for which defendant gave him his promissory note. Thereafter testator cancelled the note, and surrendered it to the defendant. In an action on the note the court held that the transaction constituted a valid gift of the note, and exonerated the defendant from all liability thereon.

In conclusion, the case of Armitage v. Mace, 96 N. Y. 538, deserves some consideration. It is a "borderline" case, but it seems to the writer to have been correctly decided. The question involved was as to the validity of a gift from a husband to his wife. In such case it is always difficult to prove an actual delivery of the subject of the gift, because of the control usually exercised over the property of the wife by the husband. The property of either is always more or less in the possession of both; and it frequently happens that the thing which the husband has given to his wife remains practically just as much under his control as it was before. If therefore the rigid rule requiring actual delivery were not somewhat modified in its application to cases of gifts between husbaud and wife, such gifts could rarely, if ever, be so made as to be valid in law. In Armitage v. Mace it appeared that the husband owned a certain mare which the wife had often expressed a desire to own. On one occasion they had just returned from the depot with the mare, and while standing at the stable beside her, the wife repeated her request for the mare, to which the husband replied: "Very well, you like her so much I will give her to you; she shall be your property.' He then called the man who was taking care of her, and told him of the gift, and informed him that thereafter the previous orders that he had given him about the use of the mare were changed, and that he was thereafter to deliver the mare to Mrs. Armitage as she wanted it. Previous to this Mrs. A. had never driven the mare alone, but had driven another horse, and Mr. A. had always driven the mare. After this he ceased to drive the mare, and used another horse, and Mrs. A. used the mare exclusively. After this Mr. A. always recognized his wife's ownership, and the mare was known as hers in her husband's family. The court said: "She thus had all the possession a wife living with her husband could have. She controlled the mare, used her when she chose to do so, she was recognized as hers, and no one else, used her without her consent. While these facts do not make a very clear case of gift, they were sufficient to carry the case to the jury aud to authorize a finding by them that the mare was delivered to and possessed by her in pursuance and consummation of the gift. Subsequently to the gift the mare was kept in the husband's stable, cared for by a hostler paid by him, and he paid for her feed, shoeing and training, as Mrs. Armitage had no estate or income. These facts were proper for the consideration of the jury, but did not nullify or destroy the gift, or conclusively show that one valid in law had not been made."

GUY C. H. CORLISS.

CRIMINAL EVIDENCE-WIFE AS WITNESS AGAINST HUSBAND.

NEW JERSEY SUPREME COURT.

STATE V. Gordon.

Defendant was indicted for unlawfully conveying or taking away a woman child under the age of fifteen years, with intent to seduce, etc,, under section 82 of the Crimes Act. Held, that she was a competent witness for the people. If the defendant brought her within this State from another, and here, with the intent set out in the statute, interposed his will or persuasion between her and her

C. H. Winfield, for State.

Puster, Daly & Ryerson, for defendant.

SCUDDER, J. The defeudaut was indicted under section 82 of the act for the punishment of crimes, for the abduction and seduction of a girl under the age of fifteen years. He was found guilty and sentenced to the State prison for the term of five years. Many objections were taken at the trial to the admission of testimony, and requests to charge were made to the trial judge, some of which were granted and others refused. Two exceptions only were argued on the return to the writ of error, the others having been abandoned. The first was an exception to the admission of the witness A. B., the child in question, on the part of the State, against the defendant, because she was alleged to be the wife of the defendant, and therefore an incompetent witness. When this objection was made by the defendant's counsel the court directed that the witness be examined on the voir dire as to the

alleged marriage. She was questioued as to the form of a marriage ceremony extracted in part from the marriage service used in the Protestant Episcopal Church, and said to have been repeated by the parties when they were together, without any witness, in Brooklyn, Long Island, State of New York. She denied that there was any such ceremony. She was shown a certificate in writing, sigued by her and the defendant, dated November.2, 1883, which stated that they had been married by repeating certain portions of the Episcopal marriage service. She testified that when she signed it he told her it was only a joke. Certain letters were shown her which she admitted had been written and signed by her after November 2, 1883, in which she addressed him as her husband and called herself his wife. These she said were addressed and signed in that way because he told her to do so, and she had agreed and intended to marry him in the following spring.

