the carrier. It is not the secret purpose, but the intention as disclosed by the vendor's acts and declarations at the time, which governs. Foster v. Ropes, 111 Mass. 10; Upton v. Sturbridge Mills, 111 Mass. 446. Where there is conflicting evidence as to intention, the question is for the jury. It cannot be disposed of as matter of law, unless the evidence will justify a finding but one way. National Bank of Cairo v. Crocker, 111 Mass. 163; National Bank of Chicago v. Bailey, 115 Mass. 228; Alderman v. Eastern Railroad, 115 Mass. 233.

In the case at bar, the fact that the shipping receipt was not delivered to Fenno, but was sent with the draft to a bank in Boston, is not conclusive evidence, as against the rights of the consignee, that the plaintiffs intended not to part with the title. It was no part of the contract of sale. It was given in the name of Fenno, and could not be transferred by the plaintiffs so as to change title in the property without his indorsement. What passed between the plaintiffs and the bank in Boston, not communicated to Fenno, cannot affect his rights.

It is not shown that the acceptance or payment of the draft was a condition precedent to a change of title; and the finding of the court below cannot be disturbed.

Judgment affirmed.

Where goods are consigned to a party, he must be regarded by the carrier as the prima facie owner, unless the carrier has notice that the right of the consignee to receive the goods is disputed. Brower v. Peabody, 13 N. Y. 121; Angle v. Mississippi, etc., R. R. Co., 9 Iowa, 487; Webb v. Winter, 1 Cal. 417; Glidden v. Lucas, 7 Cal. 26; Decan v. Shipper, 35 Pa. St. 329; Green v. Clark, 12 N. Y. 343; Dows v. Greene, 24 N. Y. 638; Dows v. Perrin, 16 N. Y. 325; Fitzhugh v. Wiman, 9 N. Y. 559; Rowley v. Bigelow, 12 Pick. 308; Merchants' Ñ. Bank v. Bangs, 102 Mass. 291; Foster v. Roper, 111 Mass. 10; Upton v. Sturbridge Mills, 111 Mass. 446; Harrison v. Hixson, 4 Blackf. 226; Gurney v. Behrend, 3 Ellis & B. 622; Miner v. Norwick, etc., R. R. Co., 32 Conn. 91; Mosely v. Lord, 2 Conn. 389; Cox v. Harden, 4 East. 211.

Where goods are delivered to a common carrier by the vendor in pursuance of an order for delivery to the buyer, the delivery to the carrier passes the property. Wait v. Baker, 2 Ex. 1; Dawes v. Peck, 8 T. R. 330; Dutton v. Solomonson, 3 B. & P. 582; London, etc., Ry. Co. v. Bartlett, 7 H. & N. 400; Dunlop v. Lambert, 6 Cl. & Fin. 600: Johnson v. Stoddard, 100 Mass. 306; Stanton v. Eager, 16 Pick. 467; Magruder v. Gage, 33 Md. 344; Waldron v. Romaine, 22 N. Y. 368. Rodgers v. Phillips, 40 N. Y. 519; Garland v. Lane, 46 N. H. 245; Arnold v. Prout, 51 N. H. 587; Griffith v. Ingledew, 6 Serg. & Rawle, 429; Cross v. O'Donnell, 44 N. Y. 661; Watkins v. Paine, 57 Ga. 50; Ranny v. Higby, 5 Wis. 62; Putnam v. Tillotson, 13 Metc. 517; Whitcomb v. Whitney, 24 Mich. 486; Terry v. Wheeler, 25 N. Y. 520; Hyde v. Lathrop, 2 Abb. App. Dec. 436; South Western Freight Co. v. Stanard, 44 Mo. 71; Dexter v. Norton, 55 Barb. 272; Bradley v. Wheeler, 44 N. Y. 495; Dyer v. Libby, 61 Me. 45.

