87 FEDERAL REPORTER.
did not have on deposit with the defendant funds to meet his checks, and of that fact plaintiff had constructive notice. For the reasons above indicated, there can be ,no recovery on the fourth cause of action. Nor can there be any recovery on the first three causes of action, for the reason that theeheckstherein mentioned were drawll without funds, solely for tbebenefit of Blake, and were simply the meansw):lereby the defendant attempted to execute the unauthorized and illegal promise mentioned in the fourth cause of action. The defendant is entitled to recover, on its cross complaint. Judgment entered conformable to thisopinion.
NEW YORK, N. H . .& H. R. CO. v. SAYLES. (Circuit Court ot Appeals. Second Circuit.
CoNTRACT LIMITING LIABILITY Oll' CARRIER-CLAUSE IMPRESSED UPON FREIGH'l' RECEIPT. . .- .
April 15, lS98.)
A clauseliinitlng the liability of the carrier Impressed In red Ink upon one corner of' the paper upon which :the freight receipt Is printed in black Ink. and at right ,angles to the text ot the receipt. Is no part of the contract, unless 110 broughtto the knowledge of the shipper as to imply his assent thereto on his acceptance of the receipt.
This cause comes here on writ of error to review a judgment of the circuit court, Southern district of New York, in the amount of $3,773:90, entered upon the verdict ofa jnry. See 81 Fed. 326.
The plahitlff In error was defendant below. The facts are as follows: The dlllycauthorized agent bf the' plaintiff shipped on October 3, 1895, tW() horses belonging to plaintiff from Portland to Pawu,cket. The horses were' ldlIed In an: accident upon the road ot, defendant., . It-was alleged, and .not denied, that the accident happenli!d through the negligence of defendant com· pany. There wall evidence tending to show that the horses were worth $3,700. The case waS 'left to the jury todeterml\le what was the contract entered intoat the time of shiDment, with Instructions that. unleRs they found an agreement tolimit amount of recovery, was entitled to the full value of the horses. ,At the tIme 'of shipment, Dlaintiff's agent signed the following documen4 and dellvereqthe same to the agent of the railroad: , -, Live Stock Receipt. . . "10/3/1895. , "Forward th,e j;ll'operty mentioned below, marked and numbered as in margin, to F. C. Sayles; at Pawtucltet, Rhode Island. subject to the rules and regula· tlons in the freight· receipt presented with this, and which are accepted to bejust and reasonable!'
signed this, nor that he had authority It,ls not disputed that defendaI!t's to sign it, nor that the freight receipt referred to therein was in tact presented to him. It reads as follows: "Boston & Maine Railroad. "Live Stock Receipt. .[Red Ink.]
"10/3/189-. "Received of - - , under the' contract hereinafter contained, which Is accepted '!lnd agreed to as just and reasonable, and which is' entered Into severally with each carrier, tile property mentioned below. marked and numbered as per
NEW YORK, N. H. &: B. R. CO. V. SAYLES.
margin, In apparent good condition (contents and value unknown), viz. 3 horses, 1 R. cart, K. S. consigned F. C. Sayles, at Pawtucket, to be transported," etc. (Here follow certain conditions and regulations, printed In black ink, the receipt being signed by the agent of the railroad company.) On the upper right-hand corner of the paper on which this receipt appears there is a clause containing, inter alia, these words: "The rules for transporting animals are based and Intended only for those of ordinary value, viz.: If horses, or mules. not exceeding $100' each; ... ... ... and In giving this receipt the company assumes no risk for a higher value, unless by special arrangement with the general freight department." This clause is printed over the clauses of the receipt which were In black ink, and at right angles to them. It is itself In red Ink, and looks as if It might have been Impressed upon the receipt, after the latter was printed, by some hand or power stamp. The coloring is far from bright, and parts of it, by reason of the size of type. and by rea SOD of its being printed across the black lines of the receipt, cannot be read without the most careful Inspection.
Henry W. Taft, for plaintiff in error. F. W. Halls, for defendant in error. Before WALLAOE and LACOMBE, Circuit Judges. PER OURIAM. The only question in the case is whether or not the parties, by their respective agents, agreed to a limitation of liability to 3100 for each horse. That such contracts may be made is settled by authority in Hart v. Railroad 00., 112 U. S. 331, 5 Sup. Ct. 151, which holds that:
"Where a contract of the kind signed by the shipper is fairly made, agreeing to It valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be llpheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier IDay be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations."
