Lawrence v. The Winona and St. Peter Railroad Company.

tiff ever executed it. It is not, therefore, necessary to consider its effect.

It is unnecessary, also, to consider the other questions raised and arising on the rulings and charge of the court; for the evidence shows, in our opinion, as matter of law, that defendants liability at the time of the fire was that of common carriers; supposing them, that is, to be intermediate carriers between Fort Howard and Mankato, which, we think, the evidence was competent to establish; Phelps' teams being, in our view, an independent line of carriers between Waseca and Mankato.

The judgment of the district court must therefore be affirmed. Affirmed.

NOTE.-See Burroughs v. Norwich and Worcester Railroad Company, and note, 1 Am. Rep. 78. Also Nashua Lock Co. v. Worcester and Nashua R. R. Co., post. 242.

That a carrier receiving goods is not, in the absence of any special contract, liable for a loss beyond his own line, where he receives pay for transportation on his own line only, and has no connection in business with the connecting line, even though the goods be marked for a point beyond his line, has been held in the following additional cases: Carter v. Peck, 4 Sneed, 203; Elmore v. Naugatuck Railway, 23 Conn. 457; Jenneson v. Camden and Amboy Railroad Co., 4 Am. Law Reg. 234; Angle v. Mississippi Railway, 9 Iowa, 493; Naugatuck Railroad Co. v. Waterbury Button Co., 24 Conr. 468; Converse v. Norwich and New York Transportation Co., 33 id 179; McMillan v. Michigan Southern Railroad Co., 16 Mich. 119; Brintnal v. Saratoga and Whitehall Railroad C. 32 Vt. 665; Perkins v. Portland and Saco Railroad Co., 47 Me. 573.

me of the American courts, however, have held carriers liable where the gooda were marked beyond their line. Mosher v. Southern Express Co., 38 Ga. 37; Southern Express Co. v. Shea, id. 519; Foy v. Troy and Boston Railroad Co., 24 Barb. 382; Kyle v. The Laurens Rauroad, 10 Rich. Law, 282. In Angle v. The Mississippi and M. R. R., 9 Iowa, 487, the court says: "When a common carrier receives goods marked for a particular place beyond the terminus of his route, unaccompanied by any direction as to their transportation and delivery, except such as may be inferred from the mark, he is prima facie bound to carry and deliver them according to the mark."

Although a carrier may not be liable beyond his route without a contract to that effect, yet such contract may be implied from circumstances, and without an express stipulation to that effect. Najae v. Boston and Lowell Railroad Co.,7 Allen, 329; Morse v. Vermont and Canada Railway Co., 41 Vt. 550; Cutts v. Brainard (Vt.), 1 Am. Rep. 353. As when a carrier has been in the habit of receiving and forwarding goods directed to any particular place, an agreement on his part to take them there. St. John v. Van Santwoord, 6 Hill, 158. But see Burroughs v. Norwich and Worcester Railroad Co., supra, When several carriers are associated in a continuous line of transportation, and in the course of business goods are carried through the connecting line for one price under an agreement by which the freight money is divided among them in proportions fixed by the agreement, if the carrier at one end of the line receives goods to be transported, though marked for a consignee at the other end of the line, and on delivery of the goods takes pay for transportation through, the carrier who so receives the goods is bound to carry them or see that they are carried to their destination, and is liable for any accidental loss happening in any part of the connected line. Nashur Lock Co. v. Worcester & Nashua R. R. Co., post, p. 242; Champion v. Bostwick, 11 Wend 571: 18 id. 174; 2 Redfield on Railways, 104. And this liability may attach with. out an express and technical partnership, as where one carrier receives pay for the transportation over his own and the connecting line. Weed v. The Saratoga & Sche

Lash v. Lambert.

