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Mansfield v. Edwards.

clared in Crosby v. Wyatt, 23 Me. 156. See also Byles on Bills, 8, 9. It was indeed said by Mr. Justice DENIO, in Barry v. Ransom, 12 N. Y. 462, 465: "The relations of joint or several obligors or promisors inter sese are, it is true, sometimes defined by their signatures to, or otherwise indicated in, the principal contract; and in such cases the writing is the evidence of their agreement. Harris v. Warner, 13 Wend. 400. But in the absence of such indication, the form of the contract, as between the obligors or promisors and the other contracting party, does not prevent the introduction of parol proof to determine the relations of such obligors or promisors as between themselves." The case itself did not call for any such implied limitation of the competency of parol evidence, and the case of Harris v. Warner, which is referred to, simply held that the writing was prima facie evidence of the relations of the parties, with a clear implication that parol evidence to vary this would have been competent.

We are brought therefore to the conclusion that the evidence which was excluded was competent.

The defendant however, contends that the plaintiff was not injured by the exclusion of this evidence, for the reason that on the face of the note it would appear that he and the defendant were joint sureties for Alden, and that the plaintiff's rights, as against Alden and also as against the defendant, were greater, as the case stood, upon the mere production of the note, with the prima facie presumptions arising therefrom, than with full proof according to his offer of evidence. But this ground of argument

overlooks considerations which are material to be considered. In the first place, the plaintiff ought to be allowed to allege and prove his case according to the actual facts. Moreover the plaintiff's case, in respect to the third count, was open to the objection of a variance, which objection the plaintiff might well wish to avoid. This objection was waived by not being taken. Besides the burden of proof rested upon the plaintiff to prove a payment made at the express or implied request of the defendant. The production of the note would be evidence tending to prove an implied request, it being in the nature of an admission by the defendant that the rela tions of the parties were what they appeared to be; but there is no reason why the plaintiff should be limited to one kind of evidence to prove this material fact.

[Minor considération omitted.]

Exceptions sustained.

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The plaintiff hired a horse and wagon. The defendant negligently injured the wagon while in his possession. At the plaintiff's request the owner had it repaired and the expense charged to the plaintiff. Held, that the plaintiff might recover for the damage without having paid such expense.

A

CTION for negligence. The head-note shows the facts. The plaintiff had judgment below.

J. O. Teele, for defendants.

A. O. Brewster, for plaintiff.

HOLMES, J. The modern cases follow the ancient rule, that a bailee can recover against a stranger for taking chattels from his possession. Shaw v. Kaler, 106 Mass. 448; Swire v. Leach, 18 C. B. (N. S.) 479. See Year Book, 48 Edw. III. 20, pl. 8; 20 H. VII, 5, pl. 15; 2 Roll. Abr. 569, Trespass, P. pl. 5; Nicolls v. Bastard, 2 Cr. M. & R. 659, 660. And as the bailee is no longer answerable to his bailor for the loss of goods without his fault, his right to recover must stand upon his possession, in these days at least, if it has not always done so. But possession is as much protected against one form of trespass as another, and will support an action for damage to property, as well as one for wrongfully taking or destroying it. No distinction has been recognized by the decisions. Rooth v. Wilson, 1 B. & Ald. 59; Croft v. Alison, 4 id. 590; Johnson v. Holyoke, 105 Mass. 80. The ruling requested was obviously wrong, as it denied all right of action to the plaintiff, and was not confined to the quantum of damages.

Even if the question before us were whether the plaintiff could recover full damages, his right to do so could not be denied as matter of law. A distinction might have been attempted, to be sure, under the early common law. For although the bailee's right was undoubted to recover full damages for goods wrongfully taken from him, this was always accounted for by his equally undoubted responsibility for their loss to his bailor, and there is no

Brewster v. Warner.

satisfactory evidence of any such strict responsibility for damage to goods which the bailee was able to return in specie.

But if this reasoning would ever have been correct, which is not clear, it can no longer apply when the responsibility of bailees is the same for damage to goods as for their loss, and when the ground of their recovery for either is simply their possession. Any principle that permits a bailee to recover full damages in the one case must give him the same right in the other. But full damages have been allowed for taking goods, in many modern cases, although the former responsibility over for the goods has disappeared, and has been converted by misinterpretation into the now established responsibility for the proceeds of the action beyond the amount of the bailee's interest. Lyle v. Barker, 5 Binn. 457; 7 Cow. 681, n. (a); White v. Webb, 15 Conn. 302; Ullman v. Barnard, 7 Gray, 554; Adams v. O'Connor, 100 Mass. 515, 518; s. c., 1 Am. Rep. 137; Swire v. Leach, 18 C. B. (N. S.) 492. The latter doctrine has been extended to insurance by bailees. De Forest v. Fulton Ins. Co., 1 Hall, 84, 91, 110, 116, 132; CROMPTON, J., in Waters v. Monarch Ins. Co., 25 L. J. (N. S.) Q. B. 102, 106.

