ployed in the statute, but cites with approbation a decision of his own, that an application for removal comes too late where a term is suffered to elapse, by consent of parties, after the issue has been formed by the pleadings.

It is the judgment of the court that the petition for removal comes too late, and the motion to remand the cause must prevail, and it is ordered accordingly.



English High Court, Common Pleas Division, Feb.

ruary, 1879.

A., a compounding debtor, went to the office of B, a solicitor, to pay the amount of the composition due in respect of a bill of costs. He tendered the proper amount to one of B's clerks, who said that B was out, and refused to accept payment of the amount, as he had “no instructions” to do so. B subsequently sued A for the amount of the debt. Held, that the clerk saying he had “no instructions" did not amount to a disclaimer of authority, and that the tender was, therefore, good.

Special case stated by the judge of the Southwark County Court.

1. This was an action brought by the plaintiff, a solicitor, to recover £15 6s. 10d., the amount of a bill of costs.

2. The defense was a discharge by a resolution of the defendant's creditors, under section 125 of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), and a tender of the amount of the composition of the said debt before action brought, but that the plaintiff had refused to accept the same. The defendant paid into court the amount of the composition.

3. In support of the above defense a witness was called, who stated that he was the accountant engaged by the

defendant in the proceedings for liquidation by composition, and that he and the defendant's solicitor (since deceased) went to the offices of the plaintiff, and there tendered the amount of the composition to one of the plaintiff's clerks, who informed him that the plaintiff was out, and that he (the clerk) had received “no instructions," and refused to accept the amount tendered.

4. On the part of the plaintiff it was denied that any such tender was ever made at all, and witnesses, consisting of the clerks then in the plaintiff's service, were called in support of such denial.

The judge, however, was of opinion that the matters stated in the third paragraph were proved, and gave judgment for the defendant with costs.

The question for the opinion of the court was whether the said judgment for the defendant was right, or whether the same should be reversed and entered for the plaintiff, with costs of suit.

Poulter, for the plaintiff: The tender was bad. It was just such another tender as was made in Bingham v. Allport, 1 Ney. & M. 398. In Wilmott

v. Smith, M. & M. 238, the tender was refused, not on the ground of authority to receive on the part of the clerk, but because the sum terdered fell short of what was due. In Barrett v. Deere, M. & M. 200, a tender to a clerk in a merchant's office was held good. [LORD COLERIDGE, C. J.: A person ostensibly carrying on a business in the absence of the principal surely has implied authority to receive payments made in the ordinary course of business. In Moffatt v. Parsons, 5 Taunt. 308, Chief Justice Mansfield expressly says that a tender to a managing clerk will suffice, and in an Anonymous case, 1 Esp. 349, Lord Kenyon said that " in the common transactions of life this kind of intervention of servants must be allowed.”] In Watson v. Hetherington, 1 C. & K. 36, Mr. Baron Parke said that there must be an authority express or implied, otherwise a clerk would be justified in refusing to accept money and the tender would be bad. (DENMAN, J., referred to Kirton v. Braithwaite, 1 M. & W. 310.]

Melsheimer, for the defendant: The tender was good according to Barrett v. Deere. The clerk did not disclaim his authority to receive generally, but only refused to accept this particular tender.


I am sorry to find that the court is divided on this question. I am of opinion that the judgment of the county court judge was right and should be affirmed. The cases cited seem to me to establish this principle: that a tender to be good need not be made to the principal, provided only that the person to whom the tender is made is a person who might reasonably be supposed to have authority from the principal to receive money, or is a person to whom in the ordinary course of business payments are in fact made on account of the principal. If, then, you once allow that a legal tender may be made to a person other than the principal, evidence may be received to show that the person to whom a tender is made was a proper representa. tive of his master, the principal. I see that in Watson v. Hetherington, Mr. Baron Parke says: 6. The cases go to show that, where an attorney asks payment at his office, a tender to any person who is in the office carrying on the business will do; but here the attorney writes asking payment to himself, and the tender is made to a writing clerk, who says that he cannot take the money because the principal was out; and this tender to a writing clerk was held bad because payment to the principal himself was particularly requested. The same principle seems to me to govern the other cases-viz., that a tender made to an apparent representative is good. This rule is subject, however, to the qualification that, if the representative person disclaim authority to receive payment, the tender will be at the peril of the person tendering, and if there should be really no authority, then the tender will be bad. Bingham V. Allport is exactly the case I have just assumed. In the present case, the county court judge finds that the tender was good; he therefore puts on one side the evidence of the plaintiff that no tender was ever made. The clerk, it seems, said, not that

