Hyperlawhypertext legal database Knell v. United States & Brazil Steamship Co. 33 N.Y. Super. Ct. 423

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Knell v. United States & Brazil Steamship Co.

33 N.Y. Super. Ct. 423 1 Jones & S. 423 Court N.Y. Super. Ct. Decision date 1871-07-01 English

Decision Majority — By the Court.—Jones, J. · Concurring — Barbour, Ch. J. [concurring in a reversal on different grounds, delivered an opinion as follows:]

Contents

Majority

p. 423
MATTHEW KNELL, Plaintiff and Appellant, v. THE UNITED STATES AND BRAZIL STEAMSHIP COMPANY, Defendants and Appellants.

Headnote

Shippeb—Agent op, Ms power to make a special contract.
1. He has power to make a special contract with a common carrier as to the carrier’s responsiMlity.
p. 424
Cabbies.—Corporation.
1. Right to limit responsibility.
a. A corporation, being a carrier, may by contract exempt itself from responsibility for a loss occurring through the fault, negligence or willful and criminal act of its servants, agents and officers other than its directors.
b. What is a sufficient and valid ground of exemption does not ' appear to be settled.
Semble: the carrier- should offer the shipper the option whether he will ship his goods at the usual rates charged by the carrier for carrying goods subject to all the common-law responsibities of carriers, or will, in consideration of paying a less rate for carriage, enter into a special contract exempting the carrier from one or more of his common-law responsibilities, and the shipper should have a reasonable opportunity to exercise the option und erstandingly.
However this may be—
e. When the shipper’s own agent prepared the contract, the shipper will (there being no evidence to the contrary) be presumed to have entered into it voluntarily and upon sufficient consideration. •
2. Construction of conti'act.—Effect of general words.
1. General words, where effect can otherwise be given to them, will not exempt from liability for loss arising from negligence, fraud or felony of employees.
a. Consequently the words “It is expressly understood that the articles named in the bill of lading shall be at the risk of the owner, shipper or consignee thereof while on the pier or wharf awaiting shipment,” will not exempt the carrier from liability for loss arising from said causes.
3. Burden of proof under clause of exemption.
1. It devolves on the carrier to show that the cause of the loss was one falling within the clause of exemption to relieve himself from liability therefor.
4. Clause reqidring claim for loss or damage to be made to agent of steamship, at port of discharge.
1. Construction of term port of dischm'ge.
a. It means the port to which the goods for a loss whereof a claim is made were shipped.
b. If there is no agent at that port the clause is inoperative.
p. 425
Before Barbour, Ch. J., McCunn and Jones, JJ.
Decided July 1, 1871.
Appeal from a judgment entered on the report of a referee in favor, of defendant.
The plaintiff shipped from the port of ¡New York to St. Thomas five bales and two cases of merchandise by the steamship North America, belonging to the defendants.
The shipment was made under a bill of lading, which contained the following special clauses:
“It is expressly stipulated that the articles named in this bill of lading, shall be at the risk of the owner, shipper or consigned thereof while on the pier or wharf, awaiting shipment, and as soon as delivered from the tackles of the steamer, at her port of destination; and if not taken away the same day by him, they may (at the option of the steamer’s agent) be sent to the store, permitted to lay where landed, or returned to the port of shipment, at the expense and risk of the aforesaid owner, shipper or assignee.
“And it is further expressly stipulated that, in case any claim shall arise against the owners of said steamship company for any loss or damage occurring while such goods and merchandise are on the voyage, or for short delivery, such claim shall be proffered in writing at the office of the agent of said steamship at the port of discharge, within three days after the steamer shall have finished discharging. And in case such claim, whatever it may be, shall not be proffered within the time and at the place hereinbefore designated, such loss or damage shall be deemed to be waived, and the owners of said steamship discharged therefrom.”
This bill of lading is the usual printed form used by the company. The blanks in it were filled by the clerk of the broker who was employed by the plaintiff to
p. 426
enter the goods for exportation, and that clerk, after filling it out, sent it to defendants’ office, where it was signed by one of defendants’ clerks whose special duty was to attend to signing bills of lading.
The plaintiff sailed on the vessel to St. Thomas ; the bill of lading was handed to him on board of the vessel after she had commenced the voyage.
On arriving at St. Thomas, one of the cases could could not be found. There was no representative and no office of the company at St. Thomas.
It was subsequently discovered that the case in question had been stolen from the dock at the city of Hew York.
The usual hours for receiving goods were from seven A. m. to five p. m. These goods were received after five p. M., as matter of accommodation.
All of the goods were received on the wharf by the chief officer of the steamer on Saturday afternoon, about half-past five p. m. They were placed on the wharf opposite part of the wheel house and just forward of a gangway of the ship. The parties in charge of the vessel had .finished taking in cargo at three p. M., and commenced taking in coal, which was continued until twelve p. m. Saturday night. Ho work was done from twelve p. m. Saturday until twelve P. M. Sunday, when coaling was renewed. On Monday the rest of the goods were put on board, and the vessel sailed Monday afternoon. The goods could not be put on board before, because it was necessary to coal the ship before it could be done. The chief officer left the case in question on the wharf when he left at dark on Saturday night, and he never saw it after-wards.
