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Vol. II.]

E. & C. R. R. Co. v. ANDROSCOGGIN MILLS.

[No. 11.

pany is responsible for the loss. The judge at the circuit held it to be liable, and it is from this decision that the question is brought to this

court.

The bill of lading creating the contract is as follows, viz. :—

"EVANSVILLE & CRAWFORDSVILLE R. R. Co.

'Great through fast freight route to all points north and east, via Pennsylvania Central, Erie, and New York Central Railroads. "Contract for through rate.

A. E. SHRADER,

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"The Evansville and Crawfordsville R. R. Co. hereby agree that, upon arrival at Evansville, and delivery of the property above described and consigned, they will receive and forward said property to destination upon the following conditions: That the shipper, owner, and consignee do hereby release the said Evansville and Crawfordsville R. R. Co., and the boats and railroads with which they connect, from the acts of Providence, or from damage or loss by fire or other casualty while in depots or places of transshipment; also damage or delays by unavoidable accidents; also, loss by fire, collision, or dangers of navigation, or for loss or difference in weights, torn baggage, condition of said property."

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"The Evansville & Crawfordsville Railroad Company will not be liable for loss or damage by fire, from any cause whatever.

"All property shipped on this contract will be subject to the expense of necessary repairs and re-marking. In the event of loss or damage under the provisions of this agreement the value or cost at the point of shipment shall govern the settlement of the same. Said property to be forwarded immediately after its arrival at Evansville, or as soon thereafter as it is ready for shipment, and to be delivered at Boston, Mass., upon the payment of the freight and charges as herein specified.

"In witness whereof the agent hath affirmed to 4 bills of lading of this tenor and date, one of which being accomplished, the others to stand void. Through rate, $10.25 per bale from Columbus to Boston.

"L. Q. AYRES, Agent."

The defendants in error rely upon that clause of the contract which contains the provision that " upon the arrival at Evansville and delivery

Vol. II.]

E. & C. R. R. Co. v. ANDROSCOGGIN MILLS.

[No. 11.

of the property above consigned, they will receive and forward said property to destination upon the following conditions." Among these conditions is one that the company will not be liable for loss by fire while in depots or places of transshipment; and another, that they will not be liable for loss by fire, collision, or dangers of navigation, or loss or difference in weights, &c. The cotton had not arrived at Evansville when the loss occurred, and the argument is that the condition of an exemption from liability in the case of a loss by fire did not attach, and that the railroad company must be subjected upon the general principle of its liability as a common carrier.

Had the bill of lading contained nothing more than the terms and clauses thus referred to, this argument would have been a strong one. We must, however, examine the whole contract, and construe and give effect to all its provisions.

This bill of lading, in the first place, is a contract covering the cotton during the entire period of its transmission from Columbus to Boston, and over every part of the route. Not only is this the general law of the bill of lading, from the fact that Columbus was the place of receiving, and Boston the place of delivering the cotton, but this bill of lading is emphatic in its declaration that such is its character. It is headed" Great through fast route to all points North and East," &c. It says, "This reliable through line makes the shipment of cotton and tobacco a specialty;' "Contract for a through rate;" and again, "Through rate $10.25 per bale from Columbus to Boston." All these expressions are found in the bill of lading before us. It is evident, therefore, that the cotton is the subject of the contract of carriage, not only from Evansville to Boston, as the plaintiffs argue, but from Columbus to Evansville as well.

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Bearing this in mind, it will be observed in the second place that the contract separates itself into two parts-one, limiting the liability of the railroad company from Evansville to Boston, the other governing its liability generally. Thus the portion already referred to as relied upon by the defendants in error, undoubtedly was intended to be limited in its range. The liability under it, and the exemption also, is expressly made dependent on the arrival of the goods at Evansville, and until they have so arrived, neither the liability or the exemption commences. We can, however, only be asked to hold that the liability or the exemption on a portion of the route is entirely omitted from the terms of a bill of lading which provides for transportation over the whole route, and that the compensation is specified as covering the whole route, where it so appears by the plainest language. No doubt terms might be used in a bill of lading for the transportation of cotton from Mississippi to Massachusetts, by which exemptions from liability for loss by fire, while in a railroad car from Evansville northward, should be made, and no such exemptions should be made while the cotton was on the deck of a steamboat. We should not, however, expect to find such provisions, and we should require them to be clearly expressed.

