1917C, 643. The same principle is stated | 3. STIPULATIONS 14(10) "The Fourteenth Amendment does not prohibit for carload of potatoes destroyed by fire after In action for damages against initial carrier legislation special in character. It does not prohibit a state from carrying out a policy of car were damaged by fire originating, either reaching destination, stipulation that contents that cannot be pronounced purely arbitrary, by from heating apparatus, or from a stove placed taxation or penal laws. * If a class is deemed to present a conspicuous example of in the car, without the knowledge of the termiwhat the Legislature seeks to prevent, the Four-nal carrier," without evidence as to cause and teenth Amendment allows it to be dealt with circumstances of fire, would not authorize judgalthough otherwise and merely logically not ment for plaintiff; causes stipulated being disdistinguishable from others not embraced in the junctive, excluding operation of both. law." Central Lumber Co. v. South Dakota, 226 U. S. 157, 33 Sup. Ct. 66, 57 L. Ed. 164. "A state which, at its own expense, furnishes special facilities for the use of those engaged in interstate and intrastate commerce may exact compensation therefor; and if the charges are reasonable and uniform they constitute no burden on interstate commerce. The action of the state in such respect must be treated as correct, unless the contrary is made to appear. * In view of the many decisions of this court, there can be no serious doubt that where a state at its own expense furnishes special facilities for the use of those engaged in commerce, interstate as well as domestic, it may exact compensation therefor. The amount of the charges and the method of collection are primarily for determination by the state itself; and, so long as they are reasonable and are fixed according to some uniform, fair, and practical standard, they constitute no burden on interstate commerce." Hendrick v. Maryland, 235 U. S. 611, 35 Sup. Ct. 140, 59 L. Ed. 385, and cases cited; Cooley, Const. Lim. 857. [6, 7] It is clear that the regulations complained of are reasonable, fair, and uniform, and reflect the judgment of those best qualified to settle questions of public policy and police regulations, and it is equally clear that the respondent has failed to bring himself within the rule that the party assailing the constitutionality of a state police statute must clearly show that it offends constitutional guaranties in order to justify the court in declaring it invalid. Eubank v. City of Richmond, 226 U. S. 137, 33 Sup. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192; Hendrick v. Maryland, 235 U. S. 611, 35 Sup. Ct. 140, 59 L. Ed. 385. The entry will be: Judgment for the state. (117 Me. 321) BRIGGS HARDWARE CO. v. AROOSTOOK (Supreme Judicial Court of Maine. July 17, 1. CARRIERS NAL CARRIER Under Act Cong. Feb. 4, 1887, § 1, as amended by Act Cong. June 29, 1906, § 1 (U. S. Comp: St. 1916, § 8563), defining transportation and section 20, as amended by section 7, par. 11 (section 8604a), initial carrier liable for damages accruing on connecting lines where terminal carrier notified party of arrival of shipment, and shipment was not removed within 48 hours, held initial carrier's liability thereafter, for acts of terminal carrier, was that of warehouseman, in view of bill of lading. Aroostook County at Law. Action by the Briggs Hardware Company against the Aroostook Valley Railroad Company. Case submitted upon agreed statement of facts. Judgment for defendant. Argued before SPEAR, BIRD, HANSON, PHILBROOK, DUNN, and MORRILL, JJ. Cyrus F. Small, of Caribou, for plaintiff. Powers & Guild, of Ft. Fairfield, for defendant. BIRD, J. This case is before us upon the following agreed statement of facts: "On January 24, 1916, the plaintiff delivered to the defendant, which is a common carrier engaged in interstate commerce, a carload of potatoes loaded in an Eastman heater car, upon receipt of which the defendant issued a bill of lading, a copy of which is hereto annexed. "The car was transported to its destination by the defendant and connecting carriers, arriving at Atlantic Terminal, Brooklyn, February 2, 1916. "The terminal carrier gave notice of the arrival of the car to E. Waterman & Co., the notify party named in the bill of lading, on February 4, 1916, and the car was placed for delivery on February 5, 1916. The car remained