nectady R. R. Co., 19 Wend. 534; Wilcox v. Parmelee, 3 Sandf. 610. This doctrine was recognized in Van Santvoord v. St. John, 6 Hill, 158; see, also, Quimby v. Vanderbilt, 17 N. Y. 315; Burtis v. The Buffalo & State Line R. R. Co., 24 id. 269, 278; Choteaux v. Leach, 18 Penn. St. 224; Baltimore & Phila. Steamboat Co. v. Brown, 54 Penn. 77; Carter v. Peck, 4 Sneed (Tenn.), 203. The rule, however, seems to be in Massachusetts that nothing but a special agreement will render a carrier liable beyond his own line. See Burroughs v. Norwich & Worcester R. R. Co., 1 Am. Rep. 78; Darling v. The Boston & Worcester R. R. Co., 11 Allen, 295. The same doctrine is held in Connecticut. Hood v. New York & New Haven R. R. Co., 22 Conn. 1; Elmore v. Naugatuck R. R. Co., 23 id. 157; Converse v. The Norwich & Worcester Transportation Co., 33 id. 166.-REP.

LASH V. LAMBERT et al.

(15 Minn. 416.)

War, effect of on contracts for interest.

On the 14th of August, 1860, the plaintiff loaned the defendant, a citizen of Minnesota, the sum of $17,000, upon a bond and mortgage on lands in that state, conditioned for the payment of the principal in five years, with interest, payable semi-annually. The plaintiff was, at the time, a resident of North Carolina, and so continued to the date of the action, and not there nor elsewhere engaged in the service of the United States, but during the whole period he had an agent in the state of Minnesota. In an action brought to foreclose the mortgage, held, that the plaintiff was entitled to recover the interest accruing on the bond during the rebellion and before maturity.

THIS was an action brought to foreclose a mortgage executed by Mary S. Lambert and husband to the plaintiff. Both of the mortgagors having died, the action was brought against their heirs. The court below gave judgment for the plaintiff, and the defendants appeal to this court. The facts are stated in the opinion.

Smith & Gilman, for appellants:

The court erred in allowing interest during the continuance of the war.

A state of war suspends all contracts between citizens of the respective belligerents during its continuance. Griswold v. Waddington, 16 Johns. 438. This principle operated in full force during the late rebellion. The Prize Cases, 2 Black, 635; Mrs. Alexander's Cotton, 2 Wall. 404; The Venice, id. 258; The Hampton, 5 id. 372; The William Bagaly, id. 377; Hanger v. Abbott, 6 id. 532. While the remedy to enforce a claim is suspended, interest upon the

Lash v. Lambert.

claim is also suspended. McCall v. Turner, 1 Call. (Va.) 133; Brewer v. Hustie, 3 id. 22; Hoare v. Allen, 2 Dall. (Penn.) 102; Foxcraft v. Nagle, id. 132; Conn. v. Penn., 1 Pet. C. C. 496.

Allis, Gilfillian & Williams, for respondent.

RIPLEY, C. J. The judge who tried this case, without a jury, finds that on the first day of August, 1860, the plaintiff lent one Mary S. Lambert the sum of $17,000, upon a bond executed by herself and Henry A. Lambert, her husband, in the penal sum of $34,000, conditioned for the payment of said $17,000 in five years from that date, with interest at the rate of 12 per cent per annum, payable semiannually, and secured by mortgage upon real estate in the city of St. Paul, and an assignment of all leases then made, or which should thereafter be made, of the three westerly buildings on said mortgaged premises, and all the rents, issues and profits thereof, to be applied by plaintiff to the payment of said interest, as it accrued and became due and payable, and all expenses incurred by plaintiff upon the buildings situate upon said premises, said assignors agreeing that plaintiff should cause the said buildings to be insured to the amount of $12,000, and pay the expenses thereof out of said rents; that plaintiff by his agent, one Caldwell, went into possession of said. premises under said assignment, and collected the rents of said premises up to July, 1864, to the amount of $6,231.37 and expended thereof for repairs and insurance upon said mortgaged property the sum of $830.70; that thereafter, till the 31st of December, 1866, plaintiff, by his agent Lorenzo Allis, continued to collect the rents under said agreement, and received therefor $5,333.50, and expended for taxes, insurance and repairs upon said premises the further sum of $3,166.61; that on said first day of August, 1860, plaintiff was, and ever since has been, a citizen, resident and inhabitant of the state of North Carolina, and not there or elsewhere engaged in the military service of the United States, and owned property in the state of Minnesota to the amount of $20,000, and did so far aid and abet the late rebellion against the government of the United States; that nc other proof was given as to whether or not the plaintiff did aid and abet the said rebellion; that from said day to July 18, 1864, the plaintiff had an agent residing in St. Paul, viz.: said Caldwell; and that from that time until the 31st of December, 1866, said Allis,

Lash v. Lambert

who, during all that time, was a resident of St. Paul, acted as plaintiff's agent.

