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DEVENS, J. This was an action to recover damages for an alleged injury to cattle in the transportation of them from a ship lying at a wharf in Boston to the quarantine grounds, in Waltham, by reason that improper cars were used, and also by delay in their transportation. One of the contentions of the plaintiff was that the cars were unsuitable, as they were box cars provided with doors, but not with slats upon the sides, so that there was no sufficient means of ventilation, and also without cleats upon the floor by which the animals could maintain their footing. Whether the defendant had provided slats, and carpenters to nail them across the opening of the doors, was in dispute. The seventh of the regulations issued from the treasury department of the United States, “governing the treatment and quarantining of imported cattle,” provides: “The railway cars used in the transportation of cattle to the quarantine grounds shall either be cars reserved for this exclusive use, or box cars not otherwise employed in the transportation of neat animals,” etc.

The defendant offered to prove that box cars similar to those furnished for the conveyance of the plaintiff's cattle had always been used by them for carrying cattle to said quarantine grounds, and also how such cars had usually been equipped in regard to their floors. The only quarantine grounds for imported cattle in Massachusetts were at Waltham, and the only railroad by which cattle could be transported thither was that of the defendant. The evidence offered by defendant was excluded by the presiding judge, while he admitted evidence that box cars were used by other railroads for the transportation of cattle, and also evidence of the mode of equipment of their floors. The contention of the defendant, that the mode of transportation adopted in this case was its usual mode, and must therefore be held to have been accepted by the plaintiff, cannot be maintained. If it was an unsafe method of transportation, the fact that it was usual with the defendant cannot exonerate it from its contract to safely transport, and its own usage would not have any tendency to show that it had adopted a safe method. Even if its railroad was the only one by which cattle could be conveyed to the quarantine grounds, this conveyance of cattle is common to nearly all railroads; and the mode adopted by them in the preparation of their cars, etc., the defendant was permitted to show, as bearing on the character of that adopted by itself. Peverly V. Boston, 136 Mass. 366.

A witness was asked as to the value of a cow which was found dead among plaintiff's herd on its arrival at Waltham, “having regard to its market value, at the time, in the nearest place to Waltham that he knew of where there was a market for it, and the cost of getting it there, and the risk;" and was further asked, “on the same basis," as to the injury to the herd if it had at its arrival been put up for sale, and answered that “a hundred dollars a head would not have covered” it. This question and answer were excepted to; and the plaintiff subsequently asked of the witness what was his estimate of the injury the cattle sustained at the time, if such judicious and proper care were taken as a prudent man would take to put them in proper condition for sale,to make them fit for market,--and what his own estimate would be of the actual damage, from the experience of that night, assuming that he could have an opportunity to cure it by a usual, judicious, and prudent course. To this he stated that the damage would be $20 to $30 per head.

The defendant's argument concedes that, if the jury had been directed to take the latter computation as the true rule of damages, any difficulty in the admission of the former question and answer might have been cured. The instruction given by the presiding judge upon the question of damages does not appear. No exception was taken to it; and, in the absence of any report upon the subject, we must hold that it was clear, correct, and adapted to the

The verdict sufficiently shows that no rule of damages more unfavorable to the defendant than $20 a head could have been adopted. Nor are we prepared to say that, even if Waltham was not the proper market for such cattle, having regard to the distant place where such market was, the cost of getting there, and the attendant risk, the witness, in testifying to the original injury which the cattle received, might not express the amount of injury by a statement of what its effect would be upon the value of the animals. Even if Waltham was not the proper market for such animals, they must have had a value there for the purpose of transportation to the place where they were generally bought and sold. We are of opinion, therefore, that this exception cannot be sustained.

case.

The exception taken to the competency of the witness who testified in the matter of value, as well as the other exceptions taken, were not pressed, and are not, therefore, discussed. Exceptions overruled.

(143 Mass. 318)

MASSACHUSETTS LOAN & TRUST Co. v. FITCHBURG R. Co.

(Supreme Judicial Court of Massachusetts. Suffolk. January 8, 1887.) CARRIERS OF Goods—WRONGFUL DELIVERY TO CONSIGNEE-MEASURE OF DAMAGES.

In an action against a common carrier, brought by the assignee of the consignee, to recover for a wrongful delivery of the goods to the consignee, the measure of damages is the market value of the goods, less the freight charges, although by the contract between the consignee and his assignee the freight was to be paid by the former, and the carrier had notice of the assignment, and its terms.

