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FIFTH DEPARTMENT, JUNE TERM, 1895.

firm name by William. The plaintiff failed to make a case entitling him to judgment.

The judgment should be affirmed.

BRADLEY and WARD, JJ., concurred; DWIGHT, P. J., not voting. Judgment affirmed.

FRANK B. LYON, Respondent, v. WESTERN NEW YORK AND PENNSYLVANIA RAILROAD COMPANY, Appellant.

Common carrier — liability for transportation to a place beyond its line-parol evidence to vary a bill of lading.

Where a common carrier, in an action brought against it to recover the damages resulting from its delay in the shipment of perishable property, admits by its answer that it agreed to transport the property to a point beyond its line, it is liable for damages caused by the negligence of its connecting carrier. Where 2 bill of lading fails to state the kind of car in which goods are to be shipped, testimony that the carrier agreed to transport them in a ventilated car, and that the injury resulted in part from their shipment in a common car, is admissible. The reception of such evidence is not a violation of the rule that parol evidence cannot be given to vary or contradict a written instrument.

APPEAL by the defendant, the Western New York and Pennsylvania Railroad Company, from a judgment of the County Court of Allegany county in favor of the plaintiff, entered in the office of the clerk of said county on the 19th day of March, 1894, affirming the judgment of a justice of the peace of the town of Cuba, Allegany county, and also from an order entered in said clerk's office on the 17th day of March, 1894, affirming the judgment of the said justice.

Allen J. Hastings, for the appellant.

Frank M. Todd, for the respondent.

LEWIS, J.:

The plaintiff on the 8th day of July, 1889, at the village of Cuba, shipped by the defendant's road 900 dozen of eggs, consigned to a firm at Wilkesbarre, Penn., which the defendant, for value received, agreed to transport with reasonable dispatch and delivery to plaintiff's consignee at Wilkesbarre, in the State of Pennsylvania.

Plaintiff claimed that the defendant failed to perform its agreement with reasonable dispatch, and in consequence of such negli

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[Vol. 88.

gence the eggs, when delivered, were in a decayed and broken condition to plaintiff's damage.

The evidence as returned by the justice is very brief and fragmentary, and fails to give a very satisfactory statement of what occurred upon the trial. It is conceded by the pleadings that the defendant received the eggs from the plaintiff and agreed, for a consideration, to transport them as stated above. The defendant gave evidence tending to show that it delivered the eggs with reasonable dispatch to the Delaware, Lackawanna and Western Railroad Company, a connecting common carrier, and claims that if the eggs were injured by delay in their delivery it was the result of the negligence of the Delaware, Lackawanna and Western Railroad Company and not of the defendant. The justice's return contains what purports to be a copy of a bill of lading delivered to the plaintiff at the time of the shipment of the eggs.

We assume that the copy returned was the one testified to by defendant's agent, although the justice's return fails to so state. Upon the copy thus returned appear to be some letters, words and figures which are claimed by the defendant to mean that the defendant's contract was to deliver the eggs to the connecting road mentioned. The testimony fails to explain the meaning of the figures and letters referred to, and without some explanation we are not informed as to their meaning. The plaintiff's evidence tended to show that he filled out at the time of the shipment a blank bill of lading furnished him by the defendant's agent, and that one copy thereof was delivered to him; that at the time it was delivered to him it did not contain the letters, words and figures referred to, but that they must have been inserted by the agent or some other official of the defendant after the execution and delivery of the bill of lading and after the shipment of the eggs. This evidence does not appear from the justice's return to have been contradicted. The defendant having admitted by its answer that it agreed to transport the eggs to Wilkesbarre, it was liable for damages caused by the negligence of its connecting road. (Jennings v. G. T. Ry., 127 N. Y. 438.)

The plaintiff testified that the defendant agreed to transport the eggs in a ventilated car and that it failed so to do, and that the injury to the eggs resulted in part from their being shipped in a

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FIFTH DEPARTMENT, JUNE TERM, 1895.

common unventilated car. The objection of the defendant, that this testimony was inadmissible for the reason that it tended to vary or contradict the terms of the bill of lading, was not, we think, well taken; there was nothing in the copy of the instrument returned stating the kind of car to be used. The evidence, we think, fairly established the plaintiff's cause of action.

The judgment appealed from should be affirmed.

DWIGHT, P. J., BRADLEY and WARD, JJ., concurred.

Judgment of Allegany County Court affirmed, with costs.

FIRST NATIONAL BANK of Friendship, N. Y., Appellant, v. ABIJAH WESTON, Respondent, Impleaded with Others.

Bills and notes — duty of a purchaser to inquire — notice of indorsement for accommodation ― presumption as to the inception of a note.

