agent to sign the same. Railroad Co. v. Wilkens, 44 Md. 11; Pollard v. Vinton, 105 U. S. 7; Friedlander v. Railway Co., 130 U. S. 424, 9 Sup. Ct. Rep. 570; McLean v. Fleming, L. R. 2 H: L. Sc. 128. This is not disputed, but the plaintiffs, in support of demurrer, rely on sections 1, 2, art. 14, Code. Section 1 provides that all bills of lading, if executed in this state, or, being executed elsewhere, which shall provide for the delivery of goods within this state, shall be negotiable instruments in the same sense as bills of exchange and promissory notes, unless it be provided in express terms to the contrary on the face of the bills, etc. And the second section provides that every such bill of lading shall be conclusive evidence in the hands of every bona fide holder for value thereof without notice to the contrary that the goods mentioned therein had been actually received by such person or corporation, notwithstanding the fact may be otherwise, and that the officer or agent had no authority to issue bills of lading, except for goods actually received. The provisions of the statute, it will be observed, are limited to bills of lading executed in this state, or, which being executed elsewhere, shall provide for the delivery of goods within the state; and as the bills of lading in question were not executed in this state, but issued by the defendant's agent at Savannah, Ga., the only question upon the demurrer is whether they provide for the delivery of the cotton in this state, within the meaning of the statute. And this depends upon the construction and meaning of the bills of lading themselves, and upon the construction of the statute, as to what constitutes a delivery of goods in this state. The parties to the bill of lading set out in the declaration are the defendant, the North German Lloyd Company, and Green's Son & Co., the shippers, or their assigns. What, then, is the contract thus entered into by these parties? At the top of the bill of lading we find printed: "Merchants' & Miners' Transportation Company. And Norddeutscher Lloyd. From Savannah, Ga., to Bremen, via Baltimore and Bremerhaven. Those head lines, as we read them, mean, and can only mean, the transportation of the goods mentioned in the bill of lading by the two companies, the Merchants' & Miners' Transportation and the North German Lloyd, from Savannah to Bremen, the port of delivery, by the way of Baltimore and Bremerhaven. Then follows an acknowledgment of the receipt of the cotton to be transported by the defendant's steamer to Baltimore, and there to be delivered to the steamer or steamers of the North German Lloyd for transportation to the port of Bremen, and there to be delivered unto order or assigns, he or they paying freight at the rate of 54 cents per 100 pounds. Then there is a stipulation that the delivery of the cotton in good order to the North German Lloyd steamers at Baltimore shall absolve the defendant from all liability in respect thereof, and that the liability of the North German Lloyd Company shall begin only upon the actual delivery of the cotton to their steamers at Baltimore. Now, the contract thus made was, it seems to us, a contract on the part of the two transportation companies to carry the cotton from Savannah to Bremen, and there to deliver it to the shippers or their assigns, on payment there by them of freight at the rate of 54 cents per 100 pounds for the transportation over the entire route from Savannah to Bremen. Bremen was beyond all question the port of destination, for there the cotton was to be delivered to the order of the shipper, and until delivered no freight was to be earned, nor was any to be paid; and as the route established by the two companies for the transportation of the cotton from Savannah to Bremen lay through the port of Baltimore, and as the line of steamers forming that portion of the through route between Savannah and Baltimore belonged to the defendant, and the line of steamers forming that portion of the through route between Baltimore and Bremen belonged to the North German Lloyd, it was agreed that the cotton should be transported from Savannah to Baltimore by the defendant's steamer, and there delivered by the defendant to the steamer of the North German Lloyd, to be carried on the steamer of said company over so much of the through route from Savannah to Bremen as lay between Baltimore and Bremen; each company being responsible only for the carriage of the cotton over its portion of the through route. The contract of the defendant was, as we have said, for the transportation of the cotton from Savannab to Baltimore, there to be delivered by the defendant to the steamer of the North German Lloyd for transportation to Bre men; and the argument is that the term "delivery" is used in the statute without any qualification, and is to be construed in its broadest sense, and that the delivery of the cotton by the