This was an action to recover the value of certain corn. Trial in the superior court, without a jury, before PITMAN, J., upon agreed facts, in substance, as follows: John H. Foster & Co., a firm doing business in Boston, as dealers in and shippers of grain, borrowed of the plaintiff, between January 1, and May 13, 1880, large sums of money, and gave as collateral security therefor bills of lading of corn to arrive by the Fitchburg Railroad. Said Foster & Co. agreed with the plaintiff to pay freight charges on said corn. Upon the receipt of the bills of lading, the plaintiff surrendered them to the railroad company, and received therefor receipts of the railroad company of different dates, but all in the same general form. Foster & Co. failed May 14, 1880, owing the plaintiff a large sum of money, for which it held, as collateral security, said receipts for a large amount of corn. During the months of April and May, prior to May 14th, the plaintiff delivered to the defendant written orders for a portion of this corn. On said May 14th, and again on May 19th, the plaintiff demanded the delivery of the balance of said corn of the defendant, when it appeared that the defendant company had delivered a portion of it upon orders of Foster & Co., without the knowledge and consent of the plaintiff, and without calling for said receipts, and without any orders from it; said delivery having been made while said Foster & Co. were in good general credit. The defendant, on October 14, 1881, paid the plaintiff the value of the corn erroneously delivered, deducting, however, the freight charges upon the same. The plaintiff also demanded the sum which the defendant withheld on account of freight charges. Upon these and other facts, the nature of which appears in the opinion, the court found that the case could not be distinguished from the case of Forbes v. Boston & L. R. R., reported in 133 Mass. 154-158, and, upon the authority of that case, ruled against plaintiff's claim as to allowance for freight, found for defendant, and, by consent of parties, reported the case to the supreme judicial court for its determination of the question of law involved.

M. F. Dickinson and H. R. Bailey, for plaintiff.

This case comes before this court on what is equivalent to a "case stated.” In Johnson v. Shed, 21 Pick. 227, it is said that a case reported by consent of parties is substantially the same as a case stated by them. The single question of law is whether or not the present case is governed, as to the measure of damages, by Forbes v. Boston & L. R. R., 133 Mass. 158. The plaintiff claims that the rule laid down in the earlier case has no application to the case at bar, and calls particular attention to the following points of difference: (1) In the Forbes Case the liability of the railroad was only in tort. (2) In the Forbes Case the railroad had no actual knowledge that any one besides Foster & Co. were interested in the corn, or held the bills of lading for the same. (3) In the Forbes Case the railroad had no knowledge of any agreement between Foster & Co. in regard to payment of freight.

(4) In the Forbes Case it did not appear that the railroad had charged the freight on its books to Foster & Co. (5) In the Forbes Case it was found that the payment of the freight by Foster & Co. was simply a part of their scheme of fraud, while in this case it is further found that Foster & Co. were legally bound to pay it. (6) In the Forbes Case it was held as the ground for the decision that the corn at the time of the conversion was subject to a lien for the freight. (7) It is also a significant fact that, even when Foster & Co. were behind hand in paying their freight bills, the railroad never made any demand upon the trust company for payment of any freight on said corn.

The situation of the trust company was analagous to that of a purchaser of an equity of redemption, who, without assuming or agreeing to pay the mortgage, had paid the mortgagor the full value of the property, the mortgagor agreeing to pay the mortgagee the amount of the mortgage when due. In such a case, it is settled law that if the mortgagor, or in fact any person under a duty to pay the mortgage, does pay the same, the property is wholly discharged from the incumbrance, and the mortgage cannot be considered as in force against anybody. Carlton v. Jackson, 121 Mass. 592, 596; Brown v. Lapham, 3 Cush. 551; Braman v. Dowse, 12 Cush. 227; Morse v. Bassett, 132 Mass. 502. The railroad has got its pay from the proper person, and cannot claim it a second time from anybody. Sear's v. Wills, 4 Allen, 212.

The interest of the trust company in the corn was that of a special owner. But where, as in this case, the property has come into the possession of the general owner, the special owner, not being answerable over for the surplus, will be entitled to only so much as will compensate him for the injury he himself has sustained. Squire v. Hollenbeck, 9 Pick. 552; Chamberlin v. Shaw, 18 Pick. 283; City of Lowell v. Parker, 10 Metc. 316; Kaley v. Shed, 10 Metc. 319.

