Cody v. Central Pac. R.

SAWYER, Circuit Judge. It is clear to our minds that the plaintiff had no right to ride on defendant’s road upon the check purchased of Meur at Palisade, and that he was properly excluded from the cars on that ground. Meur made a contract for a through emigrant passage from Baltimore to San Francisco at a reduced rate in consequence of taking a through passage. His contract stated in terms that it was not transferable, and he signed the contract assenting to its conditions. The written contract was surrendered in pursuance of its provisions at Omaha, where Meur received from the Union Pacific Railroad Company the usual check given in such cases, known as the “Union Pacific Railroad Emigrant Exchange Check.” which called for “one continuous emigrant passage from Omaha to station canceled.” viz.: San Francisco. The contract entered into with Meur was to carry him through the whole distance as an emigrant, and not to carry him to one station, and some one else to another. And it was an express term of the contract that it was “not transferable.” It does not affect the question, that the evidence of the original contract was surrendered at Omaha, and the exchange check given not fully expressing the terms of the contract. The check was, doubtless, evidence in Meur’s hands that he was entitled to a “continuous emigrant passage” from Omaha to San Francisco. But it did not purport to give the terms of the contract. The fact that through emigrant rates are lower than rates for local travel from station to station is one of general notoriety. 1170 •The check had marks and numbers referring to the written contract at first executed, by which the connection of the two could be traced and identified. It was the duty of the purchaser to ascertain before purchasing what his rights under the purchase would be. If he did not understand the numbers and reference, as well as the other matter expressed upon the check, he should have ascertained what they signified. He knew, at all events, that the check only called for a “continuous emigrant passage” from Omaha to San Francisco, and that he was not an emigrant and not a passenger from one of these points to the other. But if the check is considered only as evidence of a right to a passage from Omaha to San Francisco, without regard to the previous contract in pursuance of which it was in fact issued, the result, in our judgment, would be the same. It is still evidence upon its face only of a right to “one continuous emigrant passage” from Omaha to San Francisco. The evidence showed that through rates from Omaha to San Francisco are considerably less than local rates from one station to another; that a railroad company can afford to carry cheaper on long through routes than on short local portions of the route; and that their tariff of fares is based upon this principle. It is evident that this must be the case. A contract, therefore, for one “continuous emigrant passage” from Omaha to San Francisco is not a contract to carry one man from Omaha to the next station, another to the next station, and so on through the entire line, but an entirely different contract, and one upon different terms, and for a different rate of compensation. If this experiment should succeed, parties could readily arrange privately for local travel at through rates without the consent of the companies. A party might as well contract to carry a ton of freight from Omaha to San Francisco, and then insist that he could have a ton carried to the first station, aDd transfer a right to another party to carry another and different ton of freight to the next station, and so on through the entire line. The inconvenience and loss to the company would doubtless be greater than in the case of a passenger, but the difference is only in degree, not in principle. In the case in hand, then, whether we regard the exchange check issued to Mour as a part of the original contract, or as an independent contract for one “continuous emigrant passage from Omaha to San Francisco,” it was not a contract to carry Meur from Omaha to Palisade, and Cody or some one else to some other station on the road. The right to ride upon the road upon this check from Palisade could not be transferred to Cody without defendant’s consent. And the fact that the contract was for one through passage appeared on the face of the check itself. Plaintiff, therefore, was not entitled to ride on the check, as the defendant never contracted to carry him on it. As he refused to pay the usual fare, he was properly ejected from the defendant’s cars on that ground. Let judgment be entered for defendant.