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elevators similarly situated. It was held that the plaintiffs could recover. The court said:

"* * * It need only be said that a railway company, although permitted to establish its rates of transportation, must do so without injurious discrimination as to individuals. It must deal fairly by the public, and this it would not be doing if allowed so to discriminate as to build up the business of one person to the injury of another in the same trade.”

Chicago & North Western Railway Co. v. People ex rel. Hempstead, 56 Ill. 365, 8 Am. Rep. 690.

In the case of Coe v. Louisville & Nashville R. R. Co. (C. C.) 3 Fed. 775, the whole question is discussed by Chief Judge Baxter in a very exhaustive opinion, and the conclusion is reached that it is not permissible for a common carrier to discriminate in the handling of freight of the same character offered by two individuals, and similarly situated. The Vincent Case, supra, is cited with approval, and in the course of the opinion it is said:

"Impartiality in serving their patrons is an imperative obligation of all railroad companies. Equality of accommodations in the use of all railroads is the legal right of everybody. The principle is formed in justice and necessity, and has been uniformly recognized and enforced by the courts. A contrary idea would concede to railroad companies a dangerous discretion, and inevitably lead to intolerable abuses. * * * By an unjust exercise of such a power they could destroy the business of one man and build up that of anotherpunish an enemy and reward a friend. *

We conclude that the acts of the defendant companies in refusing to handle grain from the Kellogg Elevator upon the same terms that they handled grain from the other elevators was unlawful, and such refusal being the natural result, and that contemplated by the defendant association when it entered into the contracts referred to with said companies, it became a party to such unlawful acts, and equally liable with the other defendants therefor.

It is not important that the plaintiffs may have had a right of action against the defendant association for any moneys paid to it by the railroad companies, and received by them, for the elevation of grain by the plaintiffs at the Kellogg Elevator. Under the plan adopted by the defendants, the elevator charges were collected by the railroad companies, and such charges belonged and should be paid to the owners of the elevators through which the grain passed, unless such owners otherwise agreed; and therefore payment to any one else was improper, and can be recovered from those making it. Neither is it important that the plaintiffs' elevator was located upon the Buffalo Creek Railroad, and that the grain was delivered to the defendant companies by means of that road. As we have seen, it was simply a branch road or a switch, accessible to all the railroads, and existed solely for the purpose of delivering freight to them from shippers located upon its line; the charge for such service being uniform. The defendants, under the circumstances, were not at liberty to discriminate against the defendants because of those conditions. Undoubtedly they might have refused to send their cars over said road for the convenience of any shipper, but, having adopted the plan of doing so, they had no right to make an exception as against the plaintiffs. Wight v. United States, 167 U. S. 512, 17 Sup. Cť. 822, 42 L. Ed. 258.

and 121 New York State Reporter It follows that the plaintiffs are entitled to recover in this action the damages sustained by them up to the time of its commencement, in case the facts are found in favor of the plaintiffs. The plaintiffs' exceptions should be sustained, and the motion for a new trial granted, with costs to the plaintiffs to abide event.

Plaintiffs' exceptions sustained, and motion for a new trial granted, with costs to the plaintiffs to abide event. All concur.

LYNCH V. SIMMONDS et al.

(Supreme Court, Appellate Term. March 24, 1904.) 1. STOCKBROKERS-STOCK CARRIED ON MARGIN-SALE—LIABILITY.

Stockbrokers, who were carrying stocks for a client on margin, mailed him on May 20th a letter saying the market was very weak, and that they had been compelled to sell out some of his holdings, but still held certain stocks for him. The letter proceeded: “Your margin having become low we did not know just what you wished to do, but had to proceed as stated above. If you desire us to hold your stock kindly advise us before the opening of the market Thursday (May 21) and let us have a check, otherwise we will take it for granted you do not wish us to hold them for you." The client made no reply to this letter, and the brokers sold the stock on June 5th. Held, that the client's silence could not be construed as a direction to sell the stock on May 21st, so as to charge the brokers

with the highest price obtainable on that date. Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by George M. Lynch against Frederick Simmonds and another. Judgment for plaintiff, and defendants appeal. Reversed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Charles Fox, for appellants.
Maurice Mayer, for respondent.