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he had no authority to receive the money, but that he had " no instructions” to do so, in this particular case. If no tender is to be good unless each servant in a house of business is to be specially instructed to receive payment from each particular individual who may be indebted to the firm, how could any valid tender ever be made in any of the great houses in the city of London? On careful consideration, the case of Bingham v. Allport will be found to be distinguishable from this case. Here tbe clerk said he had " no instructions," which the county court judge thought did not preclude his having authority; and I am of the same opinion, and think that this judgment should be affirmed. DENMAN, J.:

I regret that I am unable to distinguish this case from Biogham v. Allport. It seems to me that a tender to be good must be made either to the principal direct or to some properly authorized agent. In Bingham v. Allport, the judge, as I understand him, told the jury that the tender would unquestionably have been bad if the clerk had disclaimed general authority to receive payment. In this case the clerk said he had no instructions. To my mind this means the same thing. This is not a case in which an appeal should be allowed. Judgment will therefore be for the defendant.



he seeks recovery. The action of the court in the charge upon this issue, as given, and in the refusal to give the special charge asked is assigned as error, and the determination of this question is decisive of the case.

The jury were virtually instructed by the court, that the plaintiff's right to recover depended upon the question of his knowledge or ignorance of this wet condition of the cotton at the time he removed and shipped it. It is contended by the plaintiff, that whether his shipment of the cotton, under the circ'ımstances as developed by the testimony, caused the damage, was a question of contributory negligence, which should have been left to the jury, and that by the charge of the court it was virtually taken away from them.

If this had been a question properly of contributory negligence, we think there would have been error in rot submitting it as a question of fact for determination by the jury; as under the decision of this court, the question of negligence, as a general rule, is one of fact to be submitted, by appropriate instructions, for their consideration. Texas & Pacific R. Co. v. Murphy, 46 Tex. 306, 4 Cent L. J. 55. This is the rule also deduced by Mr. Cooley, as supported by a great majority of cases. Cooley on Torts, 670.

The testimony, however, of the plaintiff himself shows that he had full knowledge of the condition of the cotton before the bill of lading was signed, and that, in fact, he only received a clean bill of lading by reason'of his urgent solicitation, and as a matter of personal favor. It was further in evidence, that the immediate cause of the injury was the continued freezing and thawing of the cotton after it had been shipped by the plaintiff from Galveston, and had reached the city of New York.

The question then arises, was the plaintiff, under the circumstances as developed by the testimony, entitled to recover for subsequent accrued damage, after he had received the cotton and had exercised an independent control over it, with full knowledge of its condition and liability to injury?

It is well settled that it is not only the moral but the legal duty of one who seeks redress for another's wrong, to use due diligence to prevent loss, thereby. The principle applies to a breach of contract, and a party is not entitled to compensation for injurious consequences from such breach, so far as he had the information, time and opportunity, necessary to prevent them. Sedgwick on Damages, marg. p. 49, and authorities.

It is a familiar general rule, that damages to be recovered must be both the natural and proximate consequences of the act complained of. But, as said by Mr. Sedgwick, it is far easier to lay down this general proposition than to apply it to a particular case. When we come to analyze causes and effects, and undertake to decide what is the natural result of a given act, what is to be regarded as natural, what is proximate, and what remote, we shall tind ourselves involved in serious difficulty. Sedgwick on Damages, 66.

This very difficulty, however, has forced us to adopt general rules, arbitrary though some of them may be, limiting this liability. As said by


Supreme Court of Texas, February, 1879.

Where defendants delivered a quantity of cotton at a wharf in a wet condition, and the plaintiff there received and shipped it while in this condition, and after such shipment the cotton was damaged by continued freezing and thawing, Held, that plaintiff was not en• titled to recover for damages accruing to the cotton after he had received it and had exercised an inde. pendent control over it with a full knowledge of its condition and liability to injury.

Appeal from Galveston County. BONNER, J., delivered the opinion of the count: The court in this case, submitted to the jury the question of the liability of the defendants for damages to the cotton while in their possession, and on the way to the steamer laden for shipment. The jury having found a general verdict for the defendants, and there being no alleged error in the proceedings, up to this point, the presumption must be indulged, that at the time the cotton was placed upon the wharf no such damage had accrued as would entitle the plaintiff to a judgment.

