AMERICAN WHEEL CO.
ously intended. If it had peen signed by the defendants as individt,als instead of as directors, it would not appear to have been a representation to the plaintiff on which they could be charged, within the meaning of this statute. But, further, this notice was an official statement of the defendants as directors, on its face made to the then creditors, to inspire confidence, rather than as individuals, to procure loans. The evidence by which the notice was sought to be pieced out would make a case on oral representations, which is what the statute forbids. The statute stands squarely in the way of any recovery by the plaintiff, and precludes all necessity for examining the cases referred to, where no such statute prevails. Motion denied, stay vacated, and judgment on verdict for defendants.
BROWN v. AMERICAN WHEEl, Co.
(Circuit Court, N. D. New York.
RIGHTS OF ACCOM).IODATION
July 9, 1891.)
Defendant bought out a company for which plaintiff was an accommodation indorser, agreeing to pay $26,000 of its debts, and, on notice that the notes on which plaintiff was indorser was part of the $26,000, requestfJd plaintiff to continue his indorsement, and agreed to pay the notes. Plaintiff did so, and was compelled to pay the debt. Held, that defendant was liable to plaintiff, though the debt was not in fact a part of the $26,000 assumed by it, and though it had paid other debts to the amount of $26,000.
At Law. Frank Rice, for plaintiff. Thomas Hogan, for defendant. WHEELER, J. The plaintiff has paid $9,000 as an accommodation indorser. The question raised by the demurrer to the complaint is really whether he paid it for the defendant. According to the allegations of the complaint, he was accommodation indorser for the Shortsville Wheel Company. The defendant bought out that company, and agreed to pay $26,000 of its debts, and, on notice that the paper on which the plaintiff was so an accommodation indorser was a part of the $26,000, "requested the plaintiff to continue his indorsement, and assist the defendant by continuing to carry said loan" "for a short time, until the defendant could and would pay and discharge the same; that in compliance with said request, and for the sale accommodation and benefit of the defendant, and relying upon the said promise and agreement of the defendant to pay the same, the plaintiff" "continued or renewed his indorsements," and has been compelled to pay in consequence of them. The want of any allegation that the debt which the plaintiff has paid was in fact a part of the $26,000 of debts which the defendant agreed to pay, or that the defendant has not paid debts of the Shortsville Wheel Company 'to the amount of $26,000 besides this, is the principal ground
urged in support of the demurrer. If the action was upon the, agreelller;tto pay $26,000 of the debts of that company', this point' would seem .to be well taken. But it is not. It is upon the implied agreementtorepay what the plaintiff has been compelled to' pay for the accommodation of the defendant: If the defendant assumed to the plaintiff that this was its debt, and the plaintiff stood as an' accommodation indorser for its benefit and at its request, and was thereby compelled to pay, whether the debt was actually one which the defendant had otherwise assumed to pay would be immaterial. If the defendant had borrowed money of the plaintiff to pay this debt with. that the. debt was not in faCt the defendant's would be answer to an action for the money. Procuring thE' plaintiff to continue to stand liable for the debt under a promise to pay it, and leaving him to pay it in discharge of his liability, amounts to about the same thing. Demurrer overruled.
(Circt!'lt Court, D.' Washington, N. D.
June 9, 1891.)
EJECTION OF PASSENGERS-PLEADING-NONSUIT.
In a suit against a oarrier of passengers to reoover damages for the wrongful ejeotion of a passenger who Claimed to have purohased a ticket for his and to have tendered it. before being ejected, the plaintiff was allowed to amend his oomplaint, and to plead either (1) the contract, and its breach, and olaim only the damages ordinarily recoverable for breach of such a contraot; or (2) the tort, as the gravamen of his case; or (3) the contract, the breach of it, and any circumstanoes of in the manner of the breach, causing additional injury, as ground for claiming special damages. In an amended complaint, the third plan was adopted. On the trial the plaintiff failed to prove a contract, and, on motion for a nonsuit, held, that failure to pro're the contract alleged was equivalent to a total failure of proof, and the motion should be granted.
SAME-USE OF FORCE-LIABILITIES.
Where the officers, of a passenger train or vessel do not act wantonly or mali. oiously, or unnecessarily resort to violence or use excessive force, in ejeoting a traveler for non-payment of fare, though wrongfully exacted, their employers are not liable for injuries other tban suoh as necessarily result from the wrongful exaction.
SAME-REFUSAL TO PAY FARE.
A person traveling on a passengel' boat, who neither produces a ticket good for the trip nor pays fare when called upon, and who after being informed that if be does not pay his fare he will be put ashore, and is allowed a reasonable time to deliberate, and who then suffers himself to be landed on a shore to which he is a stranger, at a point distant from any habitation, during a storm in the nigbt, rather than pay 50 oents to complete his journey on the vessel, although possessed of ample ,means to pay, is without any just cause of complaint, and cannot recover damages in an action against the owner of the vessel. there being no statute for. bidding- the landing of a passenger at sl.loh place.
,(SyllabUS by the Court.)
At Law. In all action to recover damages for being forcibly ejected from a passenger steam-boat, upon the trial before the court and a jury, after the introduction of evidence on the part of the plaintiff, the defendant moved