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carrier, under agreement that the latter should cars, nor designed to be ventilated. True, each not be liable for loss or damage by causes beyond car had an ice box, open at the top, but it seems its control or by heat. The car was under the to have been impracticable to keep that open control of defendant for two days, and the tem while in transit. Besides, the plaintiff accepted perature varied from 47,to 68 degrees above zero. the cars, loaded the apples, and signed the shipIt was at a season when cold weather was to be ping order mentioned, and must be deemed to anticipated, and the car was selected to keep the have done so with full knowledge of the kind, the apples at a uniform temperature. Before con construction, and the condition of the cars, the signment plaintiff kept the car ventilated by keep season of the year, and the probable time the aping one or more of the side doors open; but these ples would be in transit. If the plaintiff desired were so constructed that they could not be kept to have the apple department of the cars ventiopen in transit, and they were airtight when lated, by opening the side doors at stations, from closed. The car was not designed to be venti time to time, during transit, then it should have lated, and though there was an ice box open at had such stipulation inserted in the shipping orthe top, it could not be kept open while in transit. der. If such had been the case, the cars probably It was held that there was no such negligence on would not have been sealed. If the apples dethe part of defendant as to make it liable for dam cayed by reason of negligence, it was, manifestly, age caused by beat and lack of ventilation. The the negligence of the plaintiff. In other words, following is from the opinion: “If the decay of the the plaintiff assumed the risk of shipping the apapples was by reason of any negligence on the ples in that kind of cars." part of the carrier, it may be presumed, as contended by the plaintiff, that such negligence oc CONTRACT IN WRITING-PAROL EVIDENCE.curred while the apples were in the custody of the In Violette v. Rice, 53 N. E. Rep. 144, decided by defendant as the last carrier. Laughlin v. Rail the Supreme Judicial Court of Massachusetts, it way Co., 28 Wis. 204; Lambv. Railway Co. (Wis.), was held that evidence that at the time an actress 76 N. W. Rep. 1124. In the case last cited, the made a written agreement with the proprietor of well-settled rule is recognized that stipulations certain theatrical companies “to render services limiting the common-law liability of the carrier at any theaters” it was agreed tbat the word are upheld, except in so far as they attempt to ex “services” meant services in a particular part in empt the carrier from the consequences of its own a certain play, contradicts the instrument, and is negligence. Id.; Abrams v. Railway Co., 87 Wis. inadmissible. It was further held that by a writ485, 58 N. W. Rep. 780; Loeser v. Railway Co., 94 ten contract of employment of an actress, providWis. 571, 69 N. W. Rep. 372; Leonard v. Whit ing that she shall “conform to and abide by all comb, 95 Wis. 648, 70 N. W. Rep. 817; Schaller the rules and regulations” adopted by the emv. Railway Co., 97 Wis. 31, 71 N. W. Rep. 1042. ployer for government of his theatrical companies, Under the shipping order in evidence, the de she adopts the rules, though she does not know fendant could not be held liable, except by prov what they are. The court said in part: “We are ing some negligence on its part. We fail to find of opinion that the evidence could not be received. any proof of such negligence. The cars contain The plaintiff accepted the defendant's rules by ing such applies started from Vermontville, 350 signing the contract, whether she knew them or miles from St. Ignace, and were received by the not. It is not a question here whether an indorsedefendant at the latter place November 3d, and ment upon a contract, not referred to upon the were shipped November 4th, and reached West face of the instrument, is part of the contract by Superior in time to notify the plaintiff of their ar virtue of the indorsement alone. The plaintiff rival on the morning of November 6th. During expressly adopted any rules which there might the time the cars were at St. Ignace the tem be within the reasonable import of the name, even perature was below seventy degrees, and a part of though not set out in the contract, and, if she the time below fifty degrees. It was at a season adopted them in the dark, she was bound none of the year when cold, instead of heat, was to be the less. See Railroad Co. v. Snyder, 56 N. J. anticipated. The refrigerator cars were, man Law, 326, 28 Atl. Rep. 376. With or without the ifestly, selected by the plaintiff to keep the inside rules, the engagement to render services expressed of the cars at a certain or uniform temperature a general employment, which could not be limduring transit. The plaintiff claims to have kept ited to a single part without contradiction; for, to the cars ventilated while they were at Vermont give evidence requiring words to receive an abville by keeping one or more of the side doors normal meaning is to contradict. It is settled open. Those doors were constructed so as to open that the normal meaning of language in a written outward, and to be airtight when closed. They instrument no more can be changed by construcwere the only means of communicating fresh air tion than it can be contradicted directly by an to the apples. Obviously, it was impracticable to avowed inconsistent agreement, on the strength open any of such doors while the cars were in of the talk of the parties at the time when the intransit. Besides, such doors were sealed up, and strument was signed. Black v. Batchelder, 120 designed to be so sealed up. This must have Mass. 171; Flynn v. Bourneuf, 143 Mass. 277, 278, been known to the plaintiff, as an habitual ship 9 N. E. Rep. 650; Power Co. v. Howard, 150 Mass. per. Sucb refrigerator cars were not ventilated 495, 23 N. E. Rep. 317; Goode v. Riley, 153 Mass.