On December 3, 1883, she left her home in Astoria, and went with him to the mayor's office in the city of New York to be married, but the mayor declined to marry them because of her youthful appearance. Ou the same day she went with him to Jersey City, where she was introduced as his wife by the defendant to friends of his residing there. She was silent before them. They occupied the same bed-room at a hotel in that city for a night, a day and part of the second night, when the defendant was arrested on pursuit and complaint of her adopted father, who had never given his consent to a marriage between them. Her parents were both dead. It had also been testified by her older sister that she was born in October, 1869, and was under the age of fifteen years when the alleged abduction took place. The defendant's counsel of fered section 1 of the New York Marriage Act (Rev. Stat., vol. III, p. 227), by which marriage in that State is a civil contract, to which the consent of parties capable in law of contracting shall be essential; and also section 3 of the same act, making void a marriage where either of the parties to a marriage shall be incapable for want of age and understanding of consenting to a marriage, etc., or when the consent of either party shall have been obtained by force or fraud; also section 26 of the New York Crimes Act, making it criminal to take away any female under the age of fourteen years from her father, mother, guardian, or other person, without their consent, either for the

purpose of prostitution, concubinage or marriage. After the above examination the court allowed the witness to be sworn on the part of the State, and to this an exception was prayed, allowed and sealed.

There was no error in the admission of this witness to testify. If she had, in her examination, admitted that she was the wife of the defendant, and that his allegations were true, a different question might have arisen under the statutes of the State of New York, where it was claimed the ceremony of marriage took place; but she denied them, and whether they were married or not was a disputed question in the cause. The court did right, at that stage of the trial, in accepting her statements on the voir dire for the purpose of allowing her to be sworn in behalf of the State against the defendant. It would be a petitio principii to assume, on a bare allegation, that she was the wife of the defendant, and therefore disqualified to be a witness against him, when one of the questions at issue was whether there was ever a valid marriage between them. He was undoubtedly a competent witness, by statute, to prove his defense, and there was therefore the greater reason why the State should not be deprived of her testimony. The contrary rule would exclude the most important testimony on the part of the State, and leave the defendant to prove his own case without possibility of contradiction, when they only were present, and artifice, constraint or force was used to extort apparent consent to marriage from a mere child by the overpowering will of a man so much older than she. He was forty-seven years old.

It is only where there has been a valid marriage that the parties are excluded from giving evidence for or against each other by the common law. Ros. Crim. Ev. 124; 1 Greenl. Ev., § 339; Whart. Crim. Ev. 390. It has therefore been held in indictments for bigamy, after proof of the first marriage, that the second woman married is a competent witness against her husband, for the second marriage is void and she is no wife. To test this competency the woman may be examined ou the voir dire as to this void marriage. Whart. Crim. Ev., §§ 395-397; 1 East P. C. 469; Seeley v. Engell, 13 N. Y. 542.

Courts have even gone further and held that on the trial of an indictment for the forcible abduction and marriage of a woman, under the statute prohibiting such marriage, she may be a witness for the crown, and that this is not a case within the general law excluding the testimony of a wife against her husband, for she is not legally his wife, a contract of marriage, like any other contract, obtained by force, having no obligation in law. Brown's case, Vent. 243; Fulwood's case, Cro. Car. 483; Rex v. Wakefield, 2 Lewin C. C. 279; 1 Hale P. C. 301; 2 Hawk. P. C., ch. 46, § 78; 2 Russ. Cr. 984.

Our statute enacts that every such marriage, as therein described, of any woman child within the age of fifteen years shall be void if the man contract matrimony with her without the consent of her father, mother, or guardian. In any view that may be taken of the alleged contract of marriage and the acts attending and following it, it is evident that there are some facts to which she must necessarily testify to prevent this statute, intended for the protection of parents and their young female children, from becoming useless. The court were right in admitting the girl's testimony, and leaving its credibility to the jury.

