fendants said that,- -"After writing you
on the 3d inst., we were induced, by the
continued fine appearance of the sea-
son, to sell your flour by the 'Nicholas
Biddle' at 21s., as per note above; and
this we now regret, as on the 11th or
12th inst., a great change took place in
the weather, and the potato crop was
completely blighted."
id.

The flour, per the "Georgianna," being
of the same quality, was sold at later
periods, and at prices which would have
made the flour, per the "N. Biddle,'
produce, with interest to the day of
trial, $14,530,29 more than the plain-
tiff's realized from it. In an action to
recover this sum as damages, on the
grounds that such a loss had been sus-
tained by reason of the defendants dis-
obeying the orders given to them, and
by reason of their negligent perfor-
mance of their duty, as such factors
and agents, it was held,
id.

22. 1.-In determining the question, whe-
ther the defendants violated their in-
structions, in selling at the time they
did, the letters of the 25th and 27th of
June are the only letters to be consi-
dered, to ascertain the precise instruc-
tions under which the defendants were
then acting, as they had then received
no others which gave any.
id.

23. 2. The letter of the 27th of June is
not fairly susceptible of two interpreta-
tions, and it is the duty of the Court to
construe it, and declare its meaning. id.

24. 3.-As 22s., in bond, could not be
obtained, on arrival of the flour, it was
the duty of the defendants to withhold
the flour from market until the stock in
bond, on the passage of the Corn Law,
had been reduced by consumption, &c.
If it was sold before that, it was sold
before the defendants were authorized
to sell, and they are liable for the con-
sequences of that act.
id.

25. 4.-It was the right and duty of the
defendants, after the stock, then in
bond, had been introduced into the
market, and had been reduced by con-
sumption, &c., to determine, in the ex-
ercise of good faith, and of proper care
and diligence, whether, and when, the
Corn Law had produced its results, and
also to determine, thereupon, when their
duty and the interests of the plaintiffs

28. 7.-Under the letter of the 31st of
July, and received on the 12th of Au-
gust, 1846, the defendants were bound
to exercise good faith, and reasonable
care and diligence-such care and dili-
gence as a consignee, of ordinary care
and prudence, not coerced by any ne-
cessity to sell, and acting on his own
account, would have exercised under
the same circumstances. Whether they
exercised such care and diligence, was
a question of fact, to be determined by
the jury. If they failed to exercise it,
in selling when they did, they are lia-
ble.
id..

29. 8.-To ascertain the damages which
the defendants are liable to pay, if lia-
ble at all, the jury must, upon a consi-
deration of all the evidence bearing
upon the questions, at what time the
market prices began to advance, what
continued to be the tendency of prices,
and what must have been the views of
men of prudence, having such informa
tion as the defendants had, and acting
with reasonable care and diligence, as
to the time when this flour might have
been sold, without justly incurring the
imputation of having acted without
reasonable care and diligence, ascer
tain that day, and then determine what
price could have been obtained for it

at that time, in selling it in the usual
mode, and in the exercise of proper
care and diligence. The defendants
should be charged with that price, and
be credited with advances made and
charges paid, and the further expenses
that would have accrued, and interest
on them, to the time when the price of
the flour would have been realized by
them. The balance, with interest to
the time of the verdict, is the sum the
plaintiffs are entitled to recover. id.

30. 9.-The jury having found, under a
question specially submitted, that the
defendants, in selling at the time they
did, failed to exercise that care and
diligence which prudent consignees,
having the information which the de-
fendants then had, and acting on their
own account, would have exercised, it
was also held, that the variance be-
tween the fact found, and a declara-
tion which, in addition to alleging a
disobedience of orders, also averred
that the defendants acted "carelessly,
and negligently, and inattentively, sold
prematurely, and for less than they
could have obtained, if they had faith-
fully performed their duties," was im-
material, inasmuch as the act of April
11, 1849, (Laws of 1849, p. 705, § 2,
Sub. 1) applied sections 169 to 176 of
the Code, inclusive, to future proceed-
ings in civil actions which were pend-
ing when the Code took effect.

id.

that, the walnuts in question, when
they arrived and were tendered to the
defendants, were not merchantable as
French walnuts, and were then worth
only two and one half cents per pound,
and that the article known in the trade
as French walnuts, in the condition in
which they generally arrive in the New
York market, was worth at the time
of said arrival and tender, six and a
half cents per pound, it was also held
that, the defendants were under no ob-
ligation, by reason of their said con-
tract, to receive and pay for the wal-
nuts so tendered to them by the plain-
tiffs.
id.

B

OF EXCHANGE AND PRO-
MISSORY NOTES.

1. A promissory note was by its terms
made payable to the makers' own or-
der, but they omitted to endorse it. It
was delivered by the makers, as a pre-
mium note upon an open policy, to a
Marine Insurance Company. That Com-
pany was authorized "to negotiate pre-
mium notes for the purpose of paying
claims or otherwise, in the regular
transaction of its business." They de-
livered the note in suit, with others, to
the plaintiffs, and had them discounted,
and received the proceeds. A small
amount of risks compared with the
amount of the note had been taken
and premiums earned. The note was
to cover premiums to be earned. There
was no evidence as to the application
of the proceeds of the note, by the In-

6. G., on the application of N., agreed to
discount a note made by S. & McF., for
$1283 27, on being furnished with col-
laterals, being told at the time by N.
that he wished to procure the discount
for a friend who was not named, the
friend being S. & McF.; and the latter
thereupon delivered to N., as such col-
lateral, a note which they owned, for
$2,000, made by R. and M.; and N.
delivered it to G., as such collateral,
telling him that as the $2,000 note
first matured, "to collect it and credit
it in our account," by our account
meaning the account of a firm of which
N. was a member; and thereupon G.
procured the note of $1283 27 to be
discounted at bank, on the security of
the note for $2,000 left with such bank
as collateral, and the $2,000 note was
paid at maturity. Geffcken v. Slinger-
land.