defendant to the North German Lloyd at Baltimore is a delivery within the meaning of the statute, even though the delivery was for the purpose of transportation out of the state, and even though the final port of destination was Bremen. To such a construction of the statute we cannot agree. The act of 1876, now codified as section 17, art. 14, Code, was, as we all know, passed within a few weeks after the decision in Wilkens' Case, 44 Md. 11, where, in a suit by a bona fide purchaser of a bill of lading issued by the defendant's agent in the state of Illinois for the transportation of certain car loads of grain to Baltimore, it was decided that the transportation company was not liable, because the grain had never in fact been delivered to the company. Bills of lading were not, the court said, negotiable in the same sense as bills of exchange and promissory notes. Within a few weeks after the rendition of the judgment in that case the statute now in question was passed, making bills of lading negotiable in the same sense as bills of exchange and promissory notes, and making them conclusive evidence that the goods therein mentioned had been delivered to the carrier, but the legislature was careful to limit the provisions of the act to bills of lading executed in the state, or, which being executed elsewhere, provided for the delivery of the property in the state. And by delivery of goods under a bill of lading the legislature meant, and could only mean, it seems to us, such a delivery as is recognized by the commercial law under a bill of lading; that is, a delivery at the port or place of des. tination to the shipper or his assigns. It never meant the delivery of goods from one carrier to another carrier in transit through the state; and such was the contract of delivery on the part of the defendant, a contract to carry the cotton from Savannah to Baltimore, and there deliver it to the North German Lloyd, to be transported and delivered to the shipper or his assigns at the port of Bremen, the end of the carriage. The liability of the defendant for the transportation of the cotton ended, it is true, by the delivery of the cotton to the steamers of the North German Lloyd at Baltimore, but the two carriers had the right beyond all ques tion to contract that each should be responsible to the shippers only for the safe transportation of the cotton over its respective portions of the through route to Bremen. This limitation of their liability could not, however, in any manner affect the construction of the statute, or give to the term "delivery" as therein used meaning never contemplated by the leg. islature. So, by no fair rule of construction can it be said that the bills of lading in question provide for the delivery of goods in this state, within the meaning of the Code; and, this being so, the demurrer to the defendant's third plea was properly overruled, and the plaintiffs' first, third, fifth, sixth, and seventh instructions properly refused. a We have treated the bills of lading as having been executed in another state, and so it seems to us they must be treated. The defendant has incorporated, it is true, under the laws of this state, but it was the owner of a line of steamers run. ning between Savannah and Baltimore. It had an office and agents at Savannah for the purpose of receiving freight for transportation. The goods intended to be covered by the bills of lading were to be shipped to Bremen, and there to be delivered to the shipper or his assigns. They were never intended to he in Baltimore except for the purpose of being transferred from the steamer of the defendant to the steamer of the North German Lloyd, to be carried by the latter to Bremen, thus forming a continuous voyage between Savannah and Bremen. The contract purporting to have been made by the hills of lading was a contract between the two transportation companies and the shipper, a citizen of Georgia; and, such being the case, the bills of lading themselves must be considered as being executed in the state of Georgia. We agree, too, there is no evidence from which it could be inferred that Guerard, the agent, was authorized by the defendant to issue the bills of lading before the delivery of the cotton by Messrs. Green's Son & Co. He had been in the habit, it is true, of issuing bills of lading upon their promise to deliver to him railroad or cotton press receipts that the cotton had been received by the railroad or compress company for transportation by the defendant's steamer; but this he did upon his own responsibility, and without, he says, the consent or knowledge of the defendant. And there was evidence offered, too, subject to exception, of a custom at the port of Savannah of issuing bills of lading upon railroad and cottonpress receipts that the cotton had been received by the railroad or cotton-press company for delivery to the steamers. But the bills of lading now in