The plaintiff's case seems to proceed upon the theory, that he is entitled to damage subsequently developed which had, as its primary origin, the wet condition of the cotton when delivered upon the wharf: upon this subsequently developed dam. age is based his alleged special damage for which

Lord Bacon: “It were infinite for the law to consider the cause of causes, and their impulsion, one upon another, therefore it contenteth itself with the immediate cause and judgeth of acts by that without looking to any further degree.” Bac. Max. Reg. 1.

In the elaborate and well-considered case of Cuff v. Newark R. Co., 35 N. J. 32, it is said, and many authorities cited to sustain the proposition, that the intervention of the independent act of a third person, between the wrong complained of and the injury sustained, and which act was the immediate cause of the injury, is made a test of the remoteness of damage which forbids its recovery.

In the recent work of Mr. Wharton on Negligence, the doctrine that it is a bar to the plaintiff's right of recovery, if he breaks the casual connection between the injury received by himself and the defendant's negligence, is fully considered and approved. Chapters 3 and 9, and authorities cited in notes.

If the independent act of a third person would break this connection, and relieve the defendant from liability, it is believed that the principle should apply with equal, if not greater, force where this interruption is made by the plaintiff himself with full knowledge of the facts.

Although the question of contributory negligence proper is one of fact for the consideration of the jury, under appropriate instructions, yet, the question of remoteness of damage is one of law to be decided by the court.

It is well settled that the charge of the court should have reference to the issues made by the pleadings and the evidence.

Tested by the above rules of law, in their application to the undisputed facts of this case, we do not think there was error in the general charge of the court, or in the refusal of the special charges asked, and the judgment is affirmed.

Stearns, Knowlton & Long, for plaintiffs; M. WilCox, J. P. Buckland and Leonard & Wells, for defendant.

GRAY, C. J., delivered the opinion of the court:

The manifest intent and purpose of the clause inserted in each of these polices, by which it is provided that “if a building shall fall, except as the result of a fire, all insurance by this corporation on it or its contents shall immediately cease and determine," is that the insurance, whether upon a building or its contents, shall continue only while the building remains standing as a building, and shall cease when the building has fallen and become a ruin. When substantially all the floors and the roof of a building used as a store-house, fall, leaving nothing standing but the outer walls, and perhaps a stair-case or an elevator, the building must be deemed to have fallen. When several buildings are insured by the same policy, the fall of one terminates the policy, at least on that building and its contents.

The report shows that the eastern and western halves of the block were substantially distinct buildings, separated from each other by a brick partition wall extending from the front to the rear of the block, and from cellar to roof (though with doors of communication in each story), and each of the two parts or buildings, capable of standing or falling by itself; that in each of these two parts or buildings, midway between the partition wall and the end wall, there was a beam or girder in each floor, extending from the front to the rear, supported by four brick piers in the cellar and by wooden posts in each story, and upon which the joists of the floors rested; that by the giving away of the piers in the cellar of the easterly part of the building, without the agency of fire, the beam or girder resting thereon fell down near the ground, bringing with it the floors and partitions and roof above, with the goods and merchandise in each story, in a mixed and confused mass, excepting only very small portions of some of the floors, and of the roof and a single case of goods; and that only the outer walls of the building, and an elevator five feet square, in one corner were uninjured by the fall; and that it was after the fall that the fire broke out that caused the injury, for which recovery is sought in these actions, to the goods which had fallen, and to the elevator and to the walls, with the doors and windows therein, which remained standing.

Of the building forming the eastern half of the block, the roof and the whole interior, with all the floors and divisions had fallen, and nothing remained standing but the outer walls and the elevator, constituting a mere ruin, and not a standing building in any proper sense. It follows that neither the goods precipitated by the fall into a confused mass, nor the walls of the ruined build. ing were any longer at the risk of the insurers, and that in each of these cases a jury woul3 not have been warranted in finding a verdict for the plaintiffs.

The decisions cited for the plaintiffs are not inconsistent with this conclusion. In Firemen's Ins. Co. v, Congregation Rodelph Scholon, 80 III. 555,

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1. FIRE INSURANCE--CONSTRUCTION OF CLAUSE IN POLICY AS TO“ FALLING BUILDING.”—The manifest intent and purpose of a clause in a fire insurance policy that, “ if a building shall fall, except as the result of a fire, all insurance by this corporation on it, or its contents, shall immediately cease and determine,” is that the insurance, whether upon a building or its contents, shall continue only while the building remains standing as a building, and shall cease when the building has fallen and become a ruin.