The defendant's contention is that such a contract was made in this case, because the plaintiff's agent signed the paper by which he requested the railroad company to forward the property, "subject to the rules and regulations in the freight receipt," and expressly agreed that they were just and reasonable, thereby making the "freight receipt" a part of the contract signed by him. The difficulty with this contention is that the red-ink clause is practically not a part of the freight receipt. It was not originally printed as a part of such receipt, nor is it inserted in a blank space left in such receipt for the purpose. By reas,on of its being superimposed, as it is, at right angles to the text of the receipt, and in one corner of the paper, it is no more a part of the contract than was the statement on the back of the paper receipt in Railroad Co.v. Manufacrturing Co., 16 Wall. 318, where also the statement on the back was referred to in the body of the receipt. In legal effect, it was merely a rule or regulation which did not bind the plaintiff, unless so brought to the knowledge of his agent as to imply his assent upon his acceptance of the receipt. The Majestic, 166 U. S. 375, 17 Sup. Ct. 597. Indeed, a person taking such a receipt would seem to be less likely to notice the clause where it is than if it were printed on the back. The question whether or not such notice was brought home to the knowledge of plaintiff's agent was one for the iury upon
87 FBD1lJRAL REPORTER.
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.the .and, as we find no error in the charge, their verdict should not be disturbed. The 'judgnient of the circuit court is affirmed.
GALLOT v. UNITED ·STATES. (Circuit .Court of Appeals, Fifth Circuit. No. 647.
MITTED. oJ. ERRORS -
AprU 19, 1898.)
Unde( rule 1;1 of the circuit court of appeals (21 C. C. A. p:1., and 78 Fed. cx!.), requiring the assignment of errors to quote the full substance of evidence alleged to have been' erroneously admitted or rejected, and to set. out the part of the charge referred totOtldem verbisi assignments that "the court erred In permitting evidenGe 8,s shown In .bllls Ok Bxceptions numbers two and three," which errors can only be ascertained by a careful reading of a voluminous recOl'd,' and' 'that "the court erred iIi. its charge," etc., referring to marked lines and numbers in the written opinion for instructions erroneously. given and refused,. wilt pot be considered. MISAPPLICATTC:)N OF NATIONAL BANK FUNDS-AIDING AND ABETTING-DEATH The death.of the principal before Indictment Is no obstacle to the prosecutlonand 'nlWisliment of one charged With aiding and abetting an officer, clerk, or agent' of a natIonal bank to abstract, ml!illPply, or embezzle the funds thereof, In violation of Rev. St. § 5209, which makes such offense a misdemeanor.
OF P:B1NOIPAL. .
REFERBNCE TO ENTIRE CB;AR<7E . . ...
S. COMPETENCY OF JOROR--,,-IMPRESSIONSANDOPINIONS;"'IMPARTIALITY. A juror who says he has an impression' or opinion as to guilt or Innocence
of defendant, formed fromnewspllpers and rumors, that it would require evidence to remove· it, but that It would yield to evidence, and that he can and will give the defendant a l'aIrand Impartial trial according to the evidence that may ·be adduced before him., is competent.
CRIMINAL TRIAT,s-READING INDICTMENT.
Where. an all alike, except as to amounts of mon,ey dates ofmlsapplleation; it is sufficlen.t to read one count In full to the "jury, explain the difference, and state, the amount and date charge4 In each. of the. other counts.
Two INDICTMIllNTS..,..CASESCONSOLIDATED-NuMEROUS COUNTS-VERDICT.
OnelndiGtment In 36 counts defendant with aiding in the abstraction of ,36 specified amounts of, money, at 36 specifIed dates. . Another inhim with aiding in the misapplication of the same amounts, dictment upon the .same dates. The twowel.'e tried together, 'and the jury returned a verdict of as charged,': Held, that theverc'iict was definite, certain, .reslloIls,lve to the issues, and not a double conviction. the sentence imposed by'the court being Imprisonment for a less term. than the maXimum . .. under 'anyone count. Pardee, CIrcuit Judge, dissenting.
In Error ,the Oircuit Court of the United States, for the East· ern District of Louisiana.
The plaintiff in error, Lonis Gallot, was indicted, tried, and convicted In aidLouis Colomb, a bookkeeper In "the .Union. National Bank, ing and with the and Willful misapplication of the funds, and credits of the banlL .TWo indlctmeIHs were presented againsthjm, which were subsequentlycohsoHdated and holed' together.' Each' Indictment contains 36 counts charging 36'lleparate and distinct .offenses, and were drawn 1lllder section 5209 of the Itevi,&ed"Statutes of the United States, which is as follows: "Sec. 5209. Every presldent,dlrector, cashier, teller, clel'k, or agent of any association, who · ":i