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ror intervened, which hereafter will receivej degree of care that an ordinarily prudent perfurther consideration.

son would or ought to have exercised under In New Orleans & N. R. Co. v. Jopes, 142 the same or similar circumstances; that the U. S. 18, 12 Sup. Ct. 109, 35 L. Ed. 919, it loss or disappearance of the jewelry from was said:

the car would not entitle appellant to recovIt would seem on general principles that if er, as the Pullman Company could not be the party who actually causes the injury is free held to have insured its safety if she retainfrom all civil and criminal liability therefor, his employer must also be entitled to a like imo ed the custody; that in order to render it munity.”

liable, the loss must have occurred by its

failure to exercise reasonable care to protect In Doremus v. Root et al., 23 Wash. 710, the same, and its failure to exercise such 63 Pac. 572, 54 L. R. A. 649, it was held that

care would render it liable to appellant; a verdict in favor of the conductor, who was that appellant was required to establish that sued jointly with the railroad company, she exercised reasonable care for the safety would preclude a judgment against the rail, of her property, and that ordinary care and road company, where the negligence charged diligence was imposed upon the Pullman grew out of the conduct of the conductor. Company to protect appellant's jewelry from To the same effect is Indiana Nitroglycerine, being taken or stolen, and if the failure to etc., Co. v. Lippincott Glass Co., 165 Ind. 361, exercise reasonable care on the part of the 75 N. E. 649.

Pullman Company was the proximate cause [4] As to the third paragraph of complaint, of appellant being deprived of her property, which charges appellee with conversion, ap- the Pullman Company would be liable. pellant does not insist that this paragraph

The principal objection pressed by appelwas sustained by the evidence, nor could she lant to the instructions given, of which the with any degree of plausibility so contend above is a brief summary, is that a higher under the facts, for, giving the facts and the degree of care is imposed upon a carrier holdinferences to be drawn therefrom their most ing itself out to the public as furnishing favorable construction in her behalf, no more sleeping car accommodations than embodied is disclosed than that the porter of the Pull. in the court's instructions; that the exercise man Company had knowledge that the parcel of ordinary care under the facts and circumcontaining the diamonds at the time she en- stances here presented was not sufficient. tered the car was placed in an upper berth

[5, 6] This question has recently been conby appellant just above the berth to be oc- sidered in Repp v. Indianapolis, C. & S. Traccupied by herself and husband. Appellant did not part with the actual possession of tion Co., 111 N. E. 614; and the rule of law the parcel; it was not turned over to the ties is that the carrier's duty with reference

there adduced from a review of the authori. servants of the Pullman Company. Hence we need consider further only the issue of to personal effects retained in the passenger's negligence as joined upon the second para-able care and caution to protect the same

possession and control is to exercise reasongraph of complaint. This brings us to the merits of the instruc- from loss or injury. That where the effects

are kept within the possession of the passentions upon the question of liability under the issue of negligence, and which involves the ger, the carrier is not the insurer of the safecorrectness of many instructions given by the ty of such effects, but liable for loss or injury court on its own motion, as well as numerous resulting from negligence, where the carrier

or its servants fail to exercise reasonable instructions tendered by appellant and re

care for the protection of the same. With fused to be given by the court.

the exception, however, that when the pasThe jury was instructed that if appellant established by a preponderance of the evi- senger, without the knowledge of the carrier, dence the material allegations of either the has in his possession and control large sums second or third paragraphs of complaint,

of money or other property of exceptional

she would be entitled to recover against the Pull- value, the liability of the carrier does not exman Company, and that as to the second tion is that under the ordinary contract of

tend to the same. The basis for this excepparagraph, she would have to establish that her jewelry was taken or stolen as alleged, carriage, the carrier assumes no obligation and that the Pullman Company was guilty of by its contract as to articles of property,

which form no part of the passenger's ordinegligence as charged, and which was the proximate cause of her loss, and that she nary luggage or personal effects.

