sheds, and barn, with the contents thereof, consisting of household furniture, wearing apparel, grain and fodder, hay and fuel," evidence showing the destruction of personal property is admissible if it comes under any class of property therein named.

2. Where plaintiff could not, with reasonable diligence, ascertain which of defendant's engines passed the property destroyed immediately before the discovery of the fire, evidence as to any of defendant's engines in use in the vicinity within a reasonable time before the fire is admissible.

3. Plaintiff's barn, where fire was first discovered, was 125 feet from the track, on a foundation 25 feet high. To rebut the presumption, created by the distance, that the fire was not caused by defendant's engine, evidence that sparks therefrom had previously burned holes in an awning in line with plaintiff's building. but at a greater distance from the track, was properly admitted.

Exceptions from Rutland county court; Ross, Chief Judge.

Action by Robert Hoskison against the Central Verinont Railroad Company to recover damages for buildings destroyed by fire from engines of the defendant. Judgment for plaintiff. Defendant excepts. Affirmed.

The plaintiff claimed to recover for the destruction of his house, barns, and their contents. There was no direct evidence as to how the fire originated, but the testimony of the plaintiff tended to show that, soon after the passage of one of the defendant's freight trains, fire was discovered in the gable end of the barn nearest the tracks, from which it spread, and consumed the other buildings. The barn in question was 125 feet distant from the tracks, and its foundations were 25 feet above the level of the track. The description of the property in the declaration was as follows: "A certain dwelling house, sheds, and barns, together with the contents thereof, consisting of household furniture, family wearing apparel, provisions, fuel, farming utensils, hay, grain, and fodder,-all of the value of $5,000." Upon the trial the plaintiff produced a schedule containing an itemized list of the various articles of property alleged to have been destroyed, with the value of each. The defendant insisted that under the general description in the declaration the plaintiff was not entitled to recover for any of the personal property, and objected to the admission of any and all evidence relating to the loss or value of the articles of personal property mentioned in the schedule, or of any personal property alleged to have destroyed. The court overruled the objection, and admitted evi dence of the loss of the various articles of personal property mentioned in the schedule, with their respective values, to which the defendant excepted. The plaintiff testified in chief that he had "ost, by the fire in question, the articles of property mentioned in said schedule, and that the values carried out in said schedule were the correct values. There was no other testimony as to the loss or value of the personal property, except that of the plaintiff. The schedule was admitted,

not as independent evidence, but in connection with the testimony of the plaintiff. Up-on cross-examination the plaintiff testified that said schedule was made soon after thefire, by himself and his wife; that he himself had no personal knowledge in respect of many items therein contained, such as family wearing apparel, household supplies, and minor articles of household furnishings, but that he and his wife had intended to set down correctly the articles lost, and the values of such articles. Upon re-examination he testified that he had a general knowledge of the articles of personal property sodestroyed, and the value of the same. The defendant objected that this schedule ought not to go to the jury. This objection the court overruled, and permitted the schedule to go to the jury, to which the defendant excepted. At the time of admitting it the court said that it might be admitted as a bill of particulars, but made no further reference to it during the trial, except in the following extracts from the charge: "You will determine what the fair cash value of the buildings was, and the testimony, then, is that there was the household furniture and the clothing of the family and the family supplies. I think all the items that are included in the specification came fairly within the description, and it is for you to say whether the plaintiff has established that he lost all this property, and what its fair value is." "It is for the jury to say, when they weigh all the evidence, whether the opinion of this plaintiff is fair as any as to the value of this property. He says some of it was made up with the assistance of his wife; that he did not have much knowledge of it himself; and he has. testified to you how he got at the articles destroyed and the value of them, and you have heard his testimony. You will take that, and you will look over the list of the property itself. And it was property mostly that had been used, as I understood, in the family, -what we should call secondhand property; and you will see what he has established, by a fair balance of testimony, was the value of his property, and for such sum aswill cover the fair value of the property described and the buildings burned; and thisproperty that is described and specified, sofar as he has shown you and satisfied you it was consumed by this fire, he is entitled to recover what will fairly compensate him;: what it is fairly worth: its fair cash value." As tending to show that cinders might be carried this distance, the plaintiff, in open-ing his case, introduced evidence that beyond the barn, and some distance from it, was an awning, and that previous to thetime of the fire in question cinders had fallen upon and burnt this awning, which must have come from the locomotives of the defendant, over the barn and house. Therewas no evidence tending to show that thecinders which burnt the awning were thrown by the same engines which were claimed to

have set the fire in question, nor as to the conditions under which they were thrown to that distance, except it appeared that these same engines which were running over the road at the time of the fire were being used when the fires were set to the awning. To the admission of this testimony the defendant objected and excepted.

