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fied that the plaintiff's car was dropped at his switch at 12:35 a. m. This would make the whole time of transit from Buffalo 30%1⁄2 hours and from the time of arrival at Port Jervis 9 hours and 20 minutes. The train stopped often between Port Jervis and the plaintiff's place, almost at every station, and backed up and switched and dropped and took on cars. On arrival at the plaintiff's switch, a distance of 38 miles from Port Jervis, nine of the cows were down, six of them had calved, and the calves were dead, and one cow died in a few hours thereafter.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.

Henry Bacon, for appellant.
M. N. Kane, for respondent.

GAYNOR, J. The law makes a common carrier liable as an insurer for the safe carriage and delivery of freight, the acts of God and of public enemies excepted. The defendant is therefore liable unless. the contract of shipment shields it. It contains the following clause applicable to the case, viz.:

"That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employés, or otherwise, the said shipper agrees to accept as full compensation for all loss or damages sustained thereby, the amount actually expended by said shipper, in the purchase of food and water for the said stock, while so detained."

The plaintiff claims that while this exemption does cover negligent delay, it does not contemplate the damage which resulted in this case from such negligent delay, viz., damage from killing and injuring the cattle. He claims that it only contemplates the "loss or damages" which the consignee may sustain by realizing a lower price in the market for his cattle on their tardy arrival in good condition by reason of the market price having fallen during the delay. In a word, he claims that the exemption only relates to the case of cattle which arrive safe and sound; that it does not apply to the case of cattle killed or physically injured by the negligent delay.

This seems to be the true construction of the exemption clause. It only contemplates a case of negligent delay where the shipper can feed and water the cattle during the delay and thereby save them, and does so. It does not mean a case where it is impossible to do so during the period of negligent delay; and in this case there was no place or means to feed and water them at Port Jervis or between there and Monroe, where the negligent delay occurred. The plaintiff had to depend on the defendant for place and opportunity to feed. and water. It would therefore be unreasonable to hold that the exemption was meant to apply except in a case where they are furnished by the defendant. If in that case the shipper neglect to feed and water his cattle, the defendant is not liable for any sum-the shipper's neglect would be the cause of death or physical injury to the cattle. But if he feed and water them, then the defendant is liable for the expense thereof, but for no other loss or damage, for such is the exemption.

If the contract may bear this construction that suffices for the plaintiff, for the law is that such contracts of exemption have to be

construed against the carrier when they are equivocal. This case has been here before (107 App. Div. 210, 95 N. Y. Supp. 17).

The learned trial judge was requested by the defendant to charge that unless the jury could find from the evidence that the injury occurred after the train arrived at Port Jervis, the plaintiff could not recover. The exception to the refusal was technically good, for there is no evidence of any delay before reaching that place. But the learned counsel for the defendant has waived this error by not mentioning it in his