The second point of exception that was argued by counsel was that the court charged in effect, among other things, that if the jury found that the defendant brought the girl to Jersey City, and there de

tained her either by force or by persuasion, it was such an unlawful conveying and taking away within this State as is contemplated by the statute. This instruction was correct. A girl, within the protection of the statute, is in the possession, custody or governauce of her parent or guardian though she be not in the same house with them. If not in their actual possession when in the streets, in school or in some place of public resort, or visiting in the house of friends, she is so constructively. She is still in their custody for care, keeping and security, and under their governance, for they may control her will by their command. If she go upon a journey, they may follow her and direct her return to them. The mere fact that she entered another State does not alter her relations or obligations with her parent or guardian. Whenever the defendant, with the intent set out in the statute, interposed his will or persuasion between her and her guardian's control, so as to overcome her purpose and intention to return to her home, the abduction is accomplished. Nor can her willingness to come to this State with him take away his offense, for by our statute he can give no consent, and whenever she intends to return to her guardian, be may not disuade or oppose her. In this sense I understand the words used by the court in Reginu v. Mycock, 12 Cox C. C. 28, where it is said that a girl who is away from her home is still in the custody or possession of her father if she has the intention of returning to him. Baron Bramwell, in Regina v. Olifier, 10 Cox C. C. 402, says: "If finding she has left her home, he (the defendant) avails himself of that to induce her to continue away from her father's custody, in my judgment he is guilty if his persuasion operated on her mind so as to induce her to leave." Nothing can be plaiuer in this case than that his persuasion induced her to leave her home in Astoria and come with him to Jersey City, and when there, after, as she testifies, he had read to her the account in the papers of her elopement with him, she wished to return to her home, he sought by persuasion to keep her, and opposed her expressed wishes to go back. The mere fact of her leaving her guardian's home and coming to this State with the defendant might not complete the crime with which he was charged, but when the intent was here manifested to seduce or contract matrimony with her by proclaiming her as his wife in the presence of his friends, and keeping her a day and night in a sleeping-room at a hotel, and opposing her wish to return home, he became amenable to the punishment affixed by our law to this statutory crime. These facts which appear in the case, if found by the jury, would constitute the crime of abduction within this State, and there was no error in the direction of the court.

The judgment is affirmed.

CONTRACT-RIGHT OF ONE NOT PARTY TO.

NEW JERSEY SUPREME COURT. FEBRUARY TERM, 1884.

MARVIN SAFE Co. v. WARD.* The general rule is that one who is not a party to a contract cannot sue in respect of a breach of duty arising out of the contract. There is a class of cases in which a person performing services or doing work under a contract may be held in damages for injuries to third persons, occasioned by negligence or misconduct in the execution of the contract; but these are cases where the duty or liability arises independent of the contract, and in such cases the plaintiff must count upon a wrongful act or negligence.

*S. C., 46 N. J. Law, 19.

ON demurrer to plea. The opinion states the case.

T. N. McCarter, for plaintiff.
John Linn, for defendants.

DEPUE, J. The principal defendants, the boards of chosen freeholders of the counties of Essex and Hudson, became entitled to the property and franchises of "The Proprietors of the Bridges over the Rivers Passaic and Hackensack," under proceedings taken under an act of the Legislature passed March 14, 1871. Pamph. L., p. 500. The legislation in relation to those bridges prior to the act of 1871, is stated in Ripley v. Chosen Freeholders, 11 Vroom, 45. The bridge over the Passaic having become unsafe and unfit for use, the boards of chosen freeholders of the two counties, on the 21st of August, 1881, contracted with Ward, the other defendant, for the erection of a new bridge. This contract is under seal, and in two parts-each board having made a separate contract for the same work, identical in terms, and each covenanting to pay a sum which is one-half of the contract price. Each contract provides for a temporary roadway or bridge, to accommodate the travel whilst the permanent bridge was being constructed.

Ward entered upon the performance of the work, and constructed a temporary bridge. This temporary bridge, on the 15th of November, 1881, gave way whilst a team of the plaintiff was being driven over it, whereby the plaintiff's team and truck and its load were precipitated into the river. For the damages sustained the plaintiff's sued the boards of freeholders of the two counties, and Ward, the contractor, in one suit in the form of an action on the case. The case is before the court at this time on a demurrer to one of the pleas filed by Ward.

