photographs, in the circumstances, constituted baggage.60

The contrary view was taken in an Iowa case, in which it was held that such photographs were carried for purely commercial purposes, in that they represented the goods. to be sold, and could not be distinguished from the samples themselves.61

Samples-Goods or samples carried for use in making sales, have been held not to constitute baggage, unless accepted as such by the carrier with knowledge of their character.62

It is said that when things are carried for business purposes, they can in no sense be regarded as for personal use or convenience so as to bring them within the definition of baggage.63

St. Louis, Mo.

(60)

C. P. BERRY.

Wingate v. Pere Marquette R. Co., 172 Ill. App. 314. 7 N. C. C. A. 979-980n.

(61) McElroy v. Iowa C. R. Co., 133 Ia. 544, 110 N. W. 915.

(62) Southern R. Co. v. Dinkins, etc., Co., Ga. 77 S. E. 147, 43 L. R. A. (N. S.) 806 (1913); note in 11 L. R. A. 761.

(63) Yazoo & M. V. R. Co. v. Georgia Home Ins. Co.. 85 Misc. 7, 37 So. 500. 67 L. R. A. 646. But see Runyan v. Central R. Co., 61 N. J. L. 541, 41 Atl. 367, 43 L. R. A. 284, 68 Am. St. Rep. 711.

EVIDENCE-PAROL EVIDENCE RULE.

EXCELSIOR SAV. FUND & LOAN ASS'N v. FOX et al.

Supreme Court of Pennsylvania. April 17, 1916.

98 Atl. 593.

Where at the execution of a writing an oral stipulation is entered into, or a condition is annexed upon faith of which the writing is executed, parol evidence is admissible, though it materially vary the terms of the writing.

POTTER, J. This is an appeal from an order of the court below making absolute a rule to open a confessed judgment which was entered by the Excelsior Saving Fund & Loan Association against the defendants. The latter had given a bond and a mortgage, dated April 2, 1907, conditioned for the payment of $3,000, in

one year from that date, with interest. Plaintiff caused judgment to be entered on the bond on March 15, 1915, and execution was issued.

In the petition for opening the judgment it was averred that defendants borrowed $7,000, from the plaintiff association, for which they gave a building association mortgage for $4,000 with a subscription to 20 shares of stock in the association as collateral, and they also gave a mortgage in the ordinary form for $3,000, both covering the same property. The second mortgage was drawn by the solicitor for the association and was made payable in one year from its date. But defendants alleged, and in this way they were corroborated by the solicitor himself, that at the time the bond and mortgage were executed a parol agreement was made between the officers of the association and themselves that they were not to pay the principal of the second mortgage until the amount due on the first mortgage had been paid by the maturing of their stock in the building and loan association, at which time defendants were to have the option of taking out ad ditional shares of stock in the association to the amount of $3,000, and to have their straight loan for that amount changed to one secured by a building association mortgage with the additional stock as collateral. They did not read the bond and mortgage at the time of their execution, and they were not informed that the papers were not drawn in accordance with the parol agreement.

Defendants prayed that the judgment be opened, in order that they might show the defense which they set forth. In his opinion, sent up with the record, the learned judge bases his action upon his finding that the defense urged here is a broken promise which induced the defendants to sign the obligations, and without which they would not have signed them-a promise with respect to the time of payment. The distinction he drew is squarely in line with the decisions in Gandy v. Weckerly, 220 Pa. 285, 69 Atl. 858, 18 L. R. A. (N. S.) 434, 123 Am. St. Rep. 691, and Croyle v. Cambria Land & Improvement Co., Ltd., 233 Pa. 310, 82 Atl. 360. In the latter case Mr. Justice Stewart said that (233 Pa. 314, 82 Atl. 361): .

The policy was "adopted in this State at a very early period, and since steadfastly adhered to, of excepting out of the operation of the English rule excluding parol evidence to vary, contradict, or alter a written contract, cases where a contemporaneous parol promise is proposed to be shown, on the faith of which the contract was executed."