2. CONSTRUCTION OF "FALLEN."—When substantially all the floors and roof of a building used as a store-house fall, leaving nothing standing but the outer walls and perhaps a stair-case or an elevator, the building must be deemed to have falleu.

the building, though shaken by a storm so as to lean over, remained entire, and no part of it had fallen. In Brenner v, Liverpool, London & Globe Ins. Co., 51 Cal. 101, goods exceeding in value the amount of the insurance were destroyed by fire in that part of the building which had not fallen, and the decision against the insurers was by a bare majority of the court. - The result is that in each case there must be, according to the terms of the report, judgment for the defendants.



Supreme Court of Illinois.

(Filed at Springfield, June 20, 1879.)

Where suit has been brought against a defendant to recover for a quantity of coal converted, and before judgment had, the plaintiff dies, the suit cannot be carried on and maintained by the widow, to whom the plaintiff has by will devised all his property, without taking out letters of administration.

WALKER, J., delivered the opinion of the court:

It appears that John Long, the husband of appellee, in his lifetime sued appellant to recover a quantity of coa) it had mined, removed from and converted to its own use from land belonging to him. He recovered a judgment and appellant brought the case to this court and the judgment was reversed and the cause remanded. See 81 III. 359. After the judgment was reversed and before the case was re-docketed in the court below, Long died, having by will devised and bequeathed all of his property to appellee.

The cause was docketed, the death of Long suggested, and leave given to amend the declaration, which was done by making appellee plaintiff, and the cause progressed in her name to a trial and judgment against the company. A motion for a new trial and in arrest of judgment having been overruled, and the company again appeals.

On the trial appellant objected to the admission of evidence of the mining and conversion of the coal. It appears that appellee or any other person never became executor or administrator of Long's estale, no steps being taken in the probate court for the purpose. On the one side it is urged that appellee could not maintain the action or any one else until letters should be granted on Long's estate. But it is claimed as all of his property was willed to appellee that she thereby became vested with the legal title to the claim and may recover.

We shall not discuss the question of the measure of damages as we understand the rule to be settled in this court by this case when previously before us, in following the rule annouced in the case of Robertson v. Jones, 71 Ill. 105, previously decided.

We perceive nothing in appellant's argument to eause the slightest doubt as to the correctness of that decision.

At the common law, it was an inflexible rule with few exceptions, that a chose in action could not be assigned or transferred, so as to give the assignee a right of action in his own name. That could not be done verbally or in writing, neither by deed, will or simple contract. Even promissory notes could not be so assigned or transferred until authorized by the statute of Anne Bills of exchange were not an exception under the common law, as they were governed by the mercantile law. Leases and some covenants for title, ran with the land, and were assigned and trausferred by a conveyance of the land to which they related. An effort to thus transfer causes of action and contracts, no doubt passed to the assignee an equitable title, which the courts of law came to recognize and protect as such, by requiring the assignee on being indemnified, to permit suit to be prosecuted in his name, that his assignee might have the benefit of the equitable transfer of the claim.

Had Long in his lifetime sold this claim, would any one contend that the purchaser could have maintained an action in his own name? Or suppose he had bequeathed the claim to some one else and willed the remainder of his property to appellee would any one suppose that the legatee could sue and recover in his own name? Had Long bequeathed to appellee notes or contracts does any one suppose she would thereby derive authority to sue? The will does not vest the legal title to a cause of action in the legatee any more than would his assignment of such a claim in his life-time. The appointment of an executor to carry out the provisions of the will vest the title to the goods, chattels and choses in action in the executor as a quasi trustee for the use of the creditors, distributees and legatees. He can maintain trover, replevin or other appropriate action for recovery of the personal property to or to recover damages for its wrongful injury or destruction. The legatee can not maintain such actions. And the same is true of choses in action. These are elementary rules that need no discussion.

But we are referred to the cases of Riley V. Langhrey, 22 nl. 97, and Cross v. Carey, 25 Ill. 564, as controlling the case at bar. We fail to perceive any analogy in the cases. In the first of those cases notes had been given to a person who afterwards died and his widow without administering on his estate, took new notes payable to herself and surrendered the notes payable to her husband. She afterwards died and her administrator sued upon the notes payable to his intestate. And it was set up as a defense that there was no consideration for the notes as the payee was not the administrator of her deceased husband,