585, 586, 28 N. E. Rep. 228; Poole v. Plush Co., Barh. 144; Reg. v. Young, 14 Cox, Cr. Cas. 114; 171 Mass. 49, 52, 50 N. E. Rep. 451; Grimston v. Rex v. Mayers, 12 Cox, Cr. Cas. 311; 1 Whart. Cr. Cunningham (1894), 1 Q. B. 125. When evidence Law, p. 524, § 561, and note. In Mooney v. State, of circumstances or local or class usage is ad supra, this language is used: "The second posimitted, it tends to show the ordinary meaning of tion urged by the State is that, "the woman being the language in the mouth of a normal speaker, asleep when penetrated, rape is the result, though situated as the party using the language was sit no greater force is used than that involved in the uated; but to admit evidence to show the sense act.” We have given this proposition thorough in which words were used by particular individ examination. The authorities are quite inharmouals is contrary to sound principle.' Drummond nious. Apparently there is a serious conflict of v. Attorney-General, 2 H. L. Cas. 837, 863. “If opinion upon this subject, but, when carefully that sort of evidence were admitted, every written scrutinized, the conflict will be found, to a great document would be at the mercy of witnesses extent, apparent only. Our researches lead us to that might be called to swear anything.' Nichol these conclusions: If the statute defines rape to v. Godts, 10 Exch. 191, 194. To similar effect, be carnal knowledge of a woman by force and Shaw, C. J., in Brown v. Brown, 8 Metc. (Mass.) "without” her consent, then the proposition 573, 577. The case of Keller v. Webb, 125 Mase. above stated is correct. On the other hand, if 88, goes a good way, but was not intended, we the statute defines rape to be the carnal knowlthink, to qualify the principle settled by the edge of a woman by force and "against” her conearlier and later Massachusetts cases, some of sent, then the proposition is not correct. Some which we have cited. In that case, evidence of cases hold the proposition correct whether the conversation was admitted to show tbat casks,' statute says "against” or “without." ' Counsel in a written contract, meant casks of a certain for appellant, however, insists that this question weight. It was assumed that the contract meant was not before the court in Mooney's case. We casks of some certain weight, but did not state have examined the decision carefully, and we what, and thus, that the evidence supplemented, cannot agree to this. We are not inclined to without altering, the written words. A similar make the distinction between the terms without explanation applies to Stoops v. Smith, 100 Mass. consent' and against consent' as made in the 63. The other cases cited do not need particular above case, because we believe there is really, in notice."
effect, no difference between the expressions.
