BROOKE . THE GRAND TRUNK R. W. Co.

There was certainly nothing in these facts for submission to a jury.

If, independent of any of the rules of the company against it, the plaintiff was entitled to be carried on the 28th day of August, by virtue of his previous contract, then, unless the reasonableness of the regulation of the company to the contrary be a question of law, we see no way of sustaining this charge.

CAMPBELL J.

Plaintiff sued defendants for ejecting him from one of their cars. He purchased in Buffalo, in June, 1866, tickets from Buffalo to Detroit, consisting of two tickets on one piece of paper, one from Buffalo to Stratford by the Buf falo and Lake Huron Railway, and one from Stratford to Detroit by the Grand Trunk Railway. Upon the first ticket he rode to Brantford, in Canada, and remained there about two months. Then he went from Brantford to Stratford on the same ticket. Thence he went to Port Huron, in Michigan, on the second ticket, which was punched by the conductor and handed back. Between Port Huron and Detroit the conductor of the train on which he was riding between those places, ejected him from the cars on his refusal to pay his fare, and would not receive the ticket as valid.

Defendants, among other things, introduced testimony to prove that fare for through tickets from Buffalo to Detroit was, at the time these tickets were sold, cheaper than was charged from some intermediate points to Detroit, and that the defendants had an arrangement with the Buffalo and Lake Huron Railway, whereby they were enabled to carry passengers and freight through from Buffalo to Detroit. Also, that, by the regulations of the company, persons having a through ticket from one point to another upon the line, could not stop at intermediate stations.

BROOKE V. THE GRAND TRUNK R. W. Co.

The court below held that the plaintiff was only entitled to a continuous passage, and, after leaving Buffalo, was bound to proceed to Detroit on the same train, or lose the right, after once stopping, to proceed further on his ticket.

The court also instructed the jury that, if the plaintiff had a right to treat the second ticket as valid from Stratford to Detroit, yet he had abandoned the train on which he started at Port Huron, and the ticket was unavailable upon any other train. This latter charge appears by the bill of exceptions to have been based upon an assumption of facts which it belonged to the jury to determine, inasmuch as the evidence conflicted. Accordingly, it becomes necessary to consider the former ruling, which treated the whole journey from Buffalo to Detroit as single, and which, therefore, if correct, obviated the error caused by taking the facts on the last charge from the jury.

The circumstances of the present case render it unnecessary to consider whether a simple contract, made to transport a passenger in a single journey beyond the line of the road with which he contracts for passage, renders the contracting company liable as a carrier for what occurs upon another railway. In the case before us, the tickets purport to provide expressly for passage over the lines of two separate companies, and neither ticket extends beyond one line. Each is the voucher for a journey between two specified points. Neither refers to the other in terms, and neither contains any words of restriction.

It was claimed that these tickets are not contracts, and can not, therefore, be of any force in determining the rights of the plaintiff, but that he must be considered as having purchased what was equivalent to a single through passage. Whether a through ticket over the roads of two separate companies would entail all the same consequences as if they were owned by one, need not now be considered. But we can not regard these tickets in any such light. Although they are very informal documents, yet they are

BROOKE V. THE GRAND TRUNK R. W. Co.

easily recognizable as vouchers for separate journeys over distinct roads, one issued by a company on its own behalf, and one issued by the same company in behalf of another. The purchaser must necessarily infer from their face that one of them was issued under some claim of agency; and he had a right to treat them according to their purport. They are the usual evidences of a contract of passage; and whatever may be their imperfections as substitutes for more formal agreements, they must be treated as valid for all which they purport to express. They are no more dependent, merely because printed together, than they would be if each were precisely like the other.

