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McCombs, ADMÄR., 0. THE N. C. RAILROAD COMPANY.
took to deliver the cotton to the Charlotte and South Carolina Railroad, for transportation beyond that point.
Pressed with this difficulty, the plaintiff's counsel, as we infer from his Honor's charge, then took the position that the defendant undertook, as warehouseman, to keep the cotton for the plaintift. His Honor ought to have instructed the jury that there was no evidence to support the allegation, that the defendant had undertaken, as a warehouseman, to keep the cotton for the plaintiff. There is no evidence that the defendant knew that the plaintiff had bought the cotton, or ever had any communication with him in respect to this cotton.
We must infer from his Honor's charge, that plaintiff's counsel then took the position that as the cotton, after being weighed, was lett on the floor of the defendant's depot house, it will be presumed that the defendant gratuitously undertook to keep it for the owner, whoever he might be, and as the plaintiff turns out to be the owner, he has the right to avail himself of this gratuitous undertaking.
Without conceding this presumption, but supposing it to be so for the sake of the argument, his Honor erred in charging the jury that “a gratuitous bailee is bound to take extraordinary care.” This is manifestly erroneous, as applicable to the case in hand. His Honor ivadvertently reversed the rule of law, and confounded the matter. When a bailment ic for the benefit of the bailee only, he is bound to take extraordinary care, and is liable for slight neglect. When a bailment is for the benefit of the bailor only, which is the supposed case we have under discussion, the bailee is only. liable for gross neglect, “ crassa negligentia," approaching very near to fraud.
It is not necessary to advert to the other points in the case. Either these four bales were sent on the Charlotte & South Carolina Railroad, and there is a mistake in the comparisou of the shipping receipts and the books of Farrow, or else the cotton was misappropriated by the agents of Farrow, or by the agents of the detendant, or it was stolen by some third person.
ALEXANDER V. ATLANTIC, TENN. & Onio R. R. Co.
Althongh this action was commenced in 1857, it is the plaintift's mistortune that he has not, as yet, been able to reach the merits of the case.
Venire de novo.
8. B. ALEXANDER vs. ATLANTIC, TENN. & OHIO RAILROAD
Where a Railroad Company issued bonds, payable at their office, io a par
ticular way, and at the maturity of the bonds there was no office of the Company at the place; Held, that a demand for payment elsewhere was
sufficient. A bond of a Railroad Company for the payment of money, executed in
1862, comes within the provision of the ordinance of the Convention of 1865, and is “ presumed to be solvable in money of the value of Con. federate currency, subject to evidence of a different intent by the par
ties." In the absence of all evidence to slow the consideration of such bonds,
or that ihe parties intended otherwise than is presumed by the ordinance, a different intent will not be implied from a provision in the charter, that the Company may make contracts for building the road, and may pay contractors in bonds at par value.
This was a civil action, tried before Henry, J., at a Special Term of MECKLENBURG Superior Court, held in January, 1872.
The plaintiff declared on three bonds of $500 each, issued by the Atlantic, Tennessee & Ohio Railroad Company, in April and May, 1862, and also for two hundred and three coupons of said bonds, of similar series. The payment of these bonds and coupons was guaranteed by the Charlotte & South Carolina Railroad Company.
ALEXANDER V. ATLANTIC, TENN, & Ouro R. R. Co.
The following is a copy of one of the bonds :
*STATE OF NORTH CAROLINA, ATLANTIC, TENNESSEE & Ohio RAILROAD COMPANY. On the 1st of November, 1869, the Atlantic, Tennessee & Ohio Railroad Company promises to pay to Charlotte & South Carolina Railroad Company, or boarer, at their office, in Charlotte or Statesville, five hundred dollars, with interest, &c., semi-annually, according to the tenor and upon the presentation of the coupons, &c., &c. This bond is issued in conformity to the Charter, and by the authority of the Stockholders, and may be converted into stock of said Company at par by the holder."
