Blackstock v. New York and Erie R. R. Co.,

by the admission, although no proof was given of its truth, or though the defendants may have given some evidence which tended to prove the contrary. (Brown v. Colie, 1 E. D. Smith, 270.)

But, without resting upon this view of the subject, we think the report of the referee was not against the evidence upon this point, and therefore that the amendment is not proper in any aspect.

It was the strike of the defendants' engineers, the refusal of men in the employment of the company to perform their work, that caused the delay. It is true, that one of the defendants' witnesses says, that on the day agreed upon, the engineers "left the employ of the road." Be it so, and still it was that wrongful act which caused the delay. In truth, that language, in the mouth of the witness, meant no more than the testimony of the other witness, that they refused to work, or stopped work. It was not shown, or attempted to be shown, that the period of the employment of these engineers expired on the day referred to, and that their refusal to work was an actual separation of themselves from all connexion with the company; on the contrary, the correspondence, given in evidence, exhibits the defendants as inviting them to return to duty. Indeed, had it appeared that the company had made no provision for the future, but voluntarily suffered all these contracts to expire, without securing the services of the requisite number of engineers, for the time next ensuing, a further ground for charging the defendants with fault, would at once arise, in their own neglect to hire engineers, for the service, which they, of course, knew would be necessary. But the proofs do not call for this view of their liability.

It is entirely clear, that on the 20th of June, the one hundred and forty engineers were in the employment of the defendants, and were their servants, and that on that day, in utter neglect of their duty, they abandoned their engines, and suffered the work of the company to stand still.

The purpose of the proposed amendment is, no doubt, to enable the defendants to say, that after the engineers left their engines, they had, by their own act, terminated their relation to the defendants as servants, and are therefore to be regarded as strangers and tort feasors, for whose acts, if they operated to

Blackstock v. New York and Erie R. R. Co.

cause delay, the defendants are not liable within the cases referred to.

Doubtless, the act of one who, being a servant, is discharged, or voluntarily abandons the service, committed after the actual termination of his relation to the master, may, if it cause delay, without the fault of the master or his servants, excuse such delay, and even although the act of the servant, in so abandoning the service, was wrongful and in violation of his express engagement. But when the very act of abandonment causes the delay, the case is plainly otherwise: then it is his want of fidelity as a servant, and not the tortious act of one not a servant, which causes the delay complained of.

It is true that there was some evidence that other engineers were prevented from performing service, after the rebellious engineers had quit their work, by fear of their lives, and that some acts of violence were committed. But the scope and tendency of the evidence, as a whole, is to show that it was the sudden and faulty refusal of this large body of the Company's engineers, then their servants, to do their duty, that caused the delay in question; and we think that the finding of the referee, in this particular, is not without evidence, nor against evidence. amendment sought ought not to be allowed.

The

The case is novel and peculiar; Our view of the subject seems to place the defendants in a condition of onerous responsibility; indeed, to place them in a good degree in the power of their own employees, and it may be to drive the defendants, under similar circumstances, to submit to unreasonable requirements made by their servants, involving a revocation of rules and regulations of great importance to themselves, and necessary to the preservation of the lives and safety of their passengers. In this aspect, the question assumes an importance affecting the public as well as the defendants. But the rules governing their liabilities are not, in truth, conceived in any harsh spirit. We perceive no ground, upon which they can be relieved from duties which apply to others, whose business is less extensive, and who, therefore, are less at the mercy of employees. We are bound, we think, to say it is their duty to make and enforce obedience to reasonable and prudent rules for the preservation of life and property; and also, their duty to employ faithful servants, and answer for their fidelity.

Davison v. Seymour.

The points urged by the appellants on the argument, embrace many particulars, but what has been said seems necessarily to cover them all, except, perhaps, one, which is founded upon a conceded error in the report of the referee, in which he states that the plaintiff's goods were received for transportation in May and June, 1854, when Counsel on both sides agree that there is no evidence that any were received prior to the 19th of June. Indeed, the referee upon proof that the goods arrived in New York on the 7th, 8th, and 10th of July, finds a delay and detention of about seventeen days. His report is, therefore, substantially in conformity to the proof; the word "May," is a clear mistake. The period of delay is correctly found, and its cause is correctly stated. This mistake (which is probably only clerical), did not affect the result, and ought not to affect it. The defendants have not been charged with any delay occurring between May and the 19th of June. They are, by the report of the referee, held liable for the damages caused by the detention produced by the misconduct of their engineers, in the interval between the 19th of June and the 10th of July; and only for the delay within that period. The mistake appearing in the report, therefore, does not prejudice the defendants. It is inconsistent with the other part of the finding, and has not, in fact, entered into the question or ground of liability. We think the judgment ought not to be reversed by reason of such a mistake, when the error has not affected the result.