The pier in question is a covered wharf with a gate at the entrance which locks. A gate-keeper is stationed at the gate during daytime. Defendants had a berth at the pier and the exclusive use of two or
p. 427
three hundred feet on that side of the pier on which their boats lay. The other parties keep the keys of the gate. At night one Daniel Carver (an employee of defendants) was in charge of the pier and the freight belonging to or in charge of the company. He was assisted by the quartermaster of the vessel and two other watchmen. The merchandise in question were bonded goods, and in charge of a custom-house officer.
This Carver was employed by defendants as stevedore and general superintendent of property on the dock belonging to or in charge of the company. He was paid by the month.
There is no proof that Carver was connected with the robbery. The only evidence tending in that direction is that the company prosecuted him and one Stewart for the stealing. The result of that prosecution does not appear.
It was conceded by both parties that the case was stolen by said Stewart between the time it was delivered on the pier on Saturday afternoon and the sailing oí the vessel on Monday afternoon; but at which particular hour during that period the evidence does not disclose.
This Stewart was a laborer employed by Carver as defendants’ agent in loading and coaling the ship ; he was paid by the day for work done during the day, and by the hour for work done during the night.
The case was tried before a referee, who reported in favor of defendants. From the judgment entered on the report this appeal is taken.
Edwin James, attorney, and of counsel for appellant, urged :—
The defense to the action rests entirely upon certain stipulations in the bill of lading, a copy of which is annexed to their points, and marked A. The defendants allege that, under the first stipulation, the goods were at the risk of the owner or shipper, while at
p. 428
the pier or wharf awaiting shipment. The first answer to this ground of defense is, that such a stipulation or notice in the bill of lading limiting the liability of the defendants as common carriers, was not brought to the knowledge of the plaintiff until after the goods were lost. He therefore was not bound by any of the stipulations contained in that document. Even if he were, the true meaning and proper construction of such a stipulation in the bill of lading is, a public wharf or pier, whereas, in this case, the goods were delivered to the defendants upon a portion of the wharf, their own private property} rented by them, fenced in by them, and from which they excluded the public. The delivery of the goods, therefore, to them was precisely the same as if they had been delivered in their own warehouse. Again: The goods were stolen by a man in their own' enployment: the defendants are therefore clearly responsible for the loss. The defendants also rely upon another of the stipulations in the bill of lading; that the claim should have been made in writing at the office, &c., within three days. The obvious answer to this is, that such claim must be for loss or damage accruing while the goods are on the voyage, and as these goods never were on the voyage, the limitation does not apply ; but, even if it did, the defendants have waived such stipulation, by offering to pay the plaintiff one thousand dollars in gold with a full knowledge of all the facts. The clause- in the bill of lading relative to the time for demand for restitution for loss or damage while on the voyage : “ While on the voyage,” in this instance, evidently means, after the goods are actually placed on shipboard, as the words “or short delivery” especially point to. In this case the goods were embezzled by defendant’s servants while in their custody on their wharf, and in such case the law is clear: “The masters and owners of a ship are responsible for the goods which they have undertaken to carry, if stolen
p. 429
or embezzled by the crew or any other person” (Shieffelin v. Harvey, 6 Johns. 170 ; 1811, Watkinson v. Langton, 8 Id. 213 ; Elliot v. Rossell, 10 Id. 1 ; and Kemp v. Coughtry, 11 Id. 107). A contract which should excuse the carrier from liability for damage or loss arising from his own fraud or gross negligence, would not be enforced” (Parsons v. Montrealt, 13 Barb. 553 ; Alexander v. Greene, 7 Hill, 533 ; Wells v. Steam Nav. Co., 8 N. Y. (4 Seld.) 375).
George P. Andrews, attorney, and of counsel for respondents, urged:
I. The stipulations of the bill of lading, under which the defendant claimed to be exempt from liability, were binding on the plaintiff. Common carriers may lawfully qualify their liability by special contracts, and the plaintiff made such a contract with the defendant, upon the terms contained in the bill of lading, (a.) The plaintiff assented to the terms of the bill of lading. His own agent, McKibbin, drew it; and when he delivered the goods, also presented the bill of lading to the defendant for signature. The plaintiff’s assent, therefore, is beyond question, unless the agent exceeded his authority. (5.) The broker, McKibbin, was employed . by the plaintiff to ship the goods, and by virtue of such employment had authority to contract with the defend ant on the terms contained in the bill of lading. In Meyer v. Harnden Express Co. ( 34 How. Pr. 290 ) it was expressly decided that an agent employed generally to ship goods, has full authority to make such a contract, (c.) The handing of the bill of lading to the plaintiff, personally, on the steamer, was not necessary to complete the contract. The delivery of the goods and the bill of lading by the plaintiff’s agent to the defendant, and the receipt of the goods, and the acceptance and signing of the bill of lading by the defendant, were a sufficient evidence of a delivery of the bill of
