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seem tu be a catalogue. If it is not as com- 4. PRINCIPAL AND AGENT (8 22*)-EVIDENCB prehensive and exhaustive as it might be,
OF AGENCY-DECLARATIONS OF AGENT.
The declarations of an agent may be reit is at least complete in itself. If a library
ceived provisionally, as verbal acts indicating catalogue is not completed until the books that he was acting on another's behalf, leaving have been listed upon all useful theories of it to subsequent proof to establish his connecarrangement and classification known to
tion as agent. bibliographers, it would be rash to assume
[Ed. Note. For other cases, see Principal and
Agent, Cent. Dig. § 40; Dec. Dig. 22.*] that the Legislature, which is not made up of men having the technical learning of li
5. EVIDENCE (8 121*)-RES GESTÆ.
In an action for injuries by coming in conbrarians, meant when they used the word tact with electrically charged wires strung "catalogue" a work of several volumes which across a street while plaintiff was engaged in should unite several distinct theories of ar
moving a house through the street, evidence of
the declarations of a third person, who came rangement, so that each book would be index
and took charge of the wires, in response to a ed in as many different volumes as there were request made on the superintendent of the railtheories. Such an understanding evidently way company maintaining some of the wires, was not entertained by the Legislature of
made as part of the res gestæ, are admissible as
bearing on plaintiff's exercise of due care in at1893. The legislative purpose was to author- tempting to raise the wires from the roof of ize the compilation of a catalogue of the
the house at the time of the accident. books in the state library, upon some rea
[Ed. Note.-For other cases, see Evidence, sonably convenient plan to be determined by
Cent. Dig. $ 308; Dec. Dig. $ 121.*] the trustees, and not to empower the trus
6. ELECTRICITY (8 19*)-INJURIES INCIDENT TO
PRODUCTION - ACTIONS EVIDENCE MAtees to publish several extended lists of
TERIALITY. 'books, which together might be deemed by Where, in an action for injuries by coming some people to constitute one complete cat
in contact with electrically charged wires strung alogue. When the Author List was publish
across a street without a license therefor, as re
quired by Pub. St. 1901, c. 81, it appeared that ed, no statutory authority remained for the no attempt was made, at the time of the injury, compilation of another catalogue, however to disconnect the wires or to remove their supuseful and desirable it might be. Thereupon
ports, the failure to show that written notice
was served on defendant, as required by section it was provided that the accessions to the
14 of the chapter, did not defeat a recovery. library should furnish material for supple- [Ed. Note.-For other cases, see Electricity, ments to the catalogue, which have since Cent, Dig. $ 11; Dec. Dig. § 19.*] been published. In this way the Author 7. MASTER AND SERVANT (8 301*)-EXISTENCE List has been treated by the trustees as the OF RELATION-EVIDENCE. statutory catalogue, in consonance, as it
On the issue whether the superintendent of
an electric railway company had authority to seems to us, with the legislative purpose. direct an employé of the railway company and The statute furnishes no authority for the of a power company to take charge of their high printing of the manuscript of the Subject
tension wires strung across a street, evidence List.
held not to show such authority, so that the
power company was not liable for injuries susPetition denied. All concurred.
tained in consequence of the act of such em. ployé.
(Ed. Note.-For other cases, see Master and
Servant, Cent. Dig. 88 1210_1216; Dec. Dig. $ (75 N, H. 84)
301.*] CLOUGII V. ROCKINGHAM COUNTY
Transferred from Superior Court, RockingLIGHT & POWER CO. et al.
ham County. (Supreme Court of New Hampshire. Rocking- Case for personal injuries by George L. ham. Nov. 4, 1908.)
Clough against the Rockingham County Light 1. ELECTRICITY ($ 19*)-INJURIES INCIDENT TO & Power Company and another. There was
PRODUCTION-NEGLIGENCE – QUESTION FOR a verdict for plaintiff, and the case was JURY.
transferred from the superior court. Verdict In an action for injuries by contact with
set aside. electrically charged wires strung across a street without a license therefor, as required by Pub.
