er and grocery business and on that day sold the articles mentioned in the writ, together with a stock of merchandise in the store in bulk to Carol Kopec for $550, of which $100 was paid in cash, and the balance was to be paid on June 9, 1905. Kopec took possession on the same day and proceeded to carry on the business. During the time he was in possession he sold nearly all the stock of merchandise and purchased other merchandise for use in the business. On June 9th Gallus demanded payment of the amount due, which was not paid. Whereupon Kopec stated that he was willing that Gallus should take all of the property in payment of the debt due. This was agreeable and the parties went to an attorney who prepared an instrument reciting that Kopec in consideration of $400 paid by Gallus sold, transferred, and delivered all of the property back to Gallus to hold to him, his heirs and assigns, forever. No inventory was made as required by Acts 1903, c. 415, and no list of creditors was demanded or furnished, nor were the creditors of Kopec ever notified, and on June 12th defendant Elmer took possession of the articles mentioned under a writ on an attachment in favor of the H. L. Handy Company, a creditor of Kopec, whereupon Gallus instituted replevin.

Edwd. A. McClintock and John P. Kirby, for plaintiff. Jas. H. Loomis, for defendant.

HAMMOND, J. St. 1903, p. 276, c. 415, provides that "the sale in bulk of any part of the whole of a stock of merchandise otherwise than in the ordinary course of trade or in the regular and usual prosecution of the seller's business shall be fraudulent and void as against the creditors of the seller" unless certain things are done by the seller and purchaser, and the question is whether the transaction which took place between the plaintiff and Kopec on June 9, 1905, was within the statute. The requisites of the statute were not complied with by either the seller or the purchaser, and the transaction was clearly otherwise than in the ordinary course of the seller's business.

The plaintiff however stoutly insists that the transaction in substance was not a sale, but the discharge by way of accord and satisfaction of a pre-existing debt due to him from Kopec. There can be no doubt that there was a discharge of the pre-existing debt by way of accord and satisfaction; and if, after the transaction, the plaintiff had sued Kopec, the accord and satisfaction would have been a complete defense.

But the transaction had another phase so far at least as respected Kopec's other creditors. There was a change in the ownership of the property, which, if valid as against them, freed from liability property which theretofore could have been attached by them; and thus their security was impaired. While it is true that in its strict

est sense a sale is a transfer of personal property in consideration of money paid or to be paid, still in the interpretation of statutes it is often held to include barter and any transfer of personal property for a valuable consideration. "In a general and popular sense, the sale of an article signifies the transfer of property from one person to another, for a consideration of value, without reference to the particular mode in which the consideration is paid." Bigelow,

C. J., in Howard v. Harris, 8 Allen, 297, 299. And accordingly it was held in that case that where the consideration for the transfer of the ownership of a horse consisted of intoxicating liquors which the buyer of the horse was not legally authorized to sell, the transaction was a sale within the meaning of a statute prohibiting the sale of intoxicating liquors.

We are of opinion that the statute in question was intended to prevent a trader from disposing of his stock of merchandise in a manner outside his usual course of business, so that the same should be taken away from his creditors in general, and that the transfer under the circumstances disclosed in this case was a sale although made to a creditor.

The plaintiff still further insists that the statute does not apply to the fixtures, and this view seems correct. The phrase "stock of merchandise" as used in the statute, properly and naturally describes articles which the seller keeps for sale in the usual course of his business. It does not naturally describe fixtures. It would hardly be within the usual course of business for a storekeeper at any time to sell his fixtures, and it is not to be presumed that the Legislature intended to prohibit the sale of a fixture, unless such intent is clearly expressed. The natural reading of the statute makes it applicable, as has been said, only to the articles which in the ordinary course of his business the seller keeps for sale, and that must be taken to be its legal meaning. See, Albrecht v. Cudihee, 34 Wash. 206, 79 Pac. 628. It follows that the plaintiff may recover the fixtures replevied, but cannot hold the meats and provisions. Upon inspection of the record it appears that certain of the articles were fixtures and tools. For this reason the order must be Exceptions sustained.

(193 Mass. 56)

HARRIS v. FITCHBURG & L. ST. RY. CO. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1906.) STREET RAILROADS-COLLISIONS - CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. In an action against a street railway company for injuries caused by a collision, evidence considered, and held, that the court properly refused to rule as a matter of law that plaintiff was not in the exercise of due care.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 255-257.]

