Bills and notes.- Where bill is not made void by statute, mere illegality of consideration will not affect rights of bona fide holder for value, p. 248.

Cited in Van Vleet v. Sledge, 45 Fed. 752, as authority for rule that indorsee may require indorser to pay face value of note, not actual consideration received by him. See 84 Am. Dec. 402, note.

Appeal and error.- Although Supreme Court detects error in judgment, prejudicial to plaintiff below, it cannot remedy same where writ of error is brought by defendant alone, and presents only his assignments of error, p. 249.

Cited in In re Gribbon, 55 Fed. 876, 14 U. S. App. 382, holding collector alone having appealed, importer can only be heard in sup port of decision below; without application, in Ex parte Heidel back, 2 Low. 536, F. C. 6,322.

21 Wall. 249-255, 22 L. 546, OCHILTREE v. RAILROAD.

Constitutional law.- Law of the contract forms its obligation, and legislation materially impairing remedy, is void, p. 252.

Cited in Tinker v. Van Dyke, 1 Flipp. 533, F. C. 14,058, holding amendment to section 5021, bankrupt law, replacing words "had reasonable cause to believe," by word "knew," not applicable to proceedings commenced prior to date thereof; Nimich v. Iron Works, 25 W. Va. 196, holding stockholder's liability not in nature of penalty, but arising from implied promise to assume liability imposed by statute creating corporation.

Constitutional law. Obligation of contract, within constitutional meaning, is a valid subsisting, not a contingent or speculative, obligation, p. 252.

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Constitutional law. Object of constitutional prohibition of laws Impairing contract obligations, was to protect rights, not mere Incidental advantages affecting contract indirectly, p. 253.

Corporations.- Double liability of stockholders, under Missouri Constitution, cannot be enforced against holders of stock purchased after amendment, providing for single liability, although debt accrued prior to latter, p. 255.

Cited generally in State v. Newark, 39 N. J. L. 388, as illustrating self-executing power of constitutional amendment abrogating prior law.

Constitutional law. Missouri constitutional amendment, providing for single liability of stockholders, does not impair contract obligations because it operates to prevent creditor from enforcing against holders of stock purchased thereafter, double liability, provided by Constitution at time debt was contracted, p. 255.

Cited in Price v. St. Louis Ins. Co., 3 Mo. App. 267, holding act for incorporation and regulation of insurance companies, not un

constitutional, as applied to companies previously chartered; Brown v. Hitchcock, 36 Ohio St. 679, to point that statute impairing rights of existing creditors against stockholders, is void. See 3 Am. St. Rep. 867, note, on this point.

Miscellaneous.- Arguendo, in Hodgson v. Cheever, 8 Mo. App.

321.

21 Wall. 255-264, 22 L. 513, RAILROAD CO. v. SMITH.

Damages. In defense to action for contract price of bridge, based on defective construction, defendant's interrogatories as to whether defective construction caused delay and damage, and as to extra men needed to work bridge as constructed, are pertinent, p. 260.

Set-off and counterclaim.- When price stipulated for perfect structure is demanded for imperfect or inferior work, law, in order to prevent circuity of actions, permits defendants to deduct difference between contract price and value of work done, and also amount of direct damages from existing defects, not exceeding plaintiff's demand, p. 261.

Cited and followed in Dushane v. Benedict, 120 U. S. 639, 30 L. 811, 7 S. Ct. 699, holding damages from breach of warranty, provable as recoupment in action for goods sold; Stillwell Mfg. Co. v. Phelps, 130 U. S. 527, 32 L. 1037, 9 S. Ct. 603, holding defendant entitled to deduct reasonable cost of altering construction to conform to contract; North Chicago Rolling-Mill Co. v. Ore & Steel Co., 152 U. S. 616, 38 L. 572, 14 S. Ct. 716, holding adjustment of demands by counterclaim rather than by independent suit, favored by law; Livingston v. Anderson, 30 Fla. 130, 11 So. 273, holding, where defendant alleges defective construction, jury must settle whether plaintiff constructed building in workmanlike manner, according to specifications; Union Bank v. Blanchard, 65 N. H. 23, 18 Atl. 91, holding defendant pleading damage from breach of warranty, in action for price, can only recover costs, although his claim exceeds plaintiff's; Danforth v. Freeman, N. H. - 43 Atl. 623, holding question is how much less is building worth to defendant than if properly constructed; Levy v. Schwartz, 34 La. Ann. 214, holding taking possession and using defective press, erected on plaintiff's land, no waiver of claim for damages.

Appeal and error.— Exception, to be available in Supreme Court, must have concerned a ruling which affected, or might have affected, decision, p. 261.

Followed in German Ins. Co. v. Frederick, 58 Fed. 151, 19 U. S. App. 24, and Newcomb v. White, 5 N. Mex. 438, 23 Pac. 671.

