7. (_a_) Give the particulars in which a warehouse receipt resembles

and differs from (1) a promissory note, (2) a bill of lading. (_b_) What are the advantages to the importer of bonded warehouses? (_c_) What are the duties of our foreign consuls with reference to the importation of goods? COMMERCIAL LAW I. THE DIFFERENT KINDS OF CONTRACTS Commercial law relates to CONTRACTS. These are made by almost every one. A person cannot ride in a street-car without making a contract with the company for carrying him. If he goes into a store and buys a cigar, a stick of candy, or a tin whistle, he has made a contract with the man behind the counter, who owns the store or is his salesman. Tramps and thieves are about the only persons who live without making contracts. In that respect they are like the birds of the air, getting whatever they desire whenever the chance is seen. A contract has been defined as an agreement to do or not to do some particular thing. These are the words used by one of the greatest of American judges. The reader may turn to his dictionary and find other definitions that contain more, if he pleases, but this will answer our purpose. All contracts may be put into three classes, and each of these will be briefly explained. First, SEALED AND UNSEALED CONTRACTS. What do we mean by a contract that is sealed? It is one to which the person who signs it adds, after his name, a seal. But what is a seal? It may consist of sealing-wax, stamped in a peculiar manner, or a wafer made of sealing-wax, or a paper wafer. In the olden times when people could hunt and fight but were not able to write their names, they put a seal at the end of a contract made by them; in other words, the seal supplied the place of a name. Each person's seal differed from the seal of every other. It had its origin really in the ignorance of the people. As they were unable to write their names these distinct signs or marks, called seals, were put on instead of their signatures. With the changes brought by time the form of this device or seal, required by law, is much simpler than it was centuries ago. Indeed, in every State persons use the letters "L. S.," with brackets around them, instead of a seal. They mean "the place of a seal," and are just as good in every way as any kind of seal that might be used. Here are two of the forms of seals in most common use: [Illustration] Any contract that has a seal after the name of the signer is a sealed contract, and every other is called an UNSEALED, ORAL, or VERBAL contract. If a contract was written and a seal was added after the signer's name, and there was another exactly like it in form, but without a seal, this would be called an unsealed or verbal contract, and in law would differ in some important respects from the other. This is true in every State except California, where the difference between sealed and unsealed contracts is no longer known. The second class of contracts are called EXPRESS AND IMPLIED CONTRACTS. By an EXPRESS CONTRACT is meant one that is made either in writing or in words. But the reader may ask, Are not all contracts of this kind? By no means. Many contracts exist between people which have not been put into words. Suppose A should ask B for employment and it should be given to him, but no word should pass between them about the price to be paid. The law would _imply_ that B must pay him whatever his work was reasonably worth. If A should come at the end of the week for his pay and B should say to him: "I never made any bargain with you concerning the price, and I am unwilling to pay you anything," A could, if he understood the law, say to B: "You told me to work, and the law _implies_ that you must pay me whatever my work is worth." How much would the law give him for his work? Just what the employer was paying other men for the same kind of work. Another class of contracts are called EXECUTED and EXECUTORY. An EXECUTED CONTRACT is one that is finished, done, completed. If I should go into a store and ask the price of a book and say to the salesman, "I will take it," and give him the money, and take the book with me, this would be an executed contract. An EXECUTORY CONTRACT is one that is to be completed. Suppose the salesman did not have the book and I should say to him, "Please get it for me and I will come in next week and pay you for it," this would be an executory contract; and it would remain so until I came in and got the book, as I had promised to do, and paid the price. These are the three most general classes of contracts made by persons in daily life. Almost all persons make contracts of each kind during their lives. Sealed contracts are not as common as unsealed ones, yet they are frequently made. Every deed for the sale of land or lease for the use of it is a sealed contract. II. THE PARTIES TO A CONTRACT To every contract there must be two or more persons or PARTIES. When Robinson Crusoe was on his island all alone, eating breadfruit and entertaining himself by throwing stones at the monkeys, he perhaps had a good time, but he could not make any contracts. But as soon as Friday came along they could make contracts, trade, and cheat each other as much as they pleased. A contract, therefore, is one of the incidents of society. A person sailing in a balloon alone could not make a contract, but if two were in the basket they might amuse themselves by swapping jack-knives or neckties, and these exchanges would be completed or executed contracts and would possess, as we shall soon see, every element of a contract. Again, persons must be able, or COMPETENT, to make contracts. What kind of ability or competency must a person have? Not every person can make a contract, even though he may wish to do so. A MINOR, or person less than twenty-one years of age, though he may be very wise and weigh perhaps two hundred and fifty pounds, can make very few contracts which the law regards as binding. In fact, the only contracts that a minor can make for which he is bound are for necessaries--clothing, food, and shelter. Nor can he make contracts even for these things in unlimited quantities. A minor could not go into a store and buy six overcoats and bind himself to pay for them. The storekeeper must have common sense in selling to him and keep within a reasonable limit. In one of the well-known cases a minor bought a dozen pairs of trousers, half a dozen hats, as many canes, besides a large supply of other things, and, refusing afterward to pay the bill, the merchant sued him, and the jury decided that he must pay. The case, however, was appealed to a higher court, which took a different view of his liability. The judge who wrote the opinion for the court said that the merchant must have known that the minor could not make any personal use of so many trousers, canes, and hats, and ought not to have sold him so many. In short, the court thought that the merchant himself was a young minor in intelligence and ought to have known better than to sell such a bill to a person under age. Of course it is not always easy to answer this question, WHAT ARE NECESSARIES? Much depends on the condition of the person who buys. A merchant would be safe in selling more to a minor living in an affluent condition of life than to another living in a much humbler way. Quite recently the question has been considered whether a dentist's bill is a necessity, and the court decided that it was a proper thing for a minor to preserve his teeth and to this end use the arts of the dentist. Again, is a bicycle a necessity? If one is using it daily in going to and from his work, surely it is a necessity. But if one is using it merely for pleasure a different rule would apply, and a minor could not be compelled to pay for it. Cigars, liquors, theatre tickets are luxuries; so the courts have said on many occasions. The courts, in fact, regard a minor as hardly able to contract even for necessaries, and he is required to pay for them for the reason that as he needs them for his comfort and health he ought to pay for them. In other words, his duty or obligation to pay rests rather on the ground of an implied contract (which has been already explained) than of an express one. The force of this reasoning we shall immediately see. Suppose a minor should say to a merchant who was unwilling to sell to minors,--having had, perhaps, sad experience in the way of not collecting bills of them,--"I am not a minor and so you can safely trust me. I wish to go into business and wish you would sell me some goods." Suppose that, relying on his statement, the merchant should sell him hats or other merchandise for which he would afterward decline to pay, on the ground that he was a minor. Suppose he proved that he really was one--could the merchant compel him to pay the bill? He could not compel him to fulfil his contract, because, as we have already said, the law does not permit a minor to make a contract except for necessaries. The court, then, would say to the merchant: "It is true that you sold the goods to this minor; he has indeed lied to you; still the court cannot regard a contract as existing between you and him." On the other hand, a court will not permit a person to defraud another, and the merchant could make the minor pay for the _deceit_ or _wrong_ that he had practised on him; and the measure of this wrong would be the value of the goods he had bought. Thus the court would render justice to the merchant without admitting that the minor could make a legal contract for the goods that he had actually bought and taken away. III. THE PARTIES TO A CONTRACT (_Continued_) In the former article we told our readers that there were some persons who could not make contracts, and among these were INFANTS or MINORS. In most of the States a person, male or female, is a minor until he or she is twenty-one years old. In some of the States, among them Illinois, a female ceases to be a minor at eighteen years of age. By the Roman law a minor did not reach his majority until the end of his twenty-fourth year, and this rule has been adopted in France, Spain, Holland, and some parts of Germany. The French law, though, has been changed, with one noteworthy exception. A woman cannot make a contract relating to her marriage without the consent of her parents until she is twenty-five. Among the Greeks and early Romans women never passed beyond the period of minority, but were always subject to the guardianship of their parents until they were married. MARRIED WOMEN are another class of persons who cannot make every kind of a contract like a man. Once a married woman had but very little power to make contracts. However great might have been her wealth before marriage, as soon as she entered into this blissful state the law kindly relieved her of all except her real estate, giving it to her husband. On the other hand, he was obliged to pay her bills, which was one of his great pleasures, especially if she was a constant traveller to the silk and diamond stores. She could still keep her real estate in her own name, but that was about all. Her husband took everything else; he could claim her pocket-book, if he pleased, and was obliged to support her in sickness or health, in sweetness or in any other "ness." The law has been greatly changed in all civilised countries in this regard, and to-day in most States she can make almost any kind of a contract. In some States, however, it is even now said that she cannot agree to pay the debt of another, but this is, perhaps, the only limit on her power to contract. She can engage in business, buy and sell, transfer notes, make contracts relating to the sale and leasing of her real estate, insure it, build houses, and do a thousand other things quite as freely as if there were no husband around. The most of these changes widening her authority to make contracts have come within the last fifty years. Of course, unmarried women can make contracts like men, and many of them know it. Another class who cannot make contracts are DRUNKEN PERSONS. Once the law regarded a drunken man as fully responsible for his acts, and if he made a contract he was obliged to execute or fulfil it. He could not shield himself by saying he did not know what he was doing at the time. The court sternly frowned on him and said: "No matter what was your condition at the time of making it, you must carry it out." This was the penalty for his misdeed. It may be the courts thought that by requiring him to fulfil his contracts he would be more careful and restrain his appetite. Whatever the courts may have thought, they have changed their opinions regarding his liability for his contracts made under such conditions. Now they hold that he need not carry them out if he desires to escape from them. There is, however, one exception to this rule. If he has given a note in the ordinary form, and this has been taken by a third person in good faith who did not know of the maker's condition at the time of making it, he must pay. But, we repeat, the third person must act in good faith in taking it, for if he knew that the maker was drunk at that time he cannot require him to pay any more than the person to whom it was first given. One other class may be briefly mentioned--the INSANE. They are regarded in the law quite the same as minors. For their own protection the law does not hold them liable on any contracts except those for necessaries. These