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railroad fare and board incurred in attending | December 6, 1887, and at a time when the to such litigation.

Board had an attorney employed whose term In wildess whereof, the party of the first of service would not expire for three months part and the party of the second part have and not until after the revrganization of the hereuplo set their hands and seals this 14th Board, as stated in the arswer. We know as day of September, 1887.

a matter of law that within the time over which L. J. Craig,

the employment under the contract extended R. McKinley,

the Board must be reorganized at least tbree Taylor & Hartford. times, because of the expiration and commence

ment of ibe terms of its members; that before The complaint is in two paragraphs, to which the said 6th day of December, 1890, ibere will demurrers were addressed and overruled by not be a single member of the Board whose the court, and one of the errors assigned rests term had commenced and was ruuning at upon the ruling of the court in overruling said the date of the contract, unless thereafter redemurrers; but as counsel for the appellant elected. waive ibis alleged error in their brief we are It is admitted by the demurrer that the conpot called upon to consider the questions there tract was entered into for the purpose and with by raised.

the intention of binding the new Board (so to The appellant answered the complaint in speak) to accept the services of legal advisers three paragraphs, the first being a general de- not of its own choosing. nial.

If the contract, such as it is and entered inDemurrers were addressed to the second and to for the purpose stated in the answer, is not third paragraphs; the demurrer to the second contrary to public policy, then the demurrer paragraph was overruled and the demurrer to was properly sustained to the answer; but if the third paragraph sustained and exceptions not a valid and binding contract for the reason taken.

that it is against public policy, the demarrer At the request of the appellant the court should have been overruled. made a special finding, and upon the facts In considering this question the efect upon found stated as conclusions of law that the con the public interest must have a coctrolling in. tract was valid and binding upon the apel. Buence. To assume that the contract is void. lant, and that the appellees were entitled to able only is to concede that the Board had the recover the sum of $50. The appellant ex. power to enter into such a contract, and if cepted to the conclusions of law and judgment power existed to make the contract it must be was rendered for the appellees.

regarded as valid and binding, unless tainted Tbe substance of the third paragraph of ab- with fraud sufficient to avoid or rescind it. swer is about as follows: At the time the con- The execution of the contract for the purtract mentioned in the complaint was entered pose of binding the Board in the future and into, the Board bad in its employ as its attor-after there bas been a change in its memberney and legal adviser one John M. Smith, ship, will not of itself constitute fraud. Mcwhose term of employment continued until the Cormick v. Boston, 120 Mass. 499; Bay State

day of December, 1887, at which date the Brick Co. v. Foster, 115 Mass. 431; benjamin Board would be reorganized, the term of one v. Wheeler, 8 Gray, 409; Soon Hling v. Crowley, of its members expiring and tbat of annther 113 U. S. 703 128 L. ed. 1145); Oglesby v. Atcommencing; that the said contract was an trill, 105 U. S. 605 (26 L. ed. 1186). employnient for a period of time commencing The contract must be regarded as a valid and in the future and after the reorganization of binding contract, or as void ab initio because the said Board, and was executed for the pur of the fact that it is a contract which is against pose and with the intention of binding the public policy. Board as it would be organized on said day The Board of Commissioners has authority of Derember, 1887, to accept the services of to employ counsel in mailers pertaining to the legal advisers not of its own selection; that ap- business of the county, and to give to the mempeilees never as umed the duties of county at bers of the Board legal advice in relation to torneys under the said contract, and that the their official duties. Board as tbereafter constituted bad employed If the contract in question is binding, the Thomas Bosworth as its legal adviser, who is Board of Commissioners at one session may still serving in that capacity.

employ counsel to serve the Board as then or. The answer was not skillfully drawn and is ganized, and at the same time employ counsel not specific in its averments. If the averments to serve it in advance and at a time when it is in the answer were as broad as the facis stated known the membership of the Board will be in the special finding (rot in detail, but as different. would be pioper in plending), the questions in- It is true that under the contract in question tended to be presented could le considered with the beginning of the term for wbich the appelmuch more satisfaction by this court.

lees were employed was only postponed ibree In consi lering the answer we must not over. nonths from the date of the employment, but look ibe cbaracter of the contract which is the in the mean time the term of oflice of one memfoundation of the action.