Appeal and error.- Where exception is to refusal of interrogatory, not objectionable in form, record must show that answer re

221

lated to material matter involved, or, if unanswered, must show offer to prove, by witness, facts to which interrogatory related and materiality thereof, p. 261.

Cited and applied in Thompson v. First National Bank, 111 U. S. 536, 28 L. 510, 4 S. Ct. 692, holding exception to refusal to admit letter, defective in not stating contents and materiality thereof, or that exclusion prejudiced appellant; Shauer v. Alterton, 151 U. S. 617, 38 L. 289, 14 S. Ct. 444, and Backstaff v. Russell, 151 U. S. 636, 38 L. 296, 14 S. Ct. 451, both holding assignment of error, based upon exclusion of answer in deposition, must set forth said answer; German Ins. Co. v. Frederick, 58 Fed. 149, 19 U. S. App. 24, holding mere offer to introduce voluminous record, bearing on its face no relation to controversy, does not compel court to examine same to ascertain its relevancy; Ladd v. Missouri Coal Co., 66 Fed. 882, 32 U. S. App. 93, holding bill of exceptions must show materiality of evidence tendered and rejected; United States v. Indian Grave Drainage District, 85 Fed. 931, 57 U. S. App. 423, 424, holding assignments of error upon admission of evidence, must set forth full substance thereof; Providence Steam-Engine Co. v. Hathaway Mfg. Co., 79 Fed. 515, arguendo.

Principal and agent.— Bridge company is deemed to have knowledge of defects in pier constructed under supervision and direc tion of its agent, p. 263.

Contract for bridge, upon which cars can cross, implies that bridge shall be serviceable for that purpose, and capable of being used with like facility and ease as similar bridges properly constructed, p. 264.

21 Wall. 264-272, 22 L. 556, EXPRESS CO. v. CALDWELL.

Carriers. Special contracts, between carriers and employers, limiting carrier's liability, are enforceable if just and reasonable, p. 266.

The following cases cite the rule as authority for upholding stipulations noted: Hart v. Pennsylvania R. R., 112 U. S. 338, 339, 28 L. 720, 5 S. Ct. 154, 155, and Muser v. Holland, 17 Blatchf. 415, 1 Fed. 384, stipulation agreeing on valuation of property shipped; Phoenix Ins. Co. v. Erie Transportation Co., 117 U. S. 322, 29 L. 878, 6 S. Ct. 754, affirming S. C., 22 Blatchf. 397, 22 Fed. 728, holding that carrier, when liable for loss, shall have benefit of insurance on goods; The Bermuda, 23 Blatchf. 555, 29 Fed. 400, for nonliability for loss of jewelry, unless value appears on bill of lading; Ballou v. Earle, 17 R. I. 445, 448, 33 Am. St. Rep. 885, 888, 22 Atl. 1114, 1115, 14 L. R. A. 436, 437, and n., stipulation limiting liability to stated sum, in absence of disclosure of real value; The Hadji, 18 Fed. 460, 461, for non-liability exceeding invoice value; Richmond R. R. v. Payne, 86 Va. 485, 10 S. E. 750, 6 L. R. A. 853, and n., holding such stipulation not contrary to statute prohibiting

exemption from liability for negligence; Ginn v. Ogdensburg Co., 85 Fed. 986, 57 U. S. App. 406, stipulation against liability, unless claim be brought within three months from loss; and United States Express Co. v. Harris, 51 Ind. 129, Armstrong v. Chicago, etc., Ry., 53 Minn. 189, 54 N. W. 1060, and Southern Express Co. v. Hunnicutt, 54 Miss. 569, 28 Am. Rep. 387, all upholding stipulation that such claim must be made in writing within thirty days from loss; Sprague v. Missouri Pacific Ry., 34 Kan. 352, 8 Pac. 468, Rice v. Kansas Pacific Ry., 63 Mo. 319, and Selby v. Wilmington, etc., R. R., 113 N. C. 594, 37 Am. St. Rep. 637, 18 S. E. 89, stipulations in receipt that claim for damage to live stock must be made before removal of same at place of destination; Missouri Pacific R. R. v. Sherwood, 84 Tex. 132, 19 S. W. 457, 17 L. R. A. 645, and n., stipulation for non-liability for damages from fire, not caused by its negligence. Cited and principle applied also in Case v. Cleveland, etc., Ry., 11 Ind. App. 520, 39 N. E. 426, holding it settled that carrier may stipulate for reasonable time within which claim must be made; Gulf, etc., Ry. v. Trawick, 68 Tex. 320, 2 Am. St. Rep. 499, 4 8. W. 571, holding such stipulation valid when time limited is reasonable; Smith v. American Express Co., 108 Mich. 577, 66 N. W. 481, holding bill of lading, received by consignor without obJection, constitutes contract between parties. See notes in 31 Am. Rep. 510, 5 Am. St. Rep. 725, and 61 Am. St. Rep. 370.