question were not issued by Guerard, the agent, upon either railroad or cotton-press receipts, but upon the promise of Green & Co. to deliver these receipts to him. And, such evidence being irrelevant, it was subsequently stricken out on the motion of the defendant. And in saying this we are not to be understood as inti nating an opinion that the defendant would have been liable upon the bills of lading even if they had been issued by the agent in pursuance of such custom. That is a question which it is quite unnecessary to consider. We agree, too, that there is no evidence of a ratification by the defendant of the unauthorized act of the agent in issuing the bills of lading. As soon as he found that Green & Co. had failed and were in fact unable to deliver to him the railroad and cotton-press receipts according to their promise, he came to Balti more, and for the first time informed the defendant as to his action in the matter, and voluntarily offered to transfer his property to the proper officer of the defendant to indemnify it from any loss it might sustain by reason of the issuing of the bills of lading. The defendant at once repudiated the unauthorized act of its agent, and at once denied all liability on account of the same; and the mere fact that it accepted a transfer of the agent'a property, voluntarily offered by him to cover any loss it might sustain, cannot in any sense be considered as a ratification or an acquiescence in the unlawful act of its agent. ас As to the common count for money had and received by the defendant for the use of the plaintiffs, it is only necessary to say that no evidence was offered in support of this count. The defendant accepted a transfer of property by Guerard, its agent, but this was not property belonging to the plaintiffs, nor was the transfer accepted by the defendant for their use. It was property belonging to the agent, and transferred by him to the defendant, to cover any loss it might sustain on count of the issuing of the bill of lading by him. If no loss is thereby sustained, and if the agent be liable to the plaintiffs as bona fide holders of the bill of exchange, this liability may be enforced against him and against the property thus conveyed to the defendant. As there is no evidence from which the jury could reasonably find that the cotton mentioned in the bill of lading had been de livered to the defendant, or that the defendant had authorized its agent to issue said bills of lading without the receipt of the cotton, or that the defendant had ratified or adopted the act of the agent, there was no error in refusing the several prayers offered by the plaintiffs, and in instructing the jury that the verdiet must be for the defendant. promise of good behavior by defendant, to prove waiver of the condonation the petitioner must show some act of defendant tending to establish some one of the causes of divorce, so pronounced as to raise a reasonable probability that if the marital relations are continued a new cause for divorce will be given. Exceptions from Chittenden county court; Rowell, Judge. Petition by Elizabeth Marshall against Leonard A. Marshall. The petition was dismissed on the ground of condemnation, to which the petitioner excepted. firmed. Af In regard to the rulings of the court upon questions of evidence we have but a word to say. The witness Miller, having proved the signatures of Guerard, the agent, to the bills of lading, was asked Ou cross-examination by the defendant whether Guerard “was not forbidden to sign bills of lading for goods and commodities when the goods and commodities were not actually delivered to the defendant company," to which he replied, "Never to my knowledge," and then added that it was almost certain that he was not so forbidden, because it would have been prohibitory to business in Savannah, as the custom of the port was to sign bills of lading on railroad guaranties to deliver cotton to a specified steamer. This statement by the witness was in no manner responsive to defendant's question, and was but the mere expres-ily hurt. For this intolerable severity she sion of his opinion, and not testimony based upon knowledge. The court was also right in refusing to allow the witness to testify as to the price of cotton in Baltimore, for the reason that the cotton mentioned in the bills of lading was to be delivered at Bremen, and not at Baltimore, and the damages, if any, which the plain tiffs could recover for breach of the contract would be the value of the cotton at Bremen. The court below found the following facts: "In the fall of 1888 and the early winter of 1888-89 the petitionee treated the petitioner with intolerable severity, and the intolerable severity consisted in his so room as to permit gas to escape into the arranging the coal stove in the sitting room and the adjoining room in which the petitioner slept separate and apart from her husband; and this