Payment, even by a stranger, if accepted by the creditor, was a good payment, and might be adopted by the debtor, so as to make it operate as a payment by himself. Belshaw v. Bush, 11 C. B. 191, 207; Leavitt v. Morrow, 6 Ohio St. 72; State v. Pilsbury, 29 La. Ann. 787; Eaton v. Eaton, 35 N. J. Law, 290 The.cases most similar to the one at bar are Prescott v. Wright, 6 Mass. 20; Pierce v. Benjamin, 14 Pick. 356; Fowler v. Gilman, 13 Metc. 267; Angier v. Taunton Paper Manuf' y Co., 1 Gray, 621; Ullman v. Barnard, 7 Gray, 554; Cram v. Bailey, 10 Gray, 87; Briggs v. Boston & L. R. R., 6 Allen, 247; Claflin v. Boston & L.R.R., 7 Allen, 341; Adams v. O'Connor, 100 Mass. 515; Clark v. Dearborn, 103 Mass. 335; Whitney v. Beckford, 105 Mass. 267; First Nat. Bank of Cairo v. Crocker, 111 Mass. 164; Peebles v. Boston & A.R.R., 112 Mass. 498; Stollenwerck v. Thacher, 115 Mass. 224.

In the following cases the freight had been paid to the carrier by a person taking the goods wrongfully, and the suits were by the true owner of the goods against the carrier. No mention is made of any second payment of freight by the owner, or of any deduction therefor. Winslow v. Vermont & M. R. R., 42 Vt. 700; Price v. Oswego & S. R. R., 50 N. Y. 213; Houston & T.C.R. R. V. Adams, 49 Tex. 748; Wilson S. M. Co. v. Louisville & N. R. R., 71 Mo. 203; Indianapolis & St. L. R. R. v. Herndon, 81 Ill. 143; Little Rock, etc., Co. v. Glidewell, 39 Ark. 487; The Thames, 14 Wall. 98

Chas. A. Welch, for defendant.

Foster & Co., having a fraudulent purpose, namely, to obtain the corn, paid the freight on it, and thereby got possession of it. We contend that the question in this case is settled by Forbes v. Fitchburg R. Co., 133 Mass. 154, 158. The payment of the freight is part of the fraudulent act, for whether paid at the time, or charged in account to them, and paid afterwards, makes no difference; it was necessary for the success of the fraudulent purpose to get the goods. If Foster & Co. had committed no fraud on the defendants, the corn would have been in the railroad's possession, and the plaintiffs could have obtained it only by paying the freight. The plaintiffs had only a special interest or property in the goods. At the time of the conversion, the goods were subject to a lien for freight, and the only interest the plaintiffs had in them was their market value, less the freight. If the plaintiffs recover the full value of their corn, they are positive gainers by the fraud, and will receive more than the value of their interest at the time the fraud was committed. Forbes v. Fitchburg R. R., 133 Mass. 158, 159.

DEVENS, J. In Forbes v. Boston & L. R. R., 133 Mass. 154, a case very similar in its facts to that at bar, it was held that, in an action against a common carrier for the conversion of goods delivered to a person unauthorized to receive them, who pays the freight upon them, the measure of damages is the market value of the goods, less the freight, with interest from the date of the conversion. In that case, as in the one before us, it was the duty of the consignees, by virtue of their agreement with the assignees of the bills of lading, to whom the bills had been transferred as collateral security, to pay the freight charges; but it was held that the only interest which the plaintiffs had in the goods was in their market value, less the freight, and that this was not increased by their agreement with their consignees, and that such payment by the consignees, for the purpose of fraudulently obtaining the goods, could not be considered as a payment by the plaintiffs, so as to entitle them to recover the amount thereof as a part of the value of the goods wrongfully delivered. That the defendant in the case at bar wrongfully delivered to the consignees 152 car-loads of the corn, which was the article consigned, without the authority of the plaintiff, who was known to the defendant as the assignee of the bills of lading, is conceded; and the defendant has paid to the plaintiff the market value of these car-loads, deducting from such market value the amount of freight charges thereon which it has received from the consignees. This payment was made by agreement, without prejudice to the right of the plaintiff to bring this suit, by which it seeks to compel the defendant to pay the freight charges, as a part of the market value of the corn, or so much thereof as is necessary to satisfy the plaintiff's claim as the holder of the bills of lading as collateral security for the debt of the consignee.