The plaintiff testified, amongst other things, that as he came down School street he looked up West street at the only place where he could look over the Pierce estate and saw no car approaching; that as he went into West street he looked again and saw no car; that he was driving slowly; and that when the horse got on to the track he looked again and then saw the car approaching and urged the horse ahead thinking that he could get across the track which he did all but the rear part of the wagon and the hind wheel which were struck by the car. He further testified that as he came down School street into West street he listened and heard no sound or warning of an approaching car. This testimony, if believed, would warrant a finding that he was in the exercise of due care. The distance at which a car could be seen or ought to have been seen on West street from School street was a circumstance to be taken into account and given such weight as the jury thought the fact as they found it justly entitled to. It is to be assumed that proper instructions were given as to what would and would not constitute due care on the part of the plaintiff. We think that it could not be ruled as matter of law that the plaintiff was not in the exercise of due care and that the instruction requested was rightly refused. See Orth v. Boston Elevated Ry. Co., 188 Mass. 427, 74 N. E. 673; McCarthy v. Same, 187 Mass. 493 73 N. E. 559; Evenson v. Lexington & Boston St. Ry., 187 Mass. 77, 72 N. E. 355; Kelley v. Wakefield & Stoneham St. Ry., 179 Mass. 542, 61 N. E. 139; Lahti v. Fitchburg & Leominster St. Ry., 172 Mass. 147, 51 N. E. 524; Driscoll v. West End St. Ry., 159 Mass. 142, 34 N. E. 171.

port a finding that defendants were negligent in failing to caution plaintiff of the danger. [Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 267-273.]

2. SAME-FREEDOM FROM CONTRIBUTORY NEG

LIGENCE.

In an action for injuries received by falling into an elevator well in defendants' building, evidence considered, and held sufficient to support a finding that plaintiff was free from contributory negligence.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, $$ 274-276.]

Exceptions from Superior Court, Worcester County; Edwd. P. Pierce, Judge.

Action by Sarah S. Wills against Ransom F. Taylor and others. From a judgment for plaintiff, defendants bring exceptions. Exceptions overruled.

Wm. A. Gile and Chas. S. Dodge, for plaintiff. Geo. S. Taft and Clarence W. Hobbs, Jr., for defendants.

HAMMOND, J. The jury specially found that the elevator doors were open at the time the plaintiff went to the building, and that she never had been there before. The evidence warranted those findings. The de fendants were the owners of the building, and it was in their charge and possession. While it is true that some repairs had been going on, yet on cross-examination one of the defendants testified that on September 29th, the day of the accident, the work was substantially done. He testified: "The plumbers had been out of there three weeks. There were no carpenters there and no paperers there. There was one painter there. I understand that he was gilding the picture mouldings. There were two men on the outside of the building. No one else was in the building except one tenant (Miss Burns) and we did not depend upon her to see that the elevator was taken care of or the elevator doors closed. She didn't use the elevator, but her friends might have used it." In a word, the premises were under the charge of the defendants the owners, and upon them rested the duty of using reasonable care to see that they were safe.

By their invitation the plaintiff went to the house for the purpose of examining it as a prospective tenant. The hallway was narrow. At the rear end of it as originally built there was a door containing ground glass panels, which opened into a doctor's office. Subsequently an elevator was put in by the defendants' predecessor at the rear end of the hallway, with doors opening into the hallway. The door to the doctor's office was left unchanged, except that a bar was put across it so that it could not be used. The elevator occupied substantially the whole width of the hall. When the elevator doors were open and the car was as high as the second floor, this ground glass door was plainly visible "on account of the light the other side of it," as one witness

testified. The hallway was quite dark, one witness testifying that she "should say it was not light enough in the hall to see anything except the door with the ground glass" which was in the rear.

