all who contract to perform a service. It is illustrated by the decision of the court of king's bench, in Ellis v. Turner, 8 Term R. 531, where the owners of a vessel carried goods to be delivered at a certain place, but the vessel passed it by without delivering the goods, and the vessel was sunk and the goods were lost. In a suit against the owners for the value of the goods, based on the contract, it was contended for the defendants that they were not liable for the misconduct of the master of the vessel in carrying the goods beyond the place. But the plaintiff had judgment, Lord KENYON Saying that the defendants were answerable on their contract, although the misconduct was that of their servant, and adding: "The defendants are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them."

The distinction between the liability of one who contracts to do a thing and that of one who merely receives a delegation of authority to act for another is a fundamental one, applicable to the present case. If the agency is an undertaking to do the business, the original principal may look to the immediate contractor with himself, and is not obliged to look to inferior or distant under-contractors or subagents when defaults occur injurious to his interest. Whether a draft is payable in the place where the bank receiving it for collection is situated, or in another place, the holder is aware that the collection must be made by a competent agent. In either case there is an implied contract of the bank that the proper measures shall be used to collect the draft, and a right on the part of its owner to presume that proper agents will be employed, he having no knowledge of the agents. There is, therefore, no reason for liability or exemption from liability in the one case which does not apply to the other. And, while the rule of law is thus general, the liability of the bank may be varied by consent, or the bank may refuse to undertake the collection. It may agree to receive the paper only for transmission to its correspondent, and thus make a different contract, and become responsible only for good faith and due discretion in the choice of an agent. If this is not done, or there is no implied understanding to that effect, the same responsibility is assumed in the undertaking to collect foreign paper and in that to collect paper payable at home. On any other rule no principal contractor would be liable for the default of his own agent, where, from the nature of the business, it was evident he must employ subagents. The distinction recurs between the rule of merely personal representative agency and the responsibil-* ity imposed by the law of commercial contracts. This solves the difficulty and reconciles the apparent conflict of decision in many cases. The nature of the contract is the test. If the contract be only for the immediate services of the agent, and for his faithful conduct as representing his principal, the responsibility ceases with the limits of the personal services undertaken. But where the contract looks mainly to the thing to be done, and the undertaking is for the due use of all proper means to performance, the responsibility extends to all necessary and proper means to accomplish the object, by whomsoever used.

We regard as the proper rule of law applicable to this case, that declared in Van Wart v. Woolley, 5 Barn. & C. 439, where the defendants, at Birmingham, received from the plaintiff a bill on London, to procure its acceptance. They forwarded it to their London banker, and acceptance was refused, but he did not protest it for non-acceptance or give notice of the refusal to accept. Chief Justice ABBOTT said: "Upon this state of facts it is evident that the defendants (who cannot be distinguished from, but are answerable for, their London correspondent) have been guilty of a neglect of the duty which they owed to the plaintiff, their employer, and from whom they received a pecuniary reward for their services. The plaintiff is, therefore, entitled to maintain his action against them, to the extent of any damage he may have sus

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tained by their neglect." In that case there was a special pecuniary reward for the service. But, upon the principles we have stated, we are of opinion that by the receipt by the defendant of the drafts in the present case for collection, it became, upon general principles of law, and independently of any evidence of usage or of any express agreement to that effect, liable for a neglect of duty occurring in that collection, from the default of its correspondent in Newark.