L. M. Read and Geo. E. Lawrence, for plaintiff. C. A. Prouty and C. W. Witters, for defendant.

MUNSON, J. In actions to recover damages for the injury or destruction of personal property, no greater certainty in description is required than the nature of the articles will conveniently admit of. Gould, Pl. c. 4, § 33. But it is generally necessary to state the quantity or number of the goods in respect of which the loss is alleged to have been sustained. Id. § 35; 1 Chit. Pl. 377. It is said, however, that even this may be dispensed with when the subject-matter of the suit embraces a multiplicity of particulars. Gould, Pl. c. 4, § 36. In the section last cited there is the following special application of this rule: "In an action for the loss of goods by the burning of the of the plaintiff's house, the goods may be described by the simple denomination of 'goods,' with out any designation of their quantity or kind; and it seems that in such a case the words 'divers goods' would be sufficient." A reference to some of the cases from which these rules have been deduced will aid us in determining the. sufficiency of the description now in question. It was held in Emery's Case, cited in 1 Vent. 114, that in declaring for the conversion of books it was sufficient to describe the property as "a library of books;" and the adequacy of a description of this character in the case of such property has since been uniformly recognized. Gould, Pl. c. 4, § 36; 1 Chit. Pl. 378; Steph. Pl. 349. Similar descriptions of other personal chattels have been held sufficient in actions of tort for the recovery of damages, both before and after verdict. In trover for a parcel of diamonds, there having been judgment for the plaintiff, it was insisted in error that the case should be distinguished from one where the allegation covered the wrappings and cords of the parcel, and that, inasmuch as each diamond was distinct, the suit should have been for so many diamonds; but the court thought otherwise, and affirmed the judgment. White v. Graham, 2 Strange, 827. In trover for "old iron," after verdict for the plaintiff, it was urged in arrest of judgment that the description was too uncertain; but the court could think of no way in which it could be made more certain, unless it were by stating some number of pounds, and held this unnecessary, and so discharged the rule. Talbott v. Spear, Willes, 70. In trespass for breaking and entering the plaintiff's house, and taking and carrying away

"divers quantities of chinaware, earthenware, and linen," without setting forth the particulars, the declaration was held sufficient on motion in arrest after default suffered. Hobbs v. Greene, Barnes, Notes Cas. 276. In a case for the negligent management of fire, by means of which the plaintiff's barn was burnt, and "divers goods" lost, it was held, on motion in arrest, that "divers goods" was sufficient. Prior v. Tufts, 1 Neb.

825.

The declaration in this case alleges the destruction by fire of the plaintiff's "dwelling house, sheds, and barns, together with the contents thereof, consisting of household furniture, family wearing apparel, provisions, fuel, farming utensils, hay, grain, and fodder, all of the value of five thousand dollars." The defendant claimed on trial that under this general description the plaintiff was not entitled to recover for any personal property, and objected to the evidence offered to establish the loss and value of the articles claimed to have been destroyed, and insisted that the plaintiff's right to recover therefor should not be submitted to the jury. It is now urged that, while the plaintiff might be excused from setting forth every article of household furniture or wearing apparel, he could easily have stated the quantity of the hay, grain, and fodder alleged to have been destroyed, and therefore was required to do so. We shall dispose of the question thus presented without considering whether the defect claimed is one that can be taken advantage of by an objection to the evidence. It is certain that an objection to the evidence cannot entitle the defendant to have the declaration tested by a more stringent rule than would be applied upon a motion in arrest of judgment. The defendant cannot be permitted to go to trial without having demurred to the declaration, and defeat the result of the trial for any defect of the declaration not sufficient to sustain a motion in arrest. So the question for decision is whether the description of any class of property is so defective that no proof of the destruction of any property of that class should have been received or submitted to the jury; and the matter is to be determined by the same rules that would have governed if the defect had been called in question by a motion in arrest. This being so, all the cases above cited are of authority upon the matter in issue; and the extract from Gould, even if questioned in its application to demurrers, must be accepted as applicable here. The allegations of this declaration show a cause of action without the aid of any inference or intendment. They charge a wrongful destruction by the defendant of the plaintiff's personal property of the different kinds stated. The destruction of a single article, or of the least appreciable amount, of any of the kinds stated, gives a right of action. The only defects that can be claimed are the failure

stances it was proper to permit the plaintiff to introduce evidence, legitimate in its character, as to any of the defendant's engines which had been in use upon the line within a reasonable time before this occurrence. It has frequently been held in cases of this kind, in view of the plaintiff's difficulty in identi

