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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 wuuld 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 theindorser 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 or PITTSBURGH, PA., 0. THIRD NAT. BANK OF THE CITY OF
(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. Mc Carter, for plaintiff in error. 4. Q. Keasbey, for defend. ant in error.
BLATCH FORD, J. This guit presents, in all material respects, the same facts and ques. tions 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 commnnicate 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 forio of the acceptance until the first draft was protested for non-paynient 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.
(112 U. S. 273)
GODDIN, Ex'r, etc., 0. SAME.
(November 19, 1884.) INSURANCE POLICY-INVASION OF FOREIGN ENEMY-UNITED STATE TROOP8—DECISION
or 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 of. ficers, 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
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."
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 build. ings 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.
(112 U. S. 331)
HART 0, PENNSYLVANIA R. Co.
(November 24, 1884.) 1. CABRIER OP Goong-LIMITATION OF LIABILITY-NEGLIGENCE-VALUATION.
Where a contract of carriage, signed by the shipper, is fairly made with a rail. road company, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes 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 lailing, signed by him, which stated that the horses were to be transported "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.
18. C. 7 Fed. Rep. 630.
Melville C. Day and G. M. Stewart, for plaintiff in error. E. W. Pattison and Newton Crane, for defendant in error.
BLATCHFORD, J. Lawrence Hart brought this suit in a state court in Missouri against the Pennsylvania Railroad Company, to recover damages from it, as a common carrier, for the breach of a contract to transport, from Jersey City to St. Louis, five horses and other property. The petition alleges that, by the negligence of the defendant, one of the horses was killed and the others were injured, and the other property was destroyed, and claims dam. ages to the amount of $19,800. After an answer and a reply, the plaintiff removed the suit into the circuit court of the United States for the Eastern district of Missouri, where it was tried by a jury, who found a verdict of $1,200 for the plaintiff; and, after a judgment accordingly, the plaintiff has brought this writ of error. The property was transported under a bill of lading issued by the defendant to the plaintiff, and signed by him, and reading as follows:
“BILL OF LADING.
"Form No. 39, N. J. "Limited Liability Live-Stock Contract for United Railroads of New Jersey
Division. (No. 206.)
187“Lawrence Hart delivered into safe and suitable cars of the Pennsylvan a Railroad Company, numbered M. L. 224, for transportation from Jersey City to St. Louis, Mo., live-stock, of the kind, as follows: one (1) car, five horses, shipper's count; which has been received by said company, for themselves and on behalf of connecting carriers, for transportation, upon the following terms and conditions, which are admitted and accepted by me as just and reasonable:
“First. To pay the freight thereon to said company at the rate of ninetyfour (94) cents per one hundred pounds, (company's weight,) and all back freight and charges paid by them, 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 cattle or cows, not exceeding seventy-five dollars each; if fat hogs or fat calves, not exceeding fifteen dollars each; if sheep, lambs, stock hogs, or stock calves, not exceeding five 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, or to each other, such as biting, kicking, goring, and smothering, 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.
“Second. Upon the arrival of the cars or boats containing said stock at point of destination, the shipper, owner, or consignee shall forth with pay said freights and charges, and receive said stock therein, and unload the same therefrom; and if, from any cause, he or they shall fail or refuse to pay, receive, or unload, as aforesaid, then said company or other carrier, as the agent of such shipper, owner, or consignee, may thereupon have them put and provided for in some suitable place, at the cost and risk of such shipper, owner, or consignee, and at any time or times thereafter may sell the same, or any number of them, at public or private sale, with or without notice, as said agent may deem necessary or expedient, and apply the proceeds arising therefrom, or so much thereof as may be needed, to the payment of such freight and charges, and other necessary and proper costs and expenses.
“Third. When necessary for said stock to be transported over the line or lines of any other carrier or carriers to the point of destination, delivery of the said stock may be made to such other carrier or carriers for transportatior upon ch terms and conditions as the may be willing to accept:
provided, that the terms and conditions of this bill of lading shall inure to such carrier or carriers, unless they shall otherwise stipulate; but in no event shall one carrier be liable for the negligence of another.
“Fourth. All live-stock transported under this contract shall be subject to a lien, and may be retained and sold for all freight or charges due for transportation on other live-stock or property transported for the same owner, shipper, or consignee.
"Fifth. This company's liability is limited to the transportation of said animals, and shall not begin until they shall be loaded on board the boats or cars of the company. The owner of said animals, or some person appointed by him, shall go with, and take all requisite care of, the said animals during their transportation and delivery, and any omission to comply herewith shall be at the owner's risk. Witness my hand and seal, this twentieth day of October, 1879.
LAWRENCE HART, Shipper. (L. S.] “Attest:
At the trial the plaintiff put in evidence the bill of lading, and gave testimony to prove the alleged negligence, and how the loss and injury occurred. He then offered to show that the actual value of the horse killed was $15,000; that the other horses were worth from $3,000 to $3,500 each; and that they were rendered comparatively worthless in consequence of their injuries. The defendant objected to this testimony, on the ground that it was not com. petent for the plaintiff to prove any damage or loss in excess of that set out in the bill of lading. The court sustained the objection and the plaintiff excepted. It appeared on the trial that the horses were race-horses, and that they and the other property were all in one car. It was admitted by the defendant that the damages sustained by the plaintiff were equal to the full amount expressed in the bill of lading. The court charged the jury as follows: “It is competent for a shipper, by entering into written contract, to stipulate the value of his property, and to limit the amount of his recovery in case it is lost. This is the plain agreement that the recovery shall not exceed the sum of two hundred dollars each for the horses, or twelve hundred dollars for a car-load. It is admitted here by counsel for the defendant, under this charge, that the plaintiff is entitled to recover a verdict for twelve hundred dollars, and also, under the charge of the court, the plaintiff agrees that that is all. It is simply your duty to find a verdict for that amount." The plaintiff excepted to this charge. The errors assigned are that the court erred in refusing to permit the plaintiff to show the actual damages he had *gystained, and in so charging the jury as to restrict their verdict to $1,200.
It is contended for the plaintiff that the bill of lading does not purport to limit the liability of the defendant to the amounts stated in it, in the event of loss through the negligence of the defendant. But we are of opinion that the contract is not susceptible of that construction. The defendant receives the property for transportation on the terms and conditions expressed, which the plaintiff accepts "as just and reasonable. The first paragraph of the contract is that the plaintiff is to pay the rate of freight expressed, “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.” Then follow, in the first paragraph, tliese words: “But no carrier shall be liable for the acts of the animals themselves, or to each other, such as biting, kicking, goring, or smothering, 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." This statement of the fact that the