We think that it was not incumbent upon the plaintiff to use these tickets for one continuous journey but that, having used one of them to reach the terminus denoted by it, he was at liberty to begin his second journey when he pleased. The general rule, requiring each separate journey to be completed without needless interruptions, was conceded on the argument, and there are no facts calling upon us to decide whether there are any circumstances of convenience or necessity which can vary it. The plaintiff had a right to use his ticket from Stratford to Detroit, notwithstanding the time which had elapsed after its issue. He had a right to have the jury determine whether he lay over between Stratford and Detroit. The rulings disposed of his entire cause of action, and took away the facts from the jury, touching the continuity of the last journey.

The court erred in holding the two tickets to be valid only for a single continuous passage from Buffalo to Detroit, and also in directing the jury that the second journey had been interrupted.

The judgment must be reversed, with costs, and a new trial granted.

The other Justices concurred.

STRONG v. SAUNDERS.

H. Norton Strong v. Jeremiah Saunders.

Assumpsit: Competency of evidence. Power of master to bind vessel. The plaintiff below had for some years kept a set of range lights and stakes on the St. Clair flats, to aid vessels in navigating the channel, and relied upon such compensation as he could obtain from vessel owners.

In a suit against defendant for the value of such services rendered to his tug boat, evidence was offered tending to show that the lights were of great benefit to navigation, and that without them it was dangerous for vessels to pass the channel at that point at night; that defendant was the owner of steam tugs engaged in towing vessels through said channel; that defendant had paid $25 for the use of said lights for the season of 1863, and that on being called upon by plaintiff for the payment of the use of said lights for the season of 1864 replied that he would pay what his captain certified was right; that the plaintiff's bill of $40 for said services was certified to as correct, and that the captain of his tug boat had subscribed as master, to pay the sum of $40 for said season of 1864. Held, that the testimony relating to the payment by defendant of $25 was competent as it tended, in connection with the other evidence, to show that defendant had been fully informed as to the nature of plaintiff's services, and that he acknowledged their value, and a willingness to pay for them.

Held, further that it was a question for the jury whether from the evidence a promise to pay could be implied, and that, as the services had already been performed, the plaintiff would be entitled to recover if the jury should find a promise to pay, either expressed or implied.

Held, further that the power to bind the owner for such expenses did not come within the ordinary general powers incident to the employment as master, and that, therefore, the said subscription was not binding upon the owner.

Error to Wayne Circuit.

Heard April 23d. Decided April 30th.

This was an action of assumpsit brought to obtain compensation for the use of certain range lights placed on the St. Clair flats by defendant in error to aid vessels in navigating the channel.

The declaration was on the common counts.

Defendant plead the general issue.

The facts, together with the exceptions taken to the rulings of the court below, are stated in the opinion.

Judgment was rendered for plaintiff in the court below, and the case comes up for review as to the correctness of the rulings.

STRONG v. SAUNDERS.

Newberry and Pond, for plaintiff in error.

1. The first and second assignments of error can be considered together as they relate to the admission of testimony of the same nature, to wit: Testimony tending to show that the defendant paid plaintiff for the use of said range lights, by the tug "Bob Anderson," in the year 1863.

This testimony was clearly irrelevant. The fact that defendant paid for the use of these range lights in the year 1863, by the "Bob Anderson," would not justify the inference that he promised to pay for the use of them for the "I. U. Masters" in 1864.

2. The fourth and sixth assignments of error may also be considered together.

The fourth is based upon the refusal of court to instruct the jury that under the facts no promise by Strong to pay for the use of said range lights could be implied. And the sixth, upon the instruction given, that it was for the jury to determine from the evidence whether there was any promise, express or implied.

We think it clear that the court erred in refusing to give the instruction asked; but whether this be so or not, the instruction given was clearly erroneous.

a. An "implied promise," is a promise created by the law from a given state of facts; and hence, the facts being conceded, the question whether or not the law created a promise, is pure question of law.

And we insist that the facts as claimed by plaintiff were not such that the law would create from them an implied promise by Strong to pay for the use of said range lights; and hence that the instruction asked should have been given.

b. The instruction given left it to the jury, first, to determine the facts, and second, whether from the facts, as they should find them, the law would create an implied promise by Strong.

This was clearly erroneous.