that, to give title to a note or bond, an indorsement or assignment was not necessary, and the question of the ownership was a matter of fact for the jury to decide.

The answer of A. H. Lyman to the second paragraph of the plaintiffs' complaint affirms that the indorsement on the note in question by Mary E. Blakemore was purely for the purpose of collection. No such condition is attached to the indorsement, and, under the facts proved in this case, it is evident that Mary E. Blakemore intended to give Whitman the full control of the note, in order that he might take such course as, in his judgment, would best subserve her interest and secure the money. No proof is offered by the defendants in support of this allegation in that answer, and for this reason we dismiss the further consideration of that allegation. But suppose, in point of fact, that there was no indorsement or transfer of the note to Whitman or to the plaintiffs; we think that the plaintiffs could maintain this action, even though the note had not been indorsed by the payee. It is a well-settled principle of law that, where the note is payable to bearer or to a designated person, it may be negotiated so as to pass the legal title by simple delivery, without indorsement. In this case the evidence conclusively proves that the payee of this note desired to secure the payment of it. If she received the full amount of the note from Whitman, who was the agent to collect this note, it was a matter of no legal importance, so far as she was concerned, how he secured the money for that note. What she wanted was her money; and her sister, Mrs. Warner, desiring to relieve her of her great anxiety about the payment of this note, went to her authorized agent and purchased the note for a full consideration, and thereby acquired legal ownership of the note. In support of this position we cite 4 Am. & Eng. Enc. Law (2d Ed.) 250, note, giving a long line of authorities. In any view that we can take of this case,-whether this note was transferred by proper indorsement, or whether it was transferred either with or without indorsement, we hold that the plaintiffs in this action, having purchased the note for a valuable. consideration, have a right to enforce its collection; and, as we have before said, the defendants have no defense, either in ethics or in law, against the recovery of a judgment in this action. For the reasons assigned, the judgment of the court below is affirmed.

(113 Fed. 91.)

CAU v. TEXAS & P. RY. CO.

(Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)

No. 1,081.

CARRIERS OF GOODS

--

- LIMITATION OF LIABILITY FOR LOSS BY FIRE-VALIDITY. A shipper is bound by a provision in a bill of lading exempting the carrier from liability for loss of the goods by fire, where he was chargeable with knowledge that the bill contained such clause, and made no objection thereto, and it is not shown that the loss resulted from the carrier's negligence.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

B. K. Miller, for plaintiff in error.

N. W. Finley, W. W. Howe, W. B. Spencer, and C. P. Cocke, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. This was an action by the plaintiff in error to recover the value of certain cotton delivered to the defendant in error to be transported from Texarkana, Tex., to the port of New Orleans, La., at an agreed charge for freight of 60 cents per 100 pounds. The petition alleged that, in evidence of the contract, the company delivered to the plaintiff in error its certain bills of lading; that while the bales of cotton were awaiting further shipment, but after they had been received by the railway company as a common carrier and were in its possession as such, and after it had issued its bills of lading to carry the same, the whole of the cotton was destroyed by fire. The petition alleged, further, that by the third clause of the bills of lading the railway company attempted to limit its liability as a common carrier, declaring that it should not be liable for any damages to, or destruction of, the cotton caused by fire; that this clause is wholly inoperative, null, and void against the petitioner, on the following grounds: (1) That plaintiff did not receive any consideration from the railway company for such limitation of its common-law liability; (2) that the destruction of the cotton by fire was due to, and caused by, the negligence of the company, its agents and servants; (3) that the cotton was received by the railway company prior to the issuance of the bills of lading, and it was without authority, after the receipt of the cotton as a carrier, to limit its liability under the common law. The answer, besides the general issue, set up specially the terms of the third clause of the bills of lading, which, so far as necessary to recite, expressed "that neither the Texas & Pacific Railway Company nor any connecting carrier handling said cotton shall be liable for damage to, or destruction of, said cotton by fire." The case came on for trial, and, the evidence having been closed, counsel for the defendant moved the court to direct a verdict in favor of the defendant, which motion was granted, and the jury, under the direction of the judge, returned their verdict, "We, the jury, find a verdict in favor of the defendant," upon which judgment was duly entered. In acting on the plaintiff's motion for a new trial, the learned judge of the circuit court said:

"The sole question in this cause is whether the clause in the bill of lading exempting the carrier from liability for loss by fire is binding on the plaintiff. No negligence is charged against the carrier. The shipment was made by the plaintiff's agent, an intelligent and experienced buyer and shipper of cotton. He is presumed to have known the law, and to have been aware that the carrier, if he so desired, was compelled to take the freight under its common-law liability, without the fire clause. Furthermore, it was proven that prior to the shipment plaintiff's agent called for blank bills of lading, took them to his office, and in his own time filled them, and then presented them for signature by the carrier. This fact, together with the general knowledge which the plaintiff's agent must have had from his previous ex

perience in shipping cotton, makes it certain that as matter of fact the plaintiff's agent knew of and assented to the fire clause. Shippers have been held bound by the fire clause in a bill of lading, even when they claimed that they did not know that the clause was in the bill of lading, provided they were afforded a full and fair opportunity to acquaint themselves with the contents of the bill of lading. Failure to read the bill of lading has been held, under such circumstances, not to avail the shipper. But, of course, the present cause is one in which, as matter of fact, the shipper knew, or must be held to have known, that the bill of lading contained the fire clause. I am clear that there is nothing in the evidence which would invalidate the bill of lading for duress, concealment, fraud, or misrepresentation by the carrier."

So far as it affects this case, the statement of the law embraced in the foregoing extract from the trial judge's opinion is fully supported by the leading case of York Mfg. Co. v. Illinois Cent. R. Co., 3 Wall. 107, 18 L. Ed. 170, which has been cited with approval by the supreme court as late as the case of The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419.

We have carefully examined the record submitted to us on this hearing, and concur in the view taken by the trial judge that there is nothing in the evidence which would invalidate the bills of lading for duress, concealment, fraud, or misrepresentation by the carrier. The judgment of the circuit court is therefore affirmed.

(113 Fed. 92.)

CHARNOCK v. TEXAS & P. RY. CO.

(Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)

No. 1,082.

CARRIERS OF GOODS LIMITATION OF LIABILITY FOR LOSS BY FIRE-VALIDITY. A shipper is bound by a provision in a bill of lading exempting the carrier from liability for loss of the goods by fire where he was chargeable with knowledge that the bill contained such clause, and made no objection thereto, and it is not shown that the loss resulted from the carrier's negligence.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

B. K. Miller, for plaintiff in error.

W. W. Howe, W. B. Spencer, and C. P. Cocke, for defendant in

error.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. This was an action very similar to that of Jovite Cau against the same defendant (just decided), 113 Fed. 91. It was for the value of cotton delivered to the defendant carrier, which issued to the shipper a bill of lading with the fire exemption clause identical in terms with that given in the Cau Case. The cotton was received on a country or plantation switch, which the defendant had 151 C. C. A. 76.

put in about the time of the construction of its main line, and which for 10 or 11 years had been used by the planters conveniently adjacent thereto precisely in the manner that this shipment was made. There was a small platform and a small shelter to be used in connection with sending and receiving freight, according to its character and the other conditions at the time of handling, but no agent or employé of the company had ever been put or kept there for the purpose of receiving and guarding freight there received or delivered. The long-established practice was for shippers who had produce to be transported from that point to notify the nearest station agent of the fact, and of the number of cars desired, when the defendant would furnish the cars as requested, and, as soon as they were loaded by the shipper, promptly take them by the first one passing of its local freight trains to the point of destination. There is no evidence that any question or protest was made by this shipper to the contract as limited in the bill of lading. We concur with the trial judge in holding that the evidence does not tend to show negligence on the part of the carrier. There was no dispute as to the goods having been received by the carrier, nor as to the loss falling within the terms of the fire exemption clause. If there was negligence upon the part of the carrier the burden of proving that fact was on the plaintiff, and, as we have said, the proof offered by the plaintiff did not, in our opinion, tend to show such negligence. This case falls clearly within the authority of Clark v. Barnwell, 12 How. 272, 13 L. Ed. 985; Transportation Co. v. Downer, II Wall. 129, 20 L. Ed. 160; York Mfg. Co. v. Illinois Cent. R. Co., 3 Wall. 107, 18 L. Ed. 170. The judgment of the circuit court is affirmed.

(113 Fed. 93.)

SULLIVAN v. MILLIKEN.

(Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)

No. 1,080.