are binding for the same reasons as the contracts of minors, in order that they may be able to get such things as they need for their health and comfort. For if the law were otherwise, then, of course, merchants would be afraid to sell to them. But as merchants can now safely sell to them whatever they truly need in the way of clothing, food, etc., to make themselves comfortable, so, on the other hand, the insane, like minors, must pay for these things, and it is right that they should. IV. THE CONSIDERATION IN CONTRACTS Having explained who can make contracts, we are now ready to take another step. Besides having parties, there must be a CONSIDERATION for every contract. This is rather a long word, but no shorter can be found to put in its place. What do we mean by this term? We mean that there must be some actual gain or loss to one or both parties to a contract, otherwise it is not valid. If, for example, A should say to B, "I will give you $100 to-morrow," B, perhaps, might go away very happy, thinking that with this money he could buy a bicycle or some other fine thing; indeed, it was just the sum for which he was longing; so on the morrow he goes to A for his money. He promptly appears, but A says to him: "I have changed my mind, and will not give you the $100." B asks: "Did you not promise to give me this money?" "Certainly." "Well, why will you not fulfil your promise?" A replies: "I was a fool when I made that promise; you are not going to give me anything for it, so I am unwilling to give the money to you." Suppose B in his sorrow should go to a lawyer, thinking, perhaps, that he could compel A by some legal proceeding to pay over the money. What would the lawyer tell him? Why, he would say: "Did you promise to give A anything for the $100?" "No, sir." "Then the law will not help you out. You cannot get the money from him by any legal method. Perhaps you can get $100 worth of fun in licking him for not giving you the money, but you cannot get the cash. But, mind, perhaps you had better not try to get your fun in that way, for this is contrary to law, and he might get much more than $100 out of you in the way of damages for licking him." In every case, therefore, there must be _something for something_. Now this something may be a thousand things. It may be money or merchandise or work. In short, there is no end of the things that may serve as a consideration of a contract. An example may be given to explain what is meant by this. A man had been speculating in stocks, and one of the rules of the stock board is that a margin or sum of money that is to be paid for stock must be paid in every case. It may be that an additional margin or sum must be paid under some circumstances. The speculator in this particular case was unwilling to pay this margin, and he said to the broker: "If you will do as I wish, and not put up this margin, I will save you from any loss that may result from such conduct." It was contrary to the rules of that stock exchange for the broker not to put up the margin, and the consequence was that he was put off the floor; in other words, the board would not permit him to act as a member. Of course, as he could not buy and sell any more stock, he lost money; and he went to his customer, the speculator, and told him that he was losing money in consequence of carrying out his order about the margin. The speculator said he was sorry, but he could not help it. The broker then insisted that the speculator must make good his daily loss in consequence of doing as he had promised. This the speculator would not do. The broker then sued him for the amount of his loss. The speculator defended on the ground that there was no consideration for the agreement he had made with the broker about the margin. The court said that the loss which the broker had suffered in consequence of carrying out his contract with the speculator was a good consideration for the contract and must be made good. _When a contract is sealed the law implies that there is consideration_, and there need not be an actual one consisting of money, labour, or any other thing. This seems like an exception to the rule requiring a consideration in all cases, but the reason is this: When a sealed contract is made, the law supposes or assumes that each party made it, clearly knowing its nature--made it carefully, slowly, and, consequently, that either a consideration had been or would be given. If, therefore, one of the parties should refuse to fulfil it the other could sue him in a court of law. The person who sought to have it carried out would not be obliged to show that he had given any consideration on his part for the undertaking, because the seal appended to his name would imply that a consideration had been given. A deed for a piece of land is a good illustration of a sealed instrument. The law assumes whenever such a deed is given that the seller received a consideration for his land. The money paid was a consideration received by the seller, and the land was the consideration received by the buyer. Each gives a consideration of some kind for the consideration received from the other; and this is true in all cases. V. THE ESSENTIALS OF A CONTRACT In our last paper we told our readers that there must be a _consideration in every contract_. Sometimes this is _illegal_, and when it is the effect is the same as would be the giving of _no consideration_. Suppose a robber having stolen money from a bank should afterward offer to return a certain portion if he is assured that he will not be arrested and compelled to change the style of his clothing and his place of residence for a season. He cannot endure the thought of missing a game of football; and as for striped clothes, though very comfortable, perhaps, he is sure they would not be becoming. Suppose this agreement to return a part should be put in writing, and after fulfilling it he should be sued by the bank for the remainder, and also prosecuted by the State for committing the theft. Very naturally he would present the writing in court to show that he had been discharged from the crime and also from the payment of any more money. But this writing would not clear him either from prosecution for the criminal offence or from liability to return the rest of the money. The bank would say that although he had returned a part, this was not a proper consideration for its agreement not to sue him; it had no right to make such an agreement, and consequently it could sue the robber for the remainder of the money just as though no agreement had ever been made. Another illustration may be given. Suppose a person having made a bet and lost is unable to pay the money and gives his note for the amount. When the note becomes due the holder or owner sues him for the money. He defends, as he is unwilling to pay, by saying there was no legal consideration for the note. The money he promised to pay was only a wager, which the law regards as illegal. And this would be a good defence. If the consideration is partly legal and partly illegal and can be divided then there can be a _recovery of the legal part_. Suppose a man owed another $1000 for borrowed money and also a wager for the same amount, and had given his note for $2000. When it became due if the owner sued him he could recover only the $1000 of borrowed money; this much and no more, for the reason that the consideration could be divided, the legal part from the illegal part. If no separation was possible then the note would be void and the owner could get nothing. A person cannot recover for a _voluntary service_ that he has rendered to another. A man would be very mean indeed who refused to pay another for any service rendered to him that was truly valuable; yet if he would not do so the man rendering the service could get nothing through the law. Suppose that a person when walking along a road should see some cattle astray in a corn-field having a good time with a farmer's corn. He knows they are in the field for business and in a short time, unless driven out, will get the best of nature and down her efforts in corn-raising. In the kindness of his heart he jumps over the fence and succeeds in driving them away. Suppose there happens to be among the number an unruly animal which is unwilling to leave such a tempting field of plunder and turns on him and gores him, and he is taken to a hospital. The farmer finds out who drove out the animals, and of his injury, but declines to give him any reward whatever. Can the man recover anything? The law says not, because the service is purely voluntary. The question has often been asked whether a person who has made a contract to work for another and has broken it can recover for the worth of his service during the period he was employed. Some courts have said that a person thus breaking his contract cannot afterward recover anything, because he does not come into court with clean hands. Other courts have said that though he can recover nothing on the contract he has broken, he can nevertheless recover on a contract which the law implies in such a case for the worth of his service during the period of his employment. On the other hand, the employer can set off against his claim any injury that he may have sustained. Suppose he could show that the service was of no worth to him; that he was injured rather than benefited by what he did; then the employé could get nothing. The courts have been inclined of late years to uphold an employé in recovering whatever his service was worth--not, however, as done by virtue of an express or actual contract with the employer. He cannot sue on that; in other words, he cannot take advantage of his own wrong to recover anything from his employer, but he may recover on the contract which the law implies, as we have explained, as much as his service was worth to his employer, and no more. Another element in a contract is the meeting of minds of both parties. _Both must understand the matter in the same sense._ For example, a person offered to sell another "good barley" for a stated price, and the other offered to buy "fine barley" at the price mentioned. There was no contract between these persons, because it was shown that "good barley" and "fine barley" were different things in the trade. This, therefore, is one of the essential elements of a contract--the meeting of the minds of the contracting parties. Whether they have assented or not is a question of fact, to be found out like any other question of fact. Sometimes offers are made on time, and when they are several interesting questions may arise. Suppose A and B are negotiating for the sale and purchase of a piece of land. A says to B: "I will give you a week to think the matter over." Soon after parting A meets C, to whom he mentions his offer to B. C says: "I will give you a great deal more for the land and pay you now." "Very well," says A; "the land is yours." And he at once writes a letter to B saying that he has withdrawn his offer, as another person has offered him more for the land and that he has sold it to him. Now B might be very much surprised by this letter. Very likely he would think A was a hard man and perhaps a dishonest one. Perhaps he would go to a lawyer and ask him if he could compel A to sell the land to him if he accepted his offer within the time mentioned and paid to him the money. The lawyer would tell him--if he understood his business--that A had a perfect right to withdraw his offer, even though it was made on time. This would probably be brand-new knowledge to B, but he would know what to do on the next occasion. Is this true in all cases? It certainly is of all offers made in that manner. How, then, can a person who makes an offer to another on time be compelled to regard it? The way is simple enough. The person to whom the offer is made should give something--a consideration--to A, who makes the offer, for the delay. Then he would be bound by it. But the courts would say to B, if nothing were given: "Why should A's offer bind him so long as he is to get no compensation or consideration for it?" And we shall see again and again in these papers _this element of consideration is ever present, and must be to make transactions legal_. So with respect to an offer on time--if the person to whom it is made is really desirous of having it continue, in order to find out whether he can raise the money to pay, or for some reason, he can make the offer binding by giving to the offerer a consideration for the specified time, whatever that may be. VI. CONTRACTS BY CORRESPONDENCE _A great many contracts are made by correspondence._ A person writes a letter to another offering to sell him merchandise at a stated price. The other replies saying that he will accept the offer. Is a contract made at the time of writing his letter and putting it into the post-office, or not until it is received by the person who made the offer? The law in this country is that a contract is made between two persons in that way as soon as the answer is written and put into the post-office beyond the reach of the acceptor. The post-office usually is the agent of the person who uses it, but when a person sends an offer to another by mail the post-office is regarded a little differently. It is the agent of the person who sends the offer and also his agent in bringing back the reply. Consequently, when this is put into the