LONDON & SAN FRANCISCO BANK V.PARKE & LACY MACHINERY CO.
it was the defendant's duty to maintain and keep In repair the guard bailt, no notice can be necessary to sustain an action for damages resulting from lleglect of sucll duty."
LONDON & SAN FRANCISCO BANK, Limited, v. PARKE & LACY MACHINERY CO. (BUDKE MANUF'G CO. Intervener). (Circuit Court, D. Oregon. November 28, 1894.)
The B. Co. consigned goods to the P. & L. Co. upon an agreement that the 'Po & L. Co. should pay freight thereon, and, upon sale of the goods, account to the B. Co. for the price at which they were consigned. A receiver of the property of the P. & L. Co., having been appointed, took possession, among other things, of certain goods consigned under this agreement, on which the P. & L. Co. had paid $234.66 in freight. At the time the freight was paid the P. & L. Co. owed the B. Co. $2,000 on other consignments. Held, that the goods should be delivered by the receiver to the B. Co., and that if the B. Co. was under an obligation to pay the freight, as a condition precedent to its right of possession, It might be set off against the'debt due the B. QQ.
This was a suit by the London & San Francisco Bank, Limited, against the Parke & Lacy Machine C<>mpany. The Budke Manufacturing Company claimed a lien on certain goods held by the reeeiver, and prayed for an order fo'!.' the delivery of the same. Charles H. Woodward, fo'!.' intervenor, Budke Manuf'g Co. Wirt Minor, for receiver of the Parke & Lacy Machinery Co.
Judge. The petition of the Budke Manufacturin:gOompany prays for the delivery to them of certain goods consigned by them to the Parke & Lacy Company, and now in the hands,.¢ the receiver.; The goods were consigned to the Parke & Lacy O<?#lpany upon t1J.e understanding that the consignee should pay llH freight and storage charges, and, upon sale of the goods, shoulq to the consignor for the price at which they were .The consignee paid freight to the amount of $234.66 upon t1J.e goods in question, which the receiver contends must be paid llY'the consignor before delivery can be had. At the time this freight was paid, the Parke & Lacy Company had in its hands, belonging to the Budke Company, over $2,000, proceeds of salei;; of other. consigned goods, which sum has not been paid, and on account of whic.4 the latter company asks a set-off to the freight charges paid by the Parke & Lacy Company. The receiver contends that, inasmuch as the freight paid by the consignee company is not a debt of the consignor company, the right of set-off does not exist, and thllt, thl;refore, the Budke Company must pay him the amount so paid .8.$ freight by the Parke & Lacy Company before delivery of the consigned propertY can be had, notwithsta.. . ding the fact that the' latter company is indebted to such consignor in a sum much larger thRn the freight claim. In other words, the contention is that, because Parke & Lacy could not have maintained an action against the Budke Company torec()ver a personal judgment for the freight advanced, the Budke Company cannot set off a debt due them from Parke & Lacy against the claim of the latter upon the goods of the Budke Company for freight. The payment of freight charges, which are a lien upon goods, by the owner, is not a voluntary It is adeN which the owner must pay to protect . his properly, and, beingt4us obligated, he may discharge the lien with what is due him from the lienholder. The question of liability of the Budke Company to a persona>l judgment does not affect their right to apply their money in Parke & Lacy's hands in discharge of the latter's lien upon the former's goods. The debt of goods pledged is the debt of the owner, when he takes possession of the goods; and without this the owner may waive his personal exemption frondiability, if hese'esfit to do so. Neither the Parke & Lacy Company)i,:or the receiver is prejudiced by the Budke Company's assumption 9fpayment of this lien. 'rhe· arrangement by which Parke & Lacy weve to look to the goods for advances of freight was not but forthe benefit of the consignor company, whose for their right to paymenf"Cllnnot be denied, and whose assumption of payment dgeenot prejudlcethe company to whom payment is made. I doubt whether the Parke & Lacy Company or the recehTer is entitled to have this freight paid, as a condition to the delivery of the goods to the consignors; the conditic:ms upon whichthe consignment was madetiot having been'complied:With by the consignee, and it not appearing, so far; that any equitable ground upon which such payttlent can be demanded from them, as a condition precedent to their dght of possession. The,prayer of the petition of the Budke Oompany is granted.
BORTH AMERICAN ACC. ASS'N
NORTH AMERICAN ACC. ASS'N v. WOODSON. (Circuit Court of Appeals, Seventh Circuit. November 27, 1894.) No. 187.
Upon the trial of an action against an insurance company upon a policy insur1ng one K. against injury or death caused solely by external violence and accidental means, a witness testified that he and K. had been making some repairs to a gutter on K.'s house, using a ladder for the purpose; that after completing the same, and returning to the house, K. went out for the purpose of testing this work by putting water into the gutter, leaving the witness in the house; that he heal'd a grating sound on the side of the house, soUnding like the fall of the ladder, and, through the window, saw K. on the ground, pale and half bent over; that he went to him, and K. said, "I fell from that ladder," and, a few minutes afterwards, "I fell right on my neck and shoulders." Held, that K.'s declarations of the cause of the accident were propel'1y admitted as part of the res gestae.
It is reversible error to admit the answers of expert witnesses to hypothetical questions which assume the existence of facts of which nel evidence is offered.
In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. This was an action by Archilaus M. Woodson, executor of C. C. Kemper, deceased, against the North American Accident Association, upon a policy of insurance. On trial in the circuit court, the plaintiff had a verdict, and judgment was entered in his favor. Defendant brings error. W. H. Barnum, A. B. St. John, S. A. French, and D. W. C. Merriam, for plaintiff in error. W. M.Jones, D. V. Samuels, and W. L Culver, for defendant in error. Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge. BUNN, District Judge. This is an action brought by the defendant in error, a citizen of Missouri, against the North American Accident Association, a corporation organized under the laws of DUnois, and a citizen of that state, doing business and having its office at the city of Chicago, upon a policy of insurance dated October 6, 1891, issued by said association, insuring C. C. Kemper, then a citizen of Edgerton, Mo., now deceased, against the effects of bodily injury caused solely by external violence and accidental means. 1.'he policy, after providing for insurance against injuries of a temporary ·character, contains this provision:
"(6) Or, if such injury alone shall result in the death of the insured within ninety days thereafter, the association will pay $5,000 to his estate, if surviving, or, in the event of pr10r death, to the legal representatives of the insured members, according to the by-laws."
The declaration charges that during the continuance of the poli'cy, on the,23d day of April, 1892, Kemper sustained bodily injury, of