It has often been remarked that the rule requiring an allegation of number or quantity in actions of tort is of little practical utility. The plaintiff is not obliged to prove the number or quantity alleged, and so alleges some number or quantity as a compliance with the rule, without any attempt to qualify himself to make an allegation of substantial accuracy. As the only effect of the allegation is to prevent his recovering more than is alleged, his purpose is ordinarily to allege something altogether beyond reach of his proof; and the result is an allegation which is of no benefit to the defendant. Whatever effect might be given to these considerations in determining a question of sufficiency on demurrer, they certainly justify an adherence to the authorities which hold that omissions of this character are cured by verdict. We are not disposed to hold defective, under the rules applicable to motions in arrest, a declaration which, considered with reference to its sufficiency to support a judgment, is clearly within the requirements of a text writer of the highest credit, and fairly sustained by ancient precedents. There is certainly as little necessity for unusual strictness in this particular in cases like the present as in any actions of tort. It is evident that when a house or barn is destroyed with its contents, and recovery is sought for both buildings and contents, a designation of the personal property as "the contents of the building" carries an element of description which to some extent supplies the want of those statements of number or quantity which are ordinarily given. We hold the allegations of this declaration sufficient to sustain a recovery for whatever is clearly within any class of property therein named.

The plaintiff did not know, and was not permitted to ascertain from the records of the station agent, which of the defendant's engines passed his house shortly before the fire was discovered. It was therefore impossible for the plaintiff to furnish any proof as to the particular engine which he claimed had caused the loss. Under these circum

ability of a similarity in the defendant's equipment, that the plaintiff may put in his evidence upon the theory that all the engines of the defendant in use upon the same line are substantially alike. Sheldon v. Railroad Co., 14 N. Y. 218.

The plaintiff's buildings were 125 feet from the track, and there was no direct evidence of the communication of sparks. It was necessary for the plaintiff to overcome any presumption which might arise from the fact of distance against the probability of his claim. As tending to show that cinders from a passing engine might have been carried that distance on the occasion in question, the plaintiff was permitted to prove that, previous to this, cinders which must have come from a locomotive had fallen upon and burned through an awning in line with the plaintiff's buildings, and still further from the track. The evidence was admissible for this purpose. It was like evidence of an experiment made use of to show that something which could not be established by direct evidence might have occurred. See Kent v. Lincoln, 32 Vt. 591; Walker v. Westfield, 39 Vt. 246; State v. Flint, 60 Vt. 304, 14 Atl. 178. It is said in the case last cited that the fact that the conditions are not entirely similar does not make the evidence inadmissible, but merely bears upon its weight. The fact that this test was available without having been made for the purpose of furnishing evidence certainly cannot affect its admissibility. As the exceptions do not show how long this was before the occurrence complained of, it must be presumed to have been within such recent period as would have made the evidence admissible in point of time. Whether evidence of a single instance of this character would have been admissible for the purpose of showing habitual negligence on the part of the defendant it is not necessary to consider.

The schedule of goods destroyed was not admitted as evidence, but as a bill of particulars. In the charge it was referred to as a "specification” and as a "list of the property" for which the plaintiff claimed to recover. The defendant excepted to the action of the court in permitting this paper to go the jury. The paper came into the case without objection, in connection with the plaintiff's direct examination as to the loss and value of the property. It appeared on his cross-examination that the list was prepared with the assistance of his wife, and from further examination that his knowledge of some of the property specified was only general. The defendant insisted that, in view of the in

formation obtained after the paper was received, it ought not to go to the jury, but did not ask any instructions limiting their consideration of the plaintiff's testimony concerning the property, nor except to any failure of the court in that respect. We think that, so long as it was not questioned but that there was evidence to go to the jury as to all the property embraced in the list, it was not error to permit the paper to go into their hands in furtherance of the purpose for which it was received. The jury could not safely pass upon the evidence submitted to them without the aid of such a paper. The nature of the paper and the purpose for which it was received having been clearly indicated at the time of its admission, it was not error to place it before the jury with such limited references to its character as the charge contained. If the defendant desired that the jury be more particularly cautioned as to the use which they were entitled to make of it, the attention of the court should have been called to the matter. The exceptions present no question as to whether the knowledge of the plaintiff was such that his testimony was proper to be submitted to the jury as evidence tending to establish the amount and value of the property lost. Judgment affirmed.