hands of the agent the law regards the offerer as bound by his offer. In like manner, if a creditor should send a letter to his debtor asking him to send a cheque for his debt and he should comply, the post-office would be the agent of the creditor in carrying that cheque, because he requested his debtor to use this means in sending his cheque to him. But when a request is not made and a debtor sends a cheque on his own account, the post-office is his agent for carrying it to his creditor. A person making an offer by letter can of course withdraw it through the telephone or telegraph if he likes at any time before the letter has been received by the other party. Suppose the price of things is rising and A, finding that his goods are also advancing, should, after making an offer of some of them by letter, send a telegram stating what he had written and withdrawing his offer. This would be a proper thing for him to do. If, on the other hand, A's offer had been received by B before his withdrawal and accepted, then A would be bound by it. Can B, after mailing his letter of acceptance and before it has been received by A, withdraw his acceptance? No, he cannot--for the reason above given, that the post-office is the agent of A, in carrying both his offer and B's reply. If this were not so, if the post-office were the agent of B in sending his reply, then of course it could be revoked or withdrawn at any time before it reached A. Suppose A should send an offer and afterward a withdrawal and the withdrawal should be received first. Notwithstanding this, however, if the person to whom the offer was sent should accept the offer, could he not bind A? One can readily see that all the proof would be in the possession of B, the acceptor. If he were a man without regard for his honour and insisted that he received the offer first, A might be unable to offer any proof to the contrary and fail to win his case should B sue him. But the principle of law is plain enough; the only difficulty is in its application. Doubtless cases of this kind constantly happen in which the acceptor has taken advantage of the other to assent to an offer actually received after its withdrawal. Suppose B should in fact receive A's offer first in consequence of the neglect of the telegraph company to deliver A's message of withdrawal promptly, which if delivered as it should have been would have reached B before the letter containing the offer, what then? A doubtless would be bound by his offer, but perhaps he could look to the telegraph company for any loss growing out of the affair. If he could show that he had been injured by fulfilling the contract the telegraph company might be obliged to pay this. Let us carry the inquiry a little further. Suppose the messenger on receiving the telegram took it to B's office and it was closed and he made diligent inquiry concerning B's whereabouts and was unable to find him. Suppose he had gone off to a horse race or to a football game, would it be the duty of the messenger boy to hunt him up at one of these places? By no means. If B was not at his place of business when he ought to have been, the company would not be bound to deliver the message to him elsewhere, except at his house, unless he had left a special direction with the company concerning its delivery. Generally a telegraph company states very clearly its mode of delivering messages and the time when it will do so, the place, etc., to which it will take them, and it is not obliged to hunt all over creation to find the person to whom a message is addressed. That would be a very unreasonable rule to apply. Therefore, if the company did its duty A could not recover anything from it. Would A, then, it may be asked, be obliged to fulfil his contract with B? He has sent his withdrawal, which if delivered in time would have been received by B before the letter containing the offer. B, however, is away from his place of business, and perhaps is where he ought not to be--perhaps he is playing poker or doing something worse--ought A under such circumstances to be held by his offer? This is a closer question and one that we will leave our readers to think over. Surely A would have a strong reason for claiming that he ought not to be held under such conditions. A person who makes an offer cannot turn it into an acceptance. An old uncle offered by letter to buy his nephew's horse for $100, adding: "If I hear no more about the matter I consider the horse as mine." The uncle, not hearing from the nephew, proceeded to take the horse. At this stage of the proceedings, however, the nephew was not inclined to suffer his good old uncle to make the contract entirely himself, and refused to give up the horse. The court said that one person could not do all the contracting himself, and this is what he virtually undertook to do. If a person could, by correspondence or otherwise, make a contract in this manner, one can readily see the dangers that might follow. Some positive act must be put forth by the other party showing or indicating his assent before it will be regarded as given. A person, in truth, is not obliged to pay any attention to an offer of this kind. Rewards are often made. They are found almost every day among the newspaper advertisements. These are binding under various conditions. An interesting question has been raised in the case of a runaway horse whose owner has made an offer to any finder who returns him. Suppose a person at the time of catching the animal did not know of the reward but does know of it when returning the beast to his owner; can he claim the reward? This question has somewhat puzzled the judges, but the more recent opinion is that the catcher can claim the reward like a person who knew at the time of stopping the pleasure of the runaway. Of course, there is no question concerning these rewards when they are known at the time of acting on them. In one of the cases tried not long since, an old farmer offered a reward of $15 to any one who would find the person who had stolen his harness and also $100 to the man who would prosecute the thief. The harness, in truth, was worth not even this small sum and the thief still less. Yet he was caught and prosecuted, and then the prosecutor and finder claimed the rewards. The farmer's excitement had cooled off by this time and he was not so loud and liberal as he was at the time of finding out his loss. He refused to pay, saying that he did not really mean to offer these sums as rewards, and the court decided in his favour, declaring that his offer of reward could not be regarded strictly as one, but rather "as an explosion of wrath." In another case a man's house was burning up and his wife was inside, and he offered any one $5000 who would go in and bring her out--"dead or alive." A brave fellow went in and rescued her. Then he claimed the reward. Was the man who made the offer obliged to pay, and could he not have escaped by insisting that this was simply "an explosion of affection" and not strictly an offer or promise of reward? He tried to hold on to his money, but the court held that this was an offer he must pay. Possibly after the recovery of his wife his valuation of her had changed somewhat from what it was while his house was burning up. One or two more cases may be given. Some persons who prepared "carbolic-smoke balls" offered to pay £100 to any person who contracted influenza after having used one of the balls in the manner clearly set forth and for a stated period. This offer was in the form of a newspaper advertisement. A person bought one of them and followed carefully all the directions about its use. The influenza, though, did not disappear as advertised, so he sued to recover the offer; and, having proved clearly that he had complied faithfully with the directions and had not been cured, the court said that the owners must pay up and compelled them to give him the £100 offered. Another case may be briefly mentioned. A offered to sell B his farm for $1000. B offered $950, which offer was declined. Then B offered to pay $1000. By that time A had changed his mind and declined to accept B's offer. Then B sued to get the farm, offering to pay the money; but the court held that B had declined A's offer and consequently that, as A had not made any other offer, there was no contract. Finally, it may be added that the phrase "by return mail" does not always mean by the next mail, although the person to whom the offer is made cannot delay his answer long. On the other hand, the person to whom such a letter may be addressed can bind the other by an acceptance very quickly after the receipt of the offer, although not literally by the first mail going out. VII. WHAT CONTRACTS MUST BE IN WRITING _Some contracts must be in writing to be valid_; for instance, contracts relating to the sale and leasing of lands. This writing must be signed by the person who is charged with having made it. Suppose that A has sold his farm to B for an agreed sum and refuses to give him a deed on his payment of the amount or offer to pay, and B wishes to compel A to carry out or execute his agreement. B must show a writing signed by A to that effect, otherwise the court will not pay any attention to the matter. On the other hand, if A claims that such an agreement has been made with B, who is unwilling to pay the money and receive the deed, he must show in court a writing signed by B that he has agreed to purchase the farm at a stated price and to receive a deed of the same. If such a writing is not forthcoming when required, he cannot recover anything from him. This is the meaning of the phrase, therefore, that a writing must be signed by the party charged with having made the agreement. _The writing need not be very formal._ It need not specify the amount that is to be paid; in other words, it need not specify the consideration. Some courts say, however, that it must contain this fact or statement. It may be in pencil. I presume it would be sufficient if written on a blackboard with chalk. But it must be a writing of some kind signed by the party to be charged; that is the essential thing. The courts have also said that this writing need not be on a single piece of paper. If the two parties have made an agreement by a series of letters, an offer on the one side and an acceptance on the other, and the agreement can be fully shown from the series of letters, this is sufficient writing. If a man buys a farm and pays a part of the price and goes away saying that he will pay the remainder within a week, expecting then to do so and receive a deed, the seller, if he chooses, can escape giving that deed and parting with his farm. The payment of a part of the money does not bind the bargain, nor will the courts, though knowing this, compel the seller to give such a deed. The reader may ask, if this is the law, cannot the farmer practise a fraud on the buyer by receiving his money and keeping it and the farm too? He cannot do both things. If he refuses to give the deed he must, on the other hand, return the money; if he refuses to do this the buyer can compel him by a proper legal proceeding to refund the amount. In this way the buyer gets his money back again, but not the farm that he bought. It is said that this statute is as often used as a shield to protect men in doing wrong as in preventing frauds. In numberless cases persons, just like the farmer imagined, have used this statute as a means to protect them in not carrying out their agreements. This happens every day. This statute also relates to other matters. One clause says that an executor or administrator cannot be required to pay anything at all out of his own pocket on any promise that he has made unless it be in writing. Every one knows about the duties of an executor or administrator. An executor is one who settles the estate of a person who has died leaving a will directing what shall be done with his wealth. An administrator is a person who settles the estate of a deceased person leaving no will. He is appointed by the law, which fully states his duties. Let us suppose that an executor is employed to settle an estate, and that he employs a carpenter to make some repairs on a house belonging to the estate. The contract is fairly enough made between the carpenter and the executor. Let us also suppose that he has no lien on the house for the work that he has done, or that he has lost his lien by reason of not having filed it in time, as the law requires. Afterward he goes to the executor and demands payment for the repairs that he has made. Let us suppose that the estate is insolvent and cannot pay all of its debts in full. At the time of making this contract neither party supposed this would happen. But, unhappily, debts have come to light so large and numerous that there is not property enough to pay all the creditors everything that is due them. The executor says to the carpenter: "There is not property enough to pay all of the creditors and you, unfortunately, must fare like all of the rest, and you cannot be paid a larger percentage on your share than the others." To the carpenter this would be unwelcome news, and he would doubtless say to the executor: "I made this contract with you expecting that you would pay me, and if the property of the estate is not sufficient you ought to pay me this. I am a poor man and cannot afford to lose any of my hard-earned