In Voss v. Wagner Palace Car Co., 16 Ind. was not guilty of negligence that proximately contributed to such loss, which, the jury App. 271, 43 N. E. 20, 44 N. E. 1010, it was

said: was informed, were questions of fact for it to determine; and that negligence under the Coach Co. v. Diehl, 84 Ind. 474 [43 Am. Rep;

"In the case of Woodruff Sleeping & Parlor circumstances was the doing of some act or 102], our Supreme Court very clearly defined thing that an ordinarily prudent person would the duties and liabilities of sleeping car comnot have done, or the failing to do some act panies toward occupants of berths upon their or thing that an ordinarily prudent person are not liable, either as innkeepers or common

coaches. It was there held that such companies would have done under the circumstances; carriers, for the loss of goods or money, but

was

the same occur through the negligence of the as he did in his argument to the jury; that company or its servants."

it was not a paper in the case. The identiSee, also, Shearman & Redfield on Negli- cal questions and answers referred to by gence (6th Ed.) vol. 2, § 526b.

counsel in his argument went into the recAs disclosed by the instructions of the ord on cross-examination of appellant, and court to the jury, the question of liability of if the same had been transcribed by the the appellee Pullman Company, the degree of court reporter from his record and furnished care exacted of it in reference to appellant's counsel, he would have had a similar docuproperty, as well as the question of negli- ment so far as the language was concerned, gence on the part of appellee Pullman Com- as the one from which he read, and to the pany, and contributory negligence on the extent that it was made use of by counsel, it part of appellant, were all submitted to the was a paper or document in evidence in the jury, and under instructions that appear to case, and as against the objection urged no have clearly stated the law in harmony with prejudicial error committed against the foregoing decisions, and many others appellant in this behalf. that might be cited. And the language em [8] A Pullman Company's passenger check ployed by the court in instructing the jury was put in evidence, which contained the seems to have been as favorable to appellant following: as could have been employed, and under the "Property taken into car will be entirely at instructions, which informed the jury that owner's risk.” if appellant was deprived of her jewelry by And in the argument of the cause to the reason of appellee Pullman Company or its jury, appellant's counsel was refused permisservants failing to exercise reasonable care sion to discuss the law relative thereto, being therefor, a verdict was returned for such informed by the court that he could read the company. Therefore no harm resulted to instructions of the court to the jury as the appellant on account of a verdict being di- law of the case and make the application of rected by the court in favor of the railroad such law to the facts. It is appellant's concompany, although, no doubt, the trial court tention that the provision in the Pullman would not have directed a verdict in this be passenger check, as aforesaid, was void, and half if it regarded the Pullman Company that he had a right to so state the law in as the servant of the railroad company, as this respect to the jury, and especially was numerous well-considered authorities hold. it error to refuse him permission to do so in

It is not necessary to a decision of this view of the fact that the court gave no specase that we pass upon the question as to cific instructions in reference thereto. No inwhether the amount of personal effects in struction given refers specifically to the pasthe way of jewelry carried by appellant senger check nor its contents, but irrespecmight be regarded as of such extraordinary tive of the same, the jury was informed that value as to bring the case within the excep- if the Pullman Company failed to exercise tions heretofore announced.

reasonable care for appellant's property [7] Appellant, as a party, was examined while within its car under the circumstances out of court before the day of trial, as the disclosed by the evidence, and that it was statute provides, and upon the trial of the lost or stolen by reason thereof, the Pullman cause, and by way of impeachment, she was company would be liable for such loss. asked if she did not make certain answers to Thus, in effect, no importance was attached questions theretofore propounded to her in by the instruction of the court to the provisuch examination; the questions and an- sion in the ticket; the instructions in this swers being read to her from such examina- connection were quite favorable to appellant, tion, and the record here discloses by her and the action taken by the trial court in testimony that she made the answers as set reference to the passenger check was not forth in the examination referred to. Coun- prejudicial to appellant. As to the force of sel in argument, over the objection of appel- such a provision in a passenger's check, we lant, read such questions and answers that express no op on; it ng unnecessary to he propounded on cross-examination from a disposition of the cause. the examination taken out of court and com After a consideration of each of the quesmented upon the same. Appellant insists tions presented, we have reached the coucluthat in the absence of the examination itself sion that no error was committed by the being put in evidence, it was improper for trial court that calls for a reversal of the appellee's counsel to make use of the same judgment. The same is therefore affirmed.

TRACTS.

(275 Ill. 267)

Irrigated land in Conejos County, Colo., toTHOMAS V. SEAMAN et al. (No. 10741.) gether with 80 shares of capital stock of the (Supreme Court of Illinois. Oct. 24, 1916.)

Seaman Syndicate Ditch Company. The ac1. VENDOR AND PURCHASER 114 – RESCIS. tion was brought to rescind the contract and SION FOR BREACH OF CONTRACT-WAIVER. recover back the purchase money paid, and

Where plaintiff contracted to buy land and $1,000 in addition for improvements placed make payment in installments, his action in in

on the land. A trial was had before the vestigating a proposition for exchange did not alter the status of his relation with the vendor court and a judgment was rendered in favor or waive his right to rescind the contract by rea- of defendant in error for $3,334.25. A mo son of breach by the vendor in failing to give tion for a new trial was made and overruled him a deed at the time provided in the contract, and judgment entered for the above amount.

