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of fact, to be determined upon the master's report and the evidence referred to.
That there was no express contract for the delivery of this property at Medford is conceded.
Was there an implied contract to that effect ?
From the master's report and the testimony of Lawrence Brainerd, one of the defendants, which is referred to as a part of said report, it appears that there was a business arrangement entered into between the several roads that constitute a line of communication by railroad from Ogdensburgh, in the state of New York, to Boston, Mass., for the transportation of passengers and freight; that in this chain the Vermont and Canada and the Vermont Central railroads constitute links; that under this arrangement, when a car-load of property was sent from one point upon the line to another, it went to its destination without a change of cars; the amount to be paid for carrying the property through the whole distance was agreed upon and fixed at its place of departure by the parties receiving it. This sum might be paid in gross by the consignor in advance, or by the consignee on its arrival. The freight was not to be paid to the several roads over which the property passed in its transit, but the amount which each was to receive was adjusted between themselves in their monthly settlements. This property was billed through from the place where received to the place to which it was sent, and the way-bill in this case is quite significant of what the practice was, and how the parties understood the transaction. It as follows: “Merchandise transported by the trustees first mortgage bonds Vt. Central Railroad Co. from Swanton, Vt., to Medford, Mass., Nov. 14th 1859." then is entered the No. of the car and name of its owner, name of the consignee, description of the property, receipt, rate per hundred, and the whole amount of the freight, “payable at the station sent to."
When a party sends a car-load of live-stock over the roads, he is entitled to a free pass over all the intermediate roads on the train, with the car, to its place of destination. Such a pass was given to Morse. These facts, and, in short, without stopping to enumerate further, the great mass of facts and testimony reported by the master, are consistent, and many of them only consistent with the idea of an assumed liability, to transport the property in this case from Swanton to Medford.
Such, we think, must have been the understanding and expectation of Morse and the station agent at Swanton at the time the property was put on to the defendants' road at that place. It was according to the regular and established course of their business, and such an arrangement would have been within the legitimate scope of the authority of the station agent.
We think the fair and just implication from the whole case as we have it before us is, that the defendants, when they received the property of Morse, took upon themselves the obligation to transport the property safely from Swanton to Medford, and such being the case, they are liable to Morse for the injury the property sustained on its way, as reported by the master.
As there are two cases now before us between the same parties, depending upon the same principles and similar facts, the entries will be in both cases that the decree of the Chancellor accepting the report of the master and fixing the liability of the defendants, and the account thereof, is affirmed, and the cases remanded to the Court of Chancery for final disposition.
The foregoing case is interesting to for damage occurring upon the line of the profession and to business men, as the other companies without practically tending to define the grounds upon which adopting the English rule, that such is the courts will imply a contract to de- always the implied understanding. This liver goods at their destination, the implication obtains in the English courts, transit extending over more than one even where part of the line is by steamcompany's line. That is, at the present boat: Wilby v. West Cornwall Railway, time, the most embarrassing problem 2 H. & N. 702. And where there is in connected with the duty of railways as such case an agreement between the common carriers. Almost all the through railway company and the steamboat line transportation extends over numerous to run in connection and divide the successive lines, and many of them al- freight, both companies are held responmost completely consolidated into one sible for all contracts made by either : trunk line, and under one management. Hayes v. South Wales Railway, 9 Ir. In all such cases it must be expected, Com. Law 474 ; Webber v. Great Westof course, that the company receiving ern Railway, 3 H. & C. 771. the goods and executing the bill of lad- From the extreme difficulty of defining ing stipulating for a delivery at the end precisely what is sufficient ground to of the route, as in the present case, will imply a contract by the first company to be held responsible for safe delivery at carry through, there is a constant tenthat point. But where any such respon- dency toward the adoption of the English sibility is expressly repudiated in the rule, as being more easy of application, bill of lading, as is now the more com- and, on the whole, not unjust in its opemon practice on these long lines of ration with reference to connecting lines transportation, it will be impossible of freight transportation. Indeed in all :) hold the first company responsible cases, where the companies for the entire line are so connected, that each com- the different companies, but only one of pany receiving goods for transportation, agency, this will rebut the implication. fixes the rate of compensation for the The rule stated in the principal case whole route, and it is all received and seems quite unobjectionable, that where receipted for in one gross sum, there there is a business connection between should be an implied undertaking raised the different companies throughout the for safe transportation through the entire route, and the consignor has reason to route on the part of the company re- believe that the company to whom he ceiving the goods : Angle v. Mississippi, delivers the goods held themselves out fc., Railway, 9 Iowa 487. But it is as responsible for the entire route, he said here, that if the consignee knew, or will be entitled to so hold them. might readily have learned, that there
I. F. R. was no partnership connection between
Louisville Court of Chancery.
WILSON, PETERS & CO. v. SEIBERT. A mortgage of future-acquired chattels is valid only when the property mortgaged may be regarded as a part of, or accretion to, property in actual or legal possession of the mortgagor at the time of making the mortgage.