on the track of the terminal carrier until the night of February 14th, when its contents were damaged by fire, originating either from defective heating apparatus or from a stove placed in the car without the knowledge of the terminal carrier. The contents of the car were damaged to the amount of $487.31. "It is agreed that a reasonable time for unloading the car had elapsed after notice of arrival was given and before the occurrence of the fire. "It is agreed that the plaintiff made claim against the defendant for its loss within the four-month period provided for in the bill of lading. "Immediately upon receipt of the bill of lading, the plaintiff drew a draft upon the notify party for the purchase price of the car of potatoes, attached the bill of lading, properly indorsed, thereto, and forwarded the draft through its bank for collection. At the time of the fire the draft and bill of lading were in the possession of the collecting bank of New York City and had not been surrendered to the carrier. liable upon the above facts, judgment is to be rendered for the plaintiff for the amount of damages specified, with interest from the date of the writ. If the defendant is not liable upon these facts, judgment is to be rendered for the defendant. "The parties agree that if the defendant is The bill of lading referred to is of the standard form approved by the Interstate Commerce Commission. Section 5 thereof is as follows: "Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as ware- warehouseman, except the statement agreed houseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner's risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charg; es, including a reasonable charge for storage." [3] This case presents no evidence as to the cause and circumstances of the fire or the precautions taken by the terminal carrier as The action is an action on the case for negligence whereby the car "containing said potatoes caught fire and complete * upon by the parties to the effect that the contents of the car "were damaged by fire originating either from defective heating apparatus or from a stove placed in the car without the knowledge of the terminal carrier." The cause is thus stated disjunctively, or in the alternative, and such statement excludes the operation of both as the cause. Austin v. Oakes, 48 Hun, 492, 498, 1 N. Y. Supp. 307. ly destroyed said potatoes. * The court has, in the absence of other eviBy the act (1906) to amend the act to regu- dence or other statement, no means of deterlate commerce, transportation is defined as mining whether the defective heater or the including, among other things, "all services stove was the cause of the fire, and, as that in connection with the receipt, delivery, ele which would constitute lack of ordinary care vation, and transfer in transit, ventilation, in the one case would not necessarily be lack refrigeration or icing, storage, and handling of ordinary care in the other, it is difficult of property transported." Act Cong. Feb. 4, to see how the court can find negligence or 1887, c. 104, § 1, 24 Stat. 379, as amended by lack of ordinary care on the part of the terAct Cong. June 29, 1906, c. 3591, § 1, 34 Stat.minal carrier as warehouseman. In regard 584 (U. S. Comp. St. 1916, § 8563). By a later to the alleged defective heater, there is no section of the amendatory act (U. S. Comp. evidence as to the nature of the defect, the St. 1916, § 8604a), it is provided: period of its existence, the care actually ex"That any common carrier, railroad, or trans- ercised by defendant, or the time when the portation company so receiving property for fire developed after the last visit of defendtransportation from a point in one state ant's employés to the car. Nor does the agreed to a point in another state shall issue a receipt or bill of lading therefor, statement show when the stove was placed in and shall be liable to the lawful holder there- the car "without the knowledge of the termiof for any loss, damage, or injury to such property caused by it or by any common car-nal carrier," nor whether or not the circumrier, railroad, or transportation company to stances were such as to warrant the inference which such property may be delivered or over that the warehouseman did not exercise ordiwhose line or lines such property may pass, nary care in preventng its introduction into and no contract, receipt, rule, reg the