he did on three different occasions. By reason thereof the petitioner suffered serious bod preferred her petition for divorce at the April term, 1889, of this court. The following September, while that petition was pending, the petitionee made overtures of reconciliation. Thereupon a reconciliation was effected, under promise on the would let him come back, and she be his part of the petitionee that if the petitioner wife again, just the same as she had been, she might have his pocketbook and use the money just as she was a mind to, and he wouldn't say a word; that she might run the inside of the house just as she was a mind to, and he wouldn't say a word; that she might run the stove just exactly as she was a mind to, (he never would let her touch it before;) that he would settle up all the bills,-doctor's bills, (the doctor had attended her considerable for sickness caused by suffocation from the We do not see on what ground the third exception can be maintained. Guerard, the agent, had signed, it is true, the bills of lading, acknowledging the receipt of the cotton, but it was beyond question competent for him to prove that the cot ton had not in fact been delivered, and to explain the circumstances under which he was induced to sign them; and, for the reasons already given, the evidence in regard to usage prevailing among the steam-as) and that she might have his papers, ship companies to issue bills of lading upon railroad and cotton-press receipts was on motion of defendant properly stricken out. It was properly stricken out, because the bills of lading now in controversy were not issued upon such receipts. The evidence, too, in regard to the understanding among bankers in New York, that the buyer always assumes that the goods mentioned in a bill of lading have been actually delivered, was properly excluded. The liability of the carrier under a bill of lading in no manner depends upon the understanding of bankers or brokers in the city of New York, but is governed and must be determined by the settled principles of commercial law. Finding no error in the rulings below, the judgment will be affirmed. (the testimony doesn't disclose what papers.) He agreed to pay all expense of her living, and to treat her well, as she ought to be treated. She agreed to withdraw her petition, and subsequently did withdraw it, in consideration of bis agreement. He gave her $50 to pay the expenses therefor, which was not enough into $13.50. They thereupon went to living together again, and continued to live together and cohabit, until about Christmas, 1889, after which they occupied different beds, but continued to live together in the same house, until about the time this petition was brought, June 7, 1890. After this rec. onciliation the petitionee did not let her have his pocketbook and use the money just as she was a mind to. He refused to let her burn coal, and she bought some herself. The house in which they lived the while was hers. On one occasion she asked him to get a pint of alcohol, and he wouldn't; told her she had money, and to get it herself. He didn't pay her doctor's bills; didn't let her have any money to spend, other than the $50 he gave her to pay the expense of the petition which she withdrew." Henry Ballard, for petitioner. ROSS, C. J. The petitioner, having a good cause for a divorce, and having preferred a petition, was induced to discontinue it, and take the petitionee, and live with him again as her husband, upon certain promises made by him, most of which he has failed to keep. The contention is whether the condonation was procured by fraud, or whether the violations of the promises were of such a character that the condonation is waived, and the petitioner is entitled to rely upon the original cause. of are of such a character, in order to find error in the judgment of that court; or, from the facts found, this court must infer a fact not found, and that, too, to raise error in the judgment of the trial court. The latter is not the province of this court. Judgment affirmed. MONROE v. POTTER et al. 1, 1893.) LIMITATIONS NONRESIDENCE OF DEFENDANT — Property of a nonresident defendant, within the state, the ownership of which is ascertainable by plaintiff, must, to keep the statute in operation, be of such value as to be capable of yielding a substantial benefit to plaintiff; and, in an action to recover $600, a finding that property worth about $100 was not of value sufficient to have yielded plaintiff substantial benefit, in respect to satisfying the debt, will not be disturbed on appeal. Exceptions from Addison county court; Rowell, Judge. Action by M. A. Monroe against H. C. Potter and another. Judgment for plaintiff, and defendants except. Affirmed. This suit was commenced May 25, 1892. The judgment declared upon was for $611.23, and was rendered at the December term, 1883, Addison county. The court found that the defendant had