p. 430
lading to the plaintiff. It was left with the defendant to be handed to the plaintiff on the steamer merely for the broker’s convenience, as the plaintiff was going as a passenger. The defendant, after signing it, was merely a gratuitous bailee of the bill of lading. The signing and acknowledging of a deed, though left in the grantor’s possession for some purpose, has been repeatedly held sufficient evidence of delivery (2 Greenl. Ev. 10 ed. 279, and cases cited), (d.) A contract for the carriage of goods need not be in writing ; and the delivery of the case and the bill of lading by the broker to, and their acceptance by, the defendant, would have been sufficient evidence of the making of a contract between the plaintiff" and the defendant, on the terms contained in the bill of lading, even though the latter had never been signed or delivered.
II. The defendant is not liable, under the clause of the bill of lading, which provided that the articles therein named should be at the risk of the owner or shipper thereof, while on the pier or wharf awaiting shipment, (a.) It was conceded that the case was not put on the steamer, and that it was stolen by Stewart from off the pier where it lay awaiting shipment; and the referee found, as matter of fact, that Stewart was not in defendant’s employ when the theft was committed ; which finding, as there was no conflict of evidence, is conclusive, unless it be claimed that the question as to Stewart’s being in the defendant’s employ is partly a question of law; or unless the finding was grounded on evidence palpably insufficient. So far as the question about Stewart’s employment may be one of law, there is no room for doubt that the referee’s finding was correct; and the evidence to sustain the finding, so far as it is, beyond dispute, a finding of fact, is clearly sufficient, (b.) Stewart stopped work at twelve o’clock Saturday night, and did not resume work till twelve o’clock the following Sunday night.
p. 431
If he stole the case, therefore, between twelve o’clock Saturday night and twelve o’clock Sunday night, it is too clear for argument that he was not in defendant’s employ when the theft was committed, (c.) The referee found as matter of fact that the case was stolen between the hours above mentioned. There was no conflict of evidence, and the finding is conclusive unless grounded upon evidence palpably insufficient—which it is not. (d.) Even if Stewart had been in the defendant’s employ when he stole the case, the defendant, under the above cited clause of the bill of lading, would not be liable for its loss. It is now settled law in this State, that common carriers may, by special contract, exempt themselves from liability for losses caused by the felony of their own servants even (Wells and Tucker v. Steam Navigation Company, 8 N. Y. 381 ; Wells v. N. Y. Central R. R. Co., 24 N. Y. 185 ; Bissell v. Same, 35 N. Y. 446 ; Perkins v. Same, 24 N. Y. 215 ; Smith v. Same, 24 N. Y. 222 ). By the bill of lading, the goods were at the plaintiff’s risk, and the risk of theft by the defendant’s subordinate servants was included, unless negligence in selecting those servants is shown.
III. The defendant is not liable because the plaintiff did not comply with the agreement in the bill of lading, that claims like the plaintiff’s should be preferred in writing, at the office of the agents of the steamer, at the port of discharge, within three days after she finished discharging, (a.) It is conceded that the plaintiff did not prefer any claim, in writing, or otherwise, at the office of the steamer’s agent, in St. Thomas. (5.) This stipulation of the bill of lading applied to the circumstances of this case, (e.) It was lawful and valid (Lewis v. Great Western R. R. Co., 4 Hurlst. & N. 867 ; Simons v. Same defendant, 37 Eng. Law & Eq. Rep. 286). (d.) The defendant never waived its right to set up this stipulation in the bill of lading as a defense to the plaintiff’s claim. No agreement to that effect is
p. 432
alleged, and nothing was shown that could operate as an estoppel.
IV. The defendant’s right to avail itself of any defence that it originally had, was not affected by the offer of compromise. An offer of settlement, if competent evidence as an admission of liability, does not estop or conclude the party making it; he is at liberty to show that the admission was made under a mistake as to his rights, or is untrue.
V. It may be claimed that, though Stewart was not in the defendant’s employ when the theft was commited, still the defendant would be liable if the goods were lost through its negligence. In that case, the defendant having shown that the loss occurred through one of the risks excepted by the bill of lading, the burden of proof was on the defendant to prove negligence (Ang. on Carr. § 279). Ho evidence was introduced by the plaintiff for this purpose ; and the defendant, though not called on to do so, proved that there was no negligence on its part.
VI. The defendant, owing to the nature of its business, does not undertake to furnish a warehouse for goods intended to be shipped by its steamers, and as the goods were received solely to accommodate the plaintiff, and the loss did not occur through, the de-' fendant’s fraud or negligence, the equities of the case are altogether on the side of the defendant.