*

*

As to the manner in which the accident occurred, the plaintiff testified as follows: "I went to the block, and found the outside door wide open. I went in and went along the side of the stairs [on one side of the hallway] and saw a door with two panes of frosted glass, and I thought it was the kitchen or dining room. It was so dark I could see only that door. As I did my own cooking, I thought I would like to see the kitchen, and, as I was going along, I put my hand out in front of me, as I once ran against a door in the dark. I didn't run it along the side of the house. I could see nothing but that door with the frosted glass in it at the end of the hall, and I went along and found myself falling. I opened no door and saw no door but the one I supposed was the door going into the dining room, that is, the door with the ground glass in it. I saw nothing except that. I did not know there was any well there. I supposed I was going to the dining room, and I remember myself falling, but don't remember hitting the bottom or anything at all."

She was found shortly afterwards at the bottom of the well, nearly, if not quite, unconscious. At the time she was found the elevator doors on the hall floor were open and the car was above the second floor.

Upon the evidence the jury might well have found that in view of the darkness of the entry, the existence of the elevator well, the appearance of the glass door, and their relative situation, there rested a duty upon the defendants to caution the plaintiff, and that in failing to give such caution the defendants were negligent. And the jury might further find that the plaintiff, being by the invitation of the defendants upon the premises for the purpose of examining them was justified, in the absence of any information or caution to the contrary, in thinking that the door lead to some part of the tenement and in trying to reach it as she did. Exceptions overruled.

(193 Mass. 110)

TOOLE v. CRAFTS et al. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 17, 1906.)

1. BILLS AND NOTES-INDORSEMENT-LIABILITY OF INDORSER.

Under Rev. Laws, c. 73, § 80, providing that a person's signature on an instrument otherwise than as maker shall be deemed an indorsement, unless he clearly indicates his intention to be bound in some other capacity, a person placing his name on the back of a note before its delivery is liable only as an indorser.

[Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, § 550.]

2. SAME-WAIVER OF DEMAND-IGNORANCE OF LEGAL EFFECT.

Where an indorser of a note, when he signed a waiver of demand and protest, knew the facts which released him, his ignorance as to their legal effect would not relieve him from the consequences of his waiver.

---

3. SAME ACTION - ADMISSIBILITY OF EVIDENCE-FRAUD.

Where an indorser of a note signed a waiver of a demand after the time for it had expired, at the instance of the payee's attorney, testimony that when he signed the waiver he did not know that he had been relieved from liability was admissible on the question whether the representations of the attorney were the effective inducement to his action.

Exceptions from Superior Court, Hampden County; Loranus E. Hitchcock, Judge.

Action by James W. Toole against Howard A. Crafts and others. Judgment for plaintiff, and defendants bring exceptions. Exceptions sustained.

C. T. Callahan, for plaintiff. Green & Bennett, for defendant L. D. Crafts.

HAMMOND, J. This is a suit upon a promissory note dated June 2, 1900, signed by the defendant Howard A. Crafts and payable to the order of the plaintiff on demand. Before its delivery to the plaintiff the other defendant Linus D. Crafts, who alone defends, placed his name upon the back of it. He is therefore liable only as an indorser. St. 1898, p. 502, c. 533, § 63, now Rev. Laws, c. 73, § 80. No demand sufficient to charge him as indorser ever was made upon the maker, and, if the matter had stood there, his defense would have been perfect. But the matter did not stand there. Upon June 27, 1904, when the time for making a demand upon the maker sufficient to charge the indorser had expired, a conversation took place between one Allyn the attorney for the plaintiff on the one hand and Linus on the other, during which the former wrote upon the back of the note and the latter signed a waiver of "demand, notice and protest." The evidence as to the tenor of the conversation was conflicting, and one question was whether the waiver had reference to a demand, notice and protest which ought to have been made in the past in time to charge the indorser, or to a demand, notice and protest which the plaintiff was about to make. This question was submitted to the jury with proper instructions. The verdict shows that the jury found that the language had reference to the past.

The defendant contended that at the time he signed the waiver he was not aware that he had been freed from his liability, but the court rightly ruled that if he knew the facts which released him his ignorance as to their legal effect would not save him from the consequences of the waiver. Third National Bank v. Ashworth, 105 Mass. 503.

The defendant contended that he was induced to sign the waiver by the false and fraudulent representations of Allyn acting for the plaintiff. This question was submit

ted to the jury under quite full instructions. The defendant has complained of those instructions, but we have not had occasion to consider them because we are of opinion that a new trial must be had for error in the exclusion of the evidence bearing upon this part of the defense.