The plea was held bad as the surrender of the old notes constituted a sufficient consideration. Then the note was payable to her which gave the right to sue in her name whilst living, or by her administrator after her death. Had an administrator been appointed on the estate of the person to whom the then notes were given and which were

surrendered and the contest had been between such Had the conversion occurred after the death of administrator and the payee of the new note as Long and the probate of the will, it may be that her administrator, a very different question would appellee might have maintained the action; but have arisen. But as the case stood the question the conversion occurred in his life-time. Had was whether the payee would be protected in pay- appellant demurred to the amended declaration, ing the money as he promised by his new note. it would have been sustained, as the fact of the And it was held he was. That case did not involve conversion in the life-time of Long and that no the question whether the widow as such could sue letters, testamentary or of administration had in her own name on the three notes which she sur

been granted, appeared on the face of the declararendered. Had appellant given its note to appel- tion. It disclosed no cause of action and hence lee, in discharge of this claim, and she had sued was not cured by verdict. The court below thereon the note, then the cases would have been sim

fore erred in not arresting the judgment and for ilar.

that error the judg of the court below is In the case of Cross v. Carey supra, one Cross

reversed and the cause remanded." died intestate, leaving a widow but no child or

Judgment reversed. descendant of a child. There was no administration granted on his estate. But his widow sold the property of her deceased husband. Solomon Cross FIRE INSURANCE - WEARING APPAREL. purchased a portion of the property, and when sued by the widow, he set up as a defense that she LONGUEVILLE v. WESTERN ASSURANCE CO. had no title to the property he purchased of her. It was there held that as heir of the husband, she Supreme Court of Iowa, September, 1879. had such an equitable title as would enable her to

1. UNDER A POLICY INSURING certain wearing apsell the property and collect the price. But in that,

parel contained in a certain house against loss by fire, as in the case of Riley v. Laughrey supra, it was a the insurer is liable for its destruction by fire while question simply between the buyer and seller. being worn away from the house. Had an administrator been appointed after the sale,

2. THE TERM “ HOUSEHOLD FURNITURE” as used and he had sued the purchaser for the price of the

in a policy of fire insurance, does not include wearing property, altogether a different question would

apparel. have been presented. Then the widow had possession of the property

Appeal from the Dubuque Circuit Court. and the equitable ownership of it, and the legal Action upon a policy of insurance. A demurrtitle had vested in no one, and the purchaser who er to the petition was overruled. From this dehad the property could not be heard to say he cision defendant appeals. would keep it and not pay the price agreed upon

BECK. C. J., delivered the opinion of the court: by the parties. A person may sell his property and pass the legal title, but not so of a mere claim

The policy sued upon insures plaintiff against for damages.

loss « on his household furniture, useful and or

namental, including sewing machine, provisions, Here appellee has only an equitable title, and that never confers the right to sue at law. It may

and family wearing apparel, all contained in a perhaps be true that an executor of his own mo

two-story frame dwelling on lot 6, Newberg's

subdivision, Dubuque, Iowa." The petition alleges tion may under some circumstances sell property of the deceased and pass title, or may settle and

damage by fire to one overcoat, one dress-coat, discharge debts of the deceased. Still we are

one vest and one shirt, being of the family wearing aware of no case, nor do we believe any can be

apparel insured, and avers that said fire occurred found, which holds that such an executor may sue

without any fault or negligence, and without any and recover either property or a chose in action of

connivance or collusion on the part of plaintiff, the deceased. It is contrary to all the analogies

but was purely accidental, while he was riding in of the law. It is unprecedented to hold that a

a sleigh on South Dodge street, in the city of Dumere stranger without right may intermeddle in

buque, and not being on the premises described such matters. We are, therefore, of the opinion

in the policy, and while he was wearing said that appellee had no right without obtaining let

clothes on his person in the usual and ordinary ters on the estate to maintain the action.

way. A demurrer to the petition, on the ground It is urged that appellant should have pleaded in

that the policy covered the property mentioned abatement. We fail to see that the law required

only while it was on the premises described, was such a plea to interpose the defense.

To recover,

overruled. The only question presented in the she was bound to prove a legal right vested in her.

case involves the correctness of the court's ruling She could not recover by proving a legal right in

upon the demurrer. The case, we think, comes another person. A person cannot recover by

within the rule of McCluer v., Girard Fire and claiming a demand and showing another person

Marine Insurance Company, 43 Iowa. 349. The holds the demand claimed. And such is the proof

words "contained in the two-story frame buildhere. This defense may be made under the general ing,” etc., are words of description of the propissue as that put her on the proof of her claim. erty insured, including the place of deposit when We are at a loss to understand how the defense not in ordinary nse. The character of the propcould have been interposed under a plea in abate- erty insured must be considered in determining ment.

the true construction of the policy. The house

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