SCOTT, J. The defendants, as stockbrokers, were carrying certain stocks for plaintiff on margin. On May 20, 1903, they mailed him a letter in which they called his attention to the fact that the market was, as they expressed it, "very weak," and they had been compelled to sell out some of his holdings. They still held for him certain other stocks, and, in the letter referred to, they said:

"Your margin having become low we did not know just what you wished to do, but had to proceed as stated above. If you desire us to hold your stock kindly advise us before the opening of the market Thursday (May 21) and let us have a check, otherwise we will take it for granted you do not wish us to hold them for you."

The plaintiff received this letter some time on the 21st of May—he does not say at what hour—but made no reply to it, and in fact never replied to it. The defendants held the stock until June 5th, when they sold, leaving a balance due plaintiff of $2.38. The plaintiff now contends that his silence should have been accepted by defendants as an order to sell the stock on May 21st, and the justice has awarded him judgment for the sum that would have been due him if the stocks had been sold at the highest price obtainable on that day.

ter is certainabout selling if he 'desires

To this view we are unable to accede. The letter of May 20th deals with the question of plaintiff's margin. It calls his attention to the fact that his margin is running low, and it will be desirable that further margin be furnished, if he desires to hold onto his stock. Nothing is said about selling the stock at any particular time, and the letter is certainly open to the construction that what the defendants meant was that, unless the plaintiff deposited further margin, they should assume that he did not wish them to carry the stocks any longer than the margin he then had would suffice for. It is to be presumed that the plaintiff was carrying the stock for speculative purposes, and he might well have objected if defendants had sold him out before the margin already deposited had been exhausted, or had approached dangerously close to the point of exhaustion. It is quite possible that, after sending this letter, and awaiting a reasonable time for a reply, and receiving none, the defendants might have found themselves precluded from recovering any loss sustained over and above the margin in their hands. But that question does not arise. Even if plaintiff's failure to answer defendants' letter should be construed as a direction to sell the stock, the defendants were not bound to sell on May 21st, but were justified in waiting a reasonable time. They had no means of knowing when the plaintiff received the letter, and had a perfect right, if, indeed, it was not their duty, to wait a reasonable time for an answer. If they had sold the stock at the opening of the market on May 21st, and prices had afterward advanced, they would undoubtedly have been met with a claim that they had not given plaintiff sufficient notice, or a fair opportunity to notify them of his wishes. We cannot say that the defendants waited an unreasonable time before selling the stock. For all that appears in the case, it may have advanced in price between May 20th and the date of sale. At all events, they held the stock as long as plaintiff's margin held out, and the letter of May 20th should not be construed as any more than a notification that, in the absence of a deposit of additional margin, they should take it for granted that plaintiff did not wish to hold the stock beyond the point covered by the margin he then had on deposit.

Judgment reversed and new trial granted, with costs to appellant to abide the event. All concur.

FOOD TRADE PUB. CO. v. HARNISHFEGER.

(Supreme Court, Appellate Term. March 24, 1904.) 1. CONTRACT FOR ADVERTISING-BREACH-DAMAGES.

After defendant, who has contracted to advertise in plaintiff's periodical, notifies plaintiff that he refuses to fulfill the contract, plaintiff may not continue publication, and recover the contract price, but is only entitled to damages. Appeal from Municipal Court, Borough of Manhattan, Second

District.

(1. See Contracts, vol. 11, Cent. Dig. $ 1512.

and 121 New York State Reporter Action by the Food Trade Publishing Company against Wilhelmine Harnishfeger, executrix. From the judgment, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Hoyn & Covington, for appellant
John E. Roeser, for respondent.