All of the first general paragraph of the bill of lading may fairly be said to relate to the conditions upon which the transportation from Evansville northward shall be made. In its general terms we have already considered that paragraph.

Vol. II.]

E. & C. R. R. Co. v. ANDROSCOGGIN MILLS.

[No. 11.

A new subject, however, is taken up in the next sentence. It is not only the beginning of another paragraph, with the usual space between it and what precedes it, but it is printed in red ink, while what precedes it is in ordinary black type. Its importance in the opinion of the shippers is thus manifested. Attention is called to it as involving important provisions. Dropping the reference to Evansville, and the arrival of the goods there, it uses the most general terms: "The Evansville & Crawfordsville Railroad Company will not be liable for loss or damage by fire, from any cause whatever." It is an evident addition to the contract as expressed in the first clause. The railroad company there define the terms and conditions upon which they will be liable after the property has reached Evansville. While on the passage from Evansville northward, non-liability for loss by fire is twice stipulated for, once while in depots or places of transshipments, and again in general terms, the evident object and intent of the first clause is to affect this part of the route only. A new branch of the contract is then taken up, and the difference is intended to be made plain to the eye as well as the understanding. In the red ink clause they use terms applicable to the entire contract of shipment, viz.: They "will not be liable for loss or damage by fire, from any cause whatever." "No language of limitation is used. It is as if they had said, "Should damage by fire occur to this cotton during any part of the route, and from any cause whatever, this company will not be liable."

It is quite unreasonable to suppose that the company here intended to guard themselves against a liability for which they had twice already stipulated that they should not be liable, to wit, of loss by fire after the cotton had reached Evansville. The clause in red was intended to cover the whole contract. Wherever, whenever, or however they would by law be liable for a loss by fire, from that liability they intended to relieve themselves. The exemption was intended to be as broad as was the original liability.

A careful reading of the bill of lading shows that the red ink clause not only, but all that follows it, must have been understood by the parties to cover the whole route, and not to be limited to a part of the distance only. Thus, after providing an exemption from liability for loss by fire from any cause whatever, the bill of lading goes on to say, "All property shipped on this contract will be subject to the expense of necessary repairs and re-marking." Can it be doubted that if the sacks of this cotton had required repairing or re-marking, from causes occurring before it reached Evansville, that it would have been a proper item of expense under this clause? "In the event of loss or damage under the provisions of this agreement (it proceeds), the value or cost at the point of shipment shall govern the settlement of the same." No one can doubt that the value at Columbus will govern the amount of a recovery under this clause." And again, the clause," Said property to be forwarded immediately after its arrival at Evansville, and to be delivered at Boston upon the payment of freight and charges," is, by its very terms, applicable to goods not yet at Evansville, when the contract takes effect.

We are of opinion that the argument of the defendants in error, upon which the judgment below was based, that the exemption from liability by fire was limited to fire occurring after the cotton had been received at

Vol. II.]

CLARKE V. THE COMMONWEALTH.

[No. 11.

and shipped from Evansville, was erroneous. The exemption covers the entire route.

The judgment of the circuit court must be reversed, and judgment upon the demurrer is ordered in favor of plaintiffs in error.

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D. and H. rent a room jointly of S., of which each has a key. C. rents an adjoining room, the doors of the two rooms entering upon the same porch near each other. They frequently interchange visits. On the night of March 11, 1874, D. locks his door, takes out the key, and starts to church. On the way he meets H., who says he is going to his room, and will follow him to the church soon. H. and C. conspire to steal D.'s goods in the absence of D. on this night, and H. opens the door with his key, and they enter the room, and take and carry away the trunk of D. with its contents. This is not such a breaking as will constitute burglary in C.

The breaking which will constitute burglary may be actual or constructive. For what will be a constructive breaking, see the opinion of Moncure, P.