If the bailee's responsibility over in this modern form is not sufficient to make it safe in all cases to recognize his right to recover full damages, even where it was formerly undoubted, at least it applies as well to recoveries for harm done to property as it does to those for taking. Rindge v. Coleraine, 11 Gray, 157, 162. And if full damages are ever to be allowed, as it is settled that they may be, they should be recovered in the present case, where the plaintiff appears to have made himself debtor for the necessary repairs with the bailor's assent. Johnson v. Holyoke, ubi supra. It is not necessary to consider what steps might be taken if the bailor should seek to intervene to protect his interest.

Exceptions overruled.

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The legislature may authorize the erection of a telegraph line on a highway without compensation to the owners of the fee. (See note, p. 14).

BILL

ILL for injunction. The opinion states the case. The defendant had judgment below.

A. D. Chandler, for plaintiffs.

F. Morison, for defendants.

DEVENS, J. The facts admitted by the demurrer may be thus stated: The plaintiffs own land on a certain street or public highway in Brookline; they also own a fee in the half of the street which is next to their abutting land.

The defendants are the selectmen of Brookline, and on the application of the American Rapid Telegraph Company, a corporation organized under the statute of 1874, chapter 165* (Pub. Stats., ch. 106, § 14), for the transmission of intelligence by electricity, are about to grant to that company, under the public statutes, chapter 109, a location along said highway for their posts, wires, etc. The bill seeks to restrain the defendants upon the ground that the lastnamed statute is unconstitutional.

The Public Statutes, chapter 109, may be briefly summarized, so far as applicable, to the inquiry before us. By section 1 "every company incorporated for the transmission of intelligence by electricity" possesses the powers and is subject to the duties prescribed in the chapter. By section 2 the lines of telegraphic communication are to be so placed as not to incommode the public use of the highways or public ways. By section 3 the municipal authorities shall give the company a writing specifying where the posts, etc., may be located, and the location of posts, height of wires, etc., may be altered at any time by their direction. By section 4 the "owner of land near to or

*This statute authorizes any number of persons not less than three, to form a corporation "for the purpose of carrying on any lawful business," excepting certain kinds of business not material to be stated.

Pierce v. Drew.

adjoining a highway," may recover damages if injured thereby. By section 12 any injury to persons or property by the posts, wires, etc., is to render the company responsible in damages. By section 15 no easement or prescriptive rights are to be acquired by the erection and maintenance of the posts, etc. By sections 8-11, provisions are also made for the limit of the debts, the liability of the officers, and the duties of the company; and penalties are imposed for neglecting them.

That it was the intent of the statute to grant to those corporations, formed under the general incorporation laws, for the purpose of transmitting intelligence by electricity, the right to construct lines of telegraph upon and along highways and public roads upon the locations assigned them by the officers of the municipality wherein such ways are situate, cannot be doubted. The use of the words "every company" permits no other interpretation. Nor are we able to conceive why, if this authority might be given to corporations specially chartered, it may not equally be given to those organized under the general law.

If this use of property already appropriated to certain public uses is to be deemed of itself an exercise of the right of eminent domain, the determination of the legislature that the purpose for which it now directs it to be taken is a public use, is not necessarily conclusive; but if the use be public, it is conclusive that the necessity exists which requires it to be taken. Talbot v. Hudson, 16 Gray, 417. While in some cases there may be difficulty in deciding whether an appropriation of property is for a public or private use, such difficulty does not seem to exist in the present case. The transmission of intelligence by electricity is a business of public character, to be exercised under public control, in the same manner as transportation of goods or passengers by railroads. The statutes of 1849, chapter 93, of which, with additions, the public statutes, chapter 109, is a re-enactment, recognized its public nature; and in Young V. Yarmouth, 9 Gray, 386, which was an action for injuries sustained by a traveller on the highway by reason of the telegraph poles erected there under the location granted by the selectmen by authority of the statute of 1849, the town was held not liable because the poles were lawfully within the limits of the highway, and thus not such an obstruction or defect as to render it responsible. See also Commonwealth v. Boston, 97 Mass. 555; Bay State Brick Co. v. Foster, 115 id. 431. The public nature of this business has been

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