The plaintiff seeks to distinguish the case at bar from that already cited on several grounds, which, without following the precise order in which they have been urged, may be briefly stated. It contends that, in the former case, the railroad had no actual knowledge that any one beside Foster & Co. (who were the consignees in that case, as in this) was interested in the corn, or had bills of lading thereof, while in this case the railroad knew that the bills of lading had been assigned. But as the bill of lading represents the property itself in each case, the defendant held the property for him who was the lawful holder of the bill of lading. It is further suggested that in the case at bar the defendant knew that Foster & Co. were bound by their agreement with the plaintiff to pay the freight charges. No such fact appears by the facts agreed or the report of the judge, nor can we infer it therefrom. But, assuming it to be true, the agreement of the plaintiff and the consignee, if known to the defendant, could not impose any heavier responsibility upon the defendant for the value of the goods, even if it might require of the defendant for its own safety to be vigilant, in refusing to part with them until freight was paid.

The plaintiff further urges that in the former case it did not appear that the railroad charged the freight upon its books to Foster & Co.; that the payment there made was simply a part of their scheme to fraudulently obtain the goods; and that the corn there was subject to a lien for freight, while in the case at bar the defendant did not insist on its lien for freight, but erroneously delivered the goods, charging the freight to Foster & Co., and getting its pay as it could. These are distinctions without a difference. Whether the railroad received its pay at once, or charged it to Foster & Co., it was still, when made by Foster & Co., a payment by them, and not by the plaintiff, and relieved the corn from the lien which the defendant had upon it, and which otherwise the plaintiff would be compelled itself to discharge in order to obtain the corn. It was a part of the scheme of Fostor & Co., to induce the defendant wrongfully to deliver the goods, to arrange a mode of payment of the freight charges satisfactorily to it, and it was their payment, or arrangement to pay, and not any act of plaintiff, which caused the defendant to .discharge the lien. From this no benefit could result to the plaintiff, nor injury to the defendant, as the right of the plaintiff to the corn was subject to defendant's lien. “If the plaintiffs can recover the full value of the corn, as remarked by Chief Justice MORTON in Forbes v. Fitchburg R. R., ubi supra, “they are positive gainers by the fraud, and will receive more than the value of their interest at the time the fraud was committed."

The plaintiff has devoted much of its brief to a reargument of the case of Forbes v. Fitchburg R. R., ubi supra, and urges that the decision there made should be modified, or entirely overruled. That case was so recently and carefully considered that we do not feel called upon to rediscuss it, as we remain satisfied with the principles on which it rests. Exceptions overruled.

(44 Ohio St. 539)

ADLER and others v. WHITBECK, Treasurer. .

(Supreme Court of Ohio. January 4, 1887.) 1. INTOXICATING LIQUORS-POWER OF LEGISLATURE TO TAX BUSINESS.

It is competent for the general assembly of the state to impose a tax upon the business of trafficking in intoxicating liquors, as a means of providing against evils

resulting therefrom. 2. SAME-LICENSE-TAX-LIEN.

Neither the tax so imposed, nor a provision that the same shall attach as a lien on the property in which it is conducted, constitutes a license within the meaning

of section 9 of article 15 of the constitution. 3. SAME-COLLECTION OF Tax-PENALTIES.

The statute imposing the tax may provide for its collection by the treasurer of the county, as other taxes are collected; may impose penalties for its non-payment, and for the refusal of a person engaged in the business, on demand of the assessor, to sign and verify the statement of the return. And, for an injury done him in his property, such provisions do not deprive the citizen of the due course of law secured to him by section 16 of the bill of rights, nor are they inhibited by the four

teenth amendnient to the constitution of the United States. 4. SAME-UNIFORMITY OF TAXATION.

The legislature may, in providing against the evils resulting from the traffic in intoxicating liquors, levy a tax upon such forms of the traffic as in its wisdom may seen best, without infringing the constitutional requirement (section 26, art. 2) that all laws of a general nature shall be uniform in their operation throughout the

state. 5. SAME_VALIDITY OF OHIO LAW OF 1886.

The act of the general assenibly passed May 14, 1886, providing against the evils resulting from the traffic in intoxicating liquors, (83 Ohio L. 157,) is not, in any of these respects, in conflict with the constitution of the state, nor of the United States, and is a valid law.

OWEN, C. J., and FOLLETT, J., dissent. (Syllabus by the Court.)

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