The plaintiff's evidence tended to prove the St. 1901, c. 81, evidence held to require the submission to the jury of the issue of negligence.
following facts: The plaintiff is a carpenter, (Ed. Note.-For_other cases, see Electricity,
and was employed to assist in moving a small Cent. Dig. $ 11; Dec. Dig. $ 19.*]
house through the streets of Portsmouth by 2. PRINCIPAL AND AGENT (21*)–EVIDENCE
one Ham, who had a permit for the work OF AGENCY_TESTIMONY OF AGENT.
from the city authorities. The building was An agent may testify to the fact of his drawn on wheels. To move it to its destinaagency.
tion it was necessary to pass a certain point [Ed. Note.-For other cases, see Principal and where the defendants had strung two teleAgent, Cent. Dig. 8 39; Dec. Dig. $ 21.*]
phone wires across a street, and about 20 3. PRINCIPAL AND AGENT ($ 22*)-EVIDENCE feet above its surface, and on the same set OF AGENCY-DECLARATIONS OF AGENT. Declarations of an alleged agent are not
of poles, about 2 feet above the telephone admissible to establish the agency.
wires, two electric light wires, each carry[Ed. Note. For other cases, see Principal and
ing 6,000 volts of electricity, and on the same Agent, Cent. Dig. 40; Dec. Dig. § 22.*] poles, about 4 feet above the light wires, cer: tain power wires, each carrying 13,000 volts den, who sent him, had authority to send of electricity. All the wires carried sufficient Burbank for the power company; for if he electricity to kill or severely injure a person had not, then none of his acts bind the power coming in contact with them. The defend- company. Hayden was not an officer of the ants had no license or location to place power company, and it was not claimed by poles in and string wires across the street the plaintiff that he has shown Hayden or at this point, as required by chapter 81, Pub. the railway company was expressly authorSt. 1901. As the building rested on the ized by the defendant, in writing or orally,. wheels, its top was a little higher than the to act for it in regard to its lines. But telephone and electric light wires. The plain- it is claimed by the plaintiff that the authortiff was on top of the building, and when the ization of the railway company to act for wires caught on the roof, he attempted to the power company is shown by repeated pry them up with a hammer, so that the acts, where the railway company by its ofbuilding would pass under them, and in so ficers have directed. linemen to attend to the doing was severely injured by a shock of power company's line, and that this has been electricity. One of the men engaged in mov- done under such circumstances that the ing the building telephoned to Hayden, super- knowledge and acquiescence of the power intendent of the railway company, asking company is shown. An agency may arise by him to send a lineman to take charge of and implication from repeated acts done, with look after the wires while the building was the acquiescence of the principal. If you being moved under them. Hayden sent Bur. are satisfied that the railway company was bank, who worked for both companies, being habitually delegating linemen or other emforeman of the electric railway company's | ployés of the railway company to work upon car barn at Stratham, and rotary tender for and attend to the defendant's lines under the defendants at the car barn, and he took such circumstances that the defendant must cbarge of and gave directions as to moving have known and acquiesced therein, then the building under the wires at the time of you may infer that the railway company the accident. The evidence also tended to was authorized to do these acts." There prove that the wires were uninsulated and were other exceptions taken by the defendthat such a condition is dangerous, that the ant at the trial which fully appear in the defendants were negligent in the location, opinion. construction, and management of the wires at the time and place of the accident, and
Page & Bartlett and Ernest L. Guptill, for that the plaintiff, in consequence of the de
plaintiff. Kivel & Hughes, for defendants. fendants' negligence, was himself in the exercise of due care at the time. There was
BINGHAM, J. The motion for a nonsuit no evidence that Hayden or the railway com
was properly denied. There was sufficient pany were expressly authorized to send Bur- evidence from which it could be found that bank to take charge of the defendants' high
the defendants were negligent, and that the tension lines, and the question whether there
plaintiff was in the exercise of due care. was evidence that he had implied authority
The evidence that the wires were strung is discussed in the opinion. At the close
across the highway without license, as reof the plaintiff's evidence the defendants quired by chapter 81, Pub. St. 1901, was moved for a nonsuit. The motion was de- properly left to the jury, together with the nied, and they excepted. They also except
other evidence in the case tending to show ed to the following portion of the charge that the defendants were negligent. The into the jury: "One of the disputed points structions of the court in regard to this matin this case is whether Burbank was pres- ter were correct. Lane v. Concord, 70 N. H. ent representing the defendant at the time 485, 49 Atl. 687, 85 Am. St. Rep. 643; Bresof the accident. The plaintiff claims he nehan v. Gove, 71 N. H. 236, 51 Atl. 916; was, and the defendant that he was not. Nadeau v. Sawyer, 73 N. H. 70, 59 Atl. 369. You will determine whether he was sent there An alleged agent may testify to the fact of as a representative of the electric railway