ber of the Board expired and that of another The contract, 10 say the least of it, is a relegan; and if, under such circumstances, attormarkable one, entered into under unusuai cir. neys could be employed three months ahead, cumstances and which would seem to indicate why not for one, two or three years in adthat the motive which prompted its execution vanre? was pot the welfare of the public. By its terms But the most obnoxious feature wbich we and conditions tbe services of the appellees are find in the contract is the length of time for contracted for for a period of three years from wbich the appellees were employed. We kuow, as a matter of law, as we bave already this litigation is of that character. It ties the said, tbat the membersbip of the Board will be bands of the Board of Commissioners and is changed as much as three times from the date prejudicial to the free exercise of its power and of the employment to the expiration of the functions for the public good. time of service, unless some of its members are In West Virginia Transp. (o. v. Ohio River re elected, and in that case the terms of office Pipe Line Co., 22 W. Va. 600, 46 Am. Rep. will be different. Unless some of its members 527, the court says: “The cominon law will are re-elected there must be an entire change not permit individuals to oblige themselves by in the membership of the Board between the contract either to do or not to do anything date of the employment and the expiration of when the thing to be done or omitted is in any the time covered by the contract. This con- degree clearly injurious to the public," citing tract deprives the Board, as reorganized from cappel v. Brockroay, 21 Wend. 159. See Peoyear to year, of the right to employ its attorney ple v. Chicago Gas Trust Co. supra. for the nexi following year.

The case of Reubelt v. Noblesville, 106 Ind. If such contracts are binding, tben no differ- 478, 4 West. Rep. 509, is relied upon by the ence how distastefulan attorney may be to the appellees. That case involved the right of the members of the Board, or how little confidence school trustees of the town to employ a school they may bave in his ability, legal learning or superintendent for the following school year, honesty, so long as he performs the conditions and before the reorganization of the school of the contract on bis part they are bound to board in June, as provided by law. The aprecognize him, accept his services and assume pellee rested its case upon the construction to the responsibility.

be placed upon $ 4439, Rev. Siat. 1881, claimAnd if the contract in question, extending, ing that, by the provisions of that section, the as it does, over a period of three years, is valid, board of school irestees us organized in May why may not a like contract covering a period could pot elect a superintendent for the next of six, nine or a dozen years be upheld ? school year, and thereby bind the board as or

Our conclusion is that the contract is against ganized in June, and the case went off upon public policy and void.

that question. In that case the employment In St. Joseph & Denver City R. Co. v. Ryan, was only for one year. We apprehend that, if 11 Kan. 602, 15 Am. Rep. 357, it is said by the the board of trusiees bad undertaken to emcourt : “Railroad corporations are, as we bave ploy the superintendent for three years, a seen, public agencies and perform a public different conclusion would bave been reacbed. duty. Tbey are agencies created by the pub- We have not overlooked the suggestion made lic, with certain privileges and subject to cer- hy counsel for the appellees that the Board of tain obligations. A contract that they will not Commissioners is a corporation, and continues discharge or by wbich they cannot discharge as such notwillstanding its membership may those obligations is a breach of that public be changed, and is liable for all contracis duty and cannot be enforced.”

which it has the power 10 make. This portion of the opinion is quoted with But the question before us is one of power, approval by the Supreme Court of Iowa in tbe and, as we bave said, we do not think the case of Wiliamson v. Chicago, R. I. & P. R. Board bad the power to make the contract in Co. 53 Iowa, 126. See Fuller v. Dome, 18 suit. Pick. 472, opinion by Shaw, Ch. J., wbicb is The judgment is reversed, with instructions to a leading case upon the subject under consid- overrule the demurrer to the third paragraph of eration; Guernsey v. Cook, 120 Mass. 501.

In Craft v. McConougly, 79 III. 346, tbe Supreme Court of Illinois said : “Whatever is Elliott, J.: injurious to the interest of the public is void on I dissent from the prevailing opinion bethe ground of public policy.” This language is cause I think the contract operated to retain quoted and approved in the recent case of the attorneys and they are entitled to some People v. Chicago Gas Trust Co., decided by the compensation. An attorney who is retained same court in a learned and exhaustive opinion. is entitled to compensation, although he may (Ill.) 22 N. E. Rep. 798.

not actually render any services. In Wilcy v. Baumgardner, 97 Ind. 66, what- Coffey, J., concurs with Elliott, J. ever is injurious to public interest is recognized as contrary to public policy.

