taking all the circumstances into account. Hadley v. Baxendale, 9 Exch. 349; Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458; Medway o. N. Y. & Erie R. Co., 26 Barb. 564; Balt. & Ohio R. R. Co. v. Humphrey, 9 Am. & Eng. R. R. Cas. 331.

Where the carrier has notice of the special circumstances he will be held liable for all the damages which that notice might reasonably inform him would ensue. Home v. Midland R. Co., L. R. 8. C. P.131; Priestly v. Northern I. & C. R. Co., 26 Ill. 205; Illinois Central R. Co. v. Cobb, 64 Illinois, 128; Toledo, W. & W. R. Co. v. Lockhart, 71 Ill. 627; Chicago, B. &. Q. R. Co. v. Hall, 83 Ill, 360; Great Western R. Co. v. Redmayne, L. R. 1. C. P. 329; Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458; Gee v. Lancashire & Yorkshire R. Čo., 6 H. & N. 211; King v. Woodbridge, 34 Vt. 565; Missouri Pac. R. Co. v. Nevin, supra.

Loss of Contracts.-The loss of an existing contract may be compensated for in damages. Priestly v. Northern Ind. & C. R. Co., 26 Ill. 205; Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458; Frazer v. Smith, 64 Ill. 128; Chicago, B. & Q. R. Co. v. Hale, 83 Ill. 360; Harvey v. Connecticut & P. R. Co., 124 Mass. 421.

Remote Speculative Damages.-There can be no recovery for damages which are evidently remote and speculative. Woodger v. Great Western R. Co., L. R. 2 C. P. 318; Ingledew v. Northern R. Co., 7 Gray 86; Penna. R. R. Co. v. Titusville Plank Road Co., 71 Pa. St. 350.

TEXAS CENTRAL RY.

V.

MORRIS.

(Advance Case, Texas. 1883.)

A stipulation contained in a contract between the railroad and the shipper, before shipment of the cattle, that before the shipper would be entitled to recover any damages for loss, or injury, which might occur to his stock while in transit, he should first give notice of his claim for such damages in writing, to some officer of the railroad, or nearest station agent, before the stock was moved from the place of destination, or place of delivery, and before said stock was mingled with other stock, is legal and binding.

WHITE, P. J.-By an express stipulation contained in the contract between Morris and the railroad agent, before the cattle were shipped, it was made a condition precedent that before Morris would be entitled to recover any damages for loss or injury, which might occur to his stock whilst in transit, he should first give notice of his claim for such damages, in writing, to some officer of the railroad, or nearest station agent, before the stock was moved from the place of destination, or place of delivery, and before said stock was mingled with other stock. Such a stipulation by the railroad with regard to the shipment of stock and its liability for damages, has been directly adjudicated in this State as to its validity, and has been held legal and binding. Missouri Pacific Ry. v. Jerome

Harris; opinion by the Commissioners of Appeals, Austin term, April 18, 1882.

It was claimed by the plaintiff that the damages of which he complained occurred at Waco; that he had notice of them at Fort Worth, Tex., and that when his attention was called to his damages he mentioned the same to a stranger, who happened to be present, and he was advised by the stranger to give notice to the company therefor, that his hands were too much soiled to write, so he took out his memorandum-book and asked the man to write for him; that the man did write at his (Morris') dictation, and the note was then put in a stamped envelope and sealed by witness and directed to the agent of the Houston and Texas Čentral R. R., at Waco; that witness saw an old friend of his by the name of Bond, and who was yardmaster at Fort Worth of the Missouri Pacific Ry., standing some distance off, and he (witness) went to Bond and handed him the letter, and asked him to mail it; that he did not tell Bond its contents, nor did Bond know its contents; that he (witness) left with his train a few minutes afterward, and does not know whether or not Bond mailed the letter; that witness did not mail the letter in person because he did not have time to do so before the train left.

Bond was not introduced as a witness on the trial of the case, either in person or by deposition, to prove that he had mailed the letter, and defendant proved by the witness, Gibson, its station agent at Waco, that he never had received any notice in writing, or otherwise, from the plaintiff, in regard to the cattle, or any damage thereto, or claim therefor.

We are of opinion that the evidence wholly fails to show that such notice in writing was ever given by the plaintiff to the defendant, or any of its officers, agents or servants, in compliance with his stipulation in the contract.