To make good his defense of fraud the defendant was bound to show not only that the representations were false and fraudulent but that in reliance upon them he was induced to act as he did. Upon this branch of the defense, the operation of his mind was for the consideration of the jury, and on that he was a competent witness. Knight v. Peacock, 116 Mass. 362. He offered to show by his own testimony that at the time he signed the waiver he did not know that he had been relieved from liability on the note. This evidence was excluded. While, as above stated, it was not admissible to relieve him from the consequences of his waiver in the absence of fraud, yet upon the question of whether the representations of Allyn were the real and effective inducement to his action it was admissible. It might well be that a man believing himself to be liable upon a note could be more easily influenced to sign such a waiver than one who believed himself free from liability. A reading of the record shows that this evidence was offered at the stage of the defense in which the defendant was trying to prove the fraud. It should have been admitted. Its exclusion may have worked harm to the defendant. It becomes unnecessary to consider the other objections to the exclusion of evidence. They may not arise again. Exceptions sustained.

(193 Mass. 100)

HORR v. NEW YORK, N. H. & H. R. CO. (Supreme Judicial Court of Massachusetts. Hampshire. Oct. 17, 1906.)

1. HIGHWAYS-OBSTRUCTION-MAIL SACKSINJURY TO TRAVELER.

In an action for injuries to plaintiff by his horse becoming frightened at certain mail sacks dumped from defendant's railroad train in close proximity to the traveled part of a highway, evidence as to defendant's negligence held to require submission of such issue to the jury.

[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Highways, § 536.]

2. SAME NUISANCE.

Where a railroad company negligently suffered mail bags to lie in close proximity to a highway, where they were dumped from a train, for an unreasonable length of time, the bags became a nuisance.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Highways, §§ 483, 485.]

Exceptions from Superior Court; Hampshire County; Lloyd White, Judge.

Action by Isaac Horr against the New York, New Haven & Hartford Railroad Company. A verdict was directed in favor of defendant, and plaintiff brings exceptions. Sustained.

Plaintiff sued to recover for personal injuries sustained by him while in a sleigh on Payson avenue in East Hampton by reason of his horse which was reasonably gentle becoming frightened at a number of mail bags lying in the highway and in the custody of the agents and servants of defendant railroad company. Payson avenue is a public highway and crosses the tracks of defendant railroad at grade. On January 25, 1904, a mail train of defendant company arrived at the station at 6:35 a. m., and the parcels of mail were taken from the train at the Payson avenue crossing, where they remained until they were deposited in the post office at East Hampton. There was evidence that the mail sacks were permitted to remain in the street an unreasonable length of time.

Edward L. Shaw and John L. Lyman, for plaintiff. John C. Hammond, for defendant.

HAMMOND, J. Upon the evidence a jury might find that the mail bags were piled up in such a manner and in such proximity to the traveled part of the highway as to be likely to frighten horses, ordinarily gentle and well broken, while traveling upon the way, and thus to constitute a menace to public travel; and they might further find (although upon this point the case is close) that the defendant, knowing through its servants the nature of the obstruction, negligently suffered the bags to lie in that position a longer time than was reasonably necessary and that thereby the bags became a nuisance. There was also evidence of the due care of the plaintiff, and that the horse was ordinarily gentle and well broken. The case therefore should have been submitted to the jury. Bemis v. Temple, 162 Mass. 342, 38 N. E. 970, 26 L. R. A. 254, and cases therein cited; Lynn v. Hooper, 93 Me. 46, 44 Atl. 127, 47 L. R. A. 752, and cases there cited.

At the argument before us it was stated by the counsel for the defendant that the place where the bags lay was also within the limits of the railroad location, but since that does not appear on the record and the plaintiff did not agree that the case should be treated by us as though that statement were true, we have not considered what difference, if any, in the law of the case would be made by such a fact.

Exceptions sustained.

(222 I11. 337)

WABASH R. CO. v. THOMAS. (Supreme Court of Illinois. April 17, 1906. Rehearing Denied Oct. 10, 1906.)

1. CARRIERS--CONTRACT OF SHIPMENT-CON

STRUCTION.

Where a carrier receives freight consigned to a point beyond its line, it impliedly agrees to transport the goods to that place.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 762, 771, 781.]

