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in printing its newspapers, and that he failed to fulfill these prom-. ises. The principal assignments of error are addressed to the rulings of the court at the trial in excluding evidence.

The trial judge excluded evidence offered by the defendant of the conversation and negotiations between the parties preliminary to the exchange of the letters. So far as this evidence was offered by the defendant for the purpose of establishing the agreement set up in its answer, we think that it was not competent.

When a contract is consummated by writing, the presumption of law is that the written instrument contains the whole of it. The agreement is to be ascertained exclusively by its terms, and oral representations or stipulations preceding or accompanying its execution, differing from or not contained in the instrument, cannot be proved. But when the writing is of a nature to import that it was not intended to embody the entire contract between the parties, oral evidence to prove the whole terms is admissible. An example of such a writing is a memorandum of purchase or sale. Allen v. Pink, 4 Mees. & W. 140; Potter v. Hopkins, 25 Wend. 417; Filkins v. Whyland, 24 N. Y. 338. So, also, a parol collateral agreement made prior to or contemporaneous with the written agreement, which does not qualify the terms of the instrument, and is not inconsistent with them, may be given in evidence. But in applying this rule the question what collateral agreements do qualify the written contract, and what do not, is one upon which there is much divergence in the adjudications. Thus, in Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512, there was an agreement in writing by which the plaintiff agreed to furnish, and the defendant to purchase, certain machines upon terms and at times specified; and the defendant was permitted to prove a parol agreement at the same time by which the plaintiff guarantied that the machines should be so made that they would do the defendant's work satisfactorily, and, if not, that the plaintiff would take them back. On the other hand, in Seitz v. Machine Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837, there was a written contract whereby the plaintiff agreed to supply the defendant with a specified machine, and put it in operation under the superintendence of a competert man, and the defendant agreed to pay therefor a specified sum at specified times; and the court held the defendant could not be permitted to prove an oral agreement, entered into at the same time, that the machine purchased should have a certain capacity, and be capable of doing certain work. In referring to the rule that the existence of a separate oral agreement as to any matter to which the written agreement is silent, and which is not inconsistent with its terms, may be proved by parol, the court, in its opinion, used this language:

"But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it."

This court must be controlled by the principle of that decision. See, also, Bast v. Bank, 101 U. S. 93, 25 L. Ed. 794; Godkin v. Monahan, 27 C. C. A. 410, 83 Fed. 116, 53 U. S. App. 604.

The implied conditions of a contract are as much a part of its terms as the written parts, and the rule which forbids the proof of a collateral parol agreement which is inconsistent with the written terms equally forbids the proof of one which is inconsistent with its implied conditions. As the trial judge correctly stated in his instructions to the jury, in this case the agreement between the parties implied an undertaking on the part of the plaintiff to be competent to discharge the duties of a superintendent of the defendant's printing establishment, and to discharge them faithfully; and this was the extent of his undertaking. By the contract, he was to have entire control of the printing department, and proof that he agreed to employ a force of a specified number of men, if it would not have established an undertaking inconsistent with that provision of the contract, certainly would have established one that did not relate to a distinct subject, but was so closely related as to form a part of it. Proof that he agreed to discharge his duties as superintendent in such manner as to accomplish a particular result would establish an undertaking inconsistent with the implied terms of the agreement. As, of the undertakings sought to be proved, one related to the same subject as the written contract, and the other would have qualified its purport, they were not available to the defendant.

