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this character are

statutes providing for the construction of the mediums of transportation of property, for its protection while in transit, and for the Protection of the means of transportation used by common carriers. Enactments prescribing the duties and obligations of carriers are of the same character and class. It must be remembered that railroads do not constitute commerce. means used by commerce. They are The corporations operating them are common carriers employed in the commerce of the country. Burdens, impediments, and restrictions may be imposed on commerce delays, and by unreasonable and unjust charges for carrying goods, carriers. This may be done by unnecessary and the like. Statutes which remove burdens and restrictions imposed in this way exactions by common carriers, are not regulations of commerce upon commerce, which protect it from unjust within the contemplation of the constitution of the United States. The statute of the state brought in question in the case is of this intended and it operated to protect and stimu

by these common

character. It was

late commerce by preventing oppressive and discriminating charges for the

country.

These conclusions, in my opinion, are based upon doctrines well established by decisions of the United States Supreme Court and

of this court.

JOHN A. MILLARD, Jr., Respondent,

v.

THE MISSOURI, KANSAS AND TEXAS R. R. Co., Appellant.

Plaintiff purchased

(86 New York Reports, 441.)

him to carry a certain amount of baggage. He had a packing-box or trunk containing merchandise. Upon applying for a check, he advised defendant's agent of this fact, who thereupon refused to check the trunk unless extra loss of baggage, the court ruled that plaintiff could not recover for the mercompensation was paid for its transportation; plaintiff paid the sum charged; the trunk was destroyed by fire. In a prior action brought to recover for the chandise as it was not baggage, and a recovery was had for the baggage. In an action brought to recover for the merchandise, held, that the former action was not a bar, as the two actions were not for parts of one entire indivisible

a passenger ticket on defendant's road, which entitled

demand, but were

based

upon separate contracts.

(Argued October 7, 1881; decided October 25, 1881.)

APPEAL from judgment of the General Term of the Supreme plaintiff, entered upon a verdict. (Reported below, 20 Hun, 191.) made February 10, 1880, which affirmed a judgment in favor of

second judicial department, entered upon an order

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This action was brought to recover for the loss of certain merchandise, while being transported on defendant's road.

The facts proved were substantially these:

On the 30th of April, 1873, the plaintiff and one William Brady purchased tickets and took passage on defendant's road at St. Louis, Mo., for Denison, Texas. Plaintiff had with him a valise, containing his wearing apparel and articles known as baggage, and a packing-box, or trunk, containing merchandise. Brady had with him one trunk, containing his personal baggage, and two packingboxes, or trunks, containing merchandise. The tickets entitled the plaintiff and Mr. Brady to carry a certain amount of baggage without extra compensation. The defendant's agent at St. Louis, on being advised of their contents, refused to put the packing-boxes aboard the train, and insisted that they should be sent as freight. The plaintiff explained to him the nature of their contents, and that it was important that they should go on the train with them; and thereupon the agent weighed them together with the baggage, and charged $8 or $10 for carrying the packing-boxes, which plaintiff and Mr. Brady paid, and they were then put aboard the train with the baggage; all were destroyed by fire on the following day, while in defendant's possession, and during the journey. Mr. Brady assigned his claims against the defendant to the plaintiff, and in 1873 the latter brought an action to recover the value of the baggage so lost; he recovered judgment in said action, which was paid. A bill of particulars was served in that action which contained the items of merchandise contained in the packing-boxes as well as the baggage; the court, however, ruled upon the trial that nothing but the personal baggage could be recovered for in that action, as the complaint did not allege the contract to convey the merchandise, and that the goods now in suit did not come within the term "baggage," and accordingly excluded proof in regard to the same; and plaintiff withdrew all claims for such merchandise.

Thomas W. Osborn for appellant. The contract between plaintiff and defendant being entire, and plaintiff having had one recovery and satisfaction therefor, has exhausted his remedy; the former judgment is a complete bar to this action. (Baird v. U. S., 96 U. S. [6 Otto] 430, 432; O'Beirne v. Lloyd, 43 N. Y. 248; Hopf v. Myers, 42 Barb. 270; Secor v. Sturges, 16 N. Y. 548; Bendernagle v. Cocks, 19 Wend. 207; Fish v. Folley, 6 Hill, 54; Miller v. Covert, 1 Wend. 487; Farrington v. Payne, 15 Johns 432; Jex v. Jacob, 19 Hun, 105.) The judgment of a court of competent jurisdiction is final not only as to the subject-matter thereby actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. (Embury v. Conner, 3 Comst. 322; Hoff v. Myers, 42 Barb. 270; Dunham v. Bower, C. of App., 77 N. Y. 79.) The plaintiff has two causes

Freling H. Smith for respondent.

of action against the defendant. (Solomon v. The Gt. W. R. R. Co., 67 N. Y. 208; Stoneman v. Erie Ry. Co., 52 id. 429.) A former judgment is a bar not to all claims that might have been litigated therein, but only to such claims or matters as might have been litigated under the pleadings and issues as made. (Burdick v. Post, 12 Barb. 168; Bates v. Stanton, 1 Duer, 79.) The judgment must be upon the very point in issue. Both actions must be in substance and in point of fact identical. (Slauson v. Inglehart, 34 Barb. 193.) The record must show that the same matters might have been litigated and the proof must show that they were litigated. (Davis v. Talcott, 14 Barb. 611, 620; Campbell v. Butts, 3 Comst. 173.) The same cause of action is where the same evidence will support both actions. (Snider v. Croyl, 2 Johns. 227; Rice v. King, 7 id. 20; Johnson v. Smith, 8 id. 383; Miller v. Manice, 6 Hill, 114; Lawrence v. Hunt, 10 Wend. 80.)