What was the duty of the defendant, and what neglect of duty was there? An agent receiving for collection, before maturity, a draft payable on a particular day after date, is held to due diligence in making presentment for acceptance, and, if chargeable with negligence therein, is liable to the owner for all damages he has sustained by such negligence. Allen v. Suydam, 20 Wend. 321; Walker v. Bank of the State of New York, 9 N. Y. 582. The drawer or indorser of such a draft is, indeed, not discharged by the neglect of the holder to present it for acceptance, before it becomes due. Bank of Washington v. Triplett, 1 Pet. 25, 35; Townsley v. Sumrall, 2 Pet. 170, 178. But, if the draft is presented for acceptance and dishonored before it becomes due, notice of such dishonor must be given to the drawer or indorser, or he will be discharged. 3 Kent, Comm. 82; Bank of Washington v. Triplett, 1 Pet. 25, 35; Allen v. Suydam, 20 Wend. 321; Walker v. Bank of the State of New York, 9 N. Y. 582; Goodall v. Dolley, 1 Term R. 712; Bayley, Bills, (2d Amer. Ed.) 213. Moreover, the owner of a draft payable on a day certain, though not bound to present it for acceptance in order to hold the drawer and indorser, has an interest in having it presented for acceptance without delay, for it is only by accepting it that the drawee becomes bound to pay it, and, on the dishonor of the draft by non-acceptance, and due protest and notice, the owner has a right of action at once against the drawer and indorser, without waiting for the maturity of the draft; and his agent, to collect the draft, is bound to do what a prudent principal would do. 3 Kent, Comm. 94; Robinson v. Ames, 20 Johns. 146; Lenox v. Cook, 8 Mass. 460; Ballingalls v. Gloster, 3 East. 481; Whitehead v. Walker, 9 Mees. & W. 506; Walker v. Bank of the State of New York, 9 N. Y. 582. In view of these considerations, it is well settled that there is a distinction between the owner of a draft and his agent, in that, though the owner is not bound to present a draft payable at a day certain, for acceptance, before that day, the agent employed to collect the draft must act with due diligence to have the draft accepted as well as paid, and has not the discretion and latitude of time given to the owner, and, for any unreasonable delay, is responsible for all damages sustained by the owner. 3 Kent, Comm. 82; Chit. Bills, (13th Amer. Ed.) 272, 273.

The defendant being thus under an obligation to present the drafts for acceptance, and having, in fact, presented them through the Newark bank to Conger, the secretary of the company, was bound not to take the acceptances it did, but to treat the drafts as dishonored. The plaintiff was, at least, entitled to an acceptance in the terms of the address on the drafts. Walker v. Bank of the State of New York, 9 N. Y. 582. The defendant had notice, from the description of the drafts by the words "Newark Tea Tray Co." in the letters sending them for collection, that the plaintiff regarded the drafts as drawn on the company; and the defendant recognized its knowledge of the fact that the drafts were drawn on the company by describing them by the words "Newark Tea Tray Co.," in its letters to the Newark bank, in every instance but two. If, on the face of the drafts, the address was ambiguous, it was not for the defendant to determine the question, as against the plaintiff, by taking an acceptance which purported to be the acceptance of Conger individually, especially in view of the information it had by the words "Newark Tea Tray Co." in the letters sending the drafts to it for collection. It appears that the drafts were discounted by the plaintiff as drafts on the com.

pany, and, if it could have had an acceptance in the terms of the address, it would, in a suit against the company, have been in a condition to show who was the real acceptor. But, with the information given to the Newark bank by Conger, while that bank had in its hands for acceptance drafts drawn in the same form as those here in question, that he would not accept such drafts in his official capacity as secretary, the Newark bank chose to take acceptances individual in form. This was negligence, for which the defendant is liable to the plaintiff in damages, no notice of dishonor having been given. The defendant was bound to give such notice to the plaintiff. Walker v. Bank of the State of New York, 9 N. Y. 582.

The question as to whether the company would have been liable on the drafts, if they had been accepted in the terms of the address, is not one on the determination of which this suit depends; nor do we find it necessary to discuss the question as to whether, on the face of the drafts, the company or Conger individually is the drawee. The very existence of the ambiguity in the address, and of the question as to whether the company would be liable on an acceptance in the terms of the address, is a cogent reason why the defendant should not be allowed, without further communication with the holder, to do acts which may vary the rights of the holder, without responding in damages therefor. The risk is on the defendant and not on the plaintiff. It is, therefore, plain that the judgment must be reversed. But judgment cannot be now rendered for the plaintiff for damages. There must be a new trial. Although there is a special finding of facts, it does not cover the issue as to damages. No damages are found. The action is one for negligence, sounding in damages. Although the complaint alleges that the drawers and the indorser are discharged for want of notice of non-acceptance, and although it is found that the drawers were in good credit when the drafts were discounted, and that the drawers and indorser had become insolvent by the thirteenth and nineteenth of October, 1875, there is nothing in the finding of facts on which to base a judgment for any specific amount of damages. On the new trial that question will be open, and we do not intend to intimate any opinion on the subject.