Petition for rehearing overruled April 5, It is evident that the contract involved in 1890.

answer.

TENNESSEE SUPREME COURT.

LOUISVILLE & NASHVILLE R. CO.,

Appt.,

v.
GILBERT, PARKS & Co.

(...... Tenn.......)
1. To be valid a contract restricting a carrier's
liability must be fairly obtained, just and reason-

able. 2. A condition in a bill of lading which

limits the carrier's liability is reasonable if coupled with compensating advantages to the shipper, and the latter has the alternative of getting rid of the condition by paying a reasonably

higher freight rate. 3. A “fire clause" in a bill of lading

exempting the carrier from liability for loss by fire is not valid, where transportation under the rules of the common law is not offered as an al. ternative, and no reduction of rates is made as a consideration for the exemption.

4. Mere acquiescence by shippers in the reasonable. Under the English Railway and

use of bills of lading containing a clause exempt- Canal Traffic Act of 1854 (17 and 18 Vict. chap. ing from liability for tires will not show the 31, $ 7), such stipulations are called “condi. reasonableness of the exemption, where the ship- tions," and they can be upheld ovly when they pers have not had an opportunity of selection "shall be adjudged . . . to be just and reason: between bills of lading with and those without able.” The same criterion is uniformly applied

this clause. 5. New facts declared in an affidavit for a new rier's common-law liability, in wbatever form

in this country, and no limitations of the cartrial will be insufficient if they transpired after made, will afford protection unless just and the cause of action accrued and were in no wise connected therewith.

reasonable in the eyes of the law. New York (Folkes, J., dissents.)

Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357

(21 L. ed. 627]; Ilart v. Pennsylvania R. Co. (January 30, 1890.)

112 U. S. 338 (28 L. ed. 720]; Marr v. W. U.

Teleg. Co. 85 Tenn. (1 Pickle) 542; Merchants A PIDE AT by defendant fronda in doment of Dirichle Oransp. Co. v. Bloch, 86 Tenn.

the Circuit Court for Davidson County in (2 ) 397. favor of plaintiffs in an action to recover the Though such is the generally accepted test, value of certain cotton which was burned while the use of these words (“just and reasonable") in possession of defendant for transportation. will not always meet the requirements of in. Affirmed.

vestigation. What will be just and reasonable The facts are fully stated in the opinion. in one case may not be so in another. The Mr. Baxter Smith for appellant.

justness and reasonableness of the condition or Messrs. Dickinson & Frazer for appel- limitation must of pecessity depend upon the lees.

peculiar facts and circumstances of every case,

-the nature of the article to be conveyed, the Caldwell, J., delivered the opinion of the hazard of the transportation, the surroundings court:

of the parties at the time, and the mutual ad. On the 18th day of October, 1885, W. F. vantages giver and received. Embry, as agent of Gilbert, Parks & Co., de- Referring to the burden and weight of proof, livered seven bales of cotton to the Louisville an eminent British author says: “The burden & Nashville Railroad Company at Columbia, of proving the reasonableness of a condition Tenn., for shipment to bis principals at Nash- lies upon the company. The most cogent evi. ville Before its departure, and wbile yet in dence in favor of reasonableness is to show that tbe depot of the Company at Columbia, it was the condition was not forced upon the custodestroyed by fire. Thereafter Gilbert, Parks mer, but that he bad a fair alternative of get& Co. sued the Railroad Company for non-ting rid of the condition, and yet agreed to it." delivery. The action originated before a jus-Redman, Railway Carr. 2d ed. p. 66, citing tice of the peace, from whose judginent there Lewis v. Great Western R. Co. 47 L. J. N. S. was an appeal to the Circuit Court at Nashville. Q. B. 131. Here the case was tried by his honor, the circuit In further treating on the same subject, the judge, without a jury, and judgment was ren- same writer, on page 71, says: “To enable a dered in favor of the plaintiffs for the agreed company to rely on an alternative contract of. value of the cotton, interest and costs. The fered to the customer, it must appear that such Railroad Company has prosecuted an appeal alternative was itself reasonable.