TAFT, J., concurs in the result.

WOODBURY GRANITE CO. v. MULLIKEN

et al.

(Supreme Court of Vermont. Washington. July 18, 1894.)

SALE TO CORPORATION

--

PERSONAL LIABILITY OF DIRECTORS-CONSTRUCTION OF CONTRACT.

1. Where, after a contract to sell property to the officers of a corporation personally, which was to be delivered to the corporation, the seller contracts to sell the same to the corporation, and on delivery takes its notes in payment, the officers are not personally liable for the price.

2. Where there is no ambiguity in the terms of a written instrument, the construction of it is for the court.

3. A statement on the letter heads of a quarry company that "all correspondence with the company should be addressed to the clerk and treasurer" gives him apparent power to make contracts for the sale of stone.

4. A director who is acting as the agent of a corporation in a certain transaction is chargeable with knowledge that his associate directors had been acting as agents in the same transaction.

5. In an action against certain officers of a corporation to recover for goods delivered to a corporation, but claimed to have been sold to the officers personally, it appeared that, during the negotiations, defendants, on being told that on account of the credit of the corporation its note would not be taken in payment, stated that they would give their note for the price. The president of plaintiff corporation testified that he did not know at the time exactly what goods were wanted, though a price was placed on some of the goods. Later, one of the defendants told plaintiff to hurry along the goods, and a list of what was wanted was sent; and after fur

ther correspondence the prices were agreed upon, and a written contract with the corporation made. Held, that the evidence was insufficient to show a sale to the officers personally.

Exceptions from Washington county court; Thompson, Judge.

Assumpsit by the Woodbury Granite Com-pany against Mulliken and Gibson. There was a judgment for plaintiff, and defendants: except. Reversed.

The plaintiff sought to recover the purchase price of certain granite alleged to have been sold to the defendants personally, and delivered at their request to the RyegateGranite Works. The plaintiff was the owner of a granite quarry situated in Woodbury, and was engaged in the operation of this quarry in the year 1888. Its only stockhold-ers were Charles A. Watson, who was the president; one Voodry, who was vice president; and Alfred E. Watson, who was clerk and treasurer. Voodry lived in Woodbury, near the quarry. Charles A. Watson ived at Calais, some seven miles from the quarry; and Alfred E. Watson resided at Hartford. where the books and papers of the company were, for the most part, kept. The Ryegate Granite Works was a corporation doing business at Ryegate. One D. W. Learned was its president; the defendant Gibson, its treasurer; and the defendant Mulliken, one of its directors, at the time covered by the transactions in question. The Ryegate Granite Works had purchased previous to November, 1888, from time to time, small quantities of granite of the plaintiff, but never a very considerable amount. About that time the Rye gate Company received an order which required, to fill it, a very considerable quantity of stock; and, with a view to purchasing this stock from the Woodbury Granite Company, the defendant Gibson went to Woodbury some time in November. At that time he went to the plaintiff's quarry, and there saw Voodry. He looked over the quarry, told him, in a general way, what the order was, but did not have a detailed statement of it at that time. Still later, in November, hemade another visit to Hardwick, and had another interview with Voodry in referenceto this same matter. At this time he had a bill of the stock wanted, and showed it toVoodry. Voodry said that the order would be a good one for them, and that he thought they could fill it, but that he would not agreeto or name prices without further consultation with the Watsons; and it was then arranged that at some future date a meeting should take place between Mr. Voodry and one or both of the Watsons, representing the Woodbury Granite Company, and Mr. Gibson. At this interview, Voodry said to Gibson that he did not regard the Ryegate Granite Works as good for the pay, and that the Woodbury Company would not furnish the granite unless some suitable arrangement was made in this respect; that if a good note could be given, which they could use at