The contracts between Ward and his co-defendants stipulate that the work should be commenced on or before the 15th of September, 1881, and that the permanent bridge should be completed and ready for travel within twenty-nine working days from that date, with an agreement that $50 should be deducted from the contract price for each day the work should be delayed beyond the specified time; and there are allegations in the declaration of negligence in the failure to complete the bridge within the time fixed by the contract. The stipulation on this subject must be laid out of the case in every phase of this litigation; for the duty to provide bridges suitable and proper for travel is a public duty, and the general rule is that, independent of a statute, no suit will lie against the public authorities for the recovery of damages occasioned by the mere non-performance of such a dutythe remedy being by indictment or mandamus. Reock v. Mayor, etc., of Newark, 4 Vroom, 129; Pray v. Jersey City, 3 id. 394; Stew. Dig., tit. "Bridges," p. 112, § 14. The statute (Rev., p. 1017, § 121) which was before the court in Livermore v. Freeholders, 5 Dutcher, 245; S. C., 2 Vroom, 507, does not apply to the mere omission or delay in the completion of the work. It relates to injuries sustained by travellers, arising from the insufficiency or want of repair of a bridge in actual use, and leaves intact, in other respects, the general doctrine of the law that a suit cannot be maintained for the omission by public authorities to perform a public duty. Nor will the act of 1860 (Rev., p. 86, § 9), which was before the court in Ripley v. Freeholders, aid the plaintiff in this respect. The engagement of Ward to complete the work within a designated time was wholly a matter of contract between him and the boards of freeholders. If the freeholders saw fit, they might give the contractor further time, or indulge him in delays in the progress on the work, without subjecting him to liability for the inconvenience suffered by individuals, and

and they provided the means of securing the completion of the work within the stipulated time by a per diem deduction from the contract price.

The plaintiff's case, as it relates to each and all of the defendants, is restricted to the cause of action arising from the alleged unsafe condition of the temporary bridge.

The declaration commences with an allegation of the duty of the board of freeholders of the two counties to keep and maintain the bridge and draw in good repair, so that it would at all times be safe and in good condition for the passage of horses and vehicles, with their loads, over and across said bridge.

The allegatious on this head, so far as they relate to Ward, are that by his contracts with his co-defendants, he agreed that he would, on or before the 15th day of September, 1881, erect a good, substantial temporary roadway over said river and the approaches to the same, according to the specifications to the said contract annexed-such temporary roadway to remain until the completion of the bridge, and that he, the said Ward, should be liable for all damages sustained by reason of any defective or improper construction of said work. It is also averred that by the specifications annexed to the contracts and referred to therein and made part thereof, it was provided that the said contractor should execute the whole work provided for, and that the travel should be accommodated by means of a temporary roadway at least twenty feet wide, and a draw forty feet opening, that could be easily worked by one man, and that if more than one man was required, said Ward, was to furnish another.

The declaration then avers that by reason of the premises it became and was the duty of all the defendants to construct and cause to be constructed the said temporary roadway and draw in a good and sufficient manner, so as to make it sufficiently strong and safe for the passage of horses, wagons, and their loads, over and across the same.

The breach assigned is, that the defendants did not construct or cause to be constructed across said river the temporary roadway and draw in a good and suffi cient manner, etc., but did construct said temporary roadway and draw in such a weak, unsafe, improper and insecure manner as to render the same wholly unfit for the accommodation of the public travel.

To this declaration Ward filed several pleas, in one of which he pleaded that he constructed the said temporary roadway and draw in the manner and according to the plans and specifications mentioned and referred to in his said contracts, and according to the directions of the said boards of freeholders, and that he did not omit any thing required of him by the terms of the said contracts; so that if the said temporary roadway and draw were not sufficient for the purpose intended, and for the accommodation of the public travel, it was not his neglect or default.

To the latter plea this demurrer was filed.