The said judge also found that the amount of principal and interest due and unpaid upon said bond and mortgage is the sum of $27,422.44, for which judgment of foreclosure and sale was entered, from which defendants appeal.

In calculating the amount due, the district judge has allowed interest at the rate of twelve per cent per annum after maturity, as well as before, and has deducted from the rents collected the amounts above specified as paid by plaintiff's agents for taxes, repairs and insurance.

The appellants contend that the court erred: 1st. In allowing any interest during the rebellion, i. e., from April 15, 1861, to the president's proclamation of May 29, 1865.

2. In allowing interest at twelve per cent per annum after maturity.

3. In allowing for repairs.

The 2d and 3d objections are well founded. The statute in force at the date of the bond reads as follows: "Interest for any legal indebtedness shall be at the rate of seven dollars for one hundred dollars for a year, unless a different rate be contracted for in writing, but no agreement or contract for a greater rate of interest than twelve dollars for every one hundred dollars for a year shall be valid for the excess of interest, over twelve per cent, and all agreements and contracts shall bear the same rate of interest after they become due as before, if the same shall be clearly expressed therein, provided, the same shall not exceed twelve per cent per annum." Statutes 1860, chap. 56, sec. i.

This bond is conditioned to be void on payment of $17,000 in five years, with twelve per cent interest per annum, paybie semiannually.

There is here no stipulation that if the bond should become forfeited by failure to perform such condition, interest should run thereafter at twelve per cent per annum, or any other rate.

There is nothing to take it out of the settled rule in this state. that the contract for interest ceases at maturity, and that thereafter interest is allowed as damages.

As to repairs, the general rule is, that a mortgagee will be allowed for all necessary repairs on the tenement of which he is in possession. The court below does not find that the repairs allowed for

Lash v. Lambert.

were repairs necessarily made on the three westerly buildings, of which plaintiff was in possession. This is the fact which warrants their allowance, and it should appear affirmatively in the finding, and especially because, whether they are necessary depends in each case on the particular circumstances thereof. Dexter v. Arnold, 2 Sum. 125, 126; Green v. Lewis, id. 643.

As to interest accruing, on the special contract therefor, during the rebellion, before maturity, we think it was properly allowed. "A class of cases occurred after the revolutionary war, in which it was held, that interest was not demandable for the period during the war, where the citizen was in the enemy's country, or with the enemy, and had no known agent in the country competent to receive payment and give a valid discharge, because, as all intercourse was prohibited by the existence of the war, the payment of the principal was prevented by law." 1 Am. Lead. Cas. 528, and cases cited. As far as we can ascertain, these cases all differ from the one at bar in that the debts were due before the war. noted, was there any express contract for But in the case of Shortridge v. Mason, in the U. S. circuit court for North Carolina (2 Am. Law Rev. 95), CHASE, C. J., held, that these cases were inapplicable to the case of a debt due from a citizen of North Carolina to a citizen of Pennsylvania, and that interest thereon was not suspended during the rebellion. This was obviously correct, for it was the treason of the rebel that brought about the prohibition of intercourse that followed upon the outbreak of the rebellion.

Neither, it may also be interest after maturity.

To claim exemption from the payment of interest on the ground that he was not in default in not paying, because the law had prevented him from so doing, would be to take advantage of his own wrong. Harper et al. v. Ely, Cook Co., Ill., Circuit Court, July 26, 1870. Reported Chicago Legal News of July 30, 1870. Nevertheless, we think the principle on which the cases first referred to are based would be applicable to the case of debts due from citizens of the United States to the citizens of the rebel states.

It was no fault of loyal citizens that all intercourse became unlawful between themselves and the rebels; that all such was prohibited by positive law. See act of Congress, July 13, 1861. In the words of the case last cited, "numberless cases can be found which assert that laches during war will not be imputed by any state to its own loyal citizens."