A mortgage of property in which the mortgagor has no present interest, and which he must acquire, if at all, in substitution for or independently of any property he now has, is not valid to create any lien which equity will recognise or enforce.
The opinion of the court was delivered by
WOOLLEY, Chancellor.—Can a mortgage upon chattels, to be acquired, and having then no existence, create a lien against future creditors ? And, if so, in what cases will such a mortgage be sustained ?
These questions have never been decided expressly by the Supreme Court of Kentucky, and that fact and their importance have made them obtain from me great attention.
The arguments of both counsel were unusually elaborate and satisfactory, and the large number of authorities to which they referred me pointed at once to the true line of inquiry.
In the case of Morrell v. Noyes, decided in Maine in 1864, and reported in 3 Am. Law Reg. N. S. 18, it was held that such a mortgage was good by a railroad corporation upon rolling-stock and machinery to be purchased in the future, and to be applied to the road itself, as an accretion to the property of the mortgagor. It will be observed that use and accretion, and not traffic
or sale, mark the property covered by the mortgage in the case referred to.
In the case of Pennock v. Coe, foc., 23 Howard 119, the Supreme Court of the United States gave a similar decision. The counsel for the mortgagee made a vigorous attempt to induce the court to lay down the broad doctrine that there was no difference between a mortgage upon things in esse and things in futuro, and in which the mortgagor had, at the time, neither potential nor contingent interest. In support of his attempt he referred to Fonblanque, B. 1, No. 4; Powell on Mortgages 190; Coote on Mortgage Law 185; Noel v. Burley, 3 Simons 103; Metcalfe v. Archbishop of York, 1 Mylne & Cr. 553; Langhton v. Horton, 1 Hare 539; Matter of Howe, 1 Paige 125, 129; White v. Carpenter, 2 Paige 217, 266; Foreman v. Proctor, 9 B. Monroe 124; Abbott v. Gordon, 7 Shepley 408; Jenkes v. Goffe, 1 Rhode Island 511; Field v. The Mayor of New York, 2 Selden 179, 186; Winston v. Mitchell, 2 Story 630, and Story's Eq. Jur. $$ 1040, 1055.
I have carefully examined all of these authorities, which were either in the public or in my private library, and found that they were either foreign to the question, or were cases in which the mortgage covered future property, which was to be an accretion to the property then owned by the mortgagor, either by adding the future to the present, or by growth.
This idea of accretion runs through all the cases, which evidently contemplate that the present property is to be retained, and that the future property is not to be substituted, but merely added. Hence the Supreme Court, in the case above referred to, refused to yield to the counsel of the mortgagee, and sustained the mortgage upon the restricted ground, that the rollingstock afterwards to be acquired was intended not to displace the old capital fund, but would be a necessary accretion to it; because without rolling stock the railroad, which was the capital fund, would be valueless.
In the case of Mitchell v. Winston, 2 Story's Rep. 630, decided by Judge Story, the mortgage covered the machinery and tools then in possession, and machinery, tools, and stock in futuro. The learned judge held the mortgage good. I looked into every case to which he referred, and to which I had access, and he referred to many, and I found that all had reference to future proVOL. XVII.-39
perty, to accrue to or grow upon that which was already in existence, which was to be retained and not circulated in trade. In other words, the future property was to be an accretion, not a substitution. So far, therefore, as that case held good the mortgage upon future machinery to be added to that which was then in possession, and which it was contemplated would be retained, the decision was correct, but so far as it held that the future goods were also covered, it is not supported by previous authorities, and is disregarded in England, Maryland, Maine, and Massachusetts. It may have doubtful rest if placed upon the ground that the future stock would be the growth or product of the machinery then in use; otherwise it is singular.
But that case does not apply to this, because in that the stock would be the product of great labor and change coming from capital, skill, and machinery, and these things carry with them some idea of accretion.
But where there is the mere sale of goods unchanged in shape or quality, and the mere investment of the proceeds in the same species of goods, which are again to be sold in like manner, and so on toties quoties,—under such circumstances there may be profit, but surely there is neither accretion nor growth. The proper word is substitution.
In the case of Phillips v. Winslow, 18 B. Mon. 445, the mortgage was upon the railroad, and the question was whether the recital that its engines and machinery, to be afterwards acquired, should be included, created a lien. The court held that the lien attached, and lodged their reasoning expressly upon the ground that the future-acquired property was to be added to the present, and for its benefit.
And lest they might be misunderstood, the learned judges declared, “ We do not deem it necessary to decide in this case whether, under ordinary circumstances, a mortgage on subsequently acquired property would be valid, or pass any title to the property.” And in the next sentence they declare that their decision is governed by the particular facts of the case, “and not by the general law upon the subject."
I was informed that the question had been decided by my learned predecessor, Chancellor LOGAN, whose opinion was affirmed by the Court of Appeals in the case of Sayre v. Lamdin, No. 13,227, in this court. An examination of that case, assisted by