A company in error to this court.

cannot offer the choice of two unreasonable There is no controversy about the consign-conditions, and then rely on the one actually ment, loss and value of the cotton; por is there chosen,"—citing Lloyd v. Waterford & L. R. any denial that the defendant Company would Co. 15 Ir. C. L. 37. be liable for the loss, under the rules of the To the same effect as the latter quotation is common law. These are all conceded. But it the Marr Case, decided by this court in 1886. is insisted in bel alf of the Company tbat its There the telegraph company was shown to common-law liability was limited by special have bad four different rates of charges, contract, and that special contract is relied upon with as many different degrees of liability. in bar of any recovery. The bill of lading They were all beld to be unreasonable, and the under which the shipment was to be made is fact that ibe customer choosing one rate had produced in evidence. It contains a fire clause the option of taking any one of the other three wbich stipulates that the Company shall not was of no avail to the company, in an action be liable for loss or damage by fire. This is the for damages. Marr v. W. U. Teleg. Co. 85 Tenn. special contract through which exemption from (1 Pickle) 5 15. liability is sought. The plaintiffs deny the va- The alternative must be both reasonable and lidity of that stipulation, and thus the issue for bona fide. If either unreasonable or colorable our determination is presented.

only, it will be unavailing as a defense to the It is now too well seitled to admit of debate action against a carrier. A company standing that ibe common-law liability of common car- before the public as a common carrier, and enriers may be limited by special contract, even joying the advantages and franchises as such, to the extent of denuding ihem of the character must be ready to do the business of a common of insurers, except as against their own neg. carrier, with the full measure of responsibility ligence, or that of their agents and servants; imposed by the common law; and it may at the and the limitation may be, and is generally. same time offer to do the same business with a embraced in the bill of lading delivered to the limited liability, the limitation resting upon a shippers at the time. It is not every such spe sufficient consideration. An offer or readiness cial contract, bowever, that is effective. To be to transport the goods of its customer with the valid, it must be fairly oblained, and just and lone or the other degree of responsibility, at his option, is as little as can be required of any question from W. F. Embry, agent of plain common carrier, Less than this does not pretiffs. Nothing was said about accepting the sent a bona fide and reasonable alternative. bill of latling. No objection was made to the Reduction of freight charges is the usual con. same. The regular rate on the bill of lading sideration for the diminution of responsibility was $1 a bale. The regular tariif rate for each on the part of the company. One of the lead 100 pounds is 37 cents, and, estimating a bale of ing principles deducible from the English cases cotton at 500 pounds, would make the cost of is stated by Mr. Redman in these words: “A shipping between those points (Columbia and condition is reasonable wbich reduces a com- Nashvile) $1.85 per bale. If this bill of lading pany's liability to a minimum, if it is coupled had been declined (the one the cotton was with compensating advantages to the customer shipped under), the shipper would bave had to (such as cheapness of carriage), and the latter ship by the regular tariff rates, $1.85 per bail, has the alternative of getting rid of the condi- without the fire clause. I do not know how tion by paying a reasonably bigher rate." Red long this form of bill of lading has been in use, man, Railway Carr. p. 75, 8 2.

but it has been in use for several years, and was This language puts the law clearly, and acceptable to the shipping public, and no commeels our unqualified approval. It is repro plaint bad been made of it. I do not think duced as the law of the two countries in a re- ibere was any fire clause in the one used prior cent American work. 2 Am. & Eng. Cyclop. to this. At ihe time the cotton was shipped I Law, 819.

had no other form of bill of lading to ship cot. These clauses, similar to the one before us, ton under. I bad po authority as freight agent when based upou a sufficient consideration, to make any different contract, or to ship goods have by the Supreme Court of the United under any other bill of lading than the one unStates, and by this court, been held to be valid, der which these goods were shipped. Nothing and to protect the company from liability for was said between Mr. Embry and myself about loss by fire, caused otherwise than by the neg. a special rate, but be took the bill of lading ligence of the company or its agents. York offered without objection, and shipped under Mitg. (o. v. Illinois C. R. Co. 70 U. S. 3 Wall. this. I would not have shipped this cotton any 107 [18 L. ed. 170]; Dillard v. Louisville & N. other way. The rate of $1 a bale has been such R. Čo. 2 Lea, 288.