Union Hosiery Co. v. Hodgson, company or of the defendant, and, if he was 72 N. H. 427, 432, 57 Atl. 384; Kent v. Tysent representing the defendant, whether the son, 20 N. H. 121, 126; 2 Wig. Ev. $ 1078, person who sent him was authorized to do so. note 4. But a third person cannot testify to The defendant claims that Burbank was there declarations made by him for the purpose of as a representative of the railway company, establishing his agency. Nebonno V. Railexpecting and understanding that the build- road, 67 N. H. 531, 38 Atl. 17; 2 Wig. Ev. ing was to be moved under the railway wires. § 1078. His declarations, however, may be The plaintiff claims Burbank was sent as "received provisionally as verbal acts indian employé of the power company; that is, cating that he was acting on another's beof the defendant. You will determine how half, not his own, leaving it to subsequent that was. If he was sent there only as an proof to establish his connection as agent." employé of the railway company, then none 2 Wig. Ev. § 1078. Therefore the declaraof his acts bind the defendant. If he was tions of Burbank to the extent that they sent there as an employé of the power com- were used to establish his agency were in
the power company or of the railway company, except linemen under the supervision of Day, to take charge of the high tension wires of the power company. The facts that it was the duty of linemen employed under Day to take charge of the power lines of both companies; that they were required to report to him what work was necessary to be done on both lines, and in case of an emergency to make repairs themselves without reporting-bave no tendency to prove that Hayden was authorized by the power company to direct men in the employ of the railwaỹ company or of the power company, other than linemen, to take charge of or work upon the high tension lines of the power company. If it might be found that officers of the railway company, besides Day, were authorized to direct linemen to make repairs upon and take charge of the high tension lines of the power company, it could not be found that they had authority to direct men who were not linemen under Day to do such work, and for this reason there must be a new trial.
Verdict set aside. All concurred.
as bearing upon the plaintiff's exercise of due care in attempting to raise the wires from the roof of the building, they were clearly admissible. The plaintiff had the right to understand, from the fact that Burbank came and took charge of the wires in response to a request made upon Hayden, that he could properly rely upon such information as Burbank gave him, and that it would be safe to attempt to raise the wires as he did.
The exception taken to the plaintiff's failare to show that written notice was served on the defendants, as required by section 14, c. 81, Pub. St. 1901, is without merit. No attempt was made to disconnect the defendants' wires or to remove their supports; and, if there had been, it is not clear that the defendants would bave been entitled to the statutory notice. It would seem, rather, that the notice contemplated by the statute was intended to apply only to cases where the wires or poles that are to be disconnected or removed are lawfully in the highway.
The plaintiff concedes that Hayden was not expressly authorized by the power company to direct Burbank to take charge of their bigb tension wires at the place where the plaintiff was injured; and the defendants' motion for a nonsuit and exception to the charge presents the inquiry whether there was any evidence from which implied authority could be found. It appears that Day was the chief electrician of the railway company; that he not only had charge of the high tension wires of that company, but also of the power company, and had under him some 14 linemen who were located in different places through the territory traversed by the lines of the two companies. Each crew of men had a foreman. The Hampton crew, whose duty it was to take charge of the lines where the plaintiff was injured, consisted of 3 men and a foreman. The linemen constructed all the new work of the railway company, and moved and repaired all of their lines of wire when necessary. They also had charge of the high tension lines of the power company. Each company bore their part of the expense tbus incurred. On the day of the accident, when Hayden was requested to send a lineman to take charge of the wires in the vicinity where the house was being moved, all the linemen in the Hampton crew were away at work, and Burbank, the foreman of the Stratham car barn, wbo also tended a rotary machine for the defendants at that place, was sent. As foreman of the car barn for the railway company, and tender of the rotary machine for the power company, he had nothing to do with the high tension lines of either company. There was no evidence that Hayden, or any officer of the railway company, had at any time, other than the one in question, called upon any of the men in the employ of
(75 N. H. 125) OAHER V. GRAND TRUNK RY. CO. (Supreme Court of New Hampshire. Coos.