The person named in the bill of lading is the presumptive owner, and its transfer by him to a bona fide party carries the title to the goods, and such transfer is a bar to the right of stoppage in transitu. An endorsement of the bill of lading is not essential to perfect the transfer, the mere delivery is suf

ficient to pass the goods. Lee v. Kimball, 45 Me. 172; Robinson v. Stewart, 68 Me. 61; Winslow v. Norton, 29 Me. 421; McKee v. Garcelon, 60 Me. 167; Tilden v. Minor, 45 Vt. 196; Davis v. Bradley, 28 Vt. 118; Rawls v. Deshler, 4 Abb. App. Dec. 12; Merchants' Bank v. Union R. R. & T. Co., 69 N. Y. 373; City Bank v. Rome, etc., R. R. Co., 44 N. Y. 136; Joslyn v. Grand Trunk R. R. Co., 51 Vt. 92; Allen v. Williams, 12 Pick. 297; Michigan S. Bank . Gardner, 15 Gray, 362; Bank v. Crocker, 111 Mass. 163; Alderman v. Eastern R. R. Co., 115 Mass. 233; Bank v. Dearborn, 115 Mass. 219; Hathaway . Haynes, 124 Mass. 311; Baltimore, etc., R. R. Co. v. Wilkins, 44 Md. 11; Tildeman v. Knox, 53 Md. 612; Holmes v. German S. Bank, 87 Pa. St. 525; Michigan, etc., R. R. Co. v. Phillips, 60 Ill. 190; Merchants' Bank v. Hewitt, 3 Iowa, 103; Valle v. Cerre, 36 Mo. 575; Emery v. Irving N. Bank, 25 Ohio St. 360; Law v. Hatcher, 4 Blackf. 364; Saltus v. Everett, 20 Wend. 267; Dows v. Greene, 24 N. Y. 638; Rawls v. Deshler, 42 N. Y. 572; Marine Bank v. Wright, 48 N. Y. 1; Merchants' Bank v. Union, etc., Co., 69 N. Y. 373; Royal Canadian Bank v. Grand Trunk Ry. Co., 23 U. C. C. P. 225; Lickbarrow v. Mason, 2 T. R. 63; 1 Smith Lead. Cases, 896; Seventh Amer. ed. and cases cited in note.

If one presents an order from the consignee, or the bill of lading with his endorsement, it will be sufficient evidence of ownership to authorize the carrier to make the delivery. Newhall v. Railroad, 51 Cal. 345; The Argentina, 1 L. R. Adm, 370; The Emilien Marie, 32 L. T. N. S. 435; Lickbarrow v. Mason, 2 T. R. 63; Coombs v. Bristol, etc., Ry. Co., 3 H. & N. 1.

Or if the goods are delivered to one to whom it has been customary to make delivery, although the bill of lading is to the order of another party. Ontario Bank v. Steamboat Co., 59 N. Y. 510.

Where goods have been shipped to a consignee, and he endorses and sells the bill of lading, but before the carrier has notice of such transfer of title the consignee sells the goods to another party, who is a bona fide purchaser, and the goods are delivered to such bona fide purchaser on an order of the consignee; the carrier cannot be held liable for the value of the goods. Newcomb v. Railroad, 115 Mass. 230; Alderman v. Railroad, 115 Mass. 233; The Argentina, 1 L. R. Adm. 370.

But where the endorsee of a bill of lading, who has not acquired an absolute and honest title to the property, sells it to bona fide purchasers for value, it has been held that he had no power to sell the property and could convey no title. The endorsement of a bill of lading gives no better right to the goods than the endorser himself had. Farmers' Bank v. Logan, 74 N. Y. 568; see also Farmers' Bank v. Atkinson, 74 N. Y. 587; Farmers' Bank v. Erie R. R. Co., 72 N. Y. 188; Brower v. Peabody, 313 N. Y. 121; Decan v. Shipper, 35 Pa. St. 239; Mechanics' Bank v. Farmers' Bank, 60 N. Y. 40; Dows v. Greene, 24 N. Y. 638; Tison v. Howard, 57 Ga. 410; Gurney v. Behrend, 3 E. & B. 622; Stollenwerck v. Thacker, 115 Mass. 224; National Bank v. Dearborn, 115 Mass. 219.

But the title of bona fide third persons will prevail against the vendor who has actually transferred the bill of lading or title to the vendee, although he may have been induced by the vendee's fraud to do so, because a transfer obtained by fraud is only voidable, not void. Pease v. Gloahec, L. R., 1 P. C. App. 219; Stevenson v. Newnham, 13 C. B. 285; The Freedom, L. R., 3 P. C. C. 594; Kingsford v. Merry, 11 Ex. 577; Oakes v. Turquand, L. R., 2 App. Cas. 325; The Figlia Maggiore, L. R., 2 Adm. 375; Clough v. London, etc., Ry. Co., L. R., 7 Ex. 26; Morrison v. Universal Marine Ins. Co., L. R., 8 Ex. 197; Fox v. Nott, 6 H. & N. 630; Short v. Simpson, L. R., 1 C. P. 248; White v. Garden, 10 Č. B. 919; Stanton v. Eager, 16 Pick. 476; Blanchard v. Page, 8 Gray, 281; Pratt v. Parkman, 24 Pick. 42; Hathaway v. Haynes, 124 Mass. 311; Gardner v. Howland, 2 Pick. 599; Dows v. Greene, 24 N. Y. 638; Winslow v. Norton, 29 Me. 421; Lee v. Kimball, 45 Me. 172;