car or in ascertaining its presence there. ulation * * shall exempt such common carrier, railroad or transportation company We conclude that neither the statements from the liability hereby imposed. agreed upon nor the inferences to be drawn therefrom are sufficient to justify the conclusion that plaintiff has sustained the burden of proof imposed upon him. De Grau v. Wilson (D. C.) 17 Fed. 698, 701; Southern RailWay Co. v. Prescott, 240 U. S. 632, 641, 36 * [1] We think, in view of section 5 of the conditions of the bill of lading, there can be no question upon the facts of this case; that defendant is liable to plaintiff for all damages claimed to be caused by the terminal carrier in the "transportation" of the potatoes, if any, and that the liability, if any, from the acts done by the latter must arise from his acts as warehouseman and not as carrier.. Discussion is unnecessary, however, as we regard Southern Railway v. Prescott, 240 U. S. 632, 637, 640, 36 Sup. Ct. 469, 60 L. (Supreme Court of Vermont. Chittenden. May Ed. 836, as decisive of the question. Sup. Ct. 469, 60 L. Ed. 836. [2] The care required of a warehouseman over the property in his charge is ordinary care. He is liable only for negligence. In Southern Railway Co., supra, it is said: WHITE v. THORP et al. (92 Vt. 388) 29, 1918.) APPEAL AND ERROR 82(5) MATTERS APPEALABLE-ORDERS GRANTING EXECUTION"DECREE." An appeal does not lie from an order that execution issue in a chancery case, such order not being a "decree," but entered under P. S. 1302, to enforce a decree previously rendered. "The plaintiff, asserting neglect, had the bur- and Phrases, First and Second Series, Decree.] evidence." Argued before WATSON, C. J., and HAS- | rill of the plaintiffs' claim. In county court ELTON, POWERS, TAYLOR, and MILES, the case was tried on a declaration in asJJ. E. C. Mower and C. H. Darling, both of Burlington, for plaintiff. Sherman R. Moulton, of Burlington, for defendant. PER CURIAM. The motion heard is to dismiss an appeal in chancery. The decree was rendered on May 22, 1917, and filed two days later. Thereby a certain sum of money was ordered, adjudged, and decreed to be paid by defendant Thorp to the plaintiff. No appeal was taken therefrom. On July 30, 1917, the chancellor, on petition of the plaintiff, ordered that execution issue against the chattels and lands of defendant Thorp, and for want thereof against his body, for the amount due the plaintiff under the decree, according to the prayer of said petiThe order was filed August 6, 1917, and on the same day a motion was filed by Thorp, praying "for an appeal from the order and decree * * * granting an execution against him in said cause." tion. The plaintiff moves that the appeal be dismissed, for that the order from which it was taken is not a final decree. The motion must be sustained. The order that execution issue was not a decree. It was made under the statute as a method of enforcing the performance of the decree previously rendered. P. S. 1302. See Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4, 59 Am. Rep. 742; Vilas v. Burton, 27 Vt. 56. Appeal dismissed. (92 Vt. 380) GILBO & SWARTZ v. MERRILL'S ESTATE et al. (Supreme Court of Vermont. Chittenden. May 17, 1918.) SALES 273(5)-GUARANTY-BREACH. Where contract for windmill water supply system specified sizes of the pipes and further guaranteed efficiency and operation of the plant, the guaranty was no more than a guaranty of such efficiency as the work properly carried out according to specifications would afford, and contractor was not responsible for inefficiency resulting because pipes specified were too small. Exceptions from Chittenden County Court; W. W. Miles, Judge. Proceedings in the matter of the estate of Anna S. Merrill, wherein Gilbo & Swartz filed a claim which was opposed by James A. Merrill, as administrator. On plaintiff's exceptions to judgment for defendant. Reversed and remanded. sumpsit in the common counts. The plea was the general issue. The trial was by the court, and on findings made judgment was rendered for the defendant. The plaintiff brings a bill of exceptions. The plaintiffs are successors to Gilbo & To bin, who contracted with Anna S. Merrill and her husband, James A. Merrill, to install on the Merrin farm in Addison, on the shore of Lake Champlain, a water system comprising a windmill, a tank and tankhouse, a pipe leading from the lake to