money." The executor might say to him: "I am as poor as you and I cannot afford to pay you out of my own pocket, and in law you cannot compel me to do this." And, in truth, the carpenter could not do this unless the executor had made a contract in writing, agreeing in any event to pay whether there was money enough belonging to the estate or not. Another clause says that _a person cannot be required to pay the debt of another unless the agreement is in writing_. If A went into a store to buy goods and B should be a little afraid to trust him, and C, a friend of A's, should happen to be present and say to the merchant, "Let A have these goods and if he does not pay you I will," this would be the promise to pay the debt of another; and if A should not pay it C could shield himself behind this statute and escape without paying anything. There is another clause relating to the sale of ordinary merchandise. The law says that _contracts for ordinary merchandise must be in writing if the amount is over_ $50. In some States the amount is $35. Long ago it was decided that this statute did not relate to contracts for work, and they therefore must be carried out or fulfilled in the same manner as though no statute existed, _for work is not merchandise_. VIII. CONTRACTS FOR THE SALE OF MERCHANDISE To make a contract of sale there must be, as we have seen, two or more parties, and a consideration must also be given. The sale is complete when the _property_, or _title_, or _ownership_ in the thing bought passes from the seller to the buyer. It is not necessary in order to make a valid sale to deliver the thing bought. If the _title_ or _ownership_ in the thing is not transferred, the sale still remains incomplete. The law supposes or assumes that a person will always pay for a thing purchased. If I should go into a store, inquire the price of a book, and, after learning the price, should say to the salesman, "I will take the book," and he should wrap it up and give it to me and I should then walk out with the book under my arm, he doubtless would come to me and say in his politest manner: "Why, sir, you have forgotten to pay me for it." Suppose I should say: "Oh, yes; but I will come in to-morrow and pay." But if I happened to be a stranger, and especially if there was a suspicious look about me, and he should say they did not give credit in that store, and I was still inclined to walk out with my book, he could insist that there had been no sale and that I must give the book to him. The law would protect him in taking it from me if he did not use undue force. The law assumes, unless some different rule exists, that the buyer will always pay for the thing purchased, yet in law there is no sale unless the purchase money is actually paid. Of course, credit may be given in a store--that may be the practice; and if it is understood between buyer and seller that credit is to be given, then a sale is complete as soon as the bargain is struck. Indeed, so complete is the sale that if the buyer should say to the salesman, "I will leave this here and return and take it in a short time," and during his absence the store should be burned up and everything perish, the buyer would be obliged to pay for the book. In other words, after it had been sold, if still kept there the seller would be merely the keeper, or bailee, which is the legal term, and he would be obliged to use only ordinary care in keeping it. Suppose a thief should come in and take it away--would the seller be responsible for the loss? Not if he had used the same care in protecting it as in protecting his own property. Another illustration may be used to bring out the nature of a sale more clearly. Suppose I have bought a particular work in a store, either paying cash or buying it on credit, if that be the practice of the store, and I should say to the salesman: "I am going down street and on my return will call and take the book." During my absence I meet a friend and tell him of my purchase, and he should say to me: "I am very desirous to get that work; I am sure there is no other copy in town. Will you not sell it to me?" Suppose I gave him an order, directed to the seller, requesting him to deliver the work to the person to whom I have sold it. If he should take the order to the store he could claim the book as his own and the original seller would be obliged to give it to him. _It is very important_, however, in many cases _to make a delivery of the thing sold_. As we have already stated, the title as between the buyer and seller is actually changed or transferred at the time of making the sale and it is therefore complete. But if a delivery of the thing sold is not actually made and another person should come along and wish to buy it, and the seller should prove to be, as he sometimes is, deceitfully wicked, and should sell and deliver it to him, the second buyer would get a good title and could hold it just as securely as though it had not been previously sold to another. Of course, the second buyer must be an innocent person, knowing nothing about the first or prior sale. If he did not know and pays the money for the thing he has bought and takes it away, he gets a perfectly good title as against the first buyer. If he was not innocent the first buyer could claim it and the second one would lose his money unless he was able to get it back again from the seller. Of course, such a transaction is a fraud on the part of the seller. Therefore it is safer in all ordinary transactions for the buyer to take the thing he has purchased unless he is sure that the seller is a perfectly honest man, who will not practise any such fraud upon him. Suppose the seller had things in his keeping that had been sold but not taken away, and should fail in business, or that persons to whom he owed money should sue him and try to hold not only all of the goods still owned by him but even those which he had sold. Could they succeed as against a person who had bought them in perfectly good faith? It is said that the buyer in such cases can get his goods after clearly showing that he had bought them and paid for them; but the evidence of his purchase must be perfectly clear, otherwise the court will not permit him to take them away and he will lose them. If a merchant is to deliver a thing as a part of the contract of sale, then, of course, he must do this; otherwise he is liable for his failure to carry out his contract. This rule applies to most purchases that are made in stores. The merchant intends to deliver the thing sold, the buyer purchases expecting this will be done, and the price paid for them is enough to cover the cost of taking them to the buyer's house; in other words, the price of the goods, whatever it may be, is intended to be enough to pay the merchant for his cost in delivering them, and in such cases the contract is not complete until a delivery has actually taken place. Again, if the thing purchased is a part of a mass of goods, a separation must be made to complete the contract. If a man should buy 100 barrels of oil which were a part of 1000 barrels, a separation of some kind must be made of the particular ones sold. If one should buy trees in a nursery, to make the contract complete the particular trees must in some way be known, either by rows or every other tree--in short, in some way the trees must be clearly set apart. If part of a mass of timber is bought, the particular logs must be marked or in some way pointed out from the other part of the mass. This rule applies to all things bought that form a part of a large mass. The mode of pointing them out depends on the nature of the thing; a different kind of separation must be made in some cases from what is necessary in others. IX. THE WARRANTIES OF MERCHANDISE The rule of law in buying is, _the buyer must look out for himself_; and if things are not what he supposed they were he has no rightful claim against the seller. The maxim of the law is, "_Let the purchaser beware_"--let him take care of himself. The rule of the Roman law was different. It was the duty of the seller to tell the buyer of all the defects known by him in the thing sold, and if he did not he was responsible for any loss caused by any defect or imperfection found after purchasing that was known by the seller before. The modern principle may be looked at from two points of view. First, _the seller need not make known any defects which the buyer can find out himself_. Suppose a man is thinking of buying a horse that is (though he does not know it) blind in one eye. The law says that the buyer ought to be able to see such a defect quite as readily as the seller, and if he does not the fault is his own. Blindness in one eye is quite as easily seen as would be the lack of an ear or tail. And this principle applies very generally in all purchases. It covers all visible defects. Nor can any one find much fault with this rule, because the buyer generally has as good eyesight as the seller, and if he takes pains, as he should, he is able to discover all ordinary defects. Furthermore, the buyer doubtless often knows quite as much about the things he purchases as the seller. But the courts also say that it applies to other defects. Suppose a horse has the heaves or the rheumatism, which is known to the seller but of which the buyer has no knowledge whatever. The seller is not obliged to make known this defect to the buyer, and if he is silly enough to purchase on his own wisdom he must abide by the consequences. If he does inquire and is deceived, that is another thing. But if he asks no questions, or the seller does not deceive him in any way, the seller is not responsible for defects known by him at the time of the sale. This also is a well-understood rule. _The seller_, we repeat, _must not deceive the buyer_. In one of the well-known cases a man owned a ship that he was desirous of selling. She was unsound in several places and the seller put her in such a position that her defects could not be readily found out. He did this for the purpose of deceiving the buyer and succeeded. When the buyer learned how he had been tricked he began a legal proceeding to get back a part of the money that he had paid, and won his case. And rightfully, too, for the reason that the seller had deceived him, which he had no right to do. Another case may be stated of a man who was desirous of purchasing a picture, supposing that it was once in the collection of an eminent man. The seller knew perfectly well that the picture did not come from that collection and that the buyer was acting under a delusion. He did not say that the picture had belonged to the collection or had not; he was silent, although he knew that the buyer would not purchase it if he knew the truth about its former ownership. For some reason or other the buyer did not make any inquiry of the seller, or if he did was not told. But after purchasing the picture the buyer learned that he was mistaken and that the seller knew this at the time of making the sale. He sought to recover the money he had paid and succeeded, the court saying that a fraud had been practised upon him; that it was the duty of the seller, knowing what was passing in the mind of the buyer, to have told him the truth about the former ownership of the picture. It will be seen, therefore, that _the seller must not deceive the buyer in any way or practise any fraud on him_; if he does he will be responsible for the loss or injury befalling the other. What, then, ought a buyer to do in purchasing a horse, for example, in order to guard himself against the unwelcome discovery of disease or other defect? Clearly, _he ought to require the seller to give him a warranty_. A proper way is, if the transaction be an important one, to have the warranty in writing and signed by the seller. It need not be very long; a few words usually are enough. There is a very important difference that every one ought to understand between words that are spoken at a sale, which are mere representations, and words that form a warranty of the thing sold. If I should go into a store to buy a piece of flannel, and ask the salesman if it was all wool, and he should assure me that it was, and I, ignorant of the quality of the material, and desirous of buying a piece of all-wool flannel, should say to him: "I know nothing about it; I rely entirely on your statement," and he should say: "It is all right; all wool, and no cotton," his words would be a warranty, and if the flannel proved to be made partly of straw or cotton, or something besides wool, I could sue the seller on his warranty, and recover for the loss I had suffered, whatever that might be. But suppose I were a flannel manufacturer myself, and knew at the time he was saying this to me that the flannel was partly cotton; in short, knew a great deal more about it than he did, and was not deceived in any way by what he said, his words would not be a warranty, because my action in buying the flannel would not be influenced by them. What test, then, is to be applied? Evidently whether or not the buyer acts on the words spoken and is deceived by them. If, relying on them, he buys and is deceived or misled to his loss or injury, then the words will be taken as a warranty and protect the buyer. If, on the other hand, he is not deceived by what is told him, and he buys on his own knowledge and judgment, then the words are not a warranty. One or two other points may be briefly noticed. The law says that _the seller always warrants the title to the thing sold_--in other words, that he is the owner. He may not say one word about the matter, but the law implies that he is the owner and would not sell a thing that did not belong to him. If he should prove not to be the owner, the buyer could recover for his loss. _Another point about adulterations._ The common law does not regard an article as adulterated, giving the buyer the right to claim something back, unless it has been materially changed by the foreign substance. All, or nearly all, of the States have made statutes within recent years, or re-enacted old ones, holding sellers strictly responsible for the quality, especially of provisions, sold. These statutes generally require the seller to sell absolutely pure articles, and he cannot shield himself by saying that he was ignorant and innocent of their nature if they proved to be other than pure articles. If a grocer should sell cotton-seed oil for olive oil, even though doing so ignorantly, without any intention to deceive, he would nevertheless be held liable under the statutes that now exist in most of the States; and public opinion strongly favours the strict execution of these statutes. X. COMMON CARRIERS _What is meant by a common carrier?