resided without the state since the rendition of The county court has not found that the (Supreme Court of Vermont. Addison. June condonation was procured by fraud. Fraud is a fact to be found by the trial court. The violated promises might have been honestly made. This court, to uphold the judgment of the county court, is to presume they were, rather than the contrary, so long as the fact of fraud remains unfound. To waive a condonation the petitioner must establish some act, or series of acts, or conduct, on the part of the petitionee, tending to establish some one of the causes for a divorce, so pronounced as to raise a reasonable probability that if the marital relation is continued a new cause for a divorce will be given. This, we think, is the fair result of the authorities on this subject. It is not necessary that a new cause shall be established, for, if so, the revival of the condoned cause would be of no importance. Langdon v. Langdon, 25 Vt. 678. As said in 2 Bish. Mar. & Div. (6th Ed.) § 58: "The condonation having presumptively proceeded on evidence of a change of temper, acts short of original cruelty may show that no change did take place, and, while not alone sufficient evidence of danger to the injured party, may make the danger apparent when connected with what went before." Most of the violated promises related to giving the petitioner power over the petitionee's pocketbook. While their violation is found, it is not found that the petitionee failed to support the petitioner in a reasonable manner. The original cruelty found arose from his management of the coal stove which warmed her sleeping room. Before the condonation he had not allowed her to touch it. He promised that thereafter she should manage it. It is not found that he has violated this promise, otherwise than that he did not furnish her coal to burn in the stove, and that she bought some with her own money. It is not found that he refused to furnish her other fuel to burn in the stove. While his conduct, in not keeping the promises by which he brought about the condonation, is not to be approved, in that it does not indicate much sincere change of temper, yet none of the acts subsequent to the condonation, complained of, were of such a proDounced character that this court can say, against the judgment of the county court, which has much better opportunity to judge of the weight to be given the new act complained of, found established, than has this court,-that a new cause for a divorce would probably be given by the petitionee if the marital relation is continued, yet this court must be able to say that the new acts complained said judgment, but that when the judg ment was rendered he owned a top buggy, sleigh, single harness, and pair of double harnesses, which were then at his brother's, in Middlebury, and continued there until the spring of 1891; that the value of this property was $125 in 1883, and $100 in 1891, and that the plaintiff might, by the exercise of reasonable diligence, have ascertained its ownership. The court further found that the value of the property was not "an amount sufficient to have yielded the plaintiff substantial benefit in respect to satisfying the debt." The plaintiff filed a replication to the defendant's ples of the statute of limitations, alleging that "after said cause of action accrued, for a long space of time, to wit, from the 1st day of December, 1886, to the 1st day of December, 1891, the defendant [Potter] was absent from, and resided out of, this state, to wit, in the city, county, and state of New York, and in Buenos Ayres, in the Argentine Republic, and in other places without this state, to the plaintiff unknown, all of which said period or periods had elapsed before the statute of limitations had run on said judgment, and that, during said entire period or periods of such absence and residence out of this state, the defendant did not have any known property within the state of Vermont, which could, by the common process of law, be attached." W. H. Bliss and Seneca Haselton, for plaintiff. James M. Slade and E. R. Hard, for defendants. DEWSNAP et al. v. DAVIDSON. RES JUDICATA-FORECLOSURE OF MECHANIC'S LIEN In an action by contractors to enforce a mechanic's lien, the owner is not bound to plead and prove damages sustained by plaintiff's failure to comply with contract, and a decree therein is no bar to a subsequent action against plaintiff to recover such damages. Action by Jane Dewsnap and Arabella Dewsnap against John Davidson to recover damages caused by the failure of defendant to comply with a contract for the erection of a house for plaintiffs. ant demurred to the replication. rer overruled. MUNSON, J. It being evident that the question now made, regarding the scope and effect of the replication, was not raised in the court below, it will not be considered here. The defendant is found to have had property within the