The declaration sets out in detail the terms of the contract between Ward and his co-defendants. His undertakings with them under his contracts are minutely and with particularity spread upon the face of the declaration in the form of averments, which make his contractual duties the gravamen of the plaintiff's cause of action against him. His undertakings with his co-defendants are prominently made a premise from which is deduced the duty on his part on the non-performance of which the plaintiffs place their right to recover of him, in common with the other defendants, damages for the injury sustained, and his covenant to make good to his co-defendants damages sustained by reason of defective or improper construction of the work appears among the averments which lead to the duty counted upon. The allegation of a duty will not sustain or aid a pleading. It is an

allegation of a mere matter of law, and is not traversable; the sufficiency of the pleading must be determined upon the facts from which the legal duty is deduced. Seymour v. Maddox, 16 Q. B. 326. It is plain upon the face of the declaration that the obligations of this defendant to his co-defendants, arising from the terms of his contract with them, are made the foundation of the plaintiff's cause of action against him.

The general rule of law is, that one who is not a party to a contract, cannot sue in respect of a breach of duty arising out of the contract. Alton v. Midland R. Co, 19 C. B. (N. S.) 213. The leading case on this subject is Langridge v. Levy, 2 M. & W. 519; S. C., 4 id. 337. There a stranger to the contract was allowed to sue, but the decision was expressly placed upon the ground of fraud. This case was succeeded in point of time by Winterbottom v. Wright, 10 M. & W. 109. In that case A. contracted with the postmaster-general to provide a mail-coach to convey the mail-bags along a certain line; and B. contracted to horse the coach along the same line. B. hired C. to drive the coach. It was held that C. could not maintain an action against A. for an injury sustained by him while driving the coach, by its breaking down from a defect in its construction. The ground of decision was that the defendant's duty with respect to the sufficiency of the coach arose from his contract; and there being no privity of contract between him and the plaintiff, he he was under no obligation to the plaintiff on which the latter could sue. Winterbottom v. Wright has been followed with constant approval in a series of decisions in the English courts. Longmeid v. Holliday, 6 Exch. 761; Blakemore v. B. & E. R. Co., 8 E. & B. 1035, 1049; Reedie v. Railroad Company,4 Exch. 244; Allen v. Midland R. Co., supra; Collis v. Selden, L. R., 3 C. P. 495; Whart. Neg., §§ 430, 440. Its standing as an authority was not impaired by the decision of the Court of Appeals in Heaven v. Pender, 9 Q. B. Div. 503. This court and the Court of Errors, substantially adopted the doctrine of Winterbottom v. Wright, by holding that no duty to a third person could arise out of of a contract to which he was a stranger. Cuff v. N. & N. Y. R. Co., 6 Vroom, 17, 574.

The reason on which this doctrine rests is obvious. The object of the parties in inserting in their contract specific undertakings with respect to the work to be doue is to create obligations and duties inter sese. These engagements and undertakings must necessarily be subject to modifications and waiver by the contracting parties. If third persons can acquire a right in the contract in the nature of a duty to have it performed as contracted for, the parties will be deprived of control over their own contract-the employer will have taken from him the power to direct how the work shall be done, and the employee may find himself under responsibilities to third parties which do not exist between him and his employer. The inconvenience which would arise from allowing a third persou to have such an interest in a contract to which he was not a party is referred to by Lord Abinger in Winterbottom v. Wright. He said: "The plaintiff in this case could not have brought an action on the contract; if he could have done so, what would have been his situation supposing the postmaster-general had released the defendant? that would at all events have defeated his claim altogether. By permitting this action (which was an action on the case for negligence), we should be working this injustice, that after the defendant had done very thing to the satisfaction of his employer, and after all matters between them had been adjusted, and all accounts settled on the footing of their contract, we should subject them to be ripped open by this action of tort being brought against him."

No injustice can arise from the application of the principle adjudged in Winterbottom v. Wright; for if the work contracted for be such as that a duty exists toward third persons with respect to it, the party who contracts to have the work done will be liable for damages arising from a breach of the duty, although the injury arose from the fault of the person with whom he contracted. Hole v. S. & S. R. Co., 6 H. & N. 488. And he will have remedy over against the wrong-doer, either under his express contract to pay damages, or under a contract to that effect which the law will imply. Inhabitants of Woburn v. Henshaw, 101 Mass. 193; Chicago v. Robbins, 2 Black, 418; S. C., 4 Wall. 657; City of Brooklyn v. Brooklyn City R. Co., 47 N. Y. 475, 481.