Also that (233 Pa. 315, 82 Atl. 361): "We have it settled in Pennsylvania, beyond all dispute, 'that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible, though it may vary and materially change the terms of the contract.' This was said in the very early case of Hurst's Lessee v. Kirkbride, 1 Bin. 616 (Wallace v. Baker, 1 Bin. 610), and the doctrine of that case was so repeatedly recognized thereafter that in Greenawalt v. Kohne et al., 85 Pa. 369, this court said, 'No principle is better settled than that parol evidence is admitted to show a verbal contemporaneous agreement which induced the execution of a written obligation, though it may vary or change the terms of the written contract.' And again: 'All the cases show,' says Bell, J., in Renshaw v. Gans, 7 Pa. 117, 118, 'that to pave the way for the receiving of oral declarations it is not necessary to prove a party was actuated by a fraudulent intent at the time of the execution of the writing. His original object may have been perfectly honest and upright; but if to procure an unfair advantage to himself he subsequently denies the parol qualification of the written contract, it is such a fraud as will under the rules operate to let in evidence of the real intent and final conclusion of the contractors.' A recent very thorough discussion of this subject by our Brother Brown in the case of Gandy v. Weckerly, 220 Pa. 285 [69 Atl. 858, 18 L. R. A. (N. S.) 434, 123 Am. St. Rep. 691] makes further comment here unnecessary."

The same rule was again approved in Potter v. Grimm, 248 Pa. 440, 94 Atl. 185, so that the right of the appellees in this case to set up an alleged contemporaneous parol agreement as a defense cannot be questioned. Was there sufficient proof to justify the action of the court below?

An examination of the record shows that there was evidence tending to show that during the negotiation for the loan the association agreed to take a straight mortgage for $3,000, and a second mortgage of $4,000, for a stock loan with 20 shares of stock, with the understanding that when the second mortgage was paid off additional shares were to be taken to liquidate the first mortgage of $3,000. It appears that the committee of the association appointed to view the property reported in favor of an arrangement of this kind, although neither in the report of the committee nor the reso

lution of the board of directors were the terms of payment of the straight mortgage specified. Mr. Jenkins, who was the secretary and solicitor of the association when the loan was made to defendant, testified that the bonds and mortgages were drawn in his office under his direction, and that nothing was said to him as to how long the $3,000 mortgage was to stand, and that he drew it for one year, as he was accustomed to do, unless expressly authorized to the contrary. He said that it was his understanding that the principal of the $3,000 mortgage was not to be payable until after the maturity of the $4,000 mortgage, and he had no doubt but that he had so stated to Mr. Fox. The testimony of defendants as to the contemporaneous parol agreement is corroborated by several witnesses, as well as by the circumstances that the board of directors of the association did not by their resolution require the loan to be made payable in one year, nor did they make any attempt to collect the principal at the end of the first year, but allowed it to remain unpaid without any demand for payment until seven years after that time. This was evidently consistent with the arrangement which defendants claimed was made. We think the evidence was sufficient to justify the conclusion reached by the court below. It is argued on behalf of appellant that the secretary and solicitor had no authority to make the agree ment alleged by defendants, being bound by the by-laws of the association and the resolution of the board of directors. The by-laws were not offered in evidence, but an extract printed by appellant shows that when unproductive funds were on hand the directors had power to loan them upon such security and on such terms as they thought best. Their resolution left the secretary free to make an agreement fixing the date when the principal of the bond and mortgage should become due. If the testimony upon the part of defendants is to be credited, it would appear that they were quite willing to make payment of the principal of the mortgage in question, but such payment was declined, unless the other $4,000 mortgage was also paid, which was admittedly an ordinary building and loan association mortgage, being discharged in the ordinary course by the payment of the regular dues and interest. Under such circumstances, the action of the secretary of plaintiff association in entering judg ment upon the bond and assessing damages, was apparently unwarranted, and the issue of execution was without valid excuse. The court below ordered an issue to be framed and submitted to it for approval. Before granting that

approval, the court will without doubt see to it that the interests of appellant are fully protected.

The assignment of error is overruled, and the order of the court below is affirmed.