The main question raised in this case is whether the defendant is relieved from responsibility by operation of the stipulation in the bill of lading, that the goods should be at the risk of the owner while on the pier or wharf awaiting shipment.

The plaintiff insists that the company is not thereby discharged.' Because,

p. 433
1. The stipulation was not brought to plaintiff’s knowledge until after the goods were lost.

2. That the loss occurring through the theft of one of defendant’s employees, is a risk against which the defendant cannot protect itself by any contract or agreement whatever, because any contract or agreement to that, effect would be void.

3. That the loss occurring through the theft of one of defendant’s employees does not fall within the terms and scope of the stipulation.

The first objection is fully met by the case of Meyer v. Harden Express Co., 24 How. Pr. 290 , in the reasoning of which case I fully concur.

The second objection is based on a misapprehension of the present state of the law on the subject. As the law now stands, a corporation, though it be a common carrier, may by contract exempt itself from liability for a loss occurring through the fault, negligence, or willful and criminal act of its servants, agents, or officers, other than the directors, and a contract to that effect will not be held void as being contrary to public policy (Perkins v. N. Y. C. R. R., 24 N. Y. 196 ; Wells v. N. Y. C. R. R., Id. 18 ; Dorr v. N. J. Steam navigation Co., 11 Id. 485 ; Bissell v. N. Y. C. R. R., 25 N. Y. 442 ). What is sufficient to constitute a valid and binding contract of exception is not yet fully settled.

In the above cited cases it is held that the carrying passengers or goods at less than the regular and customary rates, affords a sufficient consideration to uphold the-contract.

But I think the question whether a common carrier can prepare a printed form of contract? containing special clauses as to exemption and liabilities (see 24 N. Y. 201 ; 11 Id. 485), and then refuse to carry except on the terms of that form, unless the shipper can succeed in inducing him to make a special contract, thus compelling the would-be shipper to receive and

p. 434
accept a contract in that form, or else not ship the goods; and whether the shipper, by accepting under such circumstances a bill of lading containing said special clauses, thereby makes these clauses a binding contract on him ; still remain undetermined.

The present case does not call for a solution of the question. A carrier has undoubtedly the right to fix the rates at which he will carry all goods offered for carriage, subject to all the reponsibilities imposed on him by the law, and to adjust those rates according to the various descriptions of goods; and under the principle of the above cited cases, the carrier, if a shipper desires his goods carried at rates less than the usual and customary ones established, may insist that in consideration of such reduction, he shall be exempted from some one or more of his ordinary responsibilities (other than such as arise out of his own fraud, or such negligence of his own as amounts to a wanton and willful disregard of his duty) ( 21 N. Y. 213 ), and a contract to this effect will be good.

