Putnam's Handy Law Book for the Layman. Bolles Albert Sidney

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СКАЧАТЬ parties, seller and buyer, in the same transaction, without the knowledge and consent of both. In many transactions he does thus represent both by their express or implied authority, and therefore binding both when signing for them.

      A real estate broker in the employ of his principal is bound to act for his principal alone, using his utmost good faith in his behalf. And a promise by one of the principals in an exchange of real estate, after the completion of the negotiations, to pay a commission to the other party's broker, to whom he owed nothing, is void for lack of a consideration.

      To gain his commission a broker must produce a person who was ready, able and willing both to accept and live up to the terms offered by the owner of the property. Nor can a property owner escape payment of a broker's commission by selling the land himself and at a price less than the limit put on the broker.

      The business of a pawnbroker is legally regulated by statute, and the states usually require him to get a license. As the business may be prohibited, a municipality or other power may regulate and control his business. The rate of interest that he may charge is fixed by statute. The pawnee may lose his right by exacting unlawful interest. Nor has the pawnee the right to retain possession against the true owner of any article that has been pawned without his consent or authority. If the true owner has entrusted it to someone to sell, who, instead of selling, pawns it, the pawner is protected in taking it as security. The sale of pawned goods is usually regulated by statute. If none exists, and there is no agreement between the parties, the sale must be public after due notice of the time and place of sale. If there is any surplus, arising from the sale, he must pay it to the pawner, and not apply it on another debt that he may owe the pawnee. The pawner, or an assignee or purchaser of the pawn ticket may redeem it within the time fixed by law or agreement, or even beyond the agreed time if the pawnee has not exercised his right of sale. Subject to the pawnee's claim, the pawner has the same right over the article pawned as he had after pawning it, and may therefore sell and transfer his interest as before. Lastly the pawner is liable for any deficiency after the sale of the thing pawned, unless released by statute. See Agency.

       Carrier.– Carriers are of two kinds, private and public. A private carrier may contract orally or in writing, and must use such care in carrying the goods entrusted to him as a man of ordinary intelligence would of his own property. If he carries these gratuitously his obligation is still less, nevertheless he must even then take some care of them. Suppose he agreed to carry a package for another to the latter's home, and on the way, being weary or sleepy, should sit down by the wayside where people often pass and fall asleep and on awakening should find the package missing, would he be responsible? Authorities differ. Suppose the package was a very valuable one. A court might hold that the man who gave it to him was a fool for entrusting such a package voluntarily with him. Suppose however that he was a highly trustworthy man, well known throughout the neighborhood, then no fault could be imputed to either, and the owner would be obliged to bear the loss.

      Common carriers are far more numerous and important. Receiving a reward they are required to exercise more care in the business. The old rule of the common law was very strict, but this has been greatly modified. A carrier may modify the rule by contract, and the bill of lading received by the shipper is regarded as one, and sets forth his liability. In a general way he can relieve himself from all liability except from his own negligence, and there are cases which hold that he can relieve himself even from that if the shipper, for the sake of having his goods carried at a lower price, is willing to relieve him, in other words is willing to assume all the risk himself.

      A carrier can limit his liability for the loss of baggage entrusted to his care and when one receives a receipt describing the amount of the carrier's liability in the event of loss. Nor can he hold the company on the plea of ignorance by declaring he has not read it, for it is his duty to read the receipt. Again, a carrier is thus liable only when a traveler's baggage is entrusted to his care; if therefore he keeps his grip or umbrella and on looking around makes the painful discovery that he has been relieved of them, he cannot look to the carrier for compensation.

      The law requires carriers to carry all who pay their fare, and are in a sufficiently intelligent condition to take care of themselves. In like manner the law requires them to take all freight that may be offered, though it may make reasonable rules with regard to the time of receiving it, mode of packing, etc. A regulation therefore that furniture must be crated is reasonable, and a carrier may refuse to take it unless it is thus prepared for shipment. So also is a rule requiring glass to be boxed though the distance may be short for carrying it. A carrier may also object to carrying things out of season, potatoes or fruit for example in the winter in the northern states where there is great danger of freezing, unless the shipper assumes the risk. Vast quantities of perishable goods are carried, but usually under definite regulations and contracts. So, too, the shipper must declare the nature of the thing carried. Should he put diamonds in his trunk, he could not recover for their loss, for he has no business to carry such a valuable thing in that way. He must make known the contents for the carrier's protection. He cannot carry an explosive in secrecy. To attempt to do such a thing is a manifest wrong to the carrier.

      A carrier has a lien or right to hold the freight until the charge for transporting it is paid, but if it is delivered, the lien ceases and cannot be restored. If the carrier keeps it until the freight charge is paid discretion must be used, and unnecessary and unreasonable expense must not be incurred in so doing.

      A different rule applies to carrying passengers than applies to freight, because the latter is under its complete control, while passengers are not. Nevertheless the law requires a high degree of care in carrying passengers, and is responsible in money damages should injury occur through the carrier's negligence. In many states statutes exist limiting the amount that a carrier must pay when life is lost through its negligence to five thousand dollars or other sum, while a much larger sum is often recovered for an injury, loss of a leg, arm or the like. From the carrier's point of view therefore it is often obliged to pay less for killing than for injuring people; this is one of the strange anomalies of the law.

      When a passenger is injured and no agreement can be made with the carrier for compensation, a suit is the result and the chief question is one of fact, the extent of the injury, and the degree of negligence of the carrier. If, on the other hand, the passenger was in fault himself and contributed to the injury then the more general rule is he can recover nothing. In some states the courts attempt to ascertain the negligence of both parties, when both are at fault, and then award a verdict in favor of the one least in fault. This is a difficult rule to apply however just it may seem to be.

      A passenger who stands on a platform or on the steps of a street car, when there is room inside, assumes all the risks himself. But if there is no room within and the conductor knows he is outside, and permits him to ride, he is under the same protection as other passengers. An interurban car had stopped and A who was carrying two valises attempted to board it. The act of the conductor, who was on the rear platform, in reaching down and taking one of the valises amounted to an invitation to A to board the car. In signaling to the motorman to start the car when A was stepping to the vestibule from the lower step, thus causing the injury to him, was negligence for which the company was liable.

      A sleeping car company operating in connection with ordinary trains is not a common carrier, nor an innkeeper as to the baggage of a passenger. Yet it is liable for ordinary negligence in protecting passengers from loss by theft. In a well-considered case the judge said: "Where a passenger does not deliver his property to a carrier, but retains the exclusive possession and control of it himself, the carrier is not liable in case of a loss, as for instance, where a passenger's pocket is picked, or his overcoat taken. A person asleep cannot retain manual possession or control of anything. The invitation to make use of the bed carries with it an invitation to sleep, and an implied agreement to take reasonable care of the guest's effects while he is in such a state that care upon his own part is impossible. I think it should keep a watch during the night, see to it that no unauthorized persons intrude themselves into the car, and take reasonable care to prevent thefts by occupants."

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