NOTE. Parol Evidence of Collateral Agreement to Show Written Contract Never Went into Effect.-There is quite an abundance of authority to sustain the ruling in the instant case. One of the most pointed cases in its support is that of Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. ed. 563, a suit upon a promissory note and in defense it was claimed that at the time the note was signed it was agreed it was of no effect, unless upon consultation with one or two named persons defendants were assured that a certain attachment proceeding was lawful and could be enforced for the full amount of certain claims. Justice Miller said: "We are of the opinion that this evidence shows that the contract on which this suit is brought never went into effect; that the condition upon which it was to become operative never occurred, and that it is not a question of contradicting or varying a written instrument by parol testimony, but that it is one of that class of cases, well recognized in the law, by which an instrument, whether delivered to a third person as an escrow or to the obligee in it, is made to depend as to its going into operation, upon events to occur or to be ascertained thereafter."

Pym v. Campbell, 6 El. & Bl. 370, is referred to by Justice Miller in support of his ruling. There defendants signed an agreement for the purchase of an interest in an invention, upon the understanding it should be no bargain until a certain engineer should approve the invention. Erle, J., in a rule to set aside a verdict for defendants, said: "The point made is that this is a written agreement absolute on its face, and that the evidence was admitted to show that it was conditional. But I am of opinion that the evidence showed that in fact that there never was any agreement at all. If it be proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party cannot fix it as an agreement upon those signing. The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show there is not an agreement at all is admissible."

In Beach v. Nevins, 89 C. C. A. 129, 162 Fed. 129, 18 L. R. A. (N. S.) 288, this ruling is followed. It is said in the note to this case that "little conflict on the question exists," and this note, found in 18 L. R. A. (N. S.) 288, cites a very great abundance of state cases, but some of them introduce distinctions seemingly more subtle than substantial. Thus in Moore v. Prussing, 165 Ill. 319, 46 N. E. 184, the rule as above

stated was recognized, but it was held that evidence to show that notes were not to become operative until other security had been exhausted was not admissible, as this would be an attempt to change the terms of a written instrument, the express ruling being that: "This evidence would not be admissible under the general issue."

In Central Sav. Bank v. O'Connor, 132 Mich. 578, 94 N. W. 11, 102 Am. St. Rep. 433, a condition that if a company which maker of note had purchased should be forced into bankruptcy, the note should be void was held not within the rule as to conditional delivery. The court said: "If we adopt the testimony of the defendant as correctly stating the transaction *** these notes were delivered to take effect presently, but upon the alleged parol agreement that they were to become void in the event that a certain contingency should happen. This is no more than averring that plaintiff entered into a contemporaneous parol agreement that, while the defendant's obligation bound him to pay absolutely the sums of money at specified times, yet in a certain contingency this sum should not be payable at all, and the rates redelivered." This does not seem to state a very clear distinction as showing the notes were not delivered on a condition within the rule.

Murray v. Kimball Co., 10 Ind. App. 441, 37 N. E. 734; Garver v. Fite, 93 Ala. 405, 9 So. 367; Hubble v. Murphy, 1 Duv. 278, seems squarely opposed to the instant case, and so is Clanin v. Esterly Harv. Mach. Co., 118 Ind. 372, 21 N. E. 35, 3 L. R. A. 863.

There is an interesting case in Bowser & Co. v. Fountain, 128 Minn. 198, 150 N. W. 795, L. R. A., 1916B, 1036, in which a majority of the court hold as does the instant case. This was a suit upon a written order for goods, which were tendered but refused, because it was claimed the order was given to plaintiff's sales agent upon a condition never performed. The majority said: "Another rule equally well settled is that in case of a simple contract in writing it is competent to show, that notwithstanding the delivery of the writing, the parties intended and agreed that it should be operative as a contract only upon the happening of a future contingent event, or the performance of a condition." The dissent by two judges said: "The danger does not inhere so much in the doctrine itself as in its application in accordance with the distinction on which it is based, namely, between parol proof of a collateral independent condition precedent to the operation of the agreement as a contract, and like proof that the contract itself contained a condition not expressed in the writing. *** Immediately upon its acceptance, the order here involved became a complete contract expressly purporting to cover all agreements of the parties and with the implication of the law as to the time of delivery, nothing remained to be supplied by parol." But all of this might be said as to almost any contract whose operation is arrested by a collateral agreement. The rule seems to us well established. Nothing in the terms of a writing is varied by the evidence of its being delivered on a condition as to its going into effect. C.