There is a class of cases in which a person performing service or doing work under a contract may be held in damages for injuries to third persons, occassioned by negligence or misconduct connected with the execution of the contract; but these are cases where the duty or liability arises independent of the contract. Thus a servant carried as a passenger under a contract to carry, made with his master who purchased the ticket, may sue the carrier for personal injuries, or for the loss of his luggage through the negligence of the carrier. Here the carrier's liability does not depend upon the contract; the fact that the servant is a passenger casts a duty on the carrier to carry him and his luggage safely. He may sue in case for a breach of that duty, but he could not sue upon the contract. Marshall v. York R. Co., 11 C. B. 655; Austin v. G. I. P. R. Co., L. R., 3 Exch. 9; Whart. Neg., § 439; Dicey Parties 18. Dalyell v. Tyrer, E., B. & E. 899, which is sometimes cited as being in conflict with Winterbottom v. Wright, belongs to the class of cases just mentioned. So also to quote the language of Parke, B., "if a mason contracts to erect a bridge or other work in a public road, which he constructs, but not according to contract, and the defects of which are a nuisance to the highway, he may be responsible for it to a third person who is injured by the defective construction, and he cannot be saved from the consequences of his illegal act by showing that he was also guilty of a breach of contract and responsible for it." Longmeid v. Holliday, 6 Exch. 767. In cases of this description the wrong done and the liability for it are independent of the contract, and that liability is not taken away by the mere fact of the existence of a contract between the wrong-doer and some third persou. But it is unnecessary to pursue this subject further, or at this time to examine into the bounds or applicability of this doctrine to the situation of these parties. That question is not now before the court. The plaintiff's declaration sets out the terms of the contract between the contractor and his co-defendants and relies upon it, and the plea demurred to is substantially an averment of performance of the contract as between the contracting parties.

Nor will the fact that the defendant's contract related to a structure for public use alter the position of this case. Two New York cases were cited on this head-Robinson v. Chamberlain,34 N. Y. 389, and Johnson v. Belden, 47 id. 130. In those cases the court held that individuals who in pursuance of a statute contracted with the State to keep the canals in repair were liable in damages for injuries to a canal boat caused by the want of repair of a lock. The liability was put upon the ground that the contractors were public officers, and that the contract to repair created a duty analogous to that which might arise from an obligation to repair by prescription ratione tenure, or by act of Parliament. The reasoning of these cases does not apply to the case in hand. The statute on this subject is explicit. It lays the duty of making and repairing bridges upon the boards of chosen free

holders, and imposes upon them liability for the insufficiency or want of repair. The power to plan the structure of a bridge, to contract for building it, and specify the materials and workmanship is implied. Such a contract creates the ordinary relation of employer and employee. It does not put off from the board of chosen freeholders the duty and responsibility which the statute fixes upon them; nor does it create any duty or liability on the part of the other contracting party, except such as arises inter sese from the terms of the contract.

The defendant, by his plea, exonerates himself from all blame. He repels the imputation of personal negligence on his part, and avers that if the temporary roadway and draw were not adequate for the purpose intended, the inadequacy was not due to any neglect or fault on his part. The criticism on this plea is that it does not aver that the temporary bridge was a good and substantial road way. If this criticism be well founded, then the contractor for a railroad bridge will be responsible to passengers injured, for defects in the bridge due to imperfections in the architect's plans; and the contractor for the Brooklyn bridge would be under a responsibility for the insecurity of the structure occasioned by defects in the plaus of the engineer. The answer to this criticism is that the defendant was under no obligation to make the temporary roadway a good and substantial structure, except under the terms of his contract, and that if he was in no personal default, he cannot be held for the injuries sustained.