Fodick v. Schall, 99 U. S. 235; Lucas v. Campbell, 88 Ill. 447; Van Duzor v. Allen, 90 Ill. 499; Greer v. Church, 13 Bush. 430. In Stevenson v. Newnham, 13 C. B. 285, the court say that the effect of fraud "is not absolutely to avoid the contract or transaction which has been caused by fraud, but to render it voidable at the option of the party defrauded. The fraud only gives the right to rescind. In the first instance, the property passes in the subject matter. An innocent purchaser from the fraudulent possessor may acquire an indisputable title to it though it is voidable between the original parties."

But where the consignee is bound by contract to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer. Bishop v. Shillito, 2 B. & A. 329; Brandt v. Bowlby, 2 B. & Ad. 932; Shepherd v. Harrison, L. R., 4 Q. B. 196, 493, 5 Eng. & Ir. App. 116; Barrow v. Coles, 3 Camp. 92; Mires v. Solebay, 2 Mod. 243; Benner v. Puffer, 114 Mass. 376; Chase v. Pike, 125 Mass. 117; Drury v. Hervey, 126 Mass, 519; Fosdick v. Car Co., 99 U. S. 256; Porter v. Pettengill, 12 N. H. 299; Holt v. Holt, 58 N. H. 276; King v. Bates, 57 N. H. 446; Ridgeway . Kennedy, 52 Mo. 24; Cardinell v. Bennett, 52 Cal. 476; Hegler v. Eddy, 53 Cal. 597; Iowers v. Blandy, 58 Ga. 379; Carroll v. Wiggens, 30 Ark. 402; Preston v. Whitney, 23 Mich. 260; Allen v. Delano, 55 Me. 113; Bunker v. McKenney, 63 Me. 529; Bradshaw v. Warner, 54 Ind. 58; Hodson v. Warner, 60 Ind. 214; Domestic S. M. Co. v. Arthurhultz, 63 Ind. 322; Sanders v. Keber, 28 Ohio St. 630; Moseley v. Shattuck, 43 Iowa, 540; Boon v. Moss, 70 N. Y. 465; Buckmaster v. Smith, 22 Vt. 203; Clark v. Hayward, 51 Vt. 14. So where it is a condition of sale that the consignee is to accept a bill of exchange or draft, sent with a bill of lading, his failure to make such acceptance prevents his acquiring any title to the goods. Shepherd v. Harrison, 5 L. R., H. L. Cas. 116; Comez, Ex parte, Yglesias, In re, 10 L. R. Ch. 639; Brandt v. Bowlby, 2 B. & Ad. 932; Barrow v. Coles, 3 Camp. 92; First N. Bank v. Crocker, 111 Mass. 166, and where the consignee agrees to give his notes, but fails to do so. Armour v. Pecker, 123 Mass. 143; Stone v. Perry, 60 Me. 48; Seed v. Lord, 66 Me. 580; Solomon v. Hathaway, 126 Mass. 482; Michigan, etc., R. R. Co. v. Phillips, 60 Ill. 190; Osborn v. Gantz, 60 N. Y. 540; Van Duzon v. Allen, 90 Ill. 499; Paul v. Reed, 52 N. H. 136; Smith v. Hobson, 16 U. C. Q. B. 368.

POOL
V.

CHICAGO, MILWAUKEE AND ST. PAUL RY. Co.

(Advance Case, Wisconsin. December 13, 1881.)

Plaintiff, having been at divers time employed by defendant as a detective in cases of property stolen from its cars, was requested by defendant's agent, duly authorized for that purpose, to go from one station on defendant's road to another, to aid in discovering persons who had stolen property from defendant's cars at the latter station; and the means of conveyance furnished by defendant was a hand car. Held, that defendant was liable for any injury to plaintiff while riding upon said car, caused either by the unfitness of such means of conveyance or by any negligence of defendant's servants in running the same, or by carelessly running it at a dangerous rate of speed.

The complaint avers that plank had been negligently placed, at a highway crossing, between the iron rails of defendant's road, so that, instead of lying level with the grade, they were loose, warped, and sticking up for four or five inches, so as to injure plaintiff by hitting his heels as he was riding on the car. Held, that the court cannot say, as matter of law, that this does not show a defect in the road constituting actionable negligence.