_ A person or company that is obliged to carry merchandise or passengers for a price or compensation from place to place. A common carrier cannot select his business, like a private carrier, but _must_ carry all merchandise that is offered; or, if he is a carrier of persons, all persons who desire to go and are willing to respect all reasonable regulations that relate to carrying them. _The principal common carriers are railroads, steamboats, and canal companies._ The liability of common carriers is very important to all who travel or send merchandise. A common carrier is liable for all losses not happening by the act of God or by the public enemy. By "act of God" is meant unavoidable calamity, such as lightning and tempests, and by "public enemy" is meant a nation at war with another. Once these were the only exceptions. Carriers were therefore insurers of the goods left with them to be carried to some other place. This early rule of law fixing their liability has been greatly changed. Carriers can now make a contract relieving themselves of all liability for losses in carrying goods except those arising from their own negligence. The courts in a few cases have said that they can relieve themselves even from this, but this is not generally the law. They can, though, by special contract relieve themselves from all other liability. A railroad company, therefore, can make a contract for carrying wheat from Chicago to New York, relieving itself from all liability for loss by fire unless this shall be caused by its negligence. If a fire should occur without any negligence on the part of the company and goods on the way should be destroyed, it could not be held responsible for the loss if there was such a contract between the shipper and carrier. _A carrier is no longer an insurer for the safe carrying of goods._ The courts have permitted carriers to thus lessen their liability because they are willing to take goods at lower prices than they would if they were to be responsible for all losses. They now virtually say to the shippers: "If you are willing to be your own insurers, or insure in insurance companies, and hold us for no losses except those arising from our own negligence, we are willing to carry your goods at a much lower rate." And, as shippers are willing to take the risks themselves for the sake of getting lower rates, the practice has become universal for lessening the liability of carriers in the manner described. Suppose that goods are burned up by fire. The shipper must be the loser unless he can show that it was caused by the negligence of the carrier. As he often can show this, he imagines that the carrier is still living under the old law and is liable as he was in the early days of railroad and steamboat companies. In truth, this is not so. His liability is measured by his contract, and there can be no recovery for any loss unless negligence on the carrier's part is clearly shown, and in many cases this is not easily done. Though common or public carriers are obliged to take and transport almost everything, _they may make reasonable regulations about the packing, etc., of merchandise_. Suppose a shipper were to come to a railroad company's clerk with a quantity of glass not in boxes, and should say to him, "I wish this glass to be carried to New York"; and the clerk should say to him that the rules of the company required all glass to be packed in boxes lined with straw, and that the rule could not be set aside, however short might be the distance. Very likely the shipper would say to the agent: "This is expensive; I wish you to take it as it is." And if he should say to the agent that he was willing to run the risk of breakage, then, perhaps, the clerk might take it in; yet, even on those terms, some carriers would not. At all events, if the clerk should insist on following the rules, the shipper could not justly complain, for this rule is a very reasonable one, as the courts have many times declared. Suppose a shipper should ask a carrier to take a load of potatoes or apples to Montreal in very cold weather. The carrier says to him: "There is danger of the apples being frozen. I am unwilling to carry them unless you will take the risk of their freezing." He could insist on these terms, because it would be unreasonable to require carriers to transport such merchandise and keep their cars heated. They are not made in that way and every shipper knows it, nor are carriers required to heat them. The courts have said that any reasonable regulations respecting the merchandise to be carried, the packing, etc., must be respected. A carrier could refuse positively to carry dynamite or powder unless it was packed in a very careful manner. Doubtless many things are carried in ways quite contrary to the regulations, without the knowledge of the carrying companies. Packages are rarely examined and things may be put within, out of sight, of which carriers know nothing. A carrier is not required to have cars enough to carry all goods on unusual occasions. But it must have enough to carry without delay all that come from day to day. XI. THE CARRYING OF PASSENGERS Millions ride on steamboats, in the street-cars, and by steam-railways, and the question is an important one with them. _What are the rights and duties of company and passenger? First, it is the duty of a company carrying passengers to provide every one with a seat._ This rule does not apply to street-cars but it does to steam-railways. In some cases it is said of the street-car passengers that those who use the straps pay the money from which dividends are paid. But the rule is otherwise that applies to railway companies. They must furnish seats for their passengers and cannot demand fares until seats are secured. Having taken him on board and seated him, what degree of care must the company use in carrying the passenger? It may seem strange to say that the company is not obliged to use as much care as in carrying a barrel of apples or an animal. Goods must be moved, kept dry, perhaps, and cared for in other ways. An animal must be fed. In carrying cattle stops must be made for rest. But the passenger takes care of himself. He gets in and out and provides his own rations. Therefore the law puts on the carrier the duty of using only a reasonable degree of care in taking him from place to place. In other words, the railway is not an insurer of life, as it is of goods or other merchandise. As passengers are of themselves able to get around and use some care with respect to their own movements, the law lessens the responsibility. Perhaps the reader would like to know _what the company must do in carrying a passenger's baggage_. This is a very practical question. If he takes his grip in the seat with him, he alone is responsible for its safety. If some one should get in the seat beside him and in going out should take the grip along with him, the owner could not ask the company to make good his loss. On the other hand, if he delivers his grip to the company, then the company is bound by the same rule as when carrying other goods and merchandise. The price paid for his ticket is also enough to pay the cost of carrying his trunk or other baggage, therefore the carrier cannot escape paying for its loss when having possession of it on the ground that the service is purely voluntary and without compensation. As the company gets compensation it must pay for any loss while taking baggage from one place to another unless the loss or damage should be due to no fault or negligence of the company. Every now and then we receive a cheque for a trunk or other piece of baggage stating that in the event of loss the company will not be responsible beyond a certain amount--$50, or $100, or other sum. Is that statement on the cheque worth anything? The courts have held that if one of these cheques is taken by a passenger and he reads it he is bound thereby. This is a contract between carrier and passenger, consequently he is bound by the figures mentioned under ordinary circumstances. This rule is just and is based on a good reason. As every one knows, whenever a trunk is lost it is very difficult for the carrier to get any proof of the real value of its contents. All the evidence is in the hands of the passenger. If he is without a conscience and apparently proves that the things in it were worth $200 or $300, he may succeed in getting this much, although it might have been full of shavings. It is because of much experience of this kind that carriers have tried to limit the amount for which they will be responsible, and so long as they do this in a fair, open way the law regards their conduct with favour. If, however, a passenger receives such a cheque and at once puts it in his pocket and does not know its true nature, then the courts have held that he was not bound by any limit of this kind. Again, a person has no business to put diamonds and rubies and jewellery and the like in his trunk. If he does and they are lost, he cannot compel the carrier to pay for them. The courts have said that passengers have no right to put such things in their trunks expecting to make carriers pay for them when they are lost. If there are things of unusual value in a trunk, the carrier should be informed or else the owner should assume the risk. One word more. An express company is a common carrier and is bound by the same rules as other carriers except so far as such rules may be changed by definite contract. When a definite contract is made, then the rules of ordinary carriers do not apply. XII. ON THE KEEPING OF THINGS There are some principles of every-day importance relating to the keeping of things. In our last lecture was mentioned the carriage of merchandise by common carriers. They not only carry merchandise--they also keep it. When merchandise reaches its destination and shippers have had a reasonable time to take it away, but neglect to do so, a common carrier is no longer liable for its safe keeping as a common carrier but only as a warehouseman. What do we mean by this? As we have seen, a common carrier, unless he makes a special contract for carrying the merchandise, is liable for everything lost or injured except "by the act of God or the public enemy"; or, as we have already said, he is an insurer for safely taking and keeping the merchandise while it is in his charge. When the merchandise has reached the final station, and the person to whom it is shipped or sent has had ample time to take it away and does not do so, the carrier still keeps the merchandise in his warehouse or depot, but he is no longer liable as a carrier for keeping it but simply as a warehouseman. In other words, if goods are kept by him for this longer period, he is liable for their loss only in the event of gross negligence on his part. If a fire should break out and the goods be burned, unless it happened by his own gross negligence, he would not be liable for the loss. So, too, if a thief should break into his warehouse and steal the goods, he would not be liable for the theft unless it was shown that he was grossly negligent in not providing a safer building. If the rats and mice should destroy the goods while they were in the common carrier's building, the same rule would apply; or if they were injured or destroyed in any other manner, he would not be responsible for the loss unless gross negligence was shown. Different rules apply, depending on whether the keeper, or bailee, gets any compensation for storage. In our lecture relating to sales we stated that the seller would not be liable for the loss of anything intrusted to his keeping after it had been bought of him unless he was grossly negligent, for the reason that no reward or compensation is paid to him for storage. There are, therefore, two rules which govern many cases. If a person keeps a thing for a reward or compensation, then he is bound by a stricter rule of diligence than in those cases in which he receives nothing for his service. This accords with the common reason of mankind. Evidently if a person keeps a thing