Rape must be by force and without consent, as is CRIMINAL LAW-RAPE-FORCE.-The case of stated by our statute, wbich really means the Payne v. State, 49 S. W. Rep. 604, decided by the same thing as against consent.' If the female is Court of Criminal Appeals of Texas, presents asleep, of course, she cannot give her express some unusual features of the law applicable to consent, but, if she is willing to the act, there is that class of crimes. The holding was that the tacit consent, and there need not be express conact of copulation of a male person with a woman, sent; so that in the final analysis the act must be she being asleep at the time, and not consenting, against her will and consent, and the force used is sufficient force to constitute rape, and that is only such force as may be used in the act of carnal knowledge of a woman, by force, and copulation. We quote from the case of Reg. v. *without” or “against” ber consent, may be had Young, supra—a case very similar to this—as folwhile she is asleep, though no greater force is Jows: "The evidence proved that the prosecutrix, used than is involved in the act of copulation. a married woman, being partially under the inThe court says in part: “As to the second prop fluence of drink, on the 28 February, 1878, went osition, the question is sharply presented, was it to bed in her lodgings in the Seven Dials, with competent for the court to present or define the her youngest child, about 9 o'clock. Her husquestion of force as was here done? That is, the band, with another child, came home about midcharge, in effect, instructed the jury that the act night. About 4 o'clock in the morning, when all of copulation of a male person with a woman, she four were asleep, the prisoner entered the roombeing asleep at the time, and not consenting, was the door not having been locked-got into bed, in sufficient force to constitute the offense of rape. which were the prosecutrix, her husband, and the Ordinarily the statutory definition of force would two children, and proceeded to have connection be sufficient, but the facts in this case, so far as with the prosecutrix, she being at the time asleep. the State was concerned, raised the direct issue When she awoke, at first, the prosecutrix thought before the jury, as to whether or not a rape could that it was her husband; but, on hearing the be committed on a woman while she was asleep, prisoner speak, she looked around, and, seeing she not consenting to the act; and in such case it her husband by her side, she immediately flung was entirely proper for the court to instruct the the prisoner off her, and called out to her husjury as to the required force under such circum band. The prisoner ran away, but before he could stances, and the instructions given was in accord make his escape he was secured by a police conwith the authorities on the subject. See Mooney stable. None of the parties had ever seen the v. State, 29 Tex. App. 257, 15 S. W. Rep. 724; prisoner before. In answer to questions put by Com. v. Burke, 105 Mass. 376; People v. Bartow, me, the jury found that the prosecutrix did not 1 Wheeler, Cr. Cas. 378; Walter v. People, 50 consent before, after, or at the time of the prison
er's having connection with her, that it was credit in the bank upon which it was drawn. The against her will, and that the conduct of the bank received it, and credited the amount to the prosecutrix did not lead the prisoner to the belief holder, and debited the same to the supposed that she did consent. I put the last question to drawer. It soon proved to be a forgery, wherethe jury in consequence of what fell from Den upon the bank charged the amount back to the man, J., in Reg. v. Flattery (1877), 2 Q. B. Div. holder's account. The holder then brought an 410-414, 13 Cox, Cr. Cas. 388. Upon these find action against the bank, and recovered judgment. ings [ directed a verdict of guilty, but reserved Levy v. Bank, 1 Bin. 27. In 1825 a case similar in the question as to whether the conviction was principle came before the United States Supreme right; the court of criminal appeal, in Reg. v. Court, which always decides for itself questions Flattery, having expressed a desire that the case of general commercial law as applicable to the of Reg. v. Barrow (1869), L. R. 1 Cr. Cas. 156, 28 whole country. The Bank of the United States Law J. M. Cas. 20, 11 Cox, Cr. Cas. 191, should be remitted to the Bank of Georgia papers purporting reconsidered.' Lord Coleridge, C. J., said: "We to be bank notes of the latter bank, which were reare all of opinion that the addition made by the ceived and credited to the account of the former learned baron to the statement of this case puts bank. Some days afterwards the supposed notes an end to any doubt as to the case, under the cir were found to be counterfeit, and the Bank of cumstances, being clearly one of rape.' It fol- Georgia tendered them back to the United States lows from these authorities that the court did not bank, and charged the amount back to that bank, err in defining the force to be used on a woman and refused to acknowledge any indebtedness for when asleep, as was done. This was a presenta them. The United States Bank brought an action tion of the State's theory, predicated on its evi for balance of an account stated, and for money dence. The court immediately instructed the jury had and received, and was beld entitled to recover on appellant's theory—that is, in his testimony it the amount so deposited. Bank of United States was insisted that he had the consent of the prose v. Bank of Georgia, 10 Wheat. 