Page:Harvard Law Review Volume 1.djvu/27

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transport passengers to California from New York over two lines of steamship, with a connecting transit across the Isthmus. The road across the Isthmus was in fact operated by an independent company. This company gave Vanderbilt its tickets, which he sold, as he had occasion, in connection with tickets of the steamship company; and for each ticket sold he paid the Transit Company a certain sum of money. It was clear that he did not act as agent for that company. The plaintiff in this case bought a ticket, relying on Vanderbilt’s advertisement and representations at the time he sold the ticket; and when he reached the Isthmus no means of transportation were furnished for him. He sued Vanderbilt for failing to transport him. The defendant relied on certain expressions thrown out in earlier cases,[1] that a ticket was evidence of a contract, and could not, therefore, be varied. He, therefore, claimed that, as the ticket purported to be issued by the Transit Company, it was impossible to show by parol evidence that Vanderbilt actually made the contract.

Now, it is perfectly plain that in this case there was a contract of carriage, apart from the ticket. The plaintiff made a bargain with the agent of Vanderbilt—not a ticket-agent merely, but one authorized to make such contracts—for a journey of which the transit across the Isthmus formed a part. It was evident that the court should hold Vanderbilt liable, and so they did. They adopted the theory that Chief Justice Denio had put forward in Hibbard v. R. R. Co., that a ticket is a receipt for the payment of fare. In both cases, it will be noticed, the theory is more plausible than in the ordinary case. Denio’s argument in support of the theory seems, it must be confessed, rather inconclusive.

“Their character as mere tokens is shown by the fact that the defendant received them in large numbers of the Transit Company, not as an agent of that company for the purpose of making bargains in its behalf with others, but to furnish them to persons with whom he expected to deal on his own account. … To him [the company] sold tickets in the nature of permits for passage over their route, in such quantities as he chose to purchase. It is proved that neither he nor Allen were agents for the Transit Company. When he dealt with a traveler, therefore, he bargained on his own account, and not on behalf of the Transit Company.” The object of this whole argument is to prove that the ticket was not

  1. See, for instance, the language of Ellsworth, J., in Hood v. R. R. Co., 22 Conn. 1.