simply as an act of kindness, he ought not to be responsible in the same sense that one is held responsible who is paid a fixed price for such service. Another good illustration is that of a bank which keeps the bonds of a depositor in its safe for his accommodation. The bank does not pretend to be a safe-deposit company or anything of the kind, but it has a large vault and wishes to accommodate its customers by keeping their stocks and bonds and other articles for them while they are off on vacations or for other reasons. It is a common thing for a customer to go to his bank, especially in the country, and ask the cashier to keep his valuables during his absence. The cashier is willing to comply, and the things are intrusted to him; but as the bank receives no compensation for this service it is not responsible for their loss unless it is grossly negligent in the matter. Suppose they are put in the safe among other valuables belonging to the bank and a robber breaks in and takes them away--is the bank responsible? Certainly not. On the other hand, if the customer should leave his valuables at a safe-deposit company, a different rule would apply, because that company charges him for keeping the articles. It is therefore bound by a stricter rule than the bank. It must use the greatest care, and if neglectful in any respect it is responsible for the consequences. Suppose a person should say to me: "Will you be good enough to leave this package with a jeweller on your way down street?" I say to my friend: "Certainly, with the greatest pleasure." What degree of care must I use in carrying that package? Only ordinary care. Suppose in going along the street a thief, without my knowledge, should walk beside me and slip his hand into my pocket and take the package, and on my arrival at the jewellery store I should find that it was gone. Should I be responsible for the loss? Certainly not, because I had neither received nor expected to receive any reward for taking the package to the store. Of course, if it could be shown that I was unnecessarily negligent in carrying the parcel, the owner might be justified in claiming damages. One thing more may be added. If a bailee should be a scoundrel and sell the thing left with him for safe-keeping and receive the money, the true owner could, nevertheless, claim the thing wherever he could find it. The owner would not get a good title. This rule of law applies to everything except negotiable paper. A person who buys that in good faith, honestly, not knowing that it was stolen, and pays money, gets a good title. _This is the only exception to the above rule in the law._ XIII. CONCERNING AGENTS Very many persons act as agents for others. Much of the business of modern times is carried on by persons of this class. All the managers of corporations are agents of the railways, banks, manufacturing companies, and the like. They are to be seen everywhere. Every salesman is an agent. In short, _the larger part of the modern commerce of the world is done by agents_. AGENTS ARE OF TWO KINDS, SPECIAL AND GENERAL; and there are important differences between the two. A GENERAL AGENT is a person who transacts all the business of the person hiring or appointing him, called a principal, or all his business of a particular kind. A principal might have several general agents for the different kinds of business in which he was engaged. Suppose he has a cotton-factory and a store and a farm; he might have three general agents, each managing one of these enterprises. A general agent may be appointed in different ways. This may be done by a written contract. Very often, however, no such contract is made, and the person comes to act in a different way. A cashier of a bank, for example, is a general agent to transact its business, but the mode of appointing him rarely consists of anything more than a resolution of the board of directors. More often than otherwise his appointment is purely verbal, by word of mouth. And, again, the authority of an agent thus to act is often found out by his acts, known and approved by his principal, or in other ways. Suppose that A should manage B's store for him, buying and selling merchandise with A's knowledge; by thus putting him before the world as B's agent the law would say that he really was so, and B would be bound by his acts within a limit soon to be explained. This, perhaps, is the more common way in which the world learns of the authority of an agent's act. He does a great variety of things which it is well known must be within the knowledge of his principal or employer and, as they are known by the employer and the employer says nothing in the way of disowning or repudiating these acts, he is bound by them. Sometimes, indeed, persons pretend to be agents for others when really they have no authority to act. When this is done, and the person for whom they are pretending to act finds out what they are doing, then it is his immediate duty to take such action as the circumstances require to disown the acts of such pretenders. If this is not done he may be bound by them. His action in adopting or approving is called the RATIFYING of an agent's act; and when this is done the agent's action is just as valid as though authority had been given to him to act in the beginning. The principal's conduct in thus ratifying an agent's acts relates back to the time when the agent first began to act. A SPECIAL AGENT is appointed to do a particular thing and this is more often done in writing. Perhaps the most common illustration is the appointment of some one to act for another at the annual meeting of a corporation to vote on stock. Such a person is called a PROXY, and persons often act as through another in this manner. Sometimes one person serves as a proxy or agent for a very large number of shareholders. The liability of a principal for the acts of a general agent are very different from his liability for the acts of a special agent. In the former case the principal is said to be responsible for all the acts of his agent that are within the general scope of his business. In other words, if it is generally known that A is acting as the general agent of B in conducting his business,--we will say managing his cotton-factory,--A will bind his principal B for everything done by him as general agent in conducting that business. Suppose A was acting as a general agent of an insurance company and, among other things, was told by the president or board of directors of the company not to insure property in a given place below a stated rate. Suppose a person should go to this agent, desiring to have his property insured, but at a lower rate, and suppose that the agent should finally yield and make a lower rate as requested. Could his company repudiate the contract? Clearly not, for it was A's duty to make contracts for insuring properties. If the insured knew that the agent had been expressly limited in the rates for insuring and that he was going contrary to his instructions in making the lower rate, then, indeed, the company would not be bound by the contract. Otherwise it could not repudiate the act, for it would fall within the general principle that a principal is bound by the acts of his agent done within the general scope of his business or employment; and such a contract clearly would be within the limit. For, indeed, this is the very business of the agent--to effect insurance. The only thing necessary, therefore, for a person doing business with a general agent is to find out whether he is such an agent; and when this is learned then a person can safely transact business with him, doing anything within the general scope of his powers, unless the person actually knows that some limit or restriction has been put upon the agent. It is not his duty to find out what the powers of a general agent are, but simply whether he is a general agent or not. But the rule is very different that applies to the liability of a principal who employs a special agent. In such cases it is the duty of the person doing business with him to inquire what his powers are, for the principal will not be bound beyond these. Such an inquiry, therefore, must be made. He must ask the agent to show the authority under which he is appointed, or in some way clearly convince the other what his powers are before any business can be safely done. The authority of a special agent is often stated in writing, and the paper is called A POWER OF ATTORNEY. _In selling land an agent should always have such a power_, because a good title to land can only be given in writing, and this power of attorney should be copied in the records kept for this purpose with the deed itself to show by what authority the agent acted in selling the land. Every now and then when a person buys a piece of land and examines the title to find out whether it is perfect or not, he discovers that somewhere in the chain of title a deed was made by the agent of the seller instead of the seller himself, and the buyer had forgotten to put the power of attorney on record with his deed. The omission to do this is often serious. It is in truth just as important for an agent to have a proper power of attorney in such a case as to give a proper deed for his principal, and the one paper should be recorded quite as much as the other, as both are parts of the same story. _Sometimes an agent appoints a subagent._ This may be orally or in writing. A good illustration is that of the collection of a cheque deposited with a bank. Suppose a cheque is deposited in a bank in Chicago drawn on a bank in Newark, N. J. The Chicago bank is, in the first instance, the agent for collecting it. The bank would send the cheque to another in New York, which would be its subagent, and that bank in turn would send it to a third bank in Newark, which would be a subagent of the New York bank. Thus there would be two subagents, besides the agent, employed in collecting the cheque. There is an important question relating to the liability of one of these agents or subagents in the event of the negligent performance of the duty; which is responsible? Generally, it is said, if the general agent appoints a subagent he is nevertheless responsible for his act. Suppose a street contractor employs a subagent to repair a street and he digs a hole and improperly guards it and some one falls into the place and is injured, can the person thus injured look to the contractor or to the subcontractor for compensation for his injury? The contractor is liable in such cases. It may be added, however, that although he is liable to the person injured, he may be able to recover of the subcontractor or subagent. But this rule does not apply to the banks in every State. In some of them the first bank in which the cheque was deposited is liable for the negligence of others that may be afterward employed in collecting it, and this rule prevails in the federal courts. In a larger number of States the first bank fully performs its duty in selecting a proper or reputable agent, and in sending the cheque to it for collection. Should the second or subagent be neglectful, the depositor of the cheque could compel that agent, and not the first, to make its loss good. XIV. THE LAW RELATING TO BANK CHEQUES A CHEQUE has come to be one of the most common of all writings. Almost everybody receives more or less of them. There are some principles that ought to be understood by every holder or receiver of a cheque which, we fear, are not as well known as they should be. _First of all, a person ought to present his cheque for payment soon after receiving it._ Some people are quite negligent in this matter and carry cheques around in their pocket-books for several days before presenting them for payment. It may not be convenient to take them to a bank, and so they are carried around; perhaps their owners forget they have them. They ought not to do so, for the reason that the maker of a cheque really says to the holder: "This is an order that I give to you on my bank for the money mentioned. If you go at once you can get payment, but I do not promise to keep it there always for you--only for a short time." Now if a person is willing to accept a cheque at all, he ought to present it within the time the holder intended, and if he does not and the bank fails, the loss falls on the holder and not on the maker. _What time does the law fix for presenting cheques for payment?