the windmill, a pipe leading from the windmill to the tank, and other pipes. Gilbo & Tobin and Gilbo & Swartz, who have been treated throughout as standing in the shoes of Gilbo & Tobin, will herein be spoken of indifferently as the plaintiffs. Following the language of the bill of exceptions the word "defendant" is herein used to designate the intestate, her husband, a party to the contract, her estate, or her administrator as the sense may require. No confusion can result. The defense on trial was by way of recoupment and the claim of nonacceptance. The contract was not fully performed by the plaintiffs within the time specified in the contract in certain respects as found and designated by the court. Some time after the expiration of the period fixed for the completion of the contract the defendant caused a letter to be written to the plaintiffs pointing out certain failures to perform, and stating that the things left undone must be done by a day named or the defendant would proceed to do them and charge the plaintiffs therefor. No one appearing in answer to the letter, the defendant undertook the completion of the work, and in doing so paid out various sums. Thereafter the defendant commenced to operate the plant, and because of inefficient or improper construction the windmill fell and the defendant was obliged to expend a sum named to repair it. The court finds that the plant, from the commencement of its use until the defendant sold the premises on which it stood, never operated in a satisfactory and efficient manner; that it was at no time an efficient working windmill water plant; and that the main trouble with it lay in the size of the pipe from the windmill to the tank or in the intake pipe. The court finds that the pipe from the windmill to the tank was too small for the intake pipe. There is expressed an inability to find how much it would have cost to correct this defect, which is treated as chargeable to the Argued before WATSON, C. J., and HA- plaintiffs, but there is a finding that in addiSELTON, POWERS, and TAYLOR, JJ. Powell & Powell, of Burlington, for plaintiff. V. A. Bullard and Sherman R. Moulton, both of Burlington, for defendant. tion to making the repairs referred to the defendant was obliged to purchase a gasoline engine costing $51 in order to make this windmill plant constantly available. The contract price for the plant agreed upon was someHASELTON, J. This is an appeal to the thing over $800. The defendant had paid the county court from the disallowance by the plaintiffs $400 on account, and claimed to commissioners on the estate of Anna S. Mer-have been damaged through the default of the plaintiffs under the contract to an amount | 2. PLEADING the answer. 3. PLEADING ENT DEFENSES. 93(1) ANSWER-INCONSIST 78-ANSWER-DEFENSES. more than the balance unpaid under the Under Practice Act (Laws 1915, No. 90) § terms of the contract. On its findings and 2, all the defenses relied upon must be stated in failures to find the court rendered judgment for the defendant as stated at the outset. The finding which the court makes the main cause of damages to the defendant is, as already appears, the finding as to the size of the pipes. The pipes were, however, of the precise size fixed by the contract, and the plaintiffs took an exception on this ground. The force of the claim under this exception the defendant attempts to meet by pointing out, what is true, that the contract contained this clause, "The efficiency and the operation of the plant is guaranteed," and by calling attention to the finding that the plant was not efficient. But the contractors were nevertheless bound to follow the specifications, and the guaranty of efficiency was no more than a guaranty of such efficiency as the work properly carried out in accordance with the specifications would afford. Bush v. Jones, 144 Fed. 942, 75 C. C. A. 582, 6 L. R. A. (N. S.) 774; MacKnight Co. v. Mayor & Co., 160 N. Y. 72, 54 N. E. 661; 6 R. C. L. 866. There are in the case no findings that reach back of the contract and make the plaintiffs responsible to the defendant on account of its terms and specifications. So in regard to this fundamental basis of the judgment very substantial error intervened. Under Laws 1915, No. 90, § 2, the answer cannot contain inconsistent defenses, which cannot both be true. 4. PLEADING 94-SEPARATE PARAGRAPHS. Under Laws 1915, No. 90, § 2, the answer may be divided into separate paragraphs, although this is not essential. 