The judgment of the circuit court is reversed, with direction to award a new trial.

(112 U. S. 293)

TRADESMAN'S NAT. BANK OF PITTSBURGH, PA., v. THIRD NAT. BANK OF THE CITY OF NEW YORK.

(November 24, 1884.)

In Error to the Circuit Court of the United States for the District of New Jersey. John R. Emery and Thos. N. McCarter, for plaintiff in error. A. Q. Keasbey, for defend

ant in error.

BLATCH FORD, J. This suit presents, in all material respects, the same facts and questions as the case of Exchange Nat. Bank against Same Defendant, ante, 141. The only points of difference, as to the facts found, are these: The drafts are seven in number, and bear different dates, from June 21, 1875, to August 10, 1875. The letters from the plaintiff to the defendant, transmitting them for collection, described them by their numbers and amounts, and one of the letters from the defendant to the Newark bank described the inclosed draft as "Conger, Tr." There is no finding that when the acceptances of Conger were taken by the Newark bank, the time of payment of the drafts) was so far distant that there was sufficient time to communicate to the plaintiff the form of acceptance, and for the plaintiff thereafter, if such communication had been* made, to give further instructions as to the form of acceptance. The plaintiff was not advised of the form of the acceptance until the first draft was protested for non-payment and returned to it, at which time the drawers and indorser were insolvent. There is no finding as to the taking by the Newark bank of any acceptances from Conger individually, of drafts drawn on the Newark Tea Tray Company, and there is a finding that when the drafts were presented to Conger by the Newark bank he declined to accept them in his official capacity. These differences are immaterial under the views held in Exchange Nat. Bank v. Third Nat. Bank, supra.

The judgment of the circuit court is reversed, with direction to award a new trial.

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(112 U. S. 273)

GRAME, Ex'r, etc., v. MUTUAL ASSURANCE Soo. OF VIRGINIA.

GODDIN, Ex'r, etc., v. SAME.

(November 19, 1884.)

INSURANCE POLICY-INVASION OF FOREIGN ENEMY-UNITED STATES TROOPS-DECISION OF STATE COURT.

In an action upon an insurance policy for loss by fire resulting from military operations at the time of the entry of United States troops into Richmond in April, 1865, the decision of a state court that such entry was an "invasion of a foreign enemy," within the meaning of the exception to liability contained in the policy, is not reviewable by the United States supreme court.

In Error to the Supreme Court of Appeals of the State of Virginia. On motion to dismiss.

Wm. B. Webb, Enoch Totten, and John Howard, for plaintiffs in error. Geo. F. Edmunds, W. A. Maury, Wm. W. Crump, and W. Hallett Phillips, for defendants ir error.

