The defendant executed the orders of the Woodruff Company in May; and Todd testified that "everybody got it carried over but the Clinton Company," and that Bryson frequently phoned him about slow shipments. And Todd knew, for he had been president of the Clinton Company, that the Woodruff Company and the Clinton Company were practically one, represented in the person of Bryson; and that the acid for both corporations had been delivered at Woodruff.

The real reason assigned by the Tennessee Company whɔ, it chose to execute in May the orders of the Woodruff Company and chose not to execute those of the Clinton Company appeared for the first time in the Tennessee Company's letter to Bryson dated May 24th; here is what Sparrow then wrote to Bryson:

"According to our records, there is a balance of 325 tons acid phosphate on the contract of the Woodruff Oil & Fertilizer Co., and we will ship this in accordance with our letter of May 16th. We made this agreement purely as a matter of accommodation, since the time for delivery had already expired, and, as the Woodruff Oil & Fertinizer Company had taken the larger part of their contract, we were willing to make this arrangement.

"With reference to the Clinton Oil & Manufacturing Company we beg to say that the latter company failed to take the goods according to the contract, and for that reason we cannot recognize any obligation to furnish the acid phosphate.

The same was repeated by letters on June 30th and August 10th. But before that, on the 8th of May, as before stated, the Tennessee Company had seemed to grant the 2 extension to Bryson. Under these circumstances, it was a question for the jury to find if the defendant had foregone its right to a literal enforcement of the con

tract.

2 S. C. 113

Opinion of the Court.

[113 S. C. This fetches us to the appellant's fourth ground, which is that the plaintiff was obliged to have tendered the price of the acid before action for a breach of contract would lie. But tender looks to the performance of a contract, and is made to secure performance. Of course, when one

party to a contract notifies the other party to it that 3 he elects to breach the contract, then tender would be an idle performance, and the law does not exact such like. 13 Corpus Juris, p. 662, sec. 747; 6 R. C. L., p. 948, sec. 328.

The fifth ground refers to the measure of the plaintiff's damages.

The Court allowed the plaintiff's fifteenth request thereabout in these words:

"If you find for plaintiff, your verdict will include the difference between the contract price and the market price of acid at the time and place of delivery upon each ton that was not delivered, plus the freight from the nearest market to Greenville, which, under the undisputed evidence, is $2.75 per ton, and it likewise is proven that the market price at said time was $12.50 per ton on May 1st."

It is plain that by the contract the plaintiff was entitled to have at Greenville 840 tons of acid for the price of $8.50 per ton; it is plain, too, that the defendant breached the contract by a failure to deliver the acid.

There were two methods to make the plaintiff whole: (1) A delivery to it at Greenville of 840 tons of acid for $8.50; or (2) the payment to it of the then value (May 1, 1918)

of the acid at Greenville; and (3) if there was no 4 ascertainable value of the acid at Greenville, then such value at the market place nearest to Greenville. And as the contract called for a delivery at Greenville, if it cost money to so deliver the acid, the defendant had to pay it. DesChamps' case, 84 S. C. 358, 66 S. E. 414.

The cost of such delivery was merely incidental to the main undertaking. It is, therefore, irrelevant to say that

Rep.

April Term, 1919.

the plaintiff never paid freight from Atlanta. Grand Tower Co. v. Phillips, 23 Wall. 478, 23 L. Ed. 71, and other cases cited by the respondent.

So two transactions between the plaintiff and Keaton and others, whereby the plaintiff contracted to sell and did sell the 840 tons to third persons, has no relevancy to the contractual relation which existed between the plaintiff and the defendant.

The ability of the plaintiff by a resale to others to 5 make a profit or to suffer a loss had nothing to do with the contract in issue; it was res inter alios acta. If the price of acid had fallen below $8.50, instead of rising above it, the plaintiff would have been liable to pay the defendant $8.50; and that without reference to any transaction betwixt the plaintiff and the third persons named. The case is not altered as it is here presented.

The judgment is affirmed.

MESSRS. JUSTICES HYDRICK and WATTS concur.

The CHIEF JUSTICE and MR. JUSTICE FRASER did not sit.

10282

HINNANT v. SOUTHERN RY. CO. ET AL.

(100 S. E. 709.)

1. CARRIERS RAILROADS-RIDING FREE, WITH CONSENT, UNLAWFUL, PRECLUDING RECOVERY FOR INJURY.—One riding on the engine of an interstate freight train by permission of the conductor and engineer, without payment of fare, violates the State and Federal statutes, and cannot recover for personal injury on theory that he was a licensee.

