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49 Vroom.

Saunders v. Adams Express Co.

court that the contract in fact was for through transportation from Washington to Clifton. If we look at the receipt alone it is clear that the express company agreed to carry the box to its destination unless it had no agency at that point. That is a necessary inference from the provision authorizing it to carry the box to some other point than the point of destination when it had no agency there; it is a case where the exception proves the rule. The court did not find whether in fact the lines of the Adams Express Company reached Clifton. This, however, is unimportant. It is well settled that a carrier may contract to transport goods beyond its own lines. Ogdensburg and Lake Champlain Railroad Co. v. Pratt, 22 Wall. 123; Ohio and Miss. Railroad Co. v. McCarthy, 96 U. S. 258; Northern Pacific Railroad Co. v. American Trading Co., 195 Id. 439; Hill Manufacturing Co. v. Boston and Lowell Railroad Corporation, 104 Mass. 122; Darling v. Boston and Worcester Railroad Corporation, 11 Allen 295; Root v. The Great Western Railroad Company, 45 N. Y. 524. Numerous other cases are collected in 6 Cyc. 481, and 6 Am. & Eng. Encycl. L. 631. These were all railroad cases where it was at one time open to debate whether such a contract was not ultra vires. The case is stronger in favor of the right of an express company to contract for delivery beyond its own lines, since, unlike railroad companies, an express company is not confined to terminals, but offers as one of its advantages, perhaps its chief advantage, over other carriers, the ability to make delivery at the residence or business place of the consignee.

Since it was permissible for the defendant to contract for through transportation, the question to be determined is whether the contract in this case had that effect. It certainly had unless the defendant had no agency at the point of destination. In this respect the findings of fact are silent. The finding that it had no office at Clifton is very far from a finding that it had no agency at the point of destination, and this for two reasons: First, an office and an agency are not necessarily the same thing; second, Clifton was not the point of destination.

Saunders v. Adams Express Co.

78 N. J. L.

First. The words "office" and "agency" may, by a derivative meaning of the latter word, sometimes be almost equivalent in signification, but they are primarily different. It must often happen, and may be the fact in this very case, that express companies have no office in villages which can readily be reached from a central office in another town, but no one would suggest that in such a case this clause in the contract exempts the company from making deliveries by the ordinary and accustomed agency of a delivery wagon.

Second. Moreover, to come within the provisions of the contract, there must be no agency at the point of destination. The point of destination of goods shipped by express is ordinarily, as in this case, not a mere common terminal point, like a depot in the case of a railroad, or a wharf in the case of a steamboat; it is often, perhaps usually, the place of business or residence of the consignee. Such was the understanding in the present case; delivery at the plaintiff's residence was actually made as if in fulfillment of the contract. Either we must give the words "point of destination" a meaning different from that upon which the parties have acted, or we must give the word "agency” a meaning different from “office,” for it would be absurd to construe this contract as if it contemplated the possibility of the defendant having an office at the residence or business place of each of its consignees. No such difficulty occurs if we read the word "agency” as used in its primary sense of the instrumentality by which the work is done, or in the sense of the person or agent by whom it is done. If we adopt this sense, we are not obliged to construe the contract as meaning that the carrier will be exempt from carrying the parcel through to its ultimate destination in case it has no agency permanently located at that particular point. The meaning is that it is exempt if it has no agency by which it can ordinarily, in the usual course of its business, reach the ultimate destination. Necessarily, in all cases where a carrier undertakes to carry goods beyond its own lines, it must employ an agency or agencies for that purpose, and the authorities above cited sustain the proposi

49 Vroom.

Saunders v. Adams Express Co.

tion that for that purpose one carrier may be the agent of another. The findings leave us in ignorance as to the exact relations which subsisted between the Adams Express Company and the Wells-Fargo Company. They may have been partners, each being the general agent of the other; they may have been in the position of principal and agent, or employer and employe, or they may have been only in the position of connecting carriers. The silence of the findings upon this subject is no doubt due to the lack of evidence, which makes it impossible to determine the precise fact. If the relations between the companies had appeared at the trial and had been undisputed, it would have been then for the court to determine whether or not the defendant had an agency at the point of destination within the meaning of the contract. If it had not, the further question would arise whether the delivery to the Wells-Fargo Company at Jersey City was a delivery at the agency nearest or most convenient to the point of destination in accordance with the language of the contract. The finding for the defendant was not justified by the evidence, and the judgment must be reversed, and there must be a venire de novo.