Although, in excluding the evidence for the purpose of establishing the alleged collateral agreement the ruling of the trial judge was correct, we think the preliminary conversations between the plaintiff and the managing agents of the defendant were admissi ble on other grounds. The plaintiff had given testimony in respect to these conversations, and had detailed what was said; and when the defendant offered to prove its version of them, and the objection was made that the evidence would contradict the terms of the written contract, the defendant insisted upon its right to prove them because the plaintiff had been allowed to do so. Prior conversations and negotiations are often competent when the subject-matter of a contract requires the aid of extrinsic evidence to ascertain its meaning. It was important in this case to know what kind of a printing establishment was contemplated by the contract, as the question of the plaintiff's competency, and the right of the defendant to discharge him for inefficiency, would measurably depend upon the character of the establishment he was to supervise and manage. Was the defendant's printing department to be maintained on the scale, and its business conducted generally, in the future as in the past, or did the parties contemplate a new departure, and the maintenance of a larger or smaller concern? The contract is silent on these matters, and it may well be that the evidence excluded was competent for the purpose of making that determinate which was left vague and uncertain. But whether the evidence was competent in this view or not, it was admissible because the plaintiff, having opened the door and availed himself of its benefit, was foreclosed from precluding the defendant from its benefit. The testimony given by the plaintiff was of a character likely to influence the jury, and we cannot doubt it was prejudicial to the defendant.

The judgment is reversed.

(113 Fed. 449.)

METROPOLITAN ST. RY. CO. v. HUDSON.

(Circuit Court of Appeals, Second Circuit. January 14, 1902.)

No. 22.

1. STREET RAILWAY-INJURY TO PASSENGER-Instructions.

Where, in an action for injuries to a passenger on a street car, the issues are whether plaintiff was injured by the careless starting of the car after it had stopped or by her own negligence in attempting to board it before it had stopped, it is error to instruct that if the car, even if not quite at a standstill, was moving with such extreme slowness that a person might fairly undertake to board it, and while plaintiff was about boarding it the conductor suddenly started it, so that it moved forward with a jerk, defendant's negligence would be established.

2. SAME-APPEAL-ASSIGNMENT OF ERROR.

An assignment of errer complaining of an erroneous instruction is without merit where the court, on plaintiff's exception, qualified the instruction, and plaintiff took no further exception.

3. SAME-MEASURE OF DAMAGES-INSTRUCTIONS.

In an action for injuries, an instruction not to award plaintiff any damages for hysteria not directly caused by the accident is properly refused, as, it restricts the rec very to damages directly caused by the accident, while those indirectly resulting from it may also have been recoverable.

In Error to the Circuit Court of the United States for the Southern District of New York.

Theo. H. Lord, for plaintiff in error.

J. Aspinwall Hodge, for defendant in error.

Before WALLACE, Circuit Judge, and TOWNSEND, District Judge.

WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below to review a judgment for the plaintiff in an action for negligence rendered upon the verdict of a jury. The only assignments of error which have been argued relate to an instruction given by the trial judge to the jury in respect to the negligence of the defendant, and his refusal to give one in respect to the question of damages requested by the defendant.

The issues upon the trial, aside from those relating to the damages, were whether the plaintiff was injured by the careless starting of the defendant's car after it had stopped to receive passengers, or whether she was injured by her own negligence in attempting to board it before it had come to a stop. The trial judge instructed the jury that "if the car, even if not quite at standstill, was still moving with such extreme slowness that a person might fairly undertake to board it, and while plaintiff was about boarding it the conductor suddenly started it, so that it moved forward with a jerk," negligence on the part of the defendant would be established.

This instruction was apparently given under the impression of the trial judge that the plaintiff may have received her injury while attempting to board the car after it had come to a stop and before it had got under much speed. The evidence did not authorize such a theory, and, if it had, we think the instruction would not have been

correct without further qualification. Unless a car has reached one of its regular stopping places, or its speed has been slowed to permit an intending passenger to board it, or some invitation, express or implied, to board it has been given by those in charge, the conductor is under no obligation to anticipate that any person will attempt to board; and if, in ignorance of such an attempt, he causes the motorman suddenly to put on speed, he does not violate any duty towards an intending passenger. Conductors of street cars are at liberty to regulate the movements of their cars as they see fit so long as they do not violate their duties to others. If, however, while a car is proceeding slowly, the conductor is made aware that an intending passenger is attempting to board it, although it may not be his duty to stop the car, common prudence certainly forbids that he start it suddenly forward. No man is at liberty to do an act unnecessarily which he knows or ought to know is likely to imperil the person of another.