2. CONTRACTS-ILLEGALITY OF CONTRACT.-No action can be based on an illegal contract.

Before SEASE, J., Bamberg, Fall term, 1917. Reversed. Action by H. Y. Hinnant against the Southern Railway Company and others. Judgment for plaintiff, and defendants appeal.

Argument of Counsel.

Messrs. Harley & Blatt and B. W. Miley, for appellants. Messrs. Harley & Blatt submit: The Court erred in refusing to grant an order for a nonsuit and to direct a verdict for the defendant when the testimony went to show that neither the conductor nor engineer was clothed with authority to invite or permit persons to ride on freight trains not intended to carry passengers: 113 Ga. 9; 61 Minn. 296; 63 Minn. 380; 64 Minn. 168; 3 Okla. 41; 108 Tenn. 1; 87 Texas 160; 98 Tex. 110; 67 Fed. 522; Elliott on Railroads (2d Ed.), secs. 302, 1580-81; 6 Cyc. 440, citing cases; 66 Kan. 438; 61 L. R. A. 120; 16 Ind. App. 584; 149 Mass. 204; 14 Am. St. Rep. 411; 124 Ind. 395; 51 Conn. 143; 50 Am. Rep. 12; 87 Tex. 160; 27 S. W. 118; 114 Fed. 123; 153 Mass. 188; 35 Tex. Civ. Ap. 79; S. W. 1101; (Mich.) 95 N. W. 546; 133 Mich. 557; 66 Ohio St. 276; 64 N. E. 119; 157 Ind. 20; 60 N. E. 69; 25 S. C. 531; 49 S. C. 17; 63 S. C. 57; 64 S. C. 559; 25 L. R. A. 79; 136 Ind. 368; 36 N. E. Rep. 272; 122 Fed. 228; 16 Ind. App. 584; 136 Ind. 366; 142 N. C. 68; 54 S. E. 849; 23 S. C. 531; 91 Penn. St. 458; S. C. 36 Am. Rep. 675; 95 Penn. St. 398; S. C. 40 Am. Rep. 664; 86 S. C. 116; 96 S. C. 430; U. S. 60 L. Ed. 709.

Messrs. Carter & Carter, for respondent, submit: That under the testimony and the law governing the case, the jury was the proper tribunal to say whether or not the employees in charge of the train in question were clothed with authority to take plaintiff on said train: 31 Am. St. Rep. 122; 90 S. C. 331; 23 Am. Eng. E. L., 2d Ed., pp. 740-741; 94 Fed. Rep. 321; 105 Cal. 379; 160 Mass. 211; 38 Oregon 343; 86 Wis. 64; 89 Wis. 151; 18 Am. Eng. E. L., 2d Ed. 1138; 46 Am. Rep., p. 667; 92 N. Y. 289; 44 Am. Rep. 377; 102 U. S. 577; 30 Conn. 390. What duty did the railroad company owe the plaintiff as a licensee? Corpus Juris, vol. X, p. 622; Am. Eng. E. L., 2d Ed., vol. XXIII, p. 736; Am. Eng. E. L., 2d Ed., vol. V, p. 507, note 4; 90 S.

C. 335; 82 S. C. 323; 61 S. C. 557; 57 S. C. 332. The question of contributory negligence was properly left to the jury: 103 S. C. 326-327; (vol. VIII, Enc. U. S. Supreme Court Reports 884); 65 S. C. 440.

October 14, 1919.

The opinion of the Court was delivered by MR. JUSTICE FRASER.

The essential facts in this case may be briefly stated. The plaintiff entered the cab of the engine of one of defendant's freight trains, to go from Ridgeway to Columbia. The train was an interstate train. The plaintiff's father had been in the employ of the defendant, and the plaintiff testified that he had many times traveled in the way he was traveling on the day in question, without paying fare. The plaintiff said he was on the engine with the consent of the conductor and engineer. On the way there was a collision between the freight train and a work train, in which the plaintiff was seriously injured.

At the close of the testimony for the plaintiff, the defendant moved for a nonsuit and this was refused. At the close of all the testimony, the defendant moved for a direction of a verdict in its behalf, which was also refused. The motions were made on the ground that the plaintiff was not only a trespasser, but was on the train in violation of the statutes, both State and Federal.

The trial Judge properly held that the plaintiff was on the train in violation of the State and Federal statutes, but refused to direct a verdict.

There is properly but one question in this case, to wit, Can one who is on a train, not merely without warrant of law, but in contravention of law, recover damages 1 for an injury received while so riding? The answer is that he cannot. Ruling Case Law, vol. XI, sec. 215, p. 817.