CORRESPONDENCE.

BURDEN OF PROOF IN SUITS ON ACCIDENT POLICIES FOR ACCIDENTAL DEATH WHERE DEFENSE IS SUICIDE OR MURDER BY BENEFICIARY.

Editor Central Law Journal:

By the decision of the Supreme Court of Minnesota in the recent case of McAlpine v. Fidelity & Casualty Co., 158 N. W. 967, a ruling is made concerning the burden of proof in suits on accident policies which is conceived to be against the great weight of authority in other jurisdictions and in Minnesota as well as against the rule as it was supposed to be.

The ruling now made is that in an action on an accident policy, where the defenses of suicide and murder by the beneficiary are set up, it is incumbent upon the plaintiff to show by a preponderance of the evidence that the death of the insured was accidental, and that it is not incumbent upon the defendant to prove the defense of suicide, or its other defense of murder by the beneficiary, even where, as in the McAlpine case, suicide, sane or insane, was an express exception of the policy. In other words, it is in effect denied that the showing of a death caused by external and violent means raises any presumption that the death was accidental. To this proposition the court cites Carnes v. Iowa State Traveling Men's Assn., 106 Iowa, 281; Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45; Fidelity & Casualty Co. v. Weise, 182 Ill. 496; Laessig v. Travelers' Prot. Assn., 169 Mo. 272; Merrett v. Preferred Masonic, etc., Assn., 98 Mich. 338; and the case of Huestis v. Aetna Life Insurance Co., 131 Minn. 461, the latter being a case on a similar accident policy recently decided by the same court, but where the question of burden of proof was not involved.

None of the cases, however, cited, save the Whitlatch case, sustain the decision when the facts are considered, and the Whitlatch case, it is believed, has never been followed, though often found cited, outside of the State of New York. The Carnes case in Iowa was a poison case, where it was only held that the jury might not speculate as to whether the deceased accidentally took the overdose of poison, or intending to take that much of the drug, misjudged its effect, which would not be accidental death the court said.

In a later case in Iowa, namely, Allen v. Travelers' Protective Assn., decided October

25th, 1913, the Supreme Court of Iowa held: "In an action on an accident policy the presumption arising upon proof that insured met his death from external cause, it appearing he was shot in an affray with a burglar, makes a prima facie case of accidental death, and hence it was not improper to charge the jury that the insurer had the burden of showing that the injury was intentionally inflicted."

The Merrett case from Michigan was a case of hanging. In the later case of Burnham v. Interstate Casualty Co., 75 N. W. 445, a case of drowning brought about either by accident or suicide, also cited to the Minnesota court in the McAlpine case, the Supreme Court of Michigan specifically rejects the Merrett case and holds that the circumstances of the case before it are insufficient to rebut the presumption against suicide, the court saying: "The learned counsel for the defendant states that the facts deducible from the above evidence are consistent with three theories of the cause of death, and therefore prove no one of them. These theories are apoplexy, sudden seizure and suicide. We cannot agree in this conclusion. The testimony does not establish facts to overcome the presumption. Where death may be attributable to suicide, murder, accident or negligence the presumption of law is against suicide and murder."

