunson, who had the money in hand, turned it over to Clayton for safe keeping, as he was a friend of Snyder, and the sheriff of the county. Tannehill drew up a memorandum of Snyder's wants as to the disposition of his property, but it was never signed or attested as a will. It is not known whether Snyder knew that the money was turned over to Clayton. He gave no specific direction in regard to it. The witnesses were all of the impression, at the time, that the money would go to Mrs. Snyder. Afterward, Clayton paid the money to Mrs. Snyder, as administratrix of the estate of her deceased husband, taking a receipt from her in her official capacity. To establish a gift mortis causa the evidence must be sufficient to show, not only that the person in extremis designated with proper distinctness the thing to be given and the person who is to receive it, but it must establish also that the property was presently to pass, and that the intention was carried into effect by an actual or effective delivery. In this respect there is no difference between gifts inter vivos and causa mortis. Basket v. Hassell, 107 U. S. 602; s. c., 48 Am. Rep. 506; Coleman v. Parker, 114 Mass. 30. In the case of Nolan v. Harden, 43 Ark. 307, the question was as to a gift inter vivos, and the court held that if the gift is intended to operate in presenti, and is accompanied by delivery it operates at once; but if there is only an intention to give and no delivery is made, it will be inchoate and incomplete, however strong the expression of intention may be, See, too, Hynson v. Terry, 1 Ark. 83; 41 Am. Dec. 100. The proof here shows an earnest desire on the part of the dying man that Mrs. Snyder should have the benefit of his money, and he doubtless thought that his friends, who heard his wish, would see it executed, not only as to the money then in his room, but that in |