EARL, J.-The claim is made on the part of the appellant, that the rule, that where a party brings an action for a part only of an entire, indivisible demand, and recovers judgment, he cannot subsequently maintain an action for another part of the same demand, was violated in the judgment rendered in this action.

The facts, as the trial judge found them, or may be presumed in support of the judgment to have found them, are as follows: There were two contracts made with each, the plaintiff and his assignor, one with each to carry him and his baggage, and the other subsequently made to carry the chattels contained in his trunk.

It was decided in the prior action that that was based solely upon the contract to carry the passengers and their baggage. The recovery was there limited to such baggage, and it was held that the contracts alleged did not cover the chattels involved in this action. This action is based upon separate contracts to carry the chattels which were not properly baggage, and which were contained in the trunks. It was manifestly in reference to such chattels that the extra compensation was demanded by the defendant and sepa

rate contracts thus made.

A

The former recovery does not, therefore, bar this action. single demand was not divided in violation of the rule above referred to. (Stoneman v. Erie Ry. Co., 52 N. Y. 429; Sloman t. The Great Western Ry. Co., 67 id. 208.) And this result follows although the plaintiff in the former action recovered for the trunks in which the chattels here in question were packed, because such recovery was had, perhaps erroneously, under the seracts there alleged, and not under the contracts alleged in this

action.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.

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WOOD

v.

CHICAGO, M. AND ST. P. RY. Co.

(Advance Case, Iowa. July 13, 1882.)

Whether the station agents along the line of a railway have authority to bind the company by contracts to furnish cars for the transportation of property is a question of fact and not of law, nor can courts take judicial notice that such agents possess such power, or are held out to the world as possessing it; and it is error to reject testimony offered to prove they have such power.

Beck, J., dissenting.

The law will regard station agents as fully authorized to make contracts for future transportation of property, and there is no necessity for the shipper to prove that the station agent was authorized by the railroad company to make the contract for transportation.

APPEAL from Clayton circuit court.

The plaintiff alleges that the defendant contracted to furnish the plaintiff, on the sixteenth of October, 1879, two cars in which to ship potatoes from Enfield, a station on defendant's road, to Denison, Texas; that defendant failed to furnish the cars until the second day of November; and that by reason of this delay the potatoes were frozen, to the damage of plaintiff in the sum of $300. The cause was tried to a jury, and resulted in a verdict and judgment for plaintiff for $252.44. The defendant appeals. The material facts are stated in the opinion.

W. A. Hoyt and Noble & Updegraff, for appellant. W. A. Preston, for appellee.

DAY, J.-The plaintiff testified that he made the contract for the cars with J. C. Barnes, the station agent of the defendant at Strawberry Point. No proof whatever was introduced of the scope of his agency or the extent of his powers, nor in the manner in which he had been held out to the public by the defendant. J. C. Barnes was introduced as a witness on behalf of defendant, and testified that he agreed only to try to get the cars for plaintiff by the time named. Barnes was asked the following question by de fendant: "State whether or not, as agent for the defendant, you had at this time any authority to contract to furnish cars at any point at any particular time." The plaintiff objected to this question as immaterial, irrelevant, and incompetent. The objection was sustained, and the defendant excepted. The defendant asked the court to instruct the jury as follows: "The burden of proof is upon the plaintiff to show that J. C. Barnes, the station agent of

defendant, was authorized to bind said defendant by a contract to have cars at Enfield ready for loading upon any particular day, and the fact that said Barnes was station agent of the defendant at Enfield, aforesaid, is not sufficient evidence to prove that he had authority to bind defendant by such contract." The court refused to give this instruction, to which the defendant excepted.

The court instructed the jury as follows: "If you find from the evidence that the railway company, by its agent at Enfield, made an agreement with the plaintiff to have cars at that place on the sixteenth of October, 1879, for the shipment of the potatoes in question; and if you find that the plaintiff had his potatoes there for shipment on that day, and was prevented from so doing in consequence of the defendant's not having the cars there; and if you further find that the plaintiff was diligent to preserve the potatoes from damage until they could be shipped, and that in consequence of such neglect to have the cars there the plaintiff's potatoes were frozen, then the defendant is liable for such damage." To the giving of this instruction the defendant excepted. These several actions of the court are assigned as error. The court evidently assumed that a station agent, as such, must, as matter of law, have authority to bind the company by his contract to furnish cars at a given station at a particular time. It is urged by appellant that it would be impracticable to confer such power upon a mere local station agent. It is said that the disposition of cars must, of necessity, be under the disposition of some central head, cognizant of the necessities and demand of the whole line of railway. There seems to us to be much force in these suggestions. But we have not now to deal with the question whether it would be practicable to confer such power, but whether such power has in fact been conferred, or the station agents of the defendant have been held out to the public as possessing such powers. This is a question of fact, and not one of law. Courts cannot say, as matter of law, that station agents must possess the power to bind the company by such contracts, nor can the courts take judicial notice that agents possess such power, or are held out to the world as possessing it. The defendant proposed to show whether or not the defendant did possess power to bind it by such a contract. In rejecting the proffered testimony the court erred. The court also erred in giving the instruction excepted to, and in refusing the one asked. Reversed.

such

BECK, J., dissenting.-Railroad corporations, as common carriers, are under obligation to receive and transport with promptness and fidelity all property delivered at their cars, or at places or in warehouses designated by their course of business. The time for the receipt of property for transportation may be regulated by contract between carriers and consignor. Railroads are managed by officers

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