about six years, under the bill of lading such In the latter case, the court said: “A lower as this cotton was shipped under. I bave no rate of freight, or sometbing equivalent, will be bill of lading to issue where goods are slipped a suflicient consideration for the stipulation." under tariff rates. No cotton bas ever been 2 Lea, 293.

shipped under tariff rates. Every shipper in In the former it is broadly intimated that a Columbia knows that I have the tariff rates reduction of charges will be presumed to be the posted up in my office. Have tolil W F. Em. consideration for such a stipulation, the lan. bry about the tariff rites, but do not remember guage of the court being: “Tbere is no evi. when. The rate on cotton was the same before dence that a consideration was not given for the insertion of the fire clause as it is now. If the stipulation. The company, probably, bad objection had been made about this bill of ladrates of charges proportioned io ihe risks they ing. I would have refused to receive the goods assumed from thie nature of the goods carried, until I had authority from Mr. Champe. A and the exemption of losses by fire must deces schedule with the exemptions was posted up in sarily have atiected the compensation demand a conspicuous place in my office at Columbia, ed." 70 U. 8. 3 Wall. 113 [18 L. ed. 172]. but the name 'cotton' did not appear io ii, but

In speaking of the stipulation for a limited it would have come under our losses; and bad liability in a railroad ticket, the New York frequently talked with Mr. Embry, plaintiff's Court of Appeals said: “Like all contracts, to agent, about the two rates before tbis shipping." render such an one valid, it is indispensable Mr. Champe testified. “I am general freight that it have some consideration, which it would agent of the Louisville & Nashville Railroad not bave if the passenger puid the full fare fixed Company at Nashville. If Mr. Bailey, our by law ... If the service is reduced, the freight agent at Columbia, had informed me amount of the reward must be reduced in pro- that Mr. Embry refused to ship bis cotton unportion; and, if the company is relieved from der this bill of lading, in this case I would have risk, it must make compensation for ibat relief instructed lim (Mr. Bailey) to ship the said cotby the reduction of fare or otherwise." Bissell ton by the regular rates of 37 cents per 100 v. New York Cent. R. Co 25 N. Y. 44?. pounds, wbich would have been dooe by tele

The performance of an act which a party is graph. The only two rates we bave are the under a legal obligation to perform does not rates under this bill of lading and the tariff constitute a good consideration for a promise. rates. This bill of lading, as far as I know, Addison, Cont. $ 4.

bas been in use a long vumber of vears." Hence a mere agreement by a common car- The foregoing is the whole of the testimony rier 10 transport goods furnishies no considera of these two witnesses. It is quoted at length, tion for a stipulation for less iban common. 10 show the whole case as made by the defendlaw liability. Lawson, Carr. & 212.

ant. It introduced no ollier wirdess. Leopard Having laid down the principles of law by Parks, one of the plaintiffs, stated, in substance, which this case must be decided, we proceed to that be had been a shipper over ibe Louisville give them applicatiou to the facis disclosed on & Nashville Railroad Company many years; the trial. Iu doing this it is necessary to state that tbe Merchants' Exchange ai Nashville protbe material l'acts not already recited. I. Bailey tested against the introduction of the fire clause says: "Have been freight agent at Columbia for in the defendant's form for bills of lading, and the Louisville & Nashville Railroad Company, gave the Company notice of that protest; and for about nine years. I received the cotion in libat the rate from Columbia to Nashville was pot reduced when the fire clause was inserted, necessary to decide what force there might be' but remained the same as before.

