44 FEDERAL REPORTER. t it
these matters, the evidence of negligence would have been stronger, but
it is very clear it should not have been taken from the jury.
10. There was no error in charging that the burden of proof of cou-
tributory negligence was upon the defendant. This was settled in Rail-
,road Co. v. Glaolmon, 15 Wall; 401; in Secord v. Railroad Co., 18 Fed. Rep.
221 j. and in Conroy v. Oregon Const. C0., 23 Fed. Rep. 71; There is
nothing inconsistent with this case in Hayes v. Railroad Co., 111 U. S.
228, 4 Sup. Ct. Rep. 369. . · A
11. Considering the physical wreck ofthe plaintiff, the damages were
not excessive; at least not so excessive as to justify the court insetting
aside. the verdict upon that ground. V
The motion for a new trial must be denied, and judgment will be en-
tered upon the verdict. »
FRENCH Smarul V SPRING Co., Limited, v. Naw ENGLAND CAB Tausr
i ” H and others. _°
V (Circuit Oourt, D. Connecticut. 1887.)
1._ ORDERB—CONBTRUCTION· i
The defendants accepted an order of a third person in favor of plaintiffs to
the amount of $2,300, payable out of certificates due the third person under a
° contract between him and the defendants, and specified in the order, "the
same not to be due until September 1st. " Held, the words. "the same not to
be due, " referred to certificates. and not to the order, and that defendants
`paid at their (peril any person other than plaintiffs for work, the certificates
for which, un er the contract, would not become due until on and after Sep-
tember 1st.
2. ConroaArroNs—Br-Lawse0oaromrm CONTRACT.
An acceptance of an order by the New England Car Trust, to pay money
already provided for by a contract with the company, does not come within
article 4 of the articles of association of the car trust, providing that, in order
to bind the company, all contracts involving liabilities for the payment of
money shall be in writing, and signed by at least three members of the board
of managers. .
Intervening Petition in Brassey v. New York &: N E. R. Co.
Henry M Rogers, for petitioner. ·
Simeon E. Baldwin, for defendant ,
·SH1PMAN,  1 The question in this case arises upon the petitioner’s
demurrer to the defendant’s answer. The New England Car Trust en-
tered into a contract with Blain Bros., by which the latter agreed to make
and to furnish to the car trust 500 cars, to be delivered to its trustee at the
average rate of 48 cars per week,,beginning on May 15, 1883, and the
car trust agreed to pay for the same at the rate of $446.31 per car, pay-
able in its certificates,.as the cars were delivered in lots of 10, within one
week after the receipt of three specified documents. Blain Bros. desired
to purchase springs for said cars from the petitioner, but said company