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[INDORSEMENTS.]

Agent of the Wilmington & Weldon R. R. Co. will stamp in space below.

Agent of Baltimore Steam Packet Co. will stamp in space below.

In compliance with my contract with the Wilmington & Weldon Rail Road Co., and lines over which this ticket reads, I hereby subscribe my name as the original purchaser of this ticket.

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The court being of opinion that the plaintiffs could not recover, they suffered a judgment of nonsuit, and appealed to

this court.

Tickets em

Waiver of con

tract.

The counsel for the appellee contended on the argument before us, and it may be here conceded to be so, that the "tickets" put in evidence on the trial each embodied a bodied a contract in writing between the holder contract. thereof and the defendant. The latter and the holder of the ticket each had the right to insist upon a strict observance of every material stipulation, provision, and requirement contained in it. Particularly, for the present purpose, the defendant had the right to require that the plaintiffs should each be present in person and respectively present to its proper agent, at Old Point, in Virginia, his or her ticket. and identify himself or herself as the original holder thereof by writing his or her name thereon, and having the return "check" stamped as in the check provided, which the plaintiff did not do. But the contract being a simple contract in writing, it was competent for the defendant, at any time after it was made, and before any particular provision of it had been complied with, to waive a compliance with the same on the part of the plaintiffs by a subsequent verbal agreement, one not in writing. It is true that a simple contract, ditions in con- completely reduced to writing, cannot be contradicted, changed, or modified by parol evidence of what was said and done by the parties to it at the time it was made; because the parties agreed to put the contract in writing, and to make the writing part and evidence thereof. The very purpose of the writing is to render the agreement more certain, and to exclude parol evidence of it. Nevertheless, by the rules of the common law, it is competent for the parties to a simple contract in writing, before any breach of its provisions, either altogether to waive, dissolve, or abandon it, or to add to, change, or modify it, or vary or qualify its terms, and thus make it a new one, which must, in such case, be proved, partly by the written, and partly by the subsequent unwritten, parol contract, which has thus been incorporated into and made part of the original one. The reason for this seems to be that simple contracts, whether written or otherwise, are of the same dignity in contemplation of law, and therefore the written may be changed, modified, or waived, in whole or in part, by a subsequent unwritten one, express or implied. Smith, Cont. (X.) 105, and notes; 7 Wait, Act. & Def. 344, 362. The plaintiffs did not contend on the trial that the "tickets" referred to did not correctly express the contract between them respectively and the defendant, as of the time they were issued, but that subsequently the defendant,

through its properly authorized agent, agreed to waive and did waive so much of each contract-"ticket”-in writing as required the plaintiffs to appear personally before the defendant's agent at Old Point, in Virginia, and there produce the tickets, and identify themselves respectively, as the original holders of them, by writing each his and her name on their tickets respectively, and having the return checks attached to them stamped as required. It was competent for the defendant to waive such requirement in writing or by parol agreement, and it was likewise competent for the plaintiffs to prove such agreement of waiver by parol. The evidence produced and received on the trial tended to prove such agreement that the defendant's agent, or a person representing himself to be its properly authorized agent, at Norfolk, and not at Old Point, identified the plaintiffs in the proper Evidence to connection, and did there what the defendant might prove authorhave required to be done at Old Point, to give the ity of agent "tickets" effect for the return trip. The plaintiff's further offered to prove that the person who signed and stamped the tickets at Norfolk was the authorized agent of the defendant;" that is, fairly interpreting the record, authorized to do what he purported and undertook to do. Upon objection, the court refused to allow the plaintiffs to produce such evidence. We think it was fairly pertinent, and competent, and should have been received. As it was not, the plaintiffs are entitled to a new trial, and we so adjudge. To that end let this opinion be certified to the superior court according to law. It is so ordered.

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to waive.

Limited Tickets. If a passenger purchase a ticket at a reduced rate, good to return within a limited time only, his rights are limited by the ticket, and he may be ejected if he attempt to return after the expiration of the time limited. Little Rock & T. S. R. Co. v. Dean, 43 Ark. 529; S. C., 21 Am. & Eng. R. R. Cas., 279; Pennington v. Philadelphia, W. & B. R. Co., 62 Md. 95; s. c., 18 Am. & Eng. R. R. Cas., 310. He must observe the reasonable regulations of the company as to the running of trains. But the company is bound to afford him the opportunity to use the ticket by running trains within the time; and if it failed to do so, it cannot refuse the ticket when offered on the first train after the expiration of the time, though the last day be Sunday, and the company does not run a train on that day to connect with the train of another line over which the ticket was available, and upon which the passenger travelled. Little Rock & F. S. R. Co. v. Dean, 43 Ark. 529; s. c., 21 Am. & Eng. R. R. Cas., 279. But it has been held that if, by delay on the part of the connecting line, the purchaser of a limited ticket reaches the station of the company which issued it after the ticket has expired, he has no right to travel on the ticket on a later train belonging to the latter company. Pennsylvania R. Co. v. Hine, 41 Ohio St. 276; s. c., 22 Am. & Eng. R. R. Cas., 404.