The complaint alleges that plaintiff, in sitting upon the hind end of the hand car with his feet hanging down, acted upon the advice of the person in charge of the car, and without being aware of the danger of the position. Held, on demurrer, that this does not show contributory negligence.

APPEAL from circuit court, Sauk county.

J. W. Lusk, for respondent. D. S. Wegg, for appellant.

COLE, C. J.-1. We think there was no error in overruling the demurrer to the complaint. The plaintiff was injured while being transported over the defendant's road from Portage City to Kilbourn City on a hand car. The able and ingenious counsel for the defendant says that the company is not a common carrier by hand car, and is not chargeable with the liability of a carrier by that mode of transit. The correctness of this proposition may be conceded as a general rule. But the complaint states that plaintiff at divers times had been employed by the defendant to assist in ferreting out thefts, where property had been stolen from its cars, and that he was requested by an authorized agent of the company to go from Portage City, where he resided, to Kilbourn City, for the purpose of aiding in discovering the thieves who had stolen property from its cars at the latter place; that upon going to the depot at Portage City the means provided by the company, or its agents, was a hand car, upon which he was directed to ride. This shows that this mode of transit was authorized by the company, and the company was certainly under obligation to use reasonable care to assure his safe carriage in that manner.

The company was bound to know whether the hand car was a suitable, proper, and reasonably safe means for transportation; and, further, it assumed the duty of seeing to it that the car should be used with due care by those entrusted with its management, even though the relation of common carrier and passenger did not exist between it and the plaintiff. This was a legal duty springing from the relation of master and servant. It is true, the plaintiff was in the employ of the company as a detective, but he could not know the risks and perils of this mode of carriage. It would be unreasonable to say he assumed them all by his employment. Certain perils and dangers he doubtless did assume, but they were those incident to the detection and arrest of criminals. That was the business in which he was engaged. Therefore, in transporting him from Portage City to Kilbourn City, the company was bound to provide proper means of conveyance, and see that they were

used with due care, so as not to subject the plaintiff to unnecessary danger. The cases of Hoar v. Maine C. Ry., 70 Me. 65, where the deceased was fatally injured while riding on a hand car at the invitation of the foreman of the section, and Eaton v. Delaware, L. & W. Ry., 57 N. Y. 382, where the plaintiff was injured while riding on a coal train with the assent of the conductor, which coun sel cited on this point, do not seem to have any direct application, in the view we have taken of the case.

2. But it is further insisted by the same counsel that no actionable negligence is stated. It is alleged that the hand car was run and propelled by those having it in charge at an unnecessarily fast, careless, and dangerous rate of speed; that plank had been carelessly and negligently placed at a highway crossing between the iron rails, so that instead of lying straight and flat, level with the grade, they were loose, warped and sticking up above where they ought to have been four or six inches-just high enough to hit the plaintiff's heels as he was riding on the car. Now, it is said that this shows no defect in the road-bed, because the plank would in no way interfere with the safe passage of the trains of the company over its line of road. But we are unable to say, as a matter of law, that it was not negligence for the company to leave the plank warped and elevated as alleged. Besides, if we could, it is averred that the car was carelessly run at a dangerous rate of speed. This, certainly, was an act of negligence; and, if the plaintiff was thereby injured, being without fault on his part, the company is liable.

3. The last objection taken to the complaint is that such contributory negligence is shown as precludes a recovery for the injury. The plaintiff, while riding in the hind end of the car, with his legs and feet hanging over or down towards the ground, was injured by his heels coming in contact with the plank lying as above described. This threw him backwards under the lever handle of the car, which. struck him with great force and violence on his neck and shoulders. It is alleged that the person in charge of the car directed him to take his seat on the hind end of the car, and let his legs and feet hang over the end in the manner they did. So it appears that the plaintiff did not voluntarily, or acting upon his own inclination, assume that position. He was wholly unaware of the danger of sitting in this manner on the car, and did what probably most persons would do under like circumstances, obeyed the direction of the person who had the car in charge. Now, can it be said that this act on his part amounted to negligence? It is said he was not excused in taking such a position, even at the express direction of the person in charge of the car, because he was bound to take proper precautions for his own safety. If the perils and danger of sitting in that manner on the end of the car had been known to him or were obvious, so that with the exercise of ordinary prudence he could have foreseen and comprehended them, there would