5. PLEADING 362(4)-DEFENSE IN ANSWER -REMEDIES. If the answer sets forth inconsistent defenses, advantage thereof should preferably be taken by motion to strike out. 6. PLEADING 369 (4) — INCONSISTENT DE The court found that the contract was not complied with because the floor of the tankhouse within its walls, the floor upon which the tank rested, was of an unstable character. The plaintiff excepted to this finding and also to the finding already mentioned that the windmill accident was due to improper construction. These two exceptions the plaintiff briefs. But there was some evidence to support each finding, and as to the tank floor, windmill, and some other matters there were no specifications which prevented the full operation of the undertaking for the construction of an efficient plant. FENSES-ELECTION. If the answer sets forth inconsistent defenses, advantage thereof may be taken by moving for election, although motion to strike out is preferable. 7. BROKERS 82(2)—ACTIONS ANSWER In broker's action for commission, answer setting forth the contract alleging that there was no other contract, and that the sale was not made, was proper, being in effect the general issue. 8. PLEADING 204(7) DEMURRER TO PART OF ANSWER-EFFECT. A demurrer to part of the answer cannot be sustained, unless the part demurred to as whole shows no defense. a Exceptions from Bennington County Court; E. L. Waterman, Judge. Action by Gilbert W. Bradley against Amos N. Blandin and the Somerset Land Company. On plaintiff's exceptions to order overruling demurrer to the answers. Affirmed and remanded. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ. Batchelder & Bates, of Bennington, and F. C. Archibald, of Manchester Center, for plaintiff. Harvey & Whitney, of Brattleboro, Robert E. Healy, of Bennington, and Hale Some exceptions to the exclusion of evi- | K. Darling, of Chelsea, for defendants. dence were taken, but the evidence shut out against exception was properly excluded, either because of remoteness or because its admissibility under the plaintiffs' specification was not made to appear. Some questions that might naturally have arisen in the trial of the case are not presented by the bill of exceptions. WATSON, C. J. This is an action of assumpsit on contract. The case (which has been here twice before, and is reported in 89 Vt. 542, 95 Atl. 894, and in 91 Vt. 472, 100 Atl. 920), is here on plaintiff's demurrer to the so-called "second plea" of defendants' answer; more properly speaking, it is the second paragraph of the answer. [1] Though the action was pending at the time of the passage of the Practice Act, the law of that act applies. Laws of 1915, No. 90, § 18. [2] By section 2, pleadings in defense shall consist of: "(b) An answer, which shall contain either a denial of the allegations of the complaint or some of them; or a brief and simple statement of the facts relied upon in defense." By subdivision (c), a demurrer may be filed, which shall distinctly specify the reason why the pleading demur- a denial of the making of the contract allegred to is insufficient. By section 3, no pleading shall fail for want of form, but shall be amended in such respects at any stage of the proceeding, if the fault be pointed out, and the sufficiency of all pleadings in this respect shall be for the discretionary determination of the trial court. Subdivision (d) provides for such further pleadings as may be required, etc.; but this has reference to pleadings subsequent to the answer. ed in the complaint, and in making such denial it was proper for the defendants to state the facts as explanatory of their denials, thus making the denial more fairly to meet the substance of the allegations denied. Thereby the plaintiff was more fully apprised of the real issue raised by the denial. The demurrer was properly overruled. Wilmot v. McPadden, 78 Conn. 276, 61 Atl. 1069; British American Ins. Co. v. Wilson, 77 Conn. 559, 60 Atl. 293. A demurrer to part of the answer (as in this case) cannot be sustained, unless the part demurred to, as a whole, shows no defense. [3-6] It is very apparent that, in contemplation of the act, the answer shall, in the manner stated, contain all the defenses relied upon. This is in accordance with the general rule governing pleadings under re- Whether by the revision of 1917, of the form