[Ed. Note.- For other cases, see. Vendor and The plaintiffs in error prosecuted an appeal Purchaser, Cent. Dig. 88 202–204; Dec. Dig. 114.)

to the Appellate Court for the First District, 2. VENDOR AND PURCHASEB 75–CONTRACTS which affirmed the judgment of the lower -CONSTRUCTION.

court. A writ of certiorari was allowed by An installment contract for the purchase of this court, and the cause is now in this court land which imposes upon the purchaser a for- pursuant to the mandate of such writ. feiture of all his rights under it in consequence of the failure to literally comply with its obli On March 11, 1911, the defendant in er. gations should not be so construed as to allow ror, Edwin S. Thomas, of Washington, Iowa, the vendor an unreasonable length of time to entered into the contract in question with perform in case of breach by him.

Stephen D, Seaman, of the city of Chicago, (Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 113-118, 126; Dec. for the purchase of the 80 acres in question Dig. Om75.)

and 80 shares of the capital stock of the Sea3. VENDOR AND PURCHASER 159 Con- man Syndicate Ditch Company, a company

that had been formed to furnish water for A delay of one year and eight months in the purpose of irrigating these lands. The delivering a deed pursuant to an installment con- purchase price of the land was $5,400, pay. tract for the sale of land was unreasonable.

able $1,800 on the execution of the contract, [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 321-323; Dec. Dig. Om $1,200 on or before March 11, 1912, $1,200 159.]

on March 11, 1913, and $1,200 on March 11, 4. VENDOR AND PURCHASER 159ACTION 1914, each of the deferred payments being FOR BREACH OF CONTRACT-WAIVER.

evidenced by a promissory note payable to Under an installment contract for the sale the order of Seaman, the last two notes bearof land providing that the vendor furnish a deed upon the receipt of a payment named where ing interest at the rate of six per cent. per the purchaser made demand for the deed many annum, payable semiannually. The 80 shares times over a period of 20 months but at each of stock in the Seaman Syndicate Ditch Comtime subsequent to the first demand insisted on pany were pledged as security for the pay. damages before he would complete the contract, while the further negotiations between the par

ment of these notes. The contract further ties show the purchaser's willingness to waive provided that when the note due on or bethe breach and receive the deed on conditions, fore March 11, 1912, was paid, the buyer neither the further demands nor the fact that he should be entitled to an abstract of title remained in possession, as was his right under the contract, shows an unqualified waiver of and warranty deed to the land, subject to the purchaser's right to insist upon forfeiture. the existing rights and reservations made in

[Ed. Note.—For other cases, see Vendor and the contract and the payment of the two rePurchaser, Cent. Dig. 88 321-323; Dec. Dig. maining installments of the purchase price. Om 159.)

It also contained the following among other Error to Appellate Court, First District, additional provisions printed on the back on Appeal from Municipal Court of Chicago; thereof, viz.: Oscar M. Torrison, Judge.

"3. While buyer is not in default he may have Suit by Edwin S. Thomas against Stephen possession of said premises and use of water D. Seaman and others. Judgment for plain- land and ditch stock is delivered.

on said ditch stock until title by deed to said tiff, and defendants appealed to the Appel “4. If seller fails at any time to carry out the late Court, and from a judgment of affirm- terms of this contract, then all the purchase ance (195 Ill. App. 396) he brings certiorari. price, and the interest that has been paid at

such time, may be returned to buyer by seller in Affirmed.

full accord and satisfaction of all claims of Howard M. Carter and Francis W. Walk- buyer hereunder. er, both of Chicago (W. W. Gurley, of Chl- tract all sums theretofore paid are to be retain.

"5. If the buyer fails to carry out this concago, of counsel), for plaintiffs in error. ed by seller as rent and liquidated damages, and Haase & Howard, of Chicago, for defendant seller shall have right to re-enter and take posin error.

session of said premises and terminate buyer's use of water hereunder. The seller may also, at

any time buyer is in default under this conCRAIG, O. J. Defendant in error, Edwin tract, terminate the same by giving buyer notice S. Thomas, brought suit in the municipal by mail, directed to buyer at his post office adcourt of Chicago against plaintiffs in error, dress given herein. Stephen D. Seaman and Henry A. Blair, and if at any time the same shall be forfeited

“6. Time shall be the essence of this contract, to recover the amount paid on a written con- and determined in the manner above provided, tract for the purchase of an 80-acre tract of the buyer hereby covenants and agrees to surren

der and deliver up said premises peaceably to pay and which he wished deducted from the seller immediately upon such termination, and above amount. if buyer remains in possession of said premises after such termination be shall be deemed guilty

On September 28, 1912, defendant in error of a forcible detainer of said premises under the received a letter advising him that the Seastatute, and shall be subject to all conditions man syndicate had been dissolved and its and provisions above stated, and to eviction and property divided up, a part of it going to removal, forcible or otherwise, with or without process of law."