For affirmance-None.

For reversalTHE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, TRENCILARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, CONGDON, JJ. 14.

Florham Park v. Madison.

78 N. J. L.

THE BOROUGH OF FLORHAM PARK, PROSECUTOR AND

PLAINTIFF IN ERROR, v. THE BOROUGH OF MADISON
ET AL., DEFENDANTS IN ERROR.

EDWARD S. TOOTHE, EXECUTOR, PROSECUTOR AND

PLAINTIFF IN ERROR, V. TIE BOROUGH OF MADI.
SON ET AL., DEFENDANTS IN ERROR.

LESLIE D. WARD, PROSECUTOR AND PLAINTIFF IN

ERROR, V. THE BOROUGH OF MADISON ET AL., DE-
FENDANTS IN ERROR.

Argued June 28, 1909-Decided November 15, 1909.

1. The act (Pamph. L. 1907, p. 707), which requires the consent of

certain bodies before a sewage-disposal plant can be located in a municipality other than the one desiring the same, applies to all municipalities; it also applies to all proceedings taken to construct such plants, save such proceedings as at the date of the approval of the statute had reached a stage where the work had proceeded so far that the municipality was irrevocably bound to

complete the work, or else suffer serious pecuniary loss. 2. The case of Frelinghuysen v. Morristown, 48 Vroom 493, distin

guished.

On error to the Supreme Court, whose opinion is reported in 48 Vroom 260.

For the borough of Florham Park, Edward K. Mills.

For Edward S. Toothe, Vredenburgh, Wall & Carey.

For Leslie D. Ward, Edward D. Duffield.

For the borough of Madison, Charles A. Rathbun.

The opinion of the court was delivered by

REED, J. These three writs of error bring up three judgments of the Supreme Court affirming the order of a justice

19 Vroom.

Florham Park v. Madison.

of the Supreme Court appointing commissioners to condemn the lands of one William Toothe, deceased, situated in the borough of Florham Park. The purpose of the condemnation was to secure these lands as a site for a sewage-disposal plant for the borough of Madison.

The facts which preceded the appointment in question are these: The council of the borough of Madison, on May 20th, 1907, resolved to build a sewage-disposal plant according to plans and specifications which had been prepared by two engineers and filed in the office of the borough clerk. On May 27th a communication from the state sewage commissioner to the engineers, approving these plans and specifications, was presented to the council. On June 24th a petition signed by the owners of one-fourth of the assessed valuation of real estate in the said borough was presented to the borough council, who passed a resolution that the borough clerk should advertise the intention of the council to submit the question of building a sewage-disposal plant, to cost not more than $125,000, to the voters of the borough.

On September 7th, 1907, a resolution was passed by council to submit this question to the voters of the borough at an election to be held on October 14th, 1907. Such an election was duly advertised and held, and resulted in the approval of the scheme.

On October 14th, 1907, the council resolved that, in its judgment, it was necessary to issue bonds to the amount of $125,000 under the provisions of the act of 1897. Pamph. L., p. 285, $ 41. This question also was submitted to a vote of the people, held December 20, 1907, at which the majority of the voters approved of the bond issue.

On November 11th, 1907, an ordinance providing for the construction of a system of sewers, including a disposal plant, was placed on its first reading by the borough council. On December 9th, 1907, this ordinance was passed.

It also appears that, by resolution, an application was made, in accordance with the statute, to the mayor and council of the borough of Florham Park, and also to the board of health of that borough, for permission to locate a sewage-disposal

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