We are further of opinion that there is no evidence of a legal character which would warrant the jury in finding that the cattle had in fact lost flesh and weight from Albany, the place of shipment, to Chicago, the place of destination. At Chicago the cattle were weighed, but the testimony, neither of the weigher nor of the clerk who took down the weights in Chicago, was adduced on the trial, and this certainly was the best evidence to prove the weights at Chicago. Because the verdict and judgment are not supported by the evidence the judgment is reversed and the cause remanded. Reversed and remanded.

Limitation of Time within which Claim for Damages Must be Presented. -Conditions have frequently been sustained in contracts of carriage requiring claims for damages to be presented within a certain time. Southern Express Co. v. Caperton, 44 Ala. 101; Portor v. Southern Express Co., 4 S. C. 135; Westcott o. Fargo, 61 N. Y. 452; Place . Union Express Co., 2 Hilton, 19; Capehart v. Seaboard, etc., R. Co., 77 N. C. 255; Weir v. Express Co., 5

Phila. 355; Southern Express Co. v. Hunnicutt, 54 Miss. 566; Adams Express Co. v. Reagan, 29 Ind. 21; United States Express Co. v. Harris, 51 Ind. 127; Squire . N. Y. Central R. Co., 98 Mass. 239; South & N. Ala. R. Co. . Henlein, 52 Ala. 606; Newburger v. Express Co., 6 Phila. 174; Macklin v. New Jersey Steamboat Co., 7 Abb. Pr. (N. S.) 229; Browning v. Long Island R. Co., 2 Daly, 117; Christian v. St. Paul, etc., R. Co., 20 Minn. 21.

As to such conditions in contracts for the carriage of live stock, see Goggin v. Kansas, etc., R. Co., 12 Cas. 416; Rice v. Kansas, etc., R. Co., 63 Mo. 314; Oxley v. St. Louis, etc., R. Co., 65 Mo. 629.

SNIDER

v.

ADAMS EXPRESS CO.

(77 Missouri Reports, 523.)

The plaintiff, having sold land as agent of the owner and received the purchase money, delivered the latter to an express company for transportation to the owner. It was lost in transit. Held, that the plaintiff could maintain an action for its recovery. He was the "trustee of an express trust," within the meaning of section 3463, Revised Statutes 1879.

APPEAL from Cedar Circuit Court.

This was a suit by Henry J. Snider to recover damages for failure to deliver money alleged to have been placed in the care of the express company for transportation. At the trial plaintiff gave evidence tending to show that, as agent for his brother Andrew Snider and his sister Louisa J. Snider and several other persons, he sold a tract of land and received the purchase money; that he divided this money according to the interest of each, put the share of each into an envelope by itself, marking the envelope with the name of the owner, and placed them all in a large envelope; that he then deposited the latter with the express company with direc tions to deliver the same to said Andrew Snider, taking a receipt in the usual form and paying charges of transportation with money reserved out of the fund; that all the beneficiaries lived in the same town; that the package was duly delivered to said Andrew, but upon being opened the envelope containing the share of said Louisa was found to be missing. This was the money sued for. The court sustained a demurrer to this evidence, and plaintiff took a non-suit with leave to move to set the same aside. In due time

this motion was made and overruled, and plaintiff brought this appeal.

E. E. Kimball and E. J. Smith for appellant.

Plaintiff is the proper party to bring this suit. Defendant agreed with him to convey the money safely, and from him received the fee therefor. Blanchard v. Page, 8 Gray, 281; Hooper

v. Railroad Co., 27 Wis. 81; s. c., 9 Am. Rep. 439; Southern Express Co. v. Craft, 49 Miss. 480; s. c., 19 Am. Rep. 4; Grinnell v. Schmidt, 2 Sandf. 706; Robbins v. Deverill, 20 Wis. 148; Joseph v. Knox, 3 Camp. 320; Dunlop v. Lambert, 6 Cl. & Fin. 600; Davis v. Harness, 39 Ohio St. 332; s. c., 22 Am. L. Reg. 213. His right of action on the contract is not affected by the provision of the code which requires every action to be brought in the name of the real party in interest. The consignor is a party in interest to the contract, and it does not lie in the carrier, who made the contract with him, to say, on a breach of it, that he is not entitled to recover the damage, unless it be shown that the consignee objects, for without that it will be presumed that the action was comenced and prosecuted with the knowledge and consent of the consignee, and for his benefit. The consignor is by the operation of the rule regarded as a trustee of an express trust, like a factor or other mercantile agent, who contracts in his own name on behalf of his principal. Denver, etc., R. R. Co. v. Frame (Supt. Ct. Colorado), 16 Cent. L. J. 337; 8. c., 1 Denver L. J. 66.