2. SAME-LIMITATION OF LIABILITY.

Limitations of a carrier's liability contained in a bill of lading are not binding on the shipper, unless it appears that such restrictions were assented to by him.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 691.]

3. SAME-ACTION-BURDEN OF PROOF.

In an action against a carrier, the burden is on it to show that restrictions of liability contained in the bill of lading were assented to by the consignor.

sequence of which neglect 12 of them died. A plea of not guilty was filed by the defend. ant, and upon the trial by jury a verdict was returned and judgment rendered in favor of the plaintiff.

It appears from the evidence that at the date of the shipment appellee resided in Paris, Ill., though for 16 years immediately preceding that time he had been in western Nebraska, where he was engaged in raising and shipping stock. The horses in question were first shipped from Nebraska to Council Bluffs over the Union Pacific Railway, arriving at Council Bluffs about 9 o'clock Saturday evening. They were unloaded, fed, and watered, and the next morning appellee called on the Wabash agent at that place, to arrange for shipment over the appellant's line. He testified that he told the agent that he wanted the stock sent to the stock

4. SAME-LIMITATION OF LIABILITY-CLAIMS FOR INJURIES TO SHIPMENT - REASONABLENESS OF PROVISION.

Where a carrier was negligent in failing to feed and water horses during transportation, whereby several of them were injured, and some of them subsequently died, the nature of the injury was such that the actual damage could not by any reasonable degree of diligence have been discovered and sworn to within 10 days after they were unloaded; and hence a provision in the contract of shipment, requiring a claim for damages to be made within 10 days, could not be said, as a matter of law, to be reasonable.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 938.]

Scott, C. J., and Cartwright, J., dissenting. Appeal from Appellate Court, Third District.

Action by F. E. Thomas against the Wabash Railroad Company. From a judgment of the Appellate Court (122 Ill. App. 569), affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

C. N. Travous, for appellant. W. H. Clinton, H. S. Tanner, and Penwell & Lindley (Walter C. Lindley, of counsel), for appellee.

WILKIN, J. This is an appeal from a judgment of the Appellate Court for the Third district, affirming a judgment of the circuit court of Vermilion county in favor of the appellee, against the appellant, for $2,400 and costs of suit. The declaration consisted of two counts substantially alike, charging the defendant, as a common carrier, with a breach of duty in failing to safely carry 25 head of horses from Council Bluffs, Iowa, to Paris, this state; negligently failing to properly feed and water the animals while en route; carrying them by slow trains; and suffering the cars in which they were loaded to stand on the track for an unreasonable length of time-all of which resulted in their becoming reduced in flesh, diseased, and lessened in value, and in con

sent to Paris. The agent prepared an application and contract of shipment, the former of which purports to have been signed by the plaintiff, and the latter by the agent, on behalf of the company, and by the plaintiff. The contract was for shipment from Council Bluffs to St. Louis, and stated that the carrier had agreed to forward the car of horses from Council Bluffs to St. Louis; that its responsibility extended only to its own line; that appellee had agreed to care for the horses while in transit, load and unload, and feed and water them at his own risk and expense; and that in case of loss or damage he would make and present his claim in writing, verified by affidavit, within 10 days after the horses were unloaded, or be barred from recovering anything on account of the same. The horses were loaded into a Street's Western Stable car about 12 o'clock Sunday night and delivered to the company about 2:45 Monday morning, July 27th, leaving for St. Louis about 15 minutes later. They arrived at the yards in North St. Louis at 6:12 o'clock the following morning, and the car in which they were being shipped was immediately delivered to the Terminal Association of St. Louis, which, in turn, delivered it to the Cleveland, Cincinnati, Chicago & St. Louis Railway Company at East St. Louis for transportation to Paris. Plaintiff offered evidence to the effect that he told the conductor in charge of the train to St. Louis that he wanted the horses unloaded, fed, and watered at the stock yards in St. Louis, and was assured that it would be done. This was denied by the conductor. Appellee claims that, after thus being assured that the horses would be unloaded at the stock yards, he left the train at St. Louis to get his breakfast, and then went to the stock yards to see about his horses, but could not find them, and spent the day searching for them, until about 11 o'clock at night, when he learned that they had been forwarded to Paris. The car stood