It is not the duty of parties about to purchase negotiable paper to make any inquiries, not required by good faith, as to possible defenses of which they have no notice either from the face of the paper or from facts communicated at the time.

A note made by the firm of George Van Campen & Sons, payable to the order of J. K. Van Campen, indorsed by him and by the firm of Weston Brothers as second indorsers, was mailed to a bank by the payee for discount.

It was discounted and its proceeds were applied to the payment of a note, falling due at the time, which was one of a series of notes in all respects similar to it. The first note of this series was discounted for the benefit of George Van Campen.

In an action upon the first-mentioned note the plaintiff's cashier testified that the application of the note was made according to instructions, and that he did not know that J. K. Van Campen was one of the makers of the note, or that he was a member of the firm of George Van Campen & Sons - and there was in fact, on the trial of the action, no affirmative proof that he was a member of that firm.

Abijah Weston, one of the firm of Weston Brothers, defended the action upon the ground that the indorsement was made for accommodation by another member of that firm without his consent and was not made in the business of the firm. The court directed a verdict for the defendant.

Held, that the direction was erroneous and that the case should have been submitted to the jury;

That as the note was presented for discount by the payee, the legal presumption was that it had its inception in his hands.

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APPEAL by the plaintiff, the First National Bank of Friendship, N. Y., from a judgment of the Supreme Court in favor of the defendant Abijah Weston, entered in the office of the clerk of the county of Cattaraugus on the 12th day of February, 1894, upon the dismissal of the complaint directed by the court after a trial at the Cattaraugus Circuit.

Charles S. Cary, for the appellant.

J. II. Waring, for the respondent.

LEWIS, J.:

This action was brought upon a promissory note dated December 31, 1891, made by the firm of George Van Campen & Sons, payable to the order of J. K. Van Campen, and indorsed by the payee, and by the firm of Weston Bros. as second indorsers. The indorsement of the firm name of Weston Bros. was made by William W. Weston, one of the members of the firm, solely for the accommodation of the makers, without consideration, and not in the business of the firm of Weston Bros. It was presented to the plaintiff for discount by the payee, J. K. Van Campen, in the month of September or October, 1892. It was discounted by the plaintiff's cashier and the proceeds thereof were applied in payment of a promissory note falling due that day, which was one of a series of notes made by the same makers and bearing the same indorsements as the note in suit.

The first note of the series was discounted by the plaintiff, and the proceeds thereof were placed to the credit of George Van Campen. Whether he was a member of the firm of makers did not appear from any affirmative evidence on the trial.

Abijah Weston, a member of the firm of Weston Bros., alone defended, setting up as his defense that the indorsement of his firm name was made without his consent, and not in the business of his firm; that it was presented to the plaintiff for discount by the makers, which was alleged to be notice to the plaintiff that his firm was an accommodation indorser.

Many of the facts of this case are similar to those of the case of William II. Smith against the same defendants, which was argued

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at the same time with this case, but a different question arises here.

Both parties requested the direction of a verdict in their favor, respectively, in the Smith case,* thereby submitting the questions of fact for the decision of the court, and the decision was in favor of the defendant Abijah Weston. But such was not the case here; the plaintiff, at the close of the evidence, asked to have the questions of fact submitted to the jury. His request was refused, and a verdict was directed for the defendant.

The plaintiff's cashier, Minor Wellman, testified that the note in suit was sent by mail to the plaintiff's bank by the payee, J. K. Van Campen, with a request that it should be discounted and the proceeds used to take up the note heretofore referred to, and which was held by the bank; that J. K. Van Campen paid the discount; that he did not know that he was one of the makers of the note, neither did he know who composed the firm of makers.

That he had no knowledge who J. K. Van Campen represented in this correspondence, and did not know who composed the firm of George Van Campen & Sons; that he discounted the notes on the strength of the indorsement of Weston Bros.; that that firm was the only one he knew anything about.

There was evidence in the Smith case justifying the court in finding that the note was, to the knowledge of the plaintiff, presented for discount by the makers, and, hence, presumably had its inception in their hands.

That circumstance was notice to the plaintiff Smith that the note belonged to the makers, and that the indorsement in the name of Weston Bros. was made for the makers' accommodation without consideration.

If presented by the first indorser, as in this case, the presumption would be that it had its inception in his hands. It is not the duty of parties about to purchase negotiable paper to make any inquiries not required by good faith, as to possible defenses of which they have no notice either from the face of the paper or facts communicated at the time. ($ 775, Daniels on Negotiable Paper.) The evidence presented facts which should have been submitted to the jury.

*See ante, page 25.