In the case of Cronkhite v. Travelers' Ins. Co., 78 Wis. 116, the Supreme Court of Wisconsin, by Cassoday, C. J., stated the rule to be that: "Had the plaintiff proved only that the insured, at a certain time, had upon his person bruises and wounds, evidencing that he had been recently injured by external violence; and further that such injuries caused his death, she would have made out a prima facie case of death resulting from bodily injuries, through external, violent and accidental means." In the case of Standard Life & Accident Co. v. Thornton, 49 L. R. A. 116, 40 C. C. A. 560, Judge Day, of the United States Circuit Court, in a case on an accident insurance policy, speaking of thie presumption, said: "This presumption must stand in the case and be decisive until overcome by testimony which shall outweigh the presumption. It casts upon the defendant, who claims that the death was intentional, the burden of establishing by a preponderance of the testimony." Other cases that might be cited to this proposition are: Jenkins v. Pacific Mutual Life Co., 131 Cal. 121; Starr v. Aetna Life Ins. Co., 4 L. R. A. (N. S.) 636, and note, where are to be found Travelers' Ins. Co. v. McConkey, 127 U. S. 661; Starr Accident Co. v. Sibley, 57 Ill. 315; Sutherland v. Stand

ard Life Ins. Co., 87 Iowa 505; Jones v. U. S. Mutual Life Co., 92 Iowa 652.

Indeed, it is now quite probable that there is no jurisdiction, with the possible exception of New York, that adheres to the rule announced by the Minnesota court in this case, 'when the death was produced by a violent, external injury, or denies to the proof of such a death, efficacy to establish a prima facie case of accidental death accomplishing the placing efficiently upon the defendant the burden of overcoming such case by evidence. And this

is as it should be in order to square with the rule that, "When the plaintiff makes out a prima facie case entitling him to recover, if the proof stops there, the defendant must take up the burden and meet the case as made, by other evidence."

It is true that the decision in the McAlpine case moderately recognizes that there is a presumption against self-destruction to be given consideration along with other evidence, but it entirely overlooks the presumption that arises from an injury produced by violent external means. That is presumed to have been not intentionally self-inflicted. What follows? Only three other methods of inflicting such a death are left. Unintentional self-infliction, intentional infliction by another, or murder, and that would be accidental within the insurance, and accidental infliction by another, equally within the policy. Is it not then pertinent to inquire why does not the showing of a violent killing go the entire length of proving prima facie an accidental death, putting upon the defendant the burden of establishing its defense of suicide?

It is but just to say of the Whitlatch case from New York that really all it holds is that after all of the evidence is in and due weight given to the presumption, the burden of proof is still on the plaintiff. In other words, the ruling is that the burden of establishing ultimate responsibility on all of the evidence is on the party asserting a cause of action.

Superior, Wis.

W. M. STEELE.

BOOKS RECEIVED.

The Law of Interstate Commerce and Its

HUMOR OF THE LAW.

A negro was brought out on the gallows to be hanged for murder. "Now, Henry," said the sheriff, "have you anything to say?" "Yes, suh," said the condemned man. "I'se got a few words to say. I merely wishes to state dat dis suttinly is goin' to be a lesson to me."

New Congressman-What can I do for you, sir?

Salesman (of Statesmen's Anecdote Manufacturing Co.)-I shall be delighted if you'll place an order for a dozen of real, live, snappy, humorous anecdotes as told by yourself, sir.Puck.

The Washington Star deserves credit for originating a new joke about fishing. It tells of a man who tried to get several people on the telephone and couldn't because they were talking, and then departed on a piscatorial trip-not because he felt the enthusiasm of the genuine disciple of Walton, but because he wanted to experience the sensation of finding himself at the end of a line that wasn't busy.

The governor was talking about the difficulties of the profession of politics.

"I am in hearty sympathy," he said, "with a ward leader who announced to his friends the other day that his new son-a nine-pound babe -bade fair to grow up a very successful politician.

"How can you tell that already, Jake?" they asked him. "Why, the kid can't talk yet."

"No,' said Jake, 'but he has already started trying to kick and shake hands at the same time.'"-St. Louis Star.

A witness called in District Attorney Perkins' investigation of the short-circuiting of the Subway, in which a woman lost her life and more than a hundred persons were overcome with smoke and fumes, described the situation as follows:

"Then stygian darkness ensued, momentarily interrupted by fitful gleams of weird electricity that rose and fell with ghastly effect. Men stood riveted to the spot, women screamed in abject terror, and pandemonium reigned. To increase the realism of living death that seemed to be enshrouding the sepulchral aspect of the place, a demoniacal guard of barbarous foreign countenance, and accent in guttural tones, ordered