Nov. 4, 1908.) 1. CARRIERS (8 363*)–CARRIAGE OF PASSEN
GERS—EJECTION OF PERSON AT PLACE OTHER THAN STATION-ACTION-NATURE.
A carrier which ejected a person from a train for nonpayment of fare at a place other than a passenger station, in violation of Pub. St. 1901, c. 160, 8 6, is not necessarily liable for the resulting damage, but it must appear that it occurred through its failure to perform the duty imposed by statute; and, to recover, the ejected person must prove the insufficiency of the station at the place of expulsion, his own care, and that the injury resulted from defendant's fault.
[Ed. Note.- For other cases, see Carrier, Cent. Dig. § 1445; Dec. Dig. $ 363.*] 2. CARRIERS (8 382*)—CARRIAGE OF PASSEN
GERS-EJECTION AT PLACE OTHER THAN STATION-ACTIONS.
Where a person was ejected from a train five miles from his home, where there was no passenger station, and was in such good health and so well clothed that he could properly go home afoot, and there was no train that he could wait for, and it appeared that he would have walked home even if there had been a station, an illness contracted by him from the walk had no connection with his ejection, and he could not recover therefor.
(Ed. Note.-For other cases, see Carriers, Cent. Dig. $ 1483; Dec. Dig. § 382.*]
Bingham, J., dissenting.
Transferred from Superior Court, Coos County.
Action by George Caher against the Grand Trunk Railway Company for ejecting plaintiff from a passenger train for nonpayment of fare at a place other than a passenger station. Verdict for plaintiff and case transferred from the superior court on defendant's exceptions. Exceptions sustained. Verdict and judgment for defendant.
*For other cases see samo topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes
The plaintiff was ejected from the train for nonpayment of fare at a point about half a mile from the Groveton station and five miles from his home in Stark. The train did not stop at Stark, and there was no other train to that place for almost two days. The plaintiff had but little money, was in good health and well clothed, and walked home to Stark. He stopped to rest several times on the way, and in so doing contracted the illness for which damages were claimed.
Sullivan & Daley and B. H. Hinman, for plaintiff. Rich & Marble and Drew, Jordan, Shurtleff & Morris, for defendant.
PEASLEE, J. The expulsion of Caher for nunpayment of his fare at a place other than a passenger station was illegal (Pub. St. 1901, c. 160, $ 6; Baldwin v. Railroad, 64 N. H. 596, 15 Atl. 411); but it does not follow as a matter of course that the defendant is liable for the damage which was thereafter suffered. Caher could not complain that he was not permitted to stay on the train. He had no such right. His right was to be provided with passenger station accommodations when ejected; and this is the only right which the defendant invaded. The failure to provide, him passenger station accommodations is the only wrong with which the defendant can be charged upon the facts of the case.
The statute was enacted for the protection of passengers (Laws 1874, p. 344, c. 98), but not for the purpose of enabling those evading the payment of fare to compel the railroad to carry them from one regular station to the next one. Caher's rights certainly did not exceed those of a person going to a station to take passage by virtue of an existing contract for carriage. Yet, when such person sues for failure to perform the statutory duty to provide a reasonable station, he must show that he was “injured through their failure to perform the duty imposed by statute.” In such a case the plaintiff must prove (1) the insufficiency of the station; (2) his own care; and (3) that the injury was the result of the defendant's fault. Boothby V. Railway, 66 N. H. 342, 344, 34 Atl. 157. In the present case there was evidence of a failure to provide station facilities and of Caher's care, but none that the injury complained of resulted from the defendant's fault. The failure to provide station facilities did not in any way affect the course of subsequent events. What use would or could Caher have made of a passenger station? He wished to go home, and there was no train he could wait for. He was in such good health and so well clothed that, as he now not only admits but urges, it was entirely proper that he should set out on the
journey afoot. There was no occasion for a station agent to take Caber in charge, or to relieve his physical or mental disabilities. Upon the evidence in the case, it conclusively appears that what did follow would have followed if the lacking station accommodations had been supplied. The plaintiff fails because he does not show any connection between the wrongful act of the defendant and the injury sustained. Reynolds v. Fiber Co., 73 N. H. 126, 128, 59 Atl. 615.