333. This decision cutrix to the act of copulation; and the court, on does not appear to have been questioned in any this subject, gave the following instruction: ‘You federal court. The applicability of this decision are further charged, if you believe from the evi is manifest when it is recalled that the acceptor dence that the said Jessie Winn, by acts or con of a bill of exchange is in the same category as duct toward the defendant which was reasonably the maker of a note. If one who pays what purcalculated to induce the defendant to believe that ports to be his note cannot recover the money he had the consent of the said Jessie Winn to back, no more can one who pays what purports to have carnal connection with her-caused the de be a bill of exchange or check drawn upon him. fendant to believe that he had the consent of the "In 1820, five years earlier than the case in 10 said Jessie Winn to have such intercourse with Wheat., a similar case occurred in Massachusetts her-and, so believing, the defendant had such between two banks as to the counterfeit bills of carnal connection, if any, with the said Jessie one of them, which it received from the other, Winn, you will acquit him.' This instruction, and paid as genuine. It was held that it could given in connection with the former instruction, not recover back the money paid. Gloucester and immediately following it, adequately pre Bank v. Salem Bank, 17 Mass. 33. As late as 1890 sented appellant's theory of defense, and pre the Supreme Court of Massachusetts stated the vented any possible confusion or misconception rule as follows: 'In the usual course of business, in regard to the preceding charge, even if it be if a check purporting to be signed by one of its conceded that any misconception could result depositors is paid by a bank to one who, finding therefrom."
it in circulation or receiving it from the payee by
indorsement, took it in good faith for value, the BANKS AND BANKING-CHECKS — FORGERY money cannot be recovered back on the discovery NEGLIGENCE.-It is held by the Supreme Court that the cbeck is a forgery.' First Nat. Bank v. of Maine, in Neal v. Coburn, that a bank is pre First Nat. Bank, 151 Mass. 282, 24 N. E. Rep. 44. sumed to know the signatures of its depositors; "In a New York case, in 1850, the bank upon that if a bank pay to an innocent holder for value which a draft was drawn refused payment for the amount of a check purporting to be drawn want of funds of the drawer, whereupon Goddard, upon it by one of its depositors, but the signature the correspondent of the supposed drawer, being to which was in fact forged, the bank cannot re informed of the draft, but without seeing it, left cover back the amount from such holder, and that his own check, for its payment, which amount if such holder, on demand, repay the amount to was remitted to the holders of the draft. The the bank, that does not entitle him to recover the next day Goddard, on seeing the draft, found it to amount from a prior innocent holder for value, be forged. Held, however, that he could not rewho had indorsed the check. The following is cover back the amount of the holder. Goddard from the opinion: “In this country the earliest v. Bank, 4N. Y. 149. In 1871 a bank in New York published judicial decision upon the question ap paid to an innocent holder a forged draft drawn pears to have been made in 1802 by the Supreme upon it, and then sought to recover the money Court of Pennsylvania. An innocent holder of a back. The court rendered judgment for the decheck for value presented it for deposit to his fendant as in the earlier case, using this language:
'For more than a century it has been held and it, and that it was not against conscience for an decided without question that it is incumbent innocent holder to retain money paid to him by upon the drawee of a bill to be satisfied that the the drawee of a bill of exchange which he had in signature of the drawer of the bill is genuine,- good faith paid value for. As between parties that he is presumed to know the handwriting of equally innocent, there seems to be no more his correspondent; and, if he accepts or pays a equity in throwing off the loss from one to the bill to which the drawer's name has been forged, other than in leaving it where it fell. In cases he is bound by the act, and can neither repudiate like these, however, where the loss fell in the the bill nor recover the money paid. , * * A regular course of business upon the bank, which rule so well established and so firmly rooted in the could have known and should have known the jurisprudence of the country ought not to be over forgery, it seems positively inequitable to throw ruled or disregarded.' National Park Bank v. off that loss upon an innocent man who had much Ninth Nat. Bank, 46 N. Y. 80, 81.