state, which, in the exercise of reasonable diligence, would have become known to the plaintiff. It remains to be determined whether the property was such as to keep the statute in operation. The court has found that its value was $100, but that the plaintiff would have derived no substantial benefit from its attachment. If it be held that the test is the sufficiency of the property to afford the creditor a substantial benefit. and that the question of sufficiency is one of fact, the case is disposed of by the above finding. In the consideration of cases involving this feature of the statute, different views have been expressed. In Hill v. Bellows, 15 Vt. 727, Williams, J., speaks of the obligation resting upon the defendant to prove that he had known property within the state, from which the plaintiff "could have satisfied his demand. In Royce v. Hurd, 24 Vt. 620, Redfield, J., treats this as a declaration that the property must be "sufficient to satisfy the whole debt," and says that this seems to him to be the reasonable import of the statute. On the other hand, in Wheeler v. Brewer, 20 Vt. 113, Royce, C. J., after saying that the property must be more than enough to enable the plain-ion that the demurrer to the replication tiff to get service, and keep the demand alive, limits the requirement to property "capable of yielding a substantial benefit to the plaintiff." In Russ v. Fay, 29 Vt. 381, Isham, J., in stating the rule, uses substantially the language last above quoted. Subsequently, in Moore v. Quint, 44 Vt. 97, it is said by Barrett, J., that incumbered real estate will meet the requirement of the statute, if the equity is such that the creditor "might derive substantial benefit" from it in the way of payment. We think it may be considered as settled that the test is whether the property would have yielded the creditor a substantial benefit by way of a reduction of his claim. This clearly involves matters of fact not covered by a valuation of the property. The question whether the property would have yielded the creditor a substantial benefit must depend somewhat upon the character of the proceedings required to establish his claim, the expense of procuring necessary legal assistance, the location and nature of the property, and the necessity of incurring expense to secure it when under attachment. A given amount of property might yield a substantial benefit in some cases, and not in others. It is not necessary to consider what this court might be able to do upon a mere finding of valuation, if the sum fonnd were such that no contingencies rec. ognized by the law could possibly reduce it below what would be a substantial application upon the indebtedness. It is certain that we cannot, as matter of law, say that this property would have afforded a substantial benefit to the plaintiff, against the county court's express finding to the contrary. Judgment affirmed. Defend- The defendant, in his answer, alleged that prior to the commencement of this action he had obtained against plaintiffs a judgment and decree foreclosing a mechanic's lien on the building referred to in the petition, and pleaded the same in bar of this action. The replication of plaintiff states that they made no claim in the former action for the damages alleged in the petition in the present suit. Theodore F. Tillingbast, for plaintiffs. Harrison A. McKenney, for defendant. PER CURIAM. The court is of the opin should be overruled. The plaintiffs were not barred by the decree in the lien suit from bringing an action for the damages sustained by the failure of the defendant to comply with his contract. While they might have offered evidence in the lien suit to recoup the damages sustained, they were not bound to do so, but were at liberty to reserve their claim, and to bring suit on it as they have done. Ives v. Van Epps, 22 Wend. 155, 157; Gillespie v. Torrance, 25 N. Y. 306, 310; Britton v. Turner, 6 N. H. 481, 495; Austin v. Foster, 9 Pick. 341, 346; Ward v. Fellers, 3 Mich. 281, 291; Van Epps v. Harrison, 40 Amer. Dec. 314, 326, note. Demurrer overruled. HECHT v. TAUBEL et al. An agreement to pay money for a recipe for dyeing hosiery a certain shade of black contained this clause: "Money to be paid August 13, 1892, if the color is right." Held: 1. That the agreement to pay was subject to the performance and happening of conditions precedent, viz.: (1) That a recipe should have been imparted, capable of producing the required color; and (2) that by the day named such color had been produced by the use of the recipe by those to whom it was imparted. 2. There arose thereon an undertaking that the recipe should be used fairly, and in good faith, so that the required color might be produced by the day named. 3. A count upon the agreement which undertook to show liability by special averments of performance was faulty, in that it did not aver that the event mentioned had happened |