The indictment charging not only the breaking and entering, but the stealing of the trunk and its contents, of a stated value, C., though acquitted of the burglary, may be found guilty of the larceny.

THE case is stated by Judge Moncure in his opinion.
H. A. & J. S. Wise, for the prisoner.

The Attorney General, for the Commonwealth.

MONCURE, P. This is a writ of error to a judgment of the court of hustings of the city of Richmond, convicting the plaintiff in error, Philip Clarke, of burglary, and sentencing him therefor to confinement in the penitentiary for the term of five years. There were two counts in the indictment, in one of which the dwelling-house is described as that of Joseph Dabney, and in the other as that of Fannie Straus; and in each of them the accused was charged with having broken and entered the said house, not only with intent to commit a larceny therein, but also with having actually committed such larceny, to wit: of one trunk and its contents of certain specific values respectively as set out, and all of the aggregate value of eighty-five dollars and eighty-five cents, of the goods and chattels of the said Joseph Dabney, in the said dwelling-house then and there being found. The accused, upon his arraignment, plead not guilty to the indictment; and being put upon his trial, the jury found him guilty, and ascertained his term of confinement in the penitentiary at five years. Thereupon the accused moved the court to set aside the verdict, and grant him a new trial; which motion was overruled by the court, and judgment was pronounced against him according to the verdict.

During the progress of the trial, the prisoner excepted to two decisions

Vol. II.]

CLARKE V. THE COMMONWEALTH.

[No. 11.

of the court given against him, and tendered two bills of exceptions, which were accordingly signed and sealed by the court, and made a part of the record.

The first bill of exceptions states, that on the trial of the cause it was proved, on the part of the commonwealth, that Joseph Dabney and Edward Henderson jointly rented and occupied a room in the house of one Fannie Straus, in the city of Richmond; that each of them had and kept a key to the door of the said room; that the prisoner Clarke, at the same time, rented and occupied an adjoining room up-stairs in the same house, the doors of the two rooms opening near each other on the same porch, and Dabney and Henderson and Clarke frequently interchanged visits from one room to the other; that on the night of the 11th day of March, 1874, Dabney locked his door and took his key with him, and in going to church met Henderson, who said he was going back to their room, and would join him (Dabney) at church soon; that the windows were nailed, and Dabney left in the room a trunk, which contained nearly all his clothes, and several other articles enumerated in the indictment and exhibited in court; that when he returned to his room he found the door locked and the windows nailed as he had left them, and there was no appearance of any breaking of the premises in doors, windows, or elsewhere, but his trunk and its contents were missing, and after search for it the next day, in the evening, he found it at a room (in another house) which was rented by Clarke that day; that Clarke disappeared from the city of Richmond, and, when he was afterwards arrested, he confessed, freely and voluntarily, after but little hesitation, that Henderson led him into the act; agreed with him to take Dabney's trunk; that they went to the room together and unlocked the door, and they entered and took the trunk with intent to take it away and steal it, and it was removed to a place whence it was taken to Clarke's room, the place where it was found, the said Henderson having assisted him in the removal of the trunk from the room into the yard, and put it upon prisoner's shoulder, who carried it off. On the part of the defence it was proved that the trunk and all its contents would not bring twenty-five dollars at auction. This was all the material evidence in the case. Whereupon the prisoner moved the court to instruct the jury as follows, to wit:

"If the jury believe from the evidence that Edward Henderson was a renter, in part, of the room charged to have been broken and entered, occupied by him and Joseph Dabney in common, and that the said Henderson, as one of the legal tenants of that room, had one key and Dabney another key to the same door thereof, and that he, Henderson, voluntarily opened the door of the room, in the exercise of his right as tenant to open the door, then there was no breaking of the same; and to constitute burglary there must be a breaking as well as an entering with the intent charged in the indictment."

Which instruction the court refused to give as offered, but gave with an addition in these words: "But if the jury believe that the prisoner and Henderson agreed together that Henderson should open the door with his key, for the purpose and with the intent of stealing the property alleged to be stolen in the indictment; and that Henderson, the prisoner, being present and consenting, did so open the door in the night-time; and that

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