SCOTT, J. Upon notification by defendant's decedent that he refused to fulfill the contract on his part, the plaintiff's assignor should have discontinued the publication of the advertisement. It had no right to proceed after such countermand. Mendell v. Willyoung, 42 Misc. Rep. 210, 85 N. Y. Supp. 647. For the unexpired term of the contract the plaintiff's only claim was for damages. No proof of such damages was offered. Therefore there was nothing on which to base any larger judgment than was rendered.

Judgment affirmed, with costs. All concur.

BECKER V. DAVIS. (Supreme Court, Appellate Term. March 24, 1904.) 1. SALE OF REAL ESTATE-RESERVATION-RIGHT TO RENT.

Defendant D. and others made a contract of sale of premises, reciting that it was their intention to convey the premises “as they now are actually occupied by them, and subject to * . . the rights of the monthly tenants, and the right of D. *

to occupy the organ shop in the rear of said premises, now used by him for his business, with the means of exit and ingress till Nov. 1." The deed contained the reservation of D.'s right as in the agreement. Held, that such reservation was not subject to any duty of D. to pay for use and occupation. Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.

Action by Gustave Becker against Henry L. Davis. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Abel Crook, for appellant.
Shapiro & Shapiro, for respondent.

BLANCHARD, J. This action was brought upon an assigned claim to recover the value of the use and occupation of a portion of certain premises located in the city of New York. On August 3, 1903, one Irving Judis, the assignor of the claim in question, entered into a written agreement with the defendant and his two sisters, whereby he agreed to purchase from them the premises known as No. 53 MacDougal street, in said city, which they owned as tenants in common. Under the agreement the deed of the premises was to be delivered on the ist day of September following. The agreement contained the following language:

"It being the intention of the parties of the first part to convey said premises as they now are actually occupied by them and subject to

the rights

of the monthly tenants, and the right of Henry L. Davis, one of the parties of the first part, to occupy and use the organ shop in the rear of said premises now used by him for his business with the means of exit and ingress until November 1st, 1903."

On the 1st day of September, 1903, pursuant to the agreement, the defendant, the said Henry L. Davis, and his two sisters made and delivered to the plaintiff's assignor a deed which contained the reservation of the defendant Davis' right to use and occupy the organ shop until November 1, 1903, as set forth in the agreement. The contention of the plaintiff is that, notwithstanding this reservation in the agreement and deed, he is entitled to be paid for the use and occupation of that portion of the premises reserved to Davis in the deed, and he brought this action upon that theory, and recovered judgment.

Upon what principle of law the recovery of this judgment is based we are at a loss to understand. The plaintiff's assignor bought the premises, and accepted the deed subject to the expressly reserved right of the defendant to occupy and use the premises in question until November 1, 1903. The language employed in the agreement and the deed to express this right is explicit, and not to be misunderstood. It is certainly reasonable to assume that, had the parties intended that the defendant should pay for the use and occupation of the reserved portion of the premises, they would have expressed that intention clearly in the agreement itself. The effect of the clause subjecting a portion of the fee of the premises to the right of the defendant, Davis, to continue in his use and possession for a limited space of time was to carve that right out of the fee, and to postpone the unincumbered conveyance thereof until the right so reserved had expired by limitation. The pleadings are in writing, and, notwithstanding that the plaintiff claims the right to recover for the value of the use and occupation of the premises, he was permitted to offer testimony tending to prove that the defendant agreed to pay rent. The defendant sharply controverted this, and there is no testimony in the case upon which the relation of landlord and tenant can be predicated. Upon all the testimony in the case, we think the plaintiff failed to establish any agreement to pay rent. On the argument of this appeal, however, the appellant filed a stipulation to pay the plaintiff $28.

The judgment will be reversed, and a new trial granted, with costs to appellant to abide the event unless the plaintiff stipulates to reduce the judgment to $28, in which case it will be affirmed as reduced, without costs. All concur.

REILLY V. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. March 24, 1904.) 1. VERDICT-WEIGHT OF EVIDENCE.

Where plaintiff's case rested on his own uncorroborated testimony, containing contradictory statements on material points, and defendant showed by testimony of disinterested witnesses a state of facts which, if true,

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