less opportunity of knowing. As also said by “Other courts have also recognized the rule Lord Mansfield, in Price v. Neal, if negligence is more or less explicitly. Commercial Bank v. to be considered, it was as much, if not more, in National Bank, 30 Md. 11; Germania Bank v. the drawee or bank, as in the holder. But whatBoutell, 60 Minn. 192, 62 N. W. Rep. 327; St. Al ever the reason or equity of the rule, and however bans v. Farmers' Bank, 10 Vt. 141; Star Ins. Co. much it may be criticised by text-writers and V. State Bank, 60 N. H. 442; Deposit Bank v. theorists, it has been so long established and so Fayette Nat. Bank, 90 Ky. 22, 13 S. W. Rep. 339. explicitly recognized by the courts in commercial
"The only allusion to the rule we have found in communities that it should stand as the rule until the published opinions of this court is in Belknap modified by legislative action. It evidently bas v. Davis, 19 Me. 457, in 1841, where, in an action been found to be a workable rule, and its plainby the holder against the acceptor of a bill of ex ness and certainty should not be obscured by fine change, it was held that “the acceptance admits judicial distinctions, confusing to the lay mind. the signature of the drawer and the authority to “It has been suggested that this rule breaks draw.' So far as it goes, this would seem to be against another rule of the law of commercial in the same line with the decisions above cited paper, viz. : that the defendant, by indorsing the and quoted from, and would seem to indicate that check, guarantied to every subsequent holder the the rule so long and firmly upheld by those decis genuineness of the signature of the drawer. But ions is in harmony with the law of commercial the bank upon which the check was drawn did paper in this State.
not become a holder. It did not purchase the "In some cases the courts have been led to in check." quire whether the condition of the holder had changed between the payment of the check and notice to him of the forgery, and to hold that, if PRINCIPAL AND SURETY - EFFECT ON the holder had suffered no loss by reason of the SURETY'S LIABILITY OF EXTENSION payment, he should refund the amount to the bank OF TIME IN CONSIDERATION OF THE or drawer. The rule cited does not make any PAYMENT OF INTEREST IN ADVANCE. such distinction,-does not call for any inqury into the condition of the holder. To do so is to aban
It is said in Flynn v. Mudd, holding the don the rule, and with it all certainty. It would sureties discharged, that "the doctrine, that leave every person receiving payment on a check giving further time to the principal debtor, in complete uncertainty as to whether and when
without the assent of the surety, releases him it was in fact finally paid. It would be a destructive blow to the usefulness of checks as an instru
from the contract, seems to be universally admentality of trade. It is also against the reason
mitted and acted upon.
To render and equity of the rule as stated by the courts rec such a defense available, it is necessary that ognizing it, and hence is inconsistent with the
the contract extending the time for payment rulé. Wherever the rule is upheld, the doctrine
should be such as would prevent the creditor of such cases must be rejected. “The reason usually given for the rule is that it
from maintaining an action on the original is impracticable for the indorsee or holder of a agreement before the expiration of the exbill of exchange or check to know or learn whether tended time. To have that effect it must be the signature of the drawer is genuine, and that
based upon a sufficient consideration, and the bank or other drawee has the best means of
must be for a definite period. But possessing knowing or learning the fact; or, as sometimes expressed, the bank may be presumed to know
these requirements, it must also have been the signature of its depositor, and the acceptor entered into, between the principal debtor the signature of his business correspondent. Lord and the creditor, without the consent of the Mansfield, in Price v. Neal, supra, compared the surety, or his subsequent ratification, to conequities. He said that the action for money had
stitute a valid defense. And this defense is and received could not be maintained, unless it was against conscience in the defendant to retain 127 Ill. 323.