Seaman and a part of it to Blair, and that Defendant in error made the first pay- the land purchased by him was in that allotment of $1,800 on the execution of the con- ted to Blair, who was arranging to have the tract, and between March 11 and April 4, blanket mortgage removed from the lands, 1911, entered upon the land and began farm- so that within a short time he would be in ing it. On April 4, 1911, he made the second a position to give every purchaser entitled payment of $1,200 and demanded of Seaman thereto a deed to the land; that the business the abstract and deed to the land pursuant to would be continued along business lines, which the terms of the contract, and to which he he thought would be satisfactory to defendant was then entitled according to the terms of in error, and stated that he would count on his the contract. No deed or abstract was de- co-operation in the work, which he trusted livered to defendant in error at that time would be done to their mutual benefit, and or at any other tine until December 26, 1912, asked where he expected to be for the next when a deed and abstract were tendered to 30 days. On October 1, 1912, defendant in him at Fairfield, Iowa, and refused by him error replied to this letter, stating that he for the reason that he claimed $1,200 dam- was glad to learn the Seaman people were ages for delay in delivering the deed with a setting things straightened out; that he clear title to the land. In April, 1912, de- could depend upon his helping them all he fendant in error again demanded of Seaman possibly could, and would be glad to have him the deed and abstract, and stated that if call upon him either at his home or at Fairthe same were not delivered at once he would field, Iowa. start suit to recover back the purchase

[1] There are other letters and telegrams money. This suit was commenced on June in evidence of negotiations had between de4, 1913. Plaintiffs in error admit they were fendant_ in error and O'Connor Bros., of in default in complying with the terms of Grand Forks, N. D., during November and the contract, but insist that defendant in er- December, 1912, relative to a trade of the ror has waived his right to insist upon such SO acres in controversy in part payment for default by reason of his continuing in pos- 320 acres of land in North Dakota. The session of the property after the time speci- plaintiffs in error were not parties to these fied in the contract for the delivery of the negotiations and do not appear to have deed and abstract, by his letter written to known of the same until after they were them in respect to the land, and by negotia- terminated, or to have in any way altered tions had with other parties with a view of their position or conduct in the matter on selling or trading the property in controversy account of the negotiations had between the to them for other land.

defendant in error and O'Connor Bros. At On July 17, 1912, a circular letter was the time these negotiations were pending sent to defendant in error stating that an plaintiffs in error were urging defendant in adjustment of the difficulties among the error to make some kind of a settlement of members of the Seaman syndicate was being their controversy and take the land. When made and that was necessary to have an the offer was made for an exchange of propexact statement of the condition of each erties defendant in error had a right to inaccount. In this letter the purchase price vestigate the advantages of such proposition, of defendant in error's land is given as and might do so without altering the status $5,400, amount paid $3,000, balance of $2,400 of his relations with plaintiffs in error or unpaid, due March 11, 1913 and 1914, respec- waiving his right to rescind the contract by tively, with interest at six per cent. The reason of the breach on the part of plaintiffs letter further stated that it was the desire in error. We think the evidence, therefore, of the syndicate that his rights as purchaser of these negotiations had no material bearing should be fully protected, and it would great- upon the issue in this case and that the ly assist them in so doing if he would advise court did not err in disregarding them. them if the statement showed his account (2-4) By the terms of the contract defendcorrectly. On August 12, 1912, defendant in ant in error was entitled to an abstract of error replied to this letter, stating that he title, deed and possession of the land as soon had been entitled to a deed for about a year as he made his second payment. This was and four months, which he should have re made on April 4, 1911. On that date he beceived upon making the second payment; came entitled to his abstract of title and that the above account was correct, only that deed to the property and made a demand on he was entitled to some favors, and this Seaman for the same in accordance with the must be granted by a liberal deduction of provisions of his contract. Seaman promised interest, and some damage done his crops, to deliver them within a few days, but failamounting to $80, that they had agreed to ed to do so. The evidence tends to show that