Limited in Dale v. See, 51 N. J. L. 382, 14 Am. St. Rep. 690, 18 Atl. 307, 5 L. R. A. 584, holding stipulations, to be binding, must be contained in original bailment contract, and notice given after receipt of goods, ineffective. Distinguished in Central Vermont Co. v. Soper, 59 Fed. 891, 892, 893, 21 U. S. App. 24, holding stipulation requiring written claim for loss to be made within thirty days thereafter, void; Hartwell v. Northern Co., 5 Dak. 472, 476, 41 N. W. 735, 736, 3 L. R. A. 347, 349, and n., holding express company, under Dakota statute, liable for loss, stipulation modifying liability being unsigned by consignor; Missouri Pacific Ry. v. Vandeventer, 26 Neb. 232, 41 N. W. 1001, 3 L. R. A. 132, holding, under Nebraska Constitution, railroad's liability as carrier cannot be limited; Jennings v. Grand Trunk Ry., 127 N. Y. 451, 28 N. E. 398, holding stipulation for presentation of damage claim within thirtysix hours after delivery, unreasonable; Railway Co. v. Harris, 67 Tex. 170, 2 S. W. 576, holding stipulation requiring notice of damage to be given to "officers of company," vague, and invalid; Missouri Pacific Ry. v. Harris, 1 Tex. App. Civ. 732, holding stipulation confining liability to willful negligence, unreasonable.

Carrier's contract is ordinarily an assumption of exact duty, affixed by law to relation entered into by him on undertaking to carry, p. 266.

Carriers. Relation of carrier to employer is that of insurer against all loss or damage not resulting from act of God or public enemy, p. 266.

Carrier cannot be relieved from full measure of his ordinary responsibility without clear and express stipulation from employer, p. 266.

Carrier is responsible for negligence, no matter what his stipulations may be, p. 268.

Cited and followed in Phoenix Ins. Co. v. Erie Transportation Co., 117 U. S. 322, 29 L. 878, 6 S. Ct. 754, holding stipulation for non-liability from loss by fire, collision or perils of navigation, does not exempt from liability for negligence; Liverpool Steam Co. v. Phoenix Ins. Co., 129 U. S. 442, 32 L. 792, 9 S. Ct. 472, holding stipulation for exemption of marine carrier from liability for loss from master's negligence, not binding, reviewing cases, affirming Phoenix Ins. Co. v. Liverpool, etc., Steamship Co., 22 Blatchf. 397, 22 Fed. 728, deciding same case below; The Egypt, 25 Fed. 328, holding stipulation exempting ship from reasonable care of goods, invalid; The Surrey, 26 Fed. 795, 796, holding stipulation that cargo may be landed without notice to, and at risk of, consignee, does not relieve from liability for lack of ordinary care until notice is given; The Brantford City, 29 Fed. 393, and The Guildhall, 58 Fed. 799, both holding stipulation for non-liability of marine carrier for negligence, invalid, although valid by law of ship's flag; Voight v. Baltimore, etc., Ry., 79 Fed. 563, holding contract, whereby express messenger agrees to exempt railroad for injuries from negligence, vold; Cox v. Central Vermont R. R., 170 Mass. 136, 49 N. E. 100, holding stipulation for non-liability for loss by fire, unless same be affirmatively and without presumption proven caused by negligence of carrier, invalid. See note in 13 Am. St. Rep. 785.

Distinguished in Hartford Ins. Co. v. Chicago, etc., Ry., 70 Fed. 204, 206, 207, 208, 36 U. S. App. 152, 30 L. R. A. 198, 199, 200, upholding lease by railroad of portion of right of way, on condition of its non-liability for damage from employee's negligence; Insurance Co. v. Chicago, etc., Ry., 74 Mo. App. 100, holding contract, by which lessee of railroad releases latter from damages by fire, not within rule.

Telegraph companies, though not common carriers, may, by contract with employers, limit their responsibility to reasonable extent, not, however, having power to contract for non-liability for negligence, p. 270.

Cited and relied upon in Primrose v. Western Union Tel. Co., 154 U. S. 14, 15, 38 L. 889, 890, 14 S. Ct. 1101, upholding stipulation of telegraph company, limiting liability for mistake in unrepeated message, to amount paid; Abraham v. Western Union Tel. Co., 11 Sawy. 31, 23 Fed. 317, holding company liable for mistake caused by negligence, despite stipulation referred to in last citation; Findlay v. Western Union Tel. Co., 64 Fed. 461, holding both receiver and sender bound by stipulation requiring claims for damages to be