BROKERS RIGHT TO COMPENSATION-SUFFICIENCY OF SERVICES.

A declaration set out a writing by which defendant authorized plaintiff to sell for him certain timber lands and other property for a price stated, such authority to continue for 60 days. It alleged that, by defendant's request, plaintiff prepared a written memorandum more specifically describing the property; that plaintiff procured within the 60 days the making of a written contract between defendant and a third person, which was set out, and by which defendant agreed to convey the property on terms therein stated, and the other party agreed to have the same examined within 60 days, and to purchase the same if it should appear from said examination that the statements contained in plaintiff's memorandum were substantially correct; that, by reason of the premises, defendant became indebted to plaintiff for his services in the sum of $100,000, for which judgment was prayed. Held, that such declaration must be construed as one to recover commissions as a broker, and was demurrable as failing to state a cause of action, because, under the contract pleaded, plaintiff could recover only by proving (1) either that he had made an actual sale of the property, or (2) that within the time lim

ited he had procured a purchaser able and willing to buy it on the terms stated, and that a sale was prevented by some act or default of defendant, neither of which facts was alleged.

McCormick, Circuit Judge, dissenting in part.

In Error to the Circuit Court of the United States for the Northern District of Florida.

This action was brought by William Alfred Milliken, a citizen of New York, against Martin H. Sullivan, a citizen of Florida. The case was first tried on a declaration containing 12 counts, and resulted in a verdict for the de fendant, Sullivan. A new trial was granted by the circuit court, and the plaintiff amended his declaration by adding counts numbered 13 and 14. These counts differ but little, and counsel for the plaintiff (the defendant in error here) agrees that count No. 14 may be eliminated. The case was tried and is here considered as based on the thirteenth count, which will be referred to herein as constituting the declaration. It is as follows, including the three exhibits:

"The plaintiff sues the defendant, for that before the institution of this suit, to wit, on and before October 12, 1899, the defendant employed the plaintiff to sell the pine timber lands of the defendant in the state of Alabama, comprising about 250,000 acres, lying in the counties of Escambia, Conecuh, Monroe, and Baldwin, together with the railways and mills situated thereon, for the sum of one million five hundred thousand dollars, and defendant's wharf in the city of Pensacola, Florida, for the sum of one hundred thousand dollars, and, as evidence of the said employment, executed and delivered to the plaintiff on October 12, 1899, a written instrument, a copy of which is hereto attached, marked 'Exhibit A,' and made a part hereof; that, for the purpose of a fuller specification and description of the said property, the plaintiff, at the request of and for the defendant, prepared a written memorandum more fully describing the said property, a copy of which memorandum is hereto attached, marked 'Exhibit B.' That in pursuance of the said employment the plaintiff procured that the defendant and one W. D. Mann should and did on November 16, 1899, enter into a written contract by which the defendant agreed to convey the property mentioned in the written authority and memorandum hereinbefore set forth as Exhibits A and B (which memorandum is the memorandum referred to in the said written contract) to a corporation to be organized by the said Mann as set forth in the said agreement, and the said Mann agreed to cause the said corporation to be organized, and to pay to the defendant for the said property five hundred thousand dollars in cash, one million dollars in the first mortgage bonds, and one hundred thousand dollars in the stock, of the said company, all of which is set forth in the said agreement which is hereby referred to, and, as Exhibit C, hereto attached and made a part hereof for greater particularity and exactness. Plaintiff avers that by reason of the premises he became entitled to demand and receive from the defendant and the defendant became obliged to pay to the plaintiff, for his services aforesaid, a large sum, to wit, the sum of one hundred thousand dollars, which sum, or any part thereof, the defendant has refused to pay to plaintiff, although often requested so to do, to the damage of plaintiff of one hundred thousand dollars, whereupon he sues."

Exhibit A.

"New York, October 12th, 1899. "W. A. Milliken, Esq.. N. Y. City.-Dear Sir: I hereby authorize and empower you to sell my pine timber lands in the state of Alabama, comprising about 250,000 acres, lying in the counties of Escambia, Conecuh, Monroe, and Baldwin, together with the railways and mills situated thereon, for the sum of $1,500,000; also my wharf in the city of Pensacola, Fla., for the sum of one hundred thousand dollars ($100,000). This authority to remain good for sixty days. I will made a deed in fee, with general warranty, to the purchaser. M. H. Sullivan."