The coupon is in the following forn:
“The Treasurer of the Atlantic, Tennessee & Ohio Railroad Company, in North Carolina, promises to pay to bearer, on the 1st day of November, 1869, fitteen dollars for interest due on bond No. 169. (Signed.)
M. L. W.. Treasurer.” It was proved, that the iron of the Atlantic, Tennessee & Ohio Railroad Company had been taken up by the Contederate authorities in 1863, and that, after that, there was no office of tte Company in Charlotte or Statesville, until 1870.
This snit was begun in November, 1869. The President of the Company swore, that from 1864 until 1869 the books of the Company were kept at Columbia, and that, as President, he was the financial agent of the Company, and kept his office in Charlotte, N. C.; that the reconstruction of the road commenced in 1869, and that after that time the Treasurer's office was kept in Statesville, N. C.
Defendant's counsel asked the Court to charge the jury, that the plaintiff could not recover, for want of a demand according to the tenor of the bond and the endorsement thereon; that the bonds and coupons were subject to the scale of depreciation, established by law.
His Honor charged that, if the defendant had no office either
ALEXANDER 0. ATLANTIC, TENN. & OHIO R. R. Co.
in Statesville or Charlotte, at the time of the demand alleged in the complaint, which was made of the Company, but at no specified place, it was sufficient; And that the scale of depreciation established by the Legislature did not apply to the bonds or coupons.
Verdict for plaintiff. Motion for new trial. Motion overruled. Judgment and appeal.
Jones & Johnston, for plaintiff.
READE, J. The case presents two points :
1. Whether there was a sufficient demand, before action brought?
2. Whether the bond and conpons are subject to the legislative scale ?
1. The bonds on their face were to be presented at the office of the defendant in Charlotte or Statesville. They were not so presented, because, as was alleged, the defendant had no offices at those places at the time of their maturity, and so they were presented to the defendant elsewhere, and payment demanded.
His Honor instructed the jury, that, if the defendant had no offices at the places named, then the demand made at their office in Columbia, S. C., was sufficient. We think the instruction was right, even upon the supposition that a demand was necessary.
2. The ordinance of the Convention, October 1865, provides that all executory contracts, solvable in money, made between certain dates, including the date of these bonds, shall be deemed to have been made with the understanding that they were solvable in money of the value of Confederate currency, according to a scale which the Legislature should fix, subject to evidence of a different intent of the parties.
Here was a contract solvable in money, and deemed to be
ALEXANDER V. ATLANTIC, TENN & Ouro R. R. Co.
solvable in Confederate currency. Was there any evidence that the parties intended otherwise, so as to take this case out of the presinption made by the ordinance ? It is not pretended that there was any such intent expressed by the parties, but it is insisted that such intent is to be implied--that the bonds express upon their face that they are issued in “conformity to the charter," and that the charter forbids the bonds of the Company “to be used at a discount below their par value," and, therefore, it is to be implied, that when the Company issued these bonds it got par value for thein; and that when the Company comes to pay the bonds, it must pay par valne, i. e, the nominal amount. But this seems not to be true in fact. The charter (S. 41) provides that the Company may make contracts for building the road, and may pay the contractors in bonds at par value, i. e., may pay a hundred dollar debt with a hundred dollar bond; but then, the debt may bare been contracted with a view to the depreciation of the bond with which payment was to be made, so that a hundred dollar contract in name may have been only a fitty dollar, or a ten dollar contract, in value. And, in such a case, a hundred dollar bond issued at par in name, in payment of such contract, would really be issued for the value of fifty dollars or ten dollars. So that, in view of the history of the time when these bonds were issued, of which we take notice, it is rather to be implied, if indeed it be not to be taken as certain, that the bonds, although issued at par in name, were really issued at very great discount. Especially is this to be taken to be so, inasmuch as the plaintiff has not shown for what these bonds were issued, or what consideration was actnally paid for them.
It would have been competent for the plaintiff to show that these bonds were given in payment for labor, or for materials, and to show the value of the labor or materials. But he has shown nothing to relieve the case from the presumption that the bonds are solvable in money, of the value of Confederate currency at the time they were issued.