in the suggestion, is based upon the real facts Under these facts, we agree with the learned of the case. The answer to it upon tliis record circuit judges in bolding that the Company is is that no such benefit bas been enjoyed by the liable for the value of the cotton. The special plaintiffs. It is true one of the plaintiffs says contract for exemption from liability for loss or he has been the defendant's custoiner for many damage by fire is by this record shown not to years, both before and sirce the introduction be just and reasonable. It was the primary of the fire clause; but it is also true, as already duty of the Company to hold itself in readiness seen, that the price charged has been the same to transport goods, under the rules of the com- all the time. mon law, wiib all the responsibility of a com- It is still further suggested that the shipping thlon carrier. This it did not do. Its agent was public at Columbia bave acquiesced in this furnished with no form for bill of lading for form of bill of lading for some years without such a shipment. More than that, he bad no complaint. Such is the proof in the case; and authority to receive the goods for shipment this fact would go towards establishing the with such responsibility attaching to the Com- justness and reasonableness of the exemption pany. He says be bad no authority to make claimed, if the Company bad all the while been avy contract but the one he did make, and that ready to carry goods with or without ibe fire he “would not bave shipped this cotton any clause, and land accordingly given its customers other way.” He submitted no alternative to a fair opportunity of selecting for themselves ibe plaintiffs, and had no authority from his wbich they would take. But acquiescence principal to do so, and would not bave done so alone will not justify the limitation. The if requested. True, le says he would have words of Mr. Justice Bradley in the Lockicoou.' asked for permission to ship under contract Case are pertinent at this point: “The carrier without fire clause if the bill of lading with it and his customer do not stand on a fooring of bad been refused by the customer, and Mr. equality. The latter is only one individual of Champe says be would have granted such per. a million. He cannot afford to bigyle, or stand mission. What stronger proof could there be out and seck redress in the courts. His busi. that the Company was not offering, or ready, ness will not admit such a course.

He prefers or was pretending, to do business, except upon rather to accept any bill of lading, or sign any the most restricted liabiliły? Why the neces- paper the carrier presents; often, indeed, with. sity of asking and granting permission to do a out knowing what the one or the other con. thing wbich the law requires it to be in con- tains. In most cases he has no alternative but stani readiness to do? This is the permission to do this, or abandon his business.” From that should bave been granted in the first in- defendani's own showing, our conclusion is ibat stance. From the moment of his employment, the stipulation relied upon is invalid, and afthe agent should certainly bave been clothed fords do protection whatever. with authority to do that which the law re- The second and last assignment of error required bim to do, and after that he could bave lates alone to new facts declared in an affidavit been authorized to do that which the law per- produced on the motion for a new trial. As mitted bim to do. That he frequently talked to this, it is suficient to say that such facts, if with Embry "about the two rates” is an unim- considered, could not possibly bave changed poriant circumstance as we see it. If he at the the result, being alone with respect to maiters same time told Embry what he tells the court, transpiring subsequently to the shipment and —that he was authorized to issue but the one loss of the cotton, and in no wise connected bill of lading, and that he would ship the cot- therewith. ton no other way, - he would certainly not bave Let the judgment be affirmed. made the case any better for the Company; and if he withheld those additioral facts, they Folkes, J., dissenting: remain facts in the case nevertheless, and can- I recret exceedingly my inability to concur not be rejected because not disclosed to the cus- with the majority of the court in ihe opinion tomer.

just rendered. To my mind, a most dangerous Again, no consideration for the fire clause and perplexing innovation is established, though passed to the shipper. The responsibility of clothed in the garb of barmless and well settled ihe carrier is reduced to a minimum, it is true, propositions. The objections to the opinion do but there is no corresponding reduction in not lie on the surface, but lurk in the application freight charges. There is no reciprocal con. of those general principles to the particular facts cession of legal rights by carrier and sbipper. of the case. Let us analyze the decision, and The advantage is all on one side. It is dis- ascertain wbat is exactly the point adjudged. tinctly shown that the rate charged under the It is this: That a railroad company, dealing bill of lading in this case is the same that was with a merchant who bas been engaged for charged before the insertion of the fire clause, twenty years as a shipper over its road, issues and that po reduction was ever pretended to be a bill of lading for a reduced rate, containing made on account of the introduction of such the familiar, if not now almost universal, clause clause, and the customer's assent thereto. The of exemption from loss by fire. The shipper agreement to carry for a price which the Com- bas been in the habit of shipping the same pany was accustomed to charge, without the character of freight, on the same character of are clause, is no consideration for the diminu- bill of lading, for six or nine years, containing tion of liability by the insertion of such clause. the same exemption. Nearly three years after It is said that it is bad faith on the part of the goods were lost by fire, without negligence plaintiffs to complain of this clause now, when on the part of the Company (so far as any proof They may have received the benefit of reduced tends to show), the shipper institutes a suit berates in ihe past on account thereof. It is un-fore a magistrate, in which it is stated upon

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