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_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.

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