between that time and April, 1912, defendant to enter as soon as his second payment was in error made other demands upon plaintiffs made and to remain in possession until he in error for the abstract and deed, and at made default in his part of the contract, and each time was put off with the promise that that his continuance in possession after his they would be submitted within a short time right to declare forfeiture accrued was due or a few days. It was never done until De- to the insistence by plaintiffs in error that cember 26, 1912, or a year and eight months there should be an adjustment of the conafter defendant in error was entitled to his troversy growing out of such default in their deed under the contract. By the sixth clause part of the contract. of the contract time was the essence of the For the reasons given, the judgments of contract. By the third clause defendant in the Appellate Court and municipal court of error was entitled to possession of the prem- Chicago will be affirmed. ises so long as he was not in default, and by Judgment affirmed. the fourth clause it was agreed that in case of default of the seller the purchase price,

(219 N. Y. 597) and interest thereon, should be received in

MAXWELL v. G. H. PETERS CO. full accord and satisfaction of all claims under the contract. By the fifth clause it was (Court of Appeals of New York. Nov. 3, 1916.) provided that if the buyer failed to carry MASTER AND SERVANT 284(2)-INJURY TO out the contract all payments made there

SERVANT INDEPENDENT CONTRACTOR under should be retained by the seller as

QUESTION FOR JURY.

In an action against an employer for death rent and liquidated damages, and that at any of its servant, where plaintiff's proof warranted time the buyer was in default the seller a finding that decedent was a mere employé of might terminate the contract by giving notice defendant, which undertook to furnish him with to him at his post office address as given in the conclusion to be reached from the testimony

safe scaffolding, and negligently failed to do so, the contract. Contracts of this character, depending on the credit which should be given which impose upon one of the parties to it the several witnesses, and the inferences to be fori ture of all of his rights under it in drawn from their testimony and from the some

what ambiguous documentary evidence, it was consequence of the failure to literally comply error to dismiss the complaint at the close of with its obligations, ought not to be so con- the evidence on both sides on the ground that strued as to allow the other party an unrea

the evidence showed decedent to have been an sonable length of time to perform that part the jury.

independent contractor, as the question was for of the contract which he contracted to per

[Ed. Note.-For other cases, see Master and form in case of a breach by him. In Hard- Servant, Cent. Dig $ 1004; Dec. Dig. ing v. Olson, 177 Ill. 298, 52 N. E. 482, we 284(2).) held that a delay of four months in deliv

Appeal from Supreme Court, Appellate Diering the deed pursuant to the contract was vision, Fourth Department. an unreasonable delay. We think the rule

Action by Annie L. Maxwell, as adminisannounced and applied there controls this tratrix of the estate of Charles W. Maxwell, case.

deceased, against G. H. Peters Company. Plaintiffs in error do not deny that they From a judgment of the Appellate Division were in default in the performance of their |(166 App. Div. 957, 151 N. Y. Supp. 201), part of the contract, but rely upon acquies- affirming a judgment of the Supreme Court cence in the breach and waiver by defendant dismissing the complaint at the cost of the in error of such default. We think the evi- evidence on both sides, plaintiff appeals. dence fails to make out such case. Defend

Judgment reversed, and new trial granted. ant in error insisted, as soon as he made his

Alonzo G. Hinkley, of Buffalo, for appelsecond payment, on being furnished with the

lant. Almon W. Lytle, of Buffalo, for reabstract and deed according to the terms of

spondent. his contract. While it is true the further negotiations between the parties show a

PER CURIAM. This is an action under willingness to waive the breach and receive a section 18 of the Labor Law for negligently deed upon certain conditions, it does not causing the death of the plaintiff's intestate, show defendant in error made an unqualified alleged to have been an employé of the dewaiver of his right to insist upon the for- fendant, by furnishing unsafe, unsuitable, feiture for such default. On the contrary, and improper scaffolding upon which to do his first letter shows that he insisted damages his work as a roofer. The complaint was must be allowed him before he would com- dismissed on the ground that the evidence plete the contract. The same insistence is showed the decedent to have been an indefound in all the subsequent negotiations be- pendent contractor and not an employé to tween the parties. Plaintiffs in error never whom the defendant stood in the relation of complied with these conditions. The fact master. that he remained in possession of the prop There was evidence tending to support erty after his right to rescind had accrued is such defense; but it was not conclusive, nor unimportant when it is considered that he did the testimony come from disinterested had a right, under the terms of the contract, I witnesses whom the jury were bound to be

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