The consignee, Andrew Snider, had and has no possible interest in the subject matter of this suit. He was not a party to the contract of carriage, and had he received the money sent to him, he would simply have been charged with the duty of delivering it to Louisa to whom it belonged, according to the instructions sent by plaintiff. On the other hand, Louisa never authorized the money to be sent in any way. Plaintiff assumed all risk of loss, and Louisa could maintain an action against him for the money. Therefore he is the real party in interest here. Stewart v. Frazier, 5 Ala. 114; Kowing v. Manly, 49 N. Y. 192; s. c., 10 Am. Rep. 346; Jenkins v. Bacon, 111 Mass. 373; s. c., 15 Am. Rep. 33. Blair & Perry for respondent.

Plaintiff is not the trustee of an express trust. An express trust is created by an instrument that points out directly and expressly the property, persons and purposes of the trust. And as they are directly declared by the parties there can never be a controversy whether they exist or not. Such a trust cannot be proved by parol, and can only be created by writing. Perry on Trusts (3 Ed.), §§ 24, 79, 82. Louisa J. Snider is the real party in interest, and the suit should have been brought in her name. Williams v. Whitlock, 14 Mo. 553; Hutchings v. Blackford, 35 Mo. 285; Weise v. Gerner, 42 Mo. 527; Wallhormfechtel v. Dobyns, 32 Mo. 310; State v. Anderson, 5 Kas. 115; Railroad Co. v. Wheaton, 7 Kas. 232; Coffman v. Parker, 11 Kas. 12; State v. Jefferson Co., 11 Kas. 66; Humphreys v. Keith, 11 Kas. 108; Schnier v. Fay, 12 Mo. 184; Crowell v. Ward, 16 Kas. 60. The person for whose use a contract for carriage is made is the proper one to sue for its breach, though it is not made with him. Angell on Carriers, SS 495, 497, 506; Hooper v. Railroad Co., 27 Wis. 81; Magru

der v. Gage, 33 Md. 344; s. c., 3 Am. Rep. 177; Krulder v. Ellison, 47 N. Y. 37; s. c., 7 Am. Rep. 402; Thompson v. Fargo, 49 N. Y. 188; s. c., 10 Am. Rep. 342.

SHERWOOD, J.-The controlling question in this case is, whether the plaintiff is the proper party to sue, the answer denying that he is the proper party.

It is quite clear from the testimony, that the plaintiff was acting as the agent of his sister, Louisa J. Snider, in collecting and forwarding the money arising from the sale of her interest in the land. The contract with the defendant company, for the transmission of the money, for the loss of which suit is now brought, was made by plaintiff, in his own name, without mention of any one as beneficiary of such contract. If so, then it was competent for the agent, with whom the contract was actally made, to sue in his own name, or for his undisclosed principal, with whom in point of law the contract was made, to sue in her own name. Cothay v. Fennell, 10 B. & C. 671; s. c., 21 E. C. L. 146; Story on Agency, $$ 160, 270, and cases cited; Ferris v. Thaw, 72 Mo. 446. In Blanchard v. Page, 8 Gray, 281, the same view as that just announced is stated, and it is there held after an extensive and elaborate review of the authorities, by Shaw, C. J., that a consignor was the proper party to sue, though having neither a general nor special property in the goods.

But it is urged that under the code the action must be "prosecuted in the name of the real party in interest." R. S. 1870. § 3462. But there are exceptions to this rule, expressly made in the section quoted, and set forth in the section following. Among those exceptions is that of a trustee of an express trust, who may sue in his own name, without joining with him the person for whose benefit the suit is prosecuted. In the language of the section referred to, "A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another."

It is claimed by counsel for defendant that there is no express trust in the case, because such trust must point out with precision the subject, the persons and the purposes of the trust, cannot be proved by parol, and can only be manifested or proved by some writing. Whatever of truth there may be in this position regarding trusts as to realty, it is not true regarding personal property; for such property is not within the terms of the statute, and such trusts, consequently, may be declared and proved by parol. The point has been so decided inferentially in England, and directly decided in this way in this country. 1 Perry on Trusts, § 86, and cases cited.

But we need not search the text books in the endeavor to maintain in the present instance that the plaintiff is the trustee of an