In Hyams v. Webster, L. R., 2 Q. B. 264, the defendant, under a contract with the metropolitan board, opened a public highway for the purpose of constructing a sewer. Three or four months after the work was finished, damage ensued from plaintiff's horse stumb. ling in a hole in the road. The filling in of the road had been properly done by the defendant, and the hole was owing to the natural subsidence of the materials, which sometimes takes place sooner or later after such an excavation. The jury negatived negligence in the filling in. The court held that the obligation of the defendant as between him and the public ceased as soon as he had properly reinstated the road. and that it was the duty of the authorities to look after the subsequent repairs, whether rendered necessary by subsidence or ordinary wear and tear; and that there being no personal negligence in the defendant, he was not liable. This judgment was affirmed on appeal. L. R., 4 Q. B. 138.

The plea demurred to is a complete answer to the gravamen of the plaintiff's cause of action as set out in his declaration; and we also think that the declaration being founded on the contracts between the defendants, is not in proper form as against the defendant. If he is liable for the injury complained of, it must be upon the ground of some wrongful act or negligence-a tort as distinguished from a mere breach of contract; and the declaration does not contain the necessary averments to charge a tortious act. Precedents appropriate to such a case will be found in Hyams v. Webster, supra, and in Gray v. Pullen, 5 B. & S. 970.

On either ground there must be judgment against the plaintiffs on this demurrer.

SALE - DEFECTIVE BOILER - WARRANTY -DECEIT.

PENNSYLVANIA SUPREME COURT, MARCH 27, 1884.

ERIE CITY IRON WORKS V. BARBER.

A corporation manufacturing and selling an article to be applied to a particular purpose, of which its officers and

agents are informed, is not liable in an action of deceit to the purchaser in a case where there have been untrue representations made by its agent as to the quality of the article and its fitness for the particular purpose to which it is to be applied, unless such representation are made by said agent knowing them to be false. Where there is no such knowledge there may be an action on an implied warranty, but there can be no action of deceit.

ERRO

'RROR to the Common Pleas No. 1 of Philadelphia County.

Case by P. M. Barber & Co. against the Erie City Iron Works to recover damages for the destruction of the plaintiffs' mill by the explosion of a boiler, which was alleged to have been defectively constructed by defendants. Plea, not guilty.

Richard C. McMurtrie and Nathan Sharpless, for plaintiffs in error.

Richard P. White and George H. Earle, Jr., for defendant in error.

TRUNKEY, J. In case of finding for the plaintiffs the jury were instructed to assess the damages in two parts: (1) All damages exclusive of the rental value of the mill during the necessary time for making repairs, and (2) the rental value for such time; the court reserving the point whether the plaintiffs were entitled to recover rental value for the time required to repair the injury. Had the mill been entirely destroyed its value would have been compensation. If worth repairing, how can compensation be made without allowance for the time it was necessarily idle? In determining the difference between the market value of the mill just before and just after the injury, it would be as proper to consider the time required to make the repairs as the other things in the expense of making them. The witness who testified respecting the rent may not have been well qualified to estimate its value, but he had some knowledge of the subject, and the testimony was suffi cient for submission. The first and second assignments of error, treated as good in form under the rules, cannot be sustained.

Nor are the last six assignments well taken. The judgment is on the verdict, not for the defendant, notwithstanding the verdict. Hence if the jury were rightly instructed relative to the damages, it is immaterial whether the points of law were properly served. None of the instructions respecting damages is assigned as erroneous. It is clear that the jury found damages, exclusive of rent, $7,038, and for rent, $1,000; in all, $8,038. If not strictly correct in form, the act of March 14, 1872 (P. L. 25), provides that a verdict shall not be set aside for "defectiveness or indefiniteness in form.' ." Following the instruction, the jury found one item of the damages separately, and the result is the same as if they had merely found the total sum for which judgment was rendered. The court charged that as only $500 was paid by the plaintiffs on the purchase-money of the boiler, damage for the boiler must be limited to that sum; and reserved the point of law whether the sum paid on the boiler should be included in the damages. There was no direction to find separately as to this, and the instruction was right. Had the court struck off $500 from the verdict, the plaintiff could raise the question whether the point was well reserved.

The president of the company testified that Shearman was their sales agent under a verbal arrangement except what might have been embraced in correspondence; that with their knowledge he held himself out as their agent; that he received the goods at a fixed price, and made what he could above that for his remuneration, and that the goods belonged to the company until sold. This is the pith of the abundant testimony of Shearman's agency; and if there was some