based on the principle that the surety can to extend the time of payment during the only be held to perform the precise terms of period for which interest is paid.” And in his contract. He cannot be charged by the Hamilton v. Winterrowd, it is said that acts of others beyond the terms of his agree “wben a debtor pays to his creditor interest ment.” It is also essential that the creditor in advance on money which he owes him, and should have notice of the fact of suretyship the creditor receives it as such, in the absence at the time of the making of the agreement of an understanding to the contrary, the imfor extension. And it has been held? that an plication is irresistible that the debtor is to answer by one of the defendants in an action have the use of the money during the time against joint makers on a promissory note, for which interest is paid, and the creditor alleging that defendant was only a surety, shall forbear collecting during the same time. and that after the maturity of the note the We think the law clearly implies a forbearplaintiff, without his knowledge or consent, ance in such a case.” But in Russell v. agreed to extend the time of payment in con Brown,' the court says that “while the taking sideration of the payment of interest in ad of interest to a definite period in advance of vance, is insufficient, where it does not allege the time when the note fell due will be held a that at the time of making such agreement, good consideration to support such promise, the plaintiff had notice that he was a surety if the promise was in fact made, it will not be and not a joint maker. That there must be of itself evidence of such a promise, because an agreement there is no question, but there this fact of itself does not disable the creditor is a wide divergence of opinion as to the from suing." And in Davis v. Graham, agreement itself. Some courts maintain that holding that mere reception of interest in adthe payment of interest in advance of itself vance, without an agreement to extend, will constitutes or implies an agreement for ex not discharge the sureties, the court says that tension, while others insist that, although "as to the implication arising from the alleged such a payment is a good consideration for advance payment of interest, we have only to an agreement to extend, there must be an say, admitting the rule for which counsel conactual agreement to extend, and that one tend, that it cannot apply when it would decannot be implied therefrom. In Woodburn feat the clear intention of the parties. If the v. Carter, reversing a judgment in plaintiff's creditor manifestly intends to hold the surefavor against the sureties, it is said that "the ties, and it is obvious that he refused to exipference is irresistible that where a creditor tend the time, the simple act of the advance receives a payment of interest in advance on payment of interest will not justify the inferhis notes from the debtor, there is a contract ence or implication that there was such an
agreement.” In Coster v. Mesner,9 where 2 McCloskey v. Indianapolis Manufacturers' & Carp.
the payment of a certain sum of money was Union, 67 Ind. 86.
3 Woodburn v. Carter, 50 Ind. 376; Hamilton v. applied by the plaintiff to the extinguishment Winterrowd, 43 Ind. 393; Starrett v. Burkbalter, 86 of accrued interest, and the balance to interInd. 439; Atkinson v. Talbot, 1 Disney (Ohio), 111;
est for a period in advance, it is held that Bank of B. C. v. Jeffs, 15 Wash. 230; Preston v. Henping, 6 Bush (Ky.), 556, 562; Gardner v. Gardner, 23 such payment of advance interest does not S. Car. 588; Osborn v. Low, 40 Ohio St. 347, distin. constitute such a promise of extension of time guishing Jones v. Brown, 11 Ohio St. 601, on the ground that the note in that case not specifying when
as will prevent the holder from bringing acit was payable was payable immediately, and that this tion against the principal, and therefore does amounted to a reservation of the right to sue imme. not discharge the surety. But it has been diately. See also what is said in New Hampshire Sav.
held that the execution of a renewal note, Bank v. Colcord, 15 N. H. 119. * Agricultural Bank v. Bishop, 6 Gray, 317; Harns.
which is taken as conditional payment of the barger v. Kinney, 13 Gratt. 511; Freeman's Bank v. original note, and the payment of interest in Rollins, 13 Me. 202, distinguishing Kennebec Bank v.
advance, constitute an agreement to extend Tuckerman, 5 Greenl. 130; Lime Rock Bank v. Mal. lett, 34 Me. 547, 42 Me. 349; Russell v. Brown, 21 Mo.
the time of payment of the original until the App. 51; Citizens' Bank of Bowling Green y. Moor maturity of the renewal note, and discharge man, 38 Mo. App. 484; Nevada First Nat. Bank v. Gardner, 57 Mo. App. 268; Coster v. Mesner, 58 Mo. 549. But see First Nat. Bank of Springfield v. Leavitt, 6 43 Ind. 393. 65 Mo. 562; Schnitzler v. Fourth Nat. Bank, 1 Kan. 721 Mo, App. 51. App. 674.
8 29 Iowa, 514. 550 Ind. 376.
9 58 Mo. 549.