It seems to me, however, that the option of exempting the carrier from any of his responsibilities should rest not with the carrier but with the shipper, and he ■ should have a reasonable opportunity to exercise it understandingly.

In the case at bar the shipper’s own agent prepared the contract. In the absence of evidence to that effect we cannot assume that the contract was forced on the plaintiff; but must, on the contrary, presume it to have been voluntarily entered into with a full knowledge of all its provisions, and with a sufficient consideration arising out* of the carriage at rates less than the usual and customary ones charged by defendant for a like carriage under all the responsibilities of a common carrier.

This leads to the third objection.

The words used will, when taken in their most com

p. 435
prehensive sense, include the risk of loss through the negligence of, or robbery by, the defendant’s servants.

> But the doctrine now prevails that exemption from liability for loss arising from the negligence, fraud, or felony of employees will not be regarded as included in general words of exception where effect can otherwise be given to these words (Wells v. Steam Navigation Co., 8 N. Y. 375 ; Perkins v. N. Y. C. R. R., 24 Id., cited from p. 206).

This defendant, in the absence of a clause of exemption, would, as a common carrier, have been, liable for any loss of or damage to these goods, except only such as might have been caused by the act of Gtod ór of public enemies.

The general words of the clause in question may well be satisfied even though a loss occurring through the negligence, fraud, or felony of the defendant’s servants, be regarded as not covered by them, for there still remain the risks of loss by theft or robbery committed by persons other than defendant’s servants, the risk of loss by fire, by overflow of water, by steam, without any negligence or fault on the part of the defendants or its servants, for the words of the clause to operate on.

It follows that a loss occasioned by a robbery committed by one of the defendant’s agents is not one of the risks which the plaintiff, by the clause in question, was content to take upon himself.

The loss in question occurred through the theft of one Patrick Stewart.

If at the time of the robbery he was in defendant’s employ, then defendant is liable ; if he was not in its employ, then the plaintiff must bear the loss himself.

The referee has found that he was not in defendant’s employ.

Let us examine the evidence on that point. Thé case was stolen some time between dark Saturday night

p. 436
and eight A. u. the following morning. From twelve p. m. Saturday night to twelve p. m. Sunday night, Stewart was not in the employ of defendant; during the rest of the time he was. There is no evidence whatever that the robbery took place between twelve p. m. Saturnight and twelve p. m. Sunday night. It may be reasoned that the presumption is that it took place then, because it is more reasonable to suppose that a theft took place when but few were stirring around, than when a large number were. I do not know, as matter of common experience, that it would be regarded by thieves either easier or safer to commit a theft on such a place as a covered pier, which is watched over by watchman who can take a position commanding a view of the property at any time of the night, when the » noise and bustle of workmen performing their labor is hushed, and an almost oppressive stillness prevails through which the sound of "footsteps or the grating of a boat against a.pier, or any noise in removing the plunder would be easily heard, and attract the notice o£ the guardians of the property, whose attention would not be apt to be diverted from their duty of guarding by other duties or by other transactions occurring around them, than to cause themselves to be employed as part of a gang of laborers whose duties it is at one period of the night to be on the pier engaged in work at or near the place where the object of plunder is situate, and who are to some extent identified with a right to be about and handling, and then at that period of the night when they are on the pier in the course of the employment, committing, with the aid of confederates in the same gang or outside, a robbery amid the noise and confusion of the work, which would have the tendency to divert the attention of others, to drown whatever noise might be made in the commission of the robbery, and to cover the operations of those concerned in it, or which, if the attempted theft was discovered,
p. 437
would afford a plausible excuse for being found in the position and under circumstances which, without that excuse, might be sufficient to secure a conviction for an attempt to commit a crime.

There seems to me to be nothing in this case which warrants a presumption that the robbery took place during the time the thief was not in defendant’s employ.

The question then arises: on whom devolved the burden of proving the particular time at which the robbery took place. .

If it falls to the lot of plaintiff to prove that it took place at a time when Stewart was in defendant’s employ, then the judgment must be affirmed, for he has not proved it.

. If, on the other hand, it is incumbent on defendant to prove that, it took place at a time when Stewart was not its employ, then the judgment must be reversed, for he has not proved that.

The burden of proof is cast on him who must prove the fact to sustain his action or defense as the case may be.