The judgment should, therefore, be affirmed with costs.

JOHN M. DAVISON v. SILAS SEYMOUR and others.

The plaintiff was employed by the firm of H. C. Seymour & Co., of whom the defendants are the survivors, to procure for the firm from the directors of a Railroad Co. authorised to construct a railroad from Cincinnati, Ohio, to Illinois town, Illinois, a contract for building the road, and agreed to pay him for his services, should he succeed in obtaining the contract, the sum of $10,000. The plaintiff concealed his own agency, and the contract was obtained through the influence, with the directors of the company, of third persons employed by the plaintiff, and acting for a

Davison v. Seymour.

pecuniary reward. He claimed in this action to recover the $10,000 with interest, which the firm of H. C. Seymour & Co. had stipulated to pay him.

Held, upon a full examination of adjudged cases, that the contract, upon which the action was founded, if not in its terms, yet from the nature of the means that were used to influence the action of the directors of the Railroad Co., by an agent of the plaintiff, was an agreement, which, as contrary to morality and public policy could not be enforced.

Judgment for plaintiff reversed, and complaint dismissed with costs. (Before HOFFMAN, SLOSSON, & WOODRUFF, J.J.)

Heard January 20, decided April 11, 1857.

THIS is an appeal by the defendants, from a judgment in favor of the plaintiff, for the sum of $13,250.83 upon a verdict of a jury.

The cause was tried before Chief Justice OAKLEY, and a jury, in January 1856. The defendants' counsel moved, when the testimony was closed, to dismiss the complaint, which motion was denied, and the defendants duly excepted.

The facts are stated in the opinion of the Court.

Jas. T. Brady, for the defendants, appellants.

F. B. Cutting, for the plaintiff, respondent.

BY THE COURT. HOFFMAN, J.-The first question to be considered is the important one, whether the plaintiff is entitled to recover against any one, upon his own showing; whether his agreement was not one which public policy forbids to be enforced.

The case to present this question is briefly this. A company had been incorporated by the State of Illinois, to construct a railroad within that State. Acts of the States of Indiana and Ohio had also been procured, under which, together, a road was to be made from Cincinnati in Ohio, to Illinois Town. The plaintiff was employed by Hezekiah C. Seymour, one of the firm of H. C. Seymour & Co., acting on behalf of such firm, to procure for such firm contracts with such Railroad Company, for the constructing of the said roads, and furnishing and equipping the same. That by his labor and services, the contracts were procured for the firm; and that they agreed to pay him $10,000. That the contracts were of great pecuniary emolu

Davison v. Seymour.

ment; that the firm realized large profits, and the sum agreed to be paid him was reasonable.

That the firm was to receive for completing the road from Illinois town, a portion of the route, two millions five hundred thousand dollars, and, for the residue of the route, six millions five hundred thousand dollars.

Since the 24th of July 1853, the firm had sold and transferred all their interest to Henry D. Bacon, or to a firm of Page & Bacon, or Bacon, Page, & Co. Such is an outline of the complaint.

It appears that the contract with H. C. Seymour and associates, was made in November 1851,—That H. C. Seymour died in July 1853. It does not appear that anything was done under the contract in his lifetime; but it is shown, that, after his death, the whole interest in the contract was disposed of, and realized five hundred thousand dollars.

And the case made by the plaintiff is, that he recommended Seymour to one Clements, who knew nothing of him. That Clements recommended Seymour to the Directors, in consequence of the plaintiff's attestation to his qualities. That Clements was employed when the Company was preparing to let the Road, and was to have a good commission, which was adjusted afterwards at $10,000. That Clements engaged, for these considerations, to use his influence, and did use it, to procure the contract for Seymour. That such influence was successful, or at least influential in obtaining the object. As he deposes-"We did not stand upon the street corners to do this, but went to work through third parties, and in every way we could."

In addition, when Clements first undertook this office, Davison did not even name to him the intended contractors. He did not appear before the Directors openly as Seymour's agent. On the contrary, he first informed them that he had friends at the East who could send on good men to take the contract. In the course of the negotiations he named Seymour; but this was to the Directors individually, as I infer. To the Board he was unknown.

Undoubtedly, this was the employment of Clements for a bribe, to use personal influence with the Directors to secure a lucrative contract for one, of whose capacity or responsibility he