The question of proximate or remote cause is not involved. The fault complained of was not a cause in any degree, nor in the remotest sense, of Caher's subsequent acts. It was neither the cause nor the occasion for his walking to Stark. It was a wrong independent of what followed, and cannot be held 'to have any causal connection therewith. Edgerly v. Railroad, 67 N. H. 312, 36 Atl. 558; Brember v. Jones, 67 N. H. 374, 30 Atl. 411, 26 L. R. A. 408; McGill v. Company, 70 N. H. 125, 46 Atl. 684, 85 Am. St. Rep. 618; Stearns v. Railroad, 75 N. H. , 71 Atl. 21. As the illegality of the act did not contribute to the injury, it is not to be treated as a cause thereof. Nutt v. Manchester, 58 N. H. 226; Wentworth v. Jefferson, 60 N. H. 158; Bresnehan v. Gove, 71 N. H. 236, 51 Atl. 916.
The fact that the conductor is liable to the fine imposed in behalf of the state for this violation of the statute (Pub. St. 1901, C. 160, $ 9) does not show that the defendant is liable to the plaintiff for damage which followed, but was not caused by, such violation. “It must be shown that such act is a fault which has directly contributed to the loss or damage of which the party complains. It is not a question, as it has been made in some cases, whether the party is a trespasser, or has done some wrongful act, but whether he is guilty of a fault or of negligence in reference to the matter in question which has directly contributed to the injury." Norris v. Litchfield, 35 N. H. 271, 278, 69 Am. Dec. 546.
Exceptions sustained. Verdict and judge ment for the defendant.
BINGHAM, J., dissented. The others concurred.
(76 N. H. 113) MCGREGOR et al. V. PUTNEY. (Supreme Court of New Hampshire. Hillsbor
ough. Nov. 4, 1908.) 1. VENDOR AND PURCHASER (8 54*)-EXECUTOBY CONTRACTS-EFFECT ON TITLE.
A contract for the sale and purchase of real estate, which binds the vendor to convey op payment of the price, gives to the purchaser an equitable interest in the land, and the vendor holds the legal title charged with the equi. table interest.
TEd. Note.-For other cases. see Vendor and Purchaser, Cent. Dig. & 85; Dec. Dig. § 54.*]
2. VENDOR AND PURCHASER (§ 233*)—BONA Assumpsit by George W. Carroll, in his FIDE PURCHASER-UNRECORDED CONVEYAN
own right and as assignee of the claim of CES. In the absence of a statute making an un
John C. McGregor, against Alfred H. Putney, recorded conveyance void after a certain time to recover for the cutting of timber on cerhas elapsed, the rights of holders of unrecorded tain land. There was a judgment of nonconveyances are determined by priority in taking the conveyances.
suit, and plaintiffs except. Overruled. (Ed. Note.-For other cases, see Vendor and The plaintiff's evidence tended to prove the Purchaser, Cent. Dig. & 563; Dec. Dig. § 233.*]
following facts: In 1902 McGregor was the 3._VENDOR AND PURCHASER (8 239*)—BONA
owner of the farm, and gave one Fletcher a FIDE PURCHASER-UNRECORDED CONVEYAN
bond to convey the same upon the payment CES.