The plaintiff’s cause of action rests on the nondelivery to him of goods; not for its loss in any particular manner. It is founded on the common-law liability of the common carrier, and not on the stipulation, nor can the'stipulation be regarded as a condition precedent.

"It was inserted in the contract to relieve the defendant from certain of its common law liabilities ; he must therefore show that the non-delivery was the result of a cause which, under the stipulation, relieves him from liability therefor.

It might seem at first blush as if this was requiring defendant to prove a negative. .But, in fact, it only requires proof of two affirmatives, one of which is peculiarly within the knowledge of its officers. The two affirmatives are : 1. The time during which Stewart

Concurrence

p. 438
was in his employ ; 2. The time when the robbery was committed.

The first it has proved; the second it has not proved with sufficient definiteness to relieve it from liability.

The defendant claims, however, that under the. bill of lading a presentation in writing of a claim for the loss at the office of the agent of the steamship at the port of discharge within three days after the steamship shall have finished discharging, was a condition precedent to a recovery by plaintiff; and that such condition precedent was not complied with.

The port of discharge here intended is the port to which the goods, for loss whereof a claim is made, were shipped. That in this case was St. Thomas.

It is a sufficient answer to this claim of defendant that it has no office of any agent at St. Thomas, nor any representative there.

It cannot take advantage of an omission to do that which it has rendered impossible to do' by its own neglect.

There can be no doubt that the plaintiff was entitled to a judgment upon the pleadings and proofs exhibited at the trial, unless the defendants were released from liability for the loss of the goods, by the terms of the bill of lading; for the property was received by the latter as common carriers, and was not lost by the act of God or public enemies while in their possession as such carriers.

It is not necessary to discuss the question whether the mere employment by the plaintiff of a broker to ship the goods conferred upon him an authority to enter into a special agreement with the shipowners exonerating them from their ordinary legal liability as common carriers, nor, if so, whether the broker’s clerk who made the shipment possessed such authority by

p. 439
virtue of the employment of his principal to ship the goods, for there is no evidence in the case tending to prove that any agreement whatever was made with the defendants or their agents, by either the broker or his clerk. The broker did nothing whatever personally, and all that was done by the clerk was to insert a description of the goods in a blank bill of lading and send it to the office of the defendants; but such bill was not signed there and returned, so as to make its acceptance a valid contract between the parties, prior to the sailing of the ship. Indeed, it is quite apparent from the evidence that the goods were' delivered to the defendants as common carriers, without any special or other agreement limiting their liability, and were stolen and carried away from their wharf while so held; that the only agreement between the plaintiff and the defendants was contained in the bill of lading, and that agreement was made and completed by the delivery of the bill to the plaintiff and his acceptance of it on board the ship two days after she had sailed, and after the goods were lost and the right of action in the plaintiff to recover their value had accrued.

The special provision in the bill of lading which was intended to exempt the carriers from liability in certain specified cases, cannot properly be considered as applicable to the goods which had thus become lost before the delivery of the bill of lading, either in terms or as construed by the intention of the plaintiff and the defendants’ officers. For, the provision in question speaks only in futuro, and, by its terms, as well as clear intent, the owner of the goods undertook,—not to bear a loss which had already occurred, nor to discharge the defendants from their legal obligation to pay for the goods which they had lost,—but to assume a certain future hazard or risk ; the language being, “ It is expressly stipulated that the articles named in the bill of lading shall be at the risk of the owner, &c.,

p. 440
while on the pier or wharf awaiting shipment.” It is clear, too, that when the bill was delivered to the owner, both he and the ship’s officers believed that the goods were on board; and for that reason it is impossible to suppose that either of the parties designed by the provision in question to discharge the carriers from an accrued liability. ' The provision in the bill of lading which is relied upon by the defendants as exempting them from liability, therefore, does not apply to the goods which are the subject of this action, nor operate as a discharge of the defendants from their obligation to pay for them.

I concur with my brother Jones in the opinion that the efforts of the plaintiff to give notice of the loss at St. Thomas was a performance on his part of the conditions of the bill of lading in that regard, even if any attempt by him to give such notice was necessary under the circumstances, which I doubt.

For these reasons, and without considering here any further question in the case, I am of opinion that the judgment should be reversed with costs, the order of reference vacated, and a new trial directed.

Judgment reversed, new trial ordered; order of reference vacated on payment of costs of trial and appeal.

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