449

7. G. has no right, as against S. & McF.,
to use such moneys to take up another
note made by N.'s firm, then running
to maturity, and which he had endorsed
and procured to be discounted for such
firm. Such a use and application of
the proceeds of the $2,000 note would
be a fraud on S. & McF. G. knowing,

9.

1.

when he discounted the note for $1283
27, that N. was acting for a friend,
knew that he was the agent of such
friend, and that the $2,000 note was
the property of the latter, and was fur-
nished by him as security for the pay-
ment of the note to be discounted, or,
at all events, he knew enough to put
him on inquiry.
id.

The relative rights of G. and of S. &
McF. are not affected by the fact that
the latter paid at bank the $2000 note,
pursuant to an arrangement between
themselves and the makers of such
note, by which the makers were to
have a renewal for $1500 of its amount
on payment of $500 in cash (the ba-
lance of it) to S. & McF., which balance
such makers so paid to S. & McF., and
gave them a renewal note for $1500.
Nor are such relative rights varied by
the further fact, that S. & McF., before
they paid the $2,000 note, were in-
formed by N. "what had passed be-
tween him and G. in relation to it," it
not appearing that S. & McF. ever
sanctioned or intended to sanction the
application of the $2000 note to any
other purpose than to pay or secure
the note for $1283 27.
id.

Held, further, that the payment of the
$2000 note, and the receipt and use of
its proceeds by G., operated, as be-
tween him and S. & McF., as a pay-
ment of the note of $1283 27, and
made him their debtor for the differ-
ence; and, therefore, G. could not re-
cover of S. & McF. the amount of the
note for $1283 27 (that being the note
on which this suit is brought), but that
the latter were entitled to a judgment
against him for the difference between
the amount of such two notes, with in-
terest, the right to such excess being
set up as a counter-claim, on a proper
allegation of the facts in that behalf. id.

Vide EVIDENCE, 4, 5, 6, 16, 17, 18,
19, and FRAUDS, STATUTE OF, 1, 2.

BILLS OF LADING.

A bond fide assignment of a clean bill
of lading to a purchaser for value is
equivalent to an unconditional delivery
of the goods themselves, so far as to
supersede and render unimportant any
conditional contract between the origi-

nal owner, or the party making such
consignment, and the consignee. Ward-
well v. Patrick.
406

Vide SHERIFF, 6.

C

CHECKS.

Vide EVIDENCE, 6.

CODE, CONSTRUCTION OF.

(§ 306, p. 329); (§ 397, p. 601); (§§ 113
and 162, p. 43); (§ 99, p. 406); (§ 169,
p. 417); (§§ 390, 391, 392, p. 611);
(§ 308, p. 618); (§ 121, p. 636); (S$
382, 383, p. 659)-(Chap. 2, of TITLE
9, ante, p. 690).

COMMON CARRIERS.

1. A common carrier, in respect to the
time of the delivery of goods received
by him for transportation, when there
is no express agreement, is bound only
to use due diligence, and may excuse
delay by showing that it was caused
by some accident or misfortune occur-
ring, without any fault on his part.
Blackstock v. N. Y. & E. R. R. Co. 77

2. But this immunity does not extend to
cases in which, although the carrier
himself is free from fault, the delay has
been caused by the negligence or mis-
conduct of the agents or servants whom
he employs.
id.

3. The liability of a master, for a neglect
of duty by his servant, exists indepen-
dently of the question, whether any
fault is imputable to himself; for the
master, in assuming to perform a duty
to third persons, assumes also the ha-
zard of the competency and fidelity of
the agents he employs.

This rule, which undoubtedly applies
where the master is a natural person,
applies even with greater force when
the employer is a corporation. id.

4. The operations of corporations are ne-
cessarily conducted by the instrumen-
tality of agents, and to excuse them

5. In the case before the Court, the de-
lay in the transportation upon the de-
fendants' road, of the plaintiff's goods,
by which they were rendered nearly
worthless, was caused solely by the
misconduct of nearly all the engineers,
and other persons, in the employ of the
Company-whose services, in conduct-
ing the road, were indispensable, and
who, without any justifiable cause,
broke their contract with the Com-
pany, and by a combined action, upon
one and the same day, abandoned their
employment.

id.

6. Held, that although no want of pru-
dence or foresight in not anticipating
this event, and guarding against its
consequences, could be attributed to
the defendants, and although it was
not in their power to procure, immedi-
ately, the services of competent per-
sons, to replace those by whom they
were deserted, the law furnished no
reasons for exempting them from a lia-
bility to make good to the plaintiff the
loss which he had sustained from the
misconduct of those whom they had
employed. A sudden combination and
strike of engineers is an event that
may occur upon every railroad, and
the hazard of its occurrence must, in
all cases, rest upon the employers, who
alone have it in their power to secure,
by proper contracts, an indemnity
against its consequences.

id.

7. A Court of Justice has no power to
relieve Railroad Companies from the
hazard to which, the nature of their
business, and the vast extent, to which
it involves the employment of agents,
necessarily subjects them. If a single
engineer, having charge of a train, by
his sudden refusal to perform his duty,
should produce an injurious delay, the
liability of the Company employing
him, would hardly be doubted, and
certainly the rule of liability cannot be
varied by the number of the agents or
servants who at one time are guilty of
the same misconduct.

id.