A purchaser of real estate, under a con- of $2.800, the sum of $500 being at once paid tract binding the vendor to convey on payment on the purchase price. In 1903 Fletcher, for of the price, sold, in violation of the contract,
a consideration of $100, and in violation of the timber on the land to a third person, and subsequently assigned his interest in the prem
the terms of the bond, sold standing timber ises. It did not appear that the assignee re- on the farm to the defendant, and the defendcorded his assignment, or gave the third person ant cut timber both before and after Septemnotice of it. Held that the assignee, though ignorant of the unrecorded sale of the timber,
ber, 1905. In March, 1905, the bond was re. could only recover for timber cut by the third corded, and the next September Fletcher sold person after actual or constructive notice of the his interest to Carroll, who bought in igassignment.
norance of the defendant's unrecorded con(Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. $ 590; Dec. Dig. $ 239.*]
tract. In 1906 Carroll paid the balance due
to McGregor, took a deed of the premises 4. VENDOR AND PURCHASER (8 233*)-BONA FIDE PURCHASER-UNRECORDED CONVEYAN
and an oral assignment of McGregor's cause CES.
of action against the defendant, and then Where there are two un recorded conveyan. brought this suit. ces, and the holder of the first continues to act in ignorance of the holder of the second, and Wason & Moran, for plaintiffs. Thomas their equities are equal, priority in time pre- F. Clifford and Bertis A. Pease, for defendvails.
ant. (Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. $ 563; Dec. Dig. & 233.*] 5. VENDOR AND PURCHASER (8 218*)-BONA
PEASLEE, J. The contract to convey the FIDE PURCHASER-UNRECORDED CONVEYAN- farm upon the payment of the agreed price CES.
gave Fletcher an equitable interest in the A third person, purchasing the timber on land from one having a contract for the pur
land, and McGregor thereafter held the legal chase of the land and entitled to a conveyance
title charged with the equitable interest. thereof on payment of the price, is not liable as Their relations were in many respects, like on a debt due to the owner, but his liability
those of mortgagor and mortgagee. Bowen a rises from his taking in good faith that which is security for the owner's claim, and, as be
V. Lansing, 129 Mich. 117, 88 N. W, 384, 57 tween the third person and the purchaser in the L. R. A. 643, 95 Am. St. Rep. 427, and aucontract, the former succeeds to the purchas- thorities collected in note. When Carroll er's right to redeem from the owner, which right is not defeated by the purchaser conveying
purchased Fletcher's interest, he took the his interest to another; and hence, as to acts recorded equitable claim to the estate as it done by the third person before notice of the then existed. Although he was ignorant of conveyance of the purchaser's interest. a suit
the outstanding unrecorded claim of the dein the right of the owner is defeated by the third person's payment of the amount due on
fendant to standing trees, he could only rethe contract.
cover for the wood or timber the defendant [Ed. Note.-For other cases, see Vendor and cut after actual or constructive notice of Purchaser, Cent. Dig. $ 456; Dec. Dig. § 218.*]
Carroll's title. In the absence of a statute 6. VENDOR AND PURCHASER ($_218*)—Bona | making an unrecorded conveyance void after FIDE PURCHASER-UNRECORDED CONVEYAN
a certain time has elapsed, when the quesCES. A purchaser of real estate, under a con
tion arises between two holders of unrecordtract binding the vendor to convey on payment ed conveyances, their rights are determined of the price, sold the timber on the land to a
by priority in taking their conveyances. third person, and subsequently assigned his interest in the premises. The assignee paid the
Crouse v. Mitchell, 130 Mich. 347, 90 N. W. price, and obtained the conveyance. The as- 32, 97 Am. St. Rep. 479. If the documents signee was ignorant of the outstanding unre
given by Fletcher to Putney and Carroll were corded claim of the third person. The evidence did not show that the amount due to the vendor
entitled to record, Putney's must prevail beon the contract of sale was more than the value cause of its priority in time. If they were of the land after the removal by the third per- not entitled to record, the result is of course son of the timber. Held, that the payment of
the same. The first purchaser takes title. the price by the assignee of the contract could not be treated in equity as an assignment of the
There is no evidence that Carroll recorded claim of the owner against the third person. his assignment from Fletcher, or gave Put
(Ed. Note.- For other cases, see Vendor and ney notice of it. Whether notice by record, Purchaser, Cent. Dig. $ 456; Dec. Dig. & 218.* |
or otherwise, would have been of any avail Exceptions from Superior Court, Hillsbor- is not material to a decision of the present ough County; Chamberlin, Judge.
case. The notices given by McGregor do not