procedure acts, where, as here, the statutes, the Practice Act was materially alprimary object of the Practice Act is to sim-tered in any of its provisions discussed above, plify and improve practice and procedure in is not considered. (41 R. I. 444) civil actions. The answer, as in equity Judgment affirmed, and cause remanded. pleadings, should be drawn in a way stating all grounds of defense upon which the defendant relies. In doing this the answer may properly be divided into separate paragraphs, thus distinguishing the different grounds; but this is not essential, for all may be stated in one paragraph. Greenthal v. Lincoln, 67 Conn. 372, 35 Atl. 266; Free man's Appeal, 71 Conn. 708, 43 Atl. 185. A limitation of the rule is that the answer cannot contain inconsistent defenses. But de fenses are inconsistent only when they cannot both be true, and the proof of one necessarily proves the falsity of the other. MC Kinstry v. Collins, 74 Vt. 147, 52 Atl. 438; Susznik v. Alger Logging Co., 76 Or. 189, 147 Pac. 922, Ann. Cas. 1917C, 700. If the answer sets forth inconsistent defenses, advantage thereof should be taken by motion to strike out, or perhaps by moving that the defendant be directed to elect upon which of the inconsistent defenses he will rely. Noonan v. Bradley, 9 Wall. 394, 19 L. Ed. 757; Strouse v. Leipf, 101 Ala. 433, 14 South. 667, 23 L. R. A. 622, 46 Am. St. Rep. 122; HartParr Co. v. Keeth, 62 Wash. 464, 114 Pac. 169, Ann. Cas. 1912D, 243. The former should seem to be the better practice, since thereby the plaintiff may be informed of the particular grounds of defense in season to prepare his case for trial accordingly. [7, 8] The paragraph of the answer demurred to sets forth, as one ground of defense, that on or about the day named the Somerset Land Company promised to pay the plaintiff a 21⁄2 per cent. commission if certain lands were sold to Finch-Pruyn & Co., of Glen Falls, N. Y., for the sum of $1,000,000; that neither said lands, nor the timber growing thereon, nor any part thereof, was then or ever sold to said Finch-Pruyn & Co.; that no other or different contract existed between said plaintiff and said defendants, or either of them. It is said that this part of the answer amounts to the general issue. We think it does, because it is equivalent to DORRANCE et al. v. GREENE et al. (No. 418.) (Supreme Court of Rhode Island. July 5, 1918.) 1. WILLS 524(2)—CONSTRUCTION-ESTATES CREATED "HEIRS." holding such relation at time of testator's death, The word "heirs" refers to living persons in the absence of an intention to the contrary clearly evidenced in the will. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Heirs.] 2. WILLS 524(6)-ESTATES CREATED-CON STRUCTION-RESIDUARY LEGATEES. Under will giving wife cash in lieu of dower or other interest, creating trust estate, to pay annuities for life of daughter, and if she died without children to pay a further annuity to the the remainder to the heirs, the heirs at law, as wife and to pay other bequests and to distribute ultimate distributees, were to be determined at the date of the daughter's death. 3. WILLS 634(8)—ESTATES CREATED-CON STRUCTION-RESIDUARY LEGATEES. Will giving wife cash in lieu of dower or other interest, creating trust estate, to pay an nuities for life of daughter, and, if she died without children, to pay a further annuity to the wife and to pay pecuniary bequests, mostly of small amounts, and to distribute the remainder to the heirs, gave the pecuniary legatees only contingent and nontransmissible interests, which failed when they predeceased the daughter. 4. WILLS 858(1)-ESTATES CREATED-CON STRUCTION-RESIDUARY BEQUESTS. Under will giving wife cash in lieu of dower or other interest, creating trust estate, to pay annuities for life of daughter, and, if she died the wife and to pay other pecuniary bequests without children, to pay a further annuity to and to distribute the remainder to the heirs, when the pecuniary legatees died before the death of the daughter, their legacies did not fall into the residue, but devolved as intestate estate of the testator, passing to testator's next of kin at the date of his death. 5. TRUSTS ERTY. 191(2)-POWERS-SELLING PROP Where trustees under will were directed to power to sell enough of the property to equalize distribute property to a number of persons, the the division was implied if distribution could not otherwise be made. |