Expiration of Time Limited. An excursion ticket contained a condition that it should not be good on return trains, but upon being properly stamped it would be exchanged for a ticket for the return journey, “good

for the day and on the train designated on the face of such exchange ticket." The ticket was duly stamped, and exchanged, but the passenger failed to use the exchange ticket on the day, and train designated upon it, and it was held that she had no right to travel on the ticket two days after the day for which it was issued. Howard v. Chicago, St. L. & N. Ó. R. Co., 61 Miss. 194; s. c., 18 Am. & Eng. R. R. Cas. 313. A return ticket from New Orleans to Toronto good for thirty days was issued. The ticket contained a condition that on leaving Toronto the purchaser should call at the company's office there, and for the purpose of identification sign the ticket in the presence of the agent, and return to New Orleans within fifteen days from the date of signing. On July 14, the purchaser signed the condition at Toronto. The limit of the ticket, the end of the thirty days, was August 8th. On August 3d, the purchaser while on his return journey was ejected from the train, the conductor alleging that the fifteen days having expired, it was not available. The purchaser alleged that until the conductor refused to take the ticket, he did not know of the condition. It was held that the passenger was bound by the condition, and, the fifteen days having expired, could not travel on the ticket. Rawitzky v. Louisville & N. R. Co. (La.), 31 Am. Eng. R. R. Cas., 129.

Condition Requiring Signature-Waiver.-If a ticket issued at a reduced rate, contain a condition that the passenger must sign the conditions upon it, among which is a stipulation that the purchaser assumes all risk to himself and baggage, the company waives the stipulation requiring the purchaser's signature if it does not require him to sign the ticket at the time of purchase, and honors the ticket for several trips before requiring his signature. Kent v. Baltimore & O. R. Co. (Ohio), 31 Am. & Eng. R. R. Cas. 125.

ULRICH

V.

NEW YORK CENTRAL AND HUDSON RIVER R. Co.

(108 New York 80.)

Passengers-Negligence-Exemption from Liability-Free Pass.-A stipulation in a free pass exempting the railroad company issuing it from all liability for personal injuries to the person using it, is not abrogated by the purchase of a ticket entitling the holder of the pass to occupy a drawing-room car during the journey.

APPEAL from the General Term of the Court of Common Pleas for the city and county of New York.

Action by Charles F. Ulrich against the New York Central & Hudson River R. Co., to recover damages for injuries to person and property. There was a judgment for the plaintiff, which was affirmed by the general term of the court

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of common pleas, and the defendant thereupon brought the present appeal. The facts are stated in the opinion.

Frank Loomis for appellant.

W. W. Rowley for respondent.

RUGER, C. J.-This action is brought by the plaintiff to recover damages of the defendant for injuries to his person and property occasioned by a collision on the defend-" ant's railroad near Spuyten Duyvil, in January, 1882, while he was riding from Albany to New York on a regular train of the defendant's railroad.

Facts.

The distance from Albany to New York is about 150 miles, and the regular fare is $3.10. It will be assumed in the consideration of the case that the collision occurred through the negligence of the defendant's servants, and that, in the absence of the special agreement hereinafter referred to, the defendant would have been liable for the injuries suffered by the plaintiff. The plaintiff, however, was at the time riding upon a free pass issued to him by the company in 1881, and which had been duly extended to cover a period during which the injuries were sustained. This pass bore the following printed indorsement: "In consideration of receiving this ticket, the person who uses it voluntarily assumes all risk of accident, and expressly agrees that the company shall not be liable under any circumstances, whether by negligence of their agents or otherwise, for any injury to his person, or for any loss or injury to his property, and that, as for him, in the use of this ticket, he will not consider the company as common carriers, or liable to him as such." It is conceded that the plaintiff used this pass on the trip during the course of which the accident occurred, and exhibited it to the conductor when his passage ticket was demanded of him.

scinded.

Unless the contract indicated by this pass and its indorsements has been rescinded or annulled by some other valid contract between the parties, it is clear that their Contract on rights and liabilities must be governed by its provi- pass governs sions. It is not claimed by the respondent but that unless reif this contract was in full force, and the plaintiff was actually riding at the time of the accident solely by vir tue of it, it would control the liability of the defendant, and exempt it wholly therefrom. Seybolt v. Railroad Co., 95 N. Y. 562; s. c., 18 Am. & Eng. R. R. Cas. 162. It is claimed, however, that, by reason of the purchase of a ticket entitling him to the use and occupation of a particular seat during the passage in the drawing-room car" Empire," he became a passenger for hire, and that the contract expressed in the pass must be deemed to have been abrogated and annulled to a

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