WAITE, C. J. *We have no jurisdiction in these cases. The suits were brought on policies issued by the Mutual Assurance Society of Virginia, one to John Grame and the other to Seymour P. Vial, insuring certain buildings of the respective parties against such losses or damages as might be occasioned by accidental fire or lightning, but expressly excepting from the risks losses which resulted from riots, civil commotions, insurrections, or from the invasion of a foreign enemy. The defense was that the loss was not occasioned by an accidental fire, but that it resulted from a fire purposely set by the confederate authorities on the evacuation of Richmond in April, 1865, as a war measure, for the destruction of tobacco and military stores which were liable to capture by the forces of the United States. Neither party set up or claimed in the pleadings "any title, right, privilege, or immunity * * * under the constitution, or any treaty or statute of, or commission held or authority exercised under, the United States." On the trial it was conceded that the buildings were destroyed in the progress of a fire purposely set by order of the confederate state government on the evacuation of Richmond "in pursuance of its laws and policy to destroy military stores and tobacco which were liable to capture by the forces of the United States. The buildings insured were not actually set on fire by the confederate authorities, but they caught from a fire that was so set. On these facts the supreme court of appeals of Virginia decided that the society was not liable under its policies. In the opinion filed the court said: "It is plain that this fire, from which the appellants' buildings were burned, resulted from the act of these military officers, acting under express orders and by virtue of an act of congress of the confederate states of America. Certainly it cannot be said that the fire which consumed the buildings of the appellants was an accidental fire or a fire by lightning. The question is, how did such fire result, and how was it occasioned? If it was occasioned by accident or by lightning, the company is responsible. It is not responsible if occasioned by or resulted from riots, insurrection, civil commotion, or the invasion of a foreign enemy." Then, after considering the facts, it is further said: "I suppose that civil commotion' must necessarily arise where there is civil war. It is true, there may be civil commotion without civil war, but certainly there cannot be civil war without civil commotion, and I think no man who lived in the late decade would say that there was no civil commotion between 1861 and 1865. But the company not only protected itself against liability for loss occasioned by riots, insurrection, and civil commotions, but against the invasion of a foreign enemy.' In the light of history and of facts, familiar to every man who opens his eyes and sees material facts before him, is it not plain that the late war was a war of invasion, and that it was the invasion of an enemy, and

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that it was the invasion of a foreign enemy?'" And again: "Now, many authorities and opinions might be quoted to the same effect, but I think those already referred to are sufficient to show that the confederate states of America were, certainly as long as the war lasted, a separate and independent government, and foreign to the United States of America."

(112 U. S. 331)

It is upon these expressions in the opinion of the court, and others like them, that our jurisdiction is supposed to rest; but it must be borne in mind that the only question for decision was whether the society was liable on its policies for losses which resulted from such a fire as that in which the insured buildings were destroyed. The inquiry was not as to the rights of the respective parties under the constitution and laws of the United States, but as to what was meant by certain words used in the contracts they had entered into; not whether secession was constitutional, and the confederate government, which grew out of it, a lawful government, having authority to order the fire to be set; but whether that government did so order, and, if it did, whether the fire which followed was a fire which resulted from civil commotion, insurrections, or the invasion of a foreign enemy, within the meaning of those terms as used in the policies sued on; not whether the entry of the forces of the United States into Richmond was in fact the invasion of a foreign enemy, but only whether it was so in its legal effect upon the rights of the parties under their contracts. These are clearly questions of general not federal law, and, such being the case, the decision of them by the court of appeals is not reviewable here.

The motions to dismiss are granted.

HART v. PENNSYLVANIA R. Co.1

(November 24, 1884.)

1. CARRIER OF GOODS-LIMITATION OF LIABILITY-NEGLIGENCE-VALUATION.

Where a contract of carriage, signed by the shipper, is fairly made with a railroad company, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assunies liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful val

uations.

2. SAME-DAMAGE TO RACE-HORSES-EVIDENCE.

H. shipped five horses, and other property, by a railroad, in one car, under a bill of lading, signed by him, which stated that the horses were to be transported

64

upon the following terms and conditions, which are admitted and accepted by me as just and reasonable: First, to pay freight thereon" at a rate specified, "on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding two hundred dollars each. * If a chartered car, on the stock and contents in same, twelve hundred dollars for the car-load. But no carrier shall be liable for the acts of the animals themselves, * nor for loss or damage arising from condition of the animals themselves, which risks, being beyond the control of the company, are hereby assumed by the owner, and the carrier released therefrom." By the negligence of the railroad company or its servants, one of the horses was killed and the others were injured, and the other property was lost. In a suit to recover the damages, it appeared that the horses were race-horses, and the plaintiff offered to show damages, based on their value, amounting to over $25,000. The testimony was excluded, and he had a verdict for $1,200. On a writ of error, brought by him, held, (1) the evidence was not admissible, and the valuation and limitation of liability in the bill of lading was just and reasonable, and binding on the plaintiff; (2) the terms of the limitation covered a loss through negligence.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

1 S. C. 7 Fed. Rep. 630.