Notwithstanding the instruction was incorrect, in view of the issues which were presented by the evidence, we think the assignment of error based upon it is not well taken. The attention of the trial judge was not called to the erroneous theory of the facts suggested by the instruction, and when the plaintiff excepted to the instruction the trial judge qualified it, and the plaintiff took no further exception. Obviously, the plaintiff acquiesced in the instruction as qualified.

The other assignment of error is based upon the refusal of the trial judge to instruct the jury not to award the plaintiff “any damages for hysteria not directly caused by the accident." He did not instruct them specifically whether the hysteria was or was not an element of damages, but he defined adequately the general rule of compensation in actions for personal injury, and no exception was taken to that portion of the charge. The instruction was one of a character which the judge at a trial is at liberty to give or withhold at his discretion. It is open, however, to the criticism that it sought to restrict the recovery to damages directly caused by the accident, while those indirectly resulting from it may also have been recoverable. The author of the initial cause is responsible for the indirect damages which are its natural consequences. The sugges tion that the instructions given did not confine the consideration of the jury to the damages arising solely from the accident is hypercritical. The only controversy as regarded damages was in respect to the extent of the injuries caused by the defendant's acts, and to urge that the jury might have given damages for hysteria not thus caused is an academic proposition, and does not appeal to common

sense.

We conclude that the exceptions by the defendant were not well taken, and the judgment should be affirmed.

(113 Fed. 451.)

MCKNIGHT v. UNITED STATES.

(Circuit Court of Appeals, Sixth Circuit. February 10, 1902.)

1. CRIMINAL LAW-WRIT OF ERROR-STAY OF PROCEEDINGS-BAIL.

Under Rev. St. § 1007, providing that a writ of error, when granted within 60 days after the rendition of the judgment complained of, or afterwards, with the permission of a judge of the appellate court, shall operate as a supersedeas, and under rule 38 of the circuit court of appeals (31 C. C. A. cviii., 90 Fed. cviii.) such writ, in the case of a conviction of a crime not capital, stays execution, but such stay of proceedings does not involve the question as to whether, pending the writ of error, defendant shall be detained or go at large on bail.

2. SAME-POWER OF COURT.

Under the act to establish the circuit court of appeals (26 Stat. 829), section 11, providing that all provisions of law in force regulating appeals or writs of error, including provisions for bonds or other securities, shall regulate such proceedings in that court, and rule 38 of such court, the court has the power, and it is generally its duty, to admit to bail, after conviction of a crime not capital, pending a writ of error.

3. SAME-APPLICATION FOR ADMISSION TO BAIL.

Where defendant was convicted of embezzling funds of a national bank, and the trial court refused to admit him to bail pending a writ of error, in the absence of some great urgency, a further application for admission to bail should be made to the appellate court.

4. SAME TIME.

Where one convicted of crime is admitted to bail pending a writ of error, the bail should be allowed for a time only sufficient to insure the filing of the transcript in the court of appeals within a reasonable time, reserving the question of further bail until the lapse of the time thus fixed.

5. SAME-THIRD CONVICTION.

The fact that defendant has been tried and convicted three times on the same indictment for embezzling funds of a national bank is not sufficient ground for denying bail pending a third writ of error.

On Application for Bail Pending Writ of Error.
See 1

Fed. 735.

W. C. P. Breckinridge, A. E. Richards, and A. G. Ronald, for plaintiff in error.

R. D. Hill, U. S. Atty., for the United States.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON, Circuit Judge. The plaintiff in error has been convicted under an indictment charging embezzlement of funds of a national bank. After writ of error allowed and citation served, he applied to the court below for bail, pending his writ of error, but bail was refused him. Application was then made for bail to one of the members of this court, who, preferring that the application should be made to this court, suggested to the trial judge the propriety of admitting the petitioner to bail until such time as this court might have opportunity to hear and determine an application from the plaintiff in error. Upon this suggestion the trial judge acted, and the plaintiff in error has been admitted to bail until February 12th next. He has now filed a petition praying to be allowed to stand upon bail pending his writ of error. Under the rules of this court, and in due course of procedure, the petitioner's bail must expire long before a hearing

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