the bank, that might answer, but that the mote of the Ryegate Granite Works would not be accepted. In answer to this, Gibson had said that he should be willing to sign a note for the stock wanted, and thought that Mr. Learned and Mr. Mulliken would do the same. This interview was in the last days of November, and in pursuance of the understanding then had, some time from the 7th to the 10th of December, another interview was had at the quarry in Woodbury. Voodry and Charles A. Watson were both present at this interview, upon the part of the Woodbury Company, and the defendants, Gibson and Mulliken, with Learned, were also all there. The testimony of Charles A. Watson and Voodry as to what took place upon this occasion was substantially the same. Charles A. Watson testified that he did not think that he knew at that time exactly what stock was required, and that he did not see a bill of pieces until some two weeks afterwards, when it was given him by Voodry; but that he had, from conversation with Voodry, a general idea of what was wanted. He said nothing in his testimony as to the prices. He testified that he objected to furnishing this stock upon the credit of the Ryegate Granite Works, and that Gibson and Learned said they would give their individual note in payment, and that Mulliken said he would give a note which would be good at any bank. The testimony of Voodry as to what took place upon this occasion was as follows: "Q. Tell us all that was said there by Mr. Gibson and Mr. Mulliken and by you, if anything, in relation to this contract for this stone. A. They looked the stone over, and Mr. Learned did not say a great deal, any way; only said 'it was very nice-looking stone,'-nice patterns and nice stone. Mr. Mulliken thought it was nice stone, and a very fine chance to get out stone, -a very nice-arranged business to quarry stone. And they looked the business all over, and finally, when we got around to the business about our trade, they wanted to know about the prices of the stock; and I told them I could not give the prices of all the stone until I counseled with-had more talk withCharles and Alfred Watson about it. There was some large stone to quarry,-larger than we had ever handled. I did give them prices of smaller stone, and, when we got to the matter of pay, I told them I would not take the Ryegate Granite Works' note; and Mr. Learned and Mr. Mulliken and Mr. Gibson said they would back a note that we could deposit in the bank, and draw our money, and when the order was half filled our clerk was to go up there, and they were to give a note to cover the amount they had received, that we could deposit in the bank and draw our money on, and we left it in that way as to payment. Q. You say you told them you would not take the Ryegate Granite Works for paymaster? A. Yes, I told them so. What did they say in reply to that? A.

Q.

They did not make any great reply,-only said they would give their individual note; and the three men agreed to back it, too. Q. Any question there made by them about solvency or insolvency of the Ryegate Granite Works? A. Nothing. Q. Did you then note whether those men held any office in that company at Ryegate or not? A. I knew Mr. Gibson was the superintendent of that. I did not know what office the others held, and nothing about it. Q. Anything said about when you should ship this stone? A. They wanted we should start that at once; just as quick as we could." There was no testimony in the case, other or different from that of Charles Watson and Voodry, in reference to the sale to the defendant at this time, and the plaintiff did not claim that any contract of sale was made at any other time. Neither Charles A. Watson nor Voodry saw the defendant Mulliken after this date. Voodry testified that some days afterwards he saw the defendant Gibson, and that Gibson then told him to hurry along the stock.

On December 20, 1888, Charles A. Watson sent to Alfred E. Watson a list of the stock wanted, together with a letter of that date in reference to the furnishing of this stock. That portion of the letter material to this case was as follows:

"Woodbury, Vt., Dec. 20, 1888. Dear Brother: I came up here this afternoon. The Ryegate Granite Co. have sent over a bill or a list of stone they want. They don't want to pay only 50 cents up to 40 ft., and prices above 40 ft. they don't find any fault about. It is a good order, but I shouldn't think best to do any better than 50 cents up to 30 ft., and 65 cents above up to seventy feet. The spires we couldn't put any price on until we knew what we could get them drawn for. Gibson said he would give $74.00 apiece for them at the quarry. That is well enough. They want to know right off. So you write them what you will do right away. Do what you think best. When we find out what we can get the spires drawn for, we will let you know, and you can let them know. Do as you think best about getting the stone up to 30 ft. for 50 cents, or 50 cents up to 40 ft."

After receiving this letter, Alfred E. Watson, under date of December 24, 1888, wrote to the Ryegate Granite Works, and inclosed a proposition for contract for this same stock. This proposition was afterwards aecepted by the Ryegate Granite Works, and the material part of it was as follows:

"Please deliver to us, on board cars at Hardwick, Vt., the following bill of stock. [Here follows a list of the stock wanted.] All stone containing under 40 feet, 50 cts. per cubic foot. Pieces containing from 40 to 60 feet, 65 cts. per foot; from 60 to 70 feet, 70 cts. per foot. For pieces containing over 70 feet, 75 cts., except in case of spires, 2-7x2-7x24-5, which shall be $1.25 per cu. ft.; also, cap, 7-6x5-0x3-0, which shall be