_ The rule everywhere is that the holder must present a cheque received by him, if drawn on a bank in the place where he lives, on the day of receiving it or on the next day. If the cheque is drawn on a bank at a distance, out of town, then he should send it to that bank, either directly or by leaving it with another bank for that purpose, on the same day as he received it or the next day. In other words, _he must take steps to collect the cheque either on the day of receiving it or the following one_. A friend of mine gave a cheque to a merchant in payment of a small bill. Both lived in the same town, where the bank on which the cheque was drawn was also located. About a week afterward the bank failed and the merchant wrote to him, stating the unwelcome fact and that the cheque had not been collected and desired him to send another. I asked my friend if he complied with the request, and he said: "Certainly." I told him that he ought not to have done so, for he was under no obligation either in law or morals to do such a thing. Had he known the above rule he would not have sent the second cheque, for it was pure negligence on the part of the merchant in not presenting it--in fact, on the same day it was received. A person may, of course, hold a cheque for a much longer period than the time above mentioned and present it and receive payment, but the point that we are trying to make clear is that _the risk of holding it_ during this period _is the holder's and not the risk of the maker of the cheque_. I suppose the merchant in the above case had, perhaps, lost the cheque. Every now and then one is mislaid and, consequently, is not presented for payment when it should be, but the maker ought not to suffer for the negligence of the receiver of his cheque. The rule of law that we have given is founded on justice, and if the receiver is negligent in not presenting it as he should, the holder ought not to suffer. _It is the duty of a bank to pay a cheque just as it is drawn, and if it makes any mistakes it must suffer._ The reason for this rule is that the maker does not expect to see his cheque again after it leaves his hand, and when he puts his money in a bank for safe-keeping the bank virtually says to him that it will pay only on his order just as he has written. It will guard his interests carefully and pay no forged cheques or cheques that have been altered in dates or amounts, to his injury. Now, it is quite a common thing for cheques to be forged, and still more common for them to be raised. A scoundrel gets a cheque that is genuine, ordering a bank to pay $18, and changes it to $1800. He presents it for payment and it is paid. By and by the depositor finds out that he has not as much money in the bank as he supposed he had there. What has happened? Some one has altered one of his cheques and drawn out too much. He goes to the bank and makes inquiry, learns that this is so, and then demands that it shall make the amount good to him. Usually a bank is obliged to pay. There is one limit to this rule. _A man making a cheque must be careful to write it in such a way that changes or alterations cannot easily be made._ If he is careless, leaving ample space so that changes can be made in the amount, then he will be considered negligent, and a bank would not be obliged to make good his loss. If, on the other hand, he is careful in drawing his cheques then a bank's duty to protect him is plain, and it is liable in the event of neglecting to do so. A few years ago a man drew a cheque for $250, dated it three days ahead, and left it with his clerk, directing him to draw the money on the day written in the cheque and pay the men who worked for him, and went away. The clerk thought that he would like to keep that money himself and take a little journey also, so he changed the date to one day earlier, went into the bank on that day and drew the money, and started for the Klondike or some other place. The maker of the cheque soon found out what had happened and demanded of the bank to make the amount good. The bank said to him: "Suppose the clerk had waited one day longer and then drawn the money, you would have been the loser just the same." The man admitted all this, but replied, nevertheless, that he had not changed the date; that the bank ought to have seen the alteration before paying, and as it did not it was negligent in that regard, and the bank was obliged to lose. When a person takes a cheque he naturally supposes that the bank on which it is drawn owes the money to him because he can truly demand it. _Suppose a bank refuses to pay, can the holder then sue the bank for money?_ In six States--Illinois, South Carolina, Missouri, Kentucky, Colorado, and Texas--the holder of such a cheque can sue the bank and get his money. The courts in those States say that a cheque is an assignment or transfer of the amount of money stated to the holder of the cheque from the time that the cheque was given him. The law in all of the other States is otherwise, and a bank for a good reason can decline to pay a cheque, and, in any event, the holder cannot sue the bank for the amount. If it will not pay he must look to the maker and not the bank for payment. Of course, _a cheque must always be drawn against a deposit, and it is a fraud on the part of a person to draw a cheque on a bank when he has no money there_. Sometimes mistakes are made by banks in their bookkeeping, and they think they have not the money to pay when in truth they have. In such cases they sometimes decline to pay, but even if they had the money the law says that there is no contract between the holder of a cheque and the bank on which it is drawn, and therefore the holder cannot sue it should it refuse to pay. This rule, however, is rather losing ground and the other is coming into more general favour--that a cheque does operate to transfer the money of the maker to the holder and, consequently, that he has a right to sue the bank for the money. Cheques are made payable either to bearer or order. If a cheque is made payable to bearer it can be transferred from one person to another simply by handing it to him--by delivery; but if a cheque is made payable to order, then the person who receives it, if wishing to transfer it to some one else, must write his name on the back. If he writes his name on the back it is called a blank indorsement, and this form is often used in transferring cheques. If, however, a person intends to send a cheque through the mail he should never write it payable to bearer, but always payable to the order of a particular person, so as to require his name to be written thereon in order to make a good transfer. This is a much safer way of sending cheques than simply by making them payable to bearer. XV. THE LAW RELATING TO LEASES A LEASE IS AN AGREEMENT, and, as every one knows, usually relates to the hiring of lands and houses. _If the agreement is to be for a longer period than one year it should be in writing_, for if it be not either party can avoid it, not morally but in law. The statute of frauds, which has been explained, would shield either party in not carrying out such an agreement if it were not in writing if by its terms it was to last for a longer period than one year. There is another very important reason for putting such an agreement in writing. Much of the law relating to the two parties, landlord and tenant, is one-sided and in favour of the landlord. Our law on that subject is based on the English law. It was imported in the early colonial days, and, though it has been greatly changed by statute and by decisions of the courts, it is still very one-sided, as we shall see before finishing this paper. For this reason, especially, all leases relating to houses and stores or other buildings, even for a short period, should be in writing, with the rights and duties of both parties fully stated, so that both may clearly know what to do and to expect. Unless something is said in the lease concerning repairs the landlord is not obliged to make any. This statement shows at once the need of having a written lease. If the house is out of order--the locks, blinds, doors, and windows are not in good order--the tenant cannot claim anything of the landlord or require him to put them in good condition. Even if a house should become unfit for habitation in consequence of fire, or is blown down, or is flooded with water, the landlord is not bound to do anything unless he has stated that he will in his lease. A fire broke out not long since in a large warehouse and burned it so completely as to render it wholly unfit for use; indeed, all the merchandise in it was wholly consumed. Nevertheless, when the lease expired and the tenants refused to pay as they had agreed to do, the landlord brought a legal proceeding against them to compel them to pay during the entire period, as though they had been staying there and selling goods and making money, and they were compelled to pay. _This is the common law on the subject_, and every tenant is bound to pay in such cases unless he has clearly stated in his lease that he is not to be holden in the event of the destruction of the building by fire, flood, lightning, or other cause. Furthermore, it may be added that leases nowadays are often furnished with blank spaces to be filled up with names, the amounts to be paid, times of payment, etc., and persons often sign them without even reading them. They should not do this. They should be careful to read them over two or three times or more, until they fully understand them and are sure of their nature before signing or executing them. People are still more negligent in taking out insurance policies without reading them. They are very long and parts of them are printed in fine type and, perhaps, are quite difficult, especially for old eyes, to read. In truth some of the most important parts are put in the finest print--some of the exceptions against loss and other matters, which, we are quite sure, if a person when taking out a policy should read over and understand he would insist on having changed. If a house becomes unfit for living therein by its own fault--for example, if it is overrun with rats, or becomes so decayed that the weather invades and is thereby rendered unfit--the tenant, so the law says, has indeed the privilege of quitting, if he did not know these things at the time of entering; but if he did, he would be required to live there, however much he might dislike the company of rats or the presence of the snow or rain, and also to pay his rent; or, if quitting for that reason, he would still be responsible for the rent as he would if living in the house. An eminent legal writer has stated the principle in this way: The tenant can leave if the defect was not known or anticipated by him, or known or anticipated if he had made a reasonable investigation or inquiry before he took the lease. A tenant is not required to make general repairs without an agreement, but he must make those that are necessary to preserve the house from injury by rain and wind. If the shingles are blown off or panes of glass are broken others must be put in their places; and it is said that he would be bound even for ornamental repairs, like paper and painting, if he made an agreement to return the house in good order. A tenant of a farm must manage and cultivate it by the same rules of husbandry as are practised in his vicinity, and if his lease ends by any event that is uncertain and could neither have been foreseen nor foretold, he is entitled to the annual crop sowed or planted by him while he was in possession. As we have stated, if the house is wholly destroyed the tenant must still pay the rent, for the reason, which to many may seem absurd, that the law regards the land as the principal thing and the house as secondary. It is true that a man, in the event of his house burning down, might pitch a tent on the ground and live there, but it would be a decidedly chilly way of living, especially in the winter-time, in the northern part of our country. If a tenant should agree to return and deliver the house at the end of the term in good order and condition, reasonable wear and tear only excepted, he would be obliged to rebuild the house if it burned down. Once more, we ask, in view of these things, ought he not to make a written lease and well understand its terms before signing it? The times for paying rent are usually specified in the lease, if one is made. When they are not the tenant is governed by the usage of the country or place where he lives. When nothing is said about underletting the whole or a part to some one else the tenant has a right to do this, but remains bound to the landlord for his rent. Generally when written leases are made there is a clause stating that the tenant cannot underlet any portion or all without the landlord's consent. _A tenant is not responsible for taxes unless it is expressly agreed that he shall pay them._ If a lease be for a fixed time the tenant loses all right or interest in the land as soon as the lease comes to an end, and he must leave then or the landlord may turn him out at once, or, in other language, eject him. If, however, he stays there longer with the consent of the landlord he is then called a tenant at will and cannot be turned out by the landlord without giving a notice to him to quit. The statutes of the several States have fixed the length of time that a notice must be given by the landlord to his tenant before he can turn him out. In many States a notice of thirty days must be given; sometimes sixty days' notice is required, or even longer. It is an important question _what things a tenant may take away with him at the expiration of his lease_. Of course, there is no question whatever with respect to many things. Besides his wife and children he may take all his furniture and other movable property. But there are many things fixed to the house by the tenant that he desires to remove if he has the right to do so, and many questions have been asked and decided by the courts relating to this subject. The method of fastening them to the house is the test usually applied to determine whether they can be taken away or not. If they are fastened by screws in such a way as to show that the tenant intended to take them away, he can do so, otherwise he cannot. In modern times the rule has been changed in favour of the tenant, and whatever he can remove without injuring the house, leaving it in as good condition as it would otherwise be, he can take away; for example, ornamental chimney-pieces, coffee-mills, cornices that are furnished with screws, furnaces, stoves, looking-glasses, pumps, gates, fence rails, barns or stables on blocks, etc. On the other hand, a barn placed on the ground cannot be removed, nor benches fastened to the house, nor trees, plants, and hedges not belonging to a gardener by trade, nor locks and keys. Of course, all these things may be changed by the written lease, and it should be clearly stated what things may be removed concerning which any doubt may arise. We have heard of a case in which a tenant put a pier-glass into a house, fastening it by means of cement. He asked and was given the landlord's permission to do this at the time of putting it in, but when the lease ended the landlord would not allow him to take it out, and an appeal was made to a court, which decided in favour of the landlord. Doubtless this decision is correct. If the glass could have been taken away without injuring the wall then it belonged to the tenant. This shows the need of putting such matters in writing; otherwise the tenant will suffer unless the landlord be a man of the highest integrity. XVI. LIABILITY OF EMPLOYER TO EMPLOYÉS Persons who are employed in mills, in erecting buildings, by railroad companies, and others, are frequently injured while pursuing their employment, and the question has often arisen whether the employer was liable for the injury thus suffered by them. The more important of these questions we propose to answer in this and the following lecture, as they are matters of every-day importance to many people. First of all, an employé to recover anything for the loss that may have happened must show that in some way _his employer was negligent_. He cannot get something simply because he has been injured. The law in no country has ever said that he could. In all cases he must show that his employer failed in his duty in some way toward him to lay the foundation of an action against him. This is the first principle to keep clearly in mind. Again, it is said that an employé cannot recover if the injury has happened to him in consequence of the negligence of a fellow-servant. By this is meant a person engaged in the same common employment. It is not always easy to determine whether two persons employed by the same company are fellow-servants, as we shall soon see, but the principle of law is plain enough that in all cases where they are thus acting as fellow-servants they cannot recover for any injury. The law says this is one of the risks that a person takes when he enters the service of another. Suppose a person is at work mining coal and is injured by another person working by his side through his negligence. However severely injured he may be he cannot get anything, because the person through whose negligence he has been injured is a fellow-workman. But many employés may have the same common employer and yet not be fellow-servants. For example, a brakeman would be a fellow-servant with the conductor and engineer and other persons running on the same train or on other trains belonging to the same company, but he would not be a fellow-servant working in the same line of employment with those who are engaged in the repair-shop of the company. This statement is quite sufficient to show the difficulty there is sometimes in deciding whether a person is a fellow-servant or not. If a person is injured through the negligence of another employed by the same company who is not a fellow-servant, then he can recover if there are no other difficulties in the way, otherwise he cannot. It does not follow that fellow-servants are of the same grade or rank; the test is whether they are acting in the same line of employment. The brakeman's position is not so high as that of the engineer or conductor, yet all three are acting in the same line of employment, and if any one of them was injured by another in that part of the service the employer would not be liable. In a very large number of cases, therefore, employers are not liable for accidents happening to their employés, because they are injured through the negligence of other employés engaged in the same line or subdivision of the common service. Perhaps employers escape more frequently on this ground than on any other from paying anything for losses. Yet there is another ground on which they often escape paying anything. An employé is supposed when making his contract with his employer to take on himself all the ordinary risks arising from his employment. These in many cases are very numerous. He does not assume extraordinary risks, but he does assume all ordinary risks that are likely to happen to him. Employés are injured every day and yet can recover nothing, because their injury is simply a common one, the risk of which they have assumed. Would it not be possible to make an employer liable for them all? Undoubtedly an employé could make a contract of this kind if he wished and his employer was willing to do so, but if they did the employer would be unwilling to pay as high wages. The greater the risk assumed by the employé the larger is the compensation paid; the one thing is graded by the other. It was stated when considering the rights and duties of common carriers that they have been lessening their liabilities; on the other hand, they are carrying for smaller prices than they once did. Doubtless a carrier would be willing to assume more risks--every kind of risk, in short--if he were paid enough for it, but shippers ordinarily are willing to assume many risks for the sake of the lower rates and insure their risks in insurance companies. Just so the working-men prefer higher wages and assume many risks of their employment. There is nothing unfair in this. For example, the persons who are engaged in making white lead run an unusual risk in pursuing their employment. It is said nowadays that if they use the utmost care in protecting themselves from inhaling the fumes that arise in some stages of this process, they can live quite as long as other people. But unless they do exercise every precaution their system finally becomes charged with the poison that arises from this process and their lives are shortened. They well understand this before beginning the work; they are told of the risks and are paid high wages. If, therefore, they undertake such employment, well knowing the risks, they have no right to complain if their health after a time suffers. No fraud has been practised on them, and we do not know that they do complain if they suffer any ill effects from their work. XVII. LIABILITY OF EMPLOYERS TO EMPLOYÉS (_Continued_) In our last lecture we stated some of the principles relating to the liabilities of employers to their employés; in this lesson the subject will be continued. _An employer is bound to use some care or precaution, and if he does not will be responsible for his neglect._ One of these is he must employ persons who are fit for the work they are set to do. If an employer in mining should put a man to work by the side of another to mine coal who he knew was not a skilful workman, and, in consequence of this unskilful workman's unskilfulness, other miners were injured, he would be responsible for hiring such a man. Every one will see the justice of this rule. _The employer must also give proper instructions to the person employed whenever he does not understand his duties._ If a person is employed to run a laundry machine who does not understand how to work it, and other employés are injured through his ignorance, the employer would be liable. He must, therefore, tell such a person what to do; he has no right to hazard the lives of others by putting any one who has no knowledge of a machine to work without instructing him properly. Again, if a person pretends to be capable, and the employer, believing him, engages him, and it is soon found out that he is not, then it is the duty of the employer either to dismiss him or to give him proper instructions. The rule, however, on this subject is not the same everywhere. It is sometimes said that if an employé continues to work by the side of another after knowing that this other is incompetent, it is his duty to give notice to the employer, and if the employer continues to employ him, to quit. If he does not he assumes the greater risk arising from his knowledge of the incompetency of the other. _It is the duty of the employer to furnish proper appliances for his workmen._ He must furnish proper tools and machinery and safe scaffolding, and in every respect must show a reasonable degree of care in all these particulars. But the courts say that he is not obliged to exercise the _utmost_ care, because the employé takes on himself some risk with respect to the tools and machinery he uses. For example, it is said that employers are not obliged to use the latest appliances that are known or appear in the market for the use of their workmen. If an employer has an older one that has been in use for years, and the employés have found out all the dangers attending its use, and a new one appears that is less dangerous to use, the law does not require the employer to throw the older one away and get the other. It is true that in many States within the last few years statutes have been passed by the legislatures requiring employers to be much more careful than they were formerly in protecting their machinery. Many injuries have happened from the use of belting, and the statutes in many cases have stated what must be done in the way of enclosing belts, and of putting screens around machinery, and in various ways of so protecting it that persons will be less liable to suffer. Furthermore, inventors have been very busy in inventing machinery with this end in view. The old-fashioned car-coupler was a very dangerous device, and many a poor fellow has been crushed between cars when trying to couple them. A coupler has been made in which this danger no longer exists; in truth, there has been a great advance in this direction. _An employer must also select suitable materials on which to work._ This is a well-known principle. If he does not, then he is responsible for the consequences. In one of the cases a person was injured while erecting a scaffolding from the breaking of a knotty timber. The testimony was that the knot was visible on the surface and if the stick had been examined the defect would have been seen. That seemed a slight defect, surely, but the consequence of using the timber was very serious, and the court rightly held that as this defect could have been seen, had the timber been properly examined, the employer was responsible for the injury to a workman who was injured by the breaking of it. _An employer must also select suitable places for his employés._ In one of the cases a court said a master does not warrant his servant's safety. He does, however, agree to adopt and keep proper means with which to carry on the business in which they are employed. Among these is the providing of a suitable place for doing his work without exposure to dangers that do not come within the reasonable scope of his employment. In one of the cases a company stored a quantity of dynamite so near a place where an employé was working that he was killed by its explosion. The court held that it was negligence on the part of the company in requiring its employé to work so near the place where this explosive material was kept. It is said that if an employé knows that a machine which he is to operate is defective when accepting employment he can recover nothing for the consequences. He assumes the risk whenever he thus engages to work. If the service be especially perilous and yet he clearly understands the nature of it and is injured when performing it, he can get nothing. Doubtless in many of these cases he is paid a larger sum for working under such conditions. Whatever may be the truth in this regard, the principle of law is well understood that, if he has a full knowledge of the risk of his situation and makes no complaint about the nature of the machinery that he is to operate, he accepts the risks, however great they may be. In one of the cases an employé was injured by the kick of a horse belonging to his employer, but he recovered nothing, because he understood the vicious nature of the animal. The horse had kicked others; in fact, its reputation for kicking was well known, and the employé began work with his eyes wide open. This rule also applies if tools, machinery, etc., become defective and the employé continues to work after the defects are found out. Of course, every one knows that tools wear out and machinery becomes weaker, and that is one of the natural consequences of using them. And so it is regarded as one of the risks ordinarily taken by an employé, and therefore he can get nothing whenever he is injured through the operation of a defective machine caused by the natural wear and tear of time. EXAMINATION PAPER NOTE.--_The following questions are given as an indication of the sort of knowledge a student ought to possess after a careful study of the course. The student is advised to write out the answers. Only such answers need be attempted as can be framed from the lessons._