Page:Harvard Law Review Volume 1.djvu/39

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that if he would come and show a coupling he had invented the company would pay his expenses, was held not to be travelling as a “free or gratuitous passenger,”[1] and doubtless the pass could not be revoked. The same court has held that a drover, travelling with his stock on a free pass, or “drover’s ticket,” was a passenger for hire.[2]

As in the case of any formal contract it is essential to the validity of the obligation that the consideration, whatever it was, shall not have failed. A ticket, therefore, purchased with a counterfeit bank-note, is not binding on the company, although the purchaser did not know the note to be a bad one.[3]

When the ticket has become operative in the hands of a holder he may pass his right by mere delivery,[4] as he may in case of a note payable to bearer. For this reason it is held that the price of lottery tickets may be recovered in an action for goods sold and delivered;[5] as is true also of promissory notes.

A railroad ticket is generally presentable immediately, and if any time is set it is the time beyond which the ticket will not be good. But it may be presentable at a fixed time, as is usually the case with excursion tickets. Other sorts of ticket are generally to be used at a fixed time.

A ticket, like a note, must be presented to the maker when the time comes for the performance of the contract. There seems to be an exception to this rule in case of a lottery ticket. If a lottery ticket secures the right only to the drawing of the lottery the ticket is not then surrendered. That is natural enough, since if anything comes to the holder it comes after the drawing; and the ticket is a necessary piece of evidence to enable the holder to secure his prize, if he is fortunate. All other tickets must be surrendered at the moment of performance. They then cease to be tickets. If such a ticket is returned to the prior holder he holds it, as has been seen, simply as a receipt.[6] It is much like a cancelled bank-check.

Since the performance of any formal contract is conditional on the surrender of the instrument it is clear that the loss of a ticket before it is surrendered must fall upon the holder.[7] As Wheeler,

  1. Railway Co. v. Stevens, 95 U.S. 655.
  2. R.R. Co. v. Lockwood, 17 Wall. 357.
  3. R.R. Co. v. Chastine, 54 Miss. 503.
  4. Snyder v. Wolfley, 8 S. & R. 328; Jerome v. Smith, 48 Vt. 230.
  5. Yohe v. Robertson, 2 Whart. 155.
  6. Auerbach v. R.R. Co., 89 N. Y. 281.
  7. Standish v. Steamship Co., 111 Mass. 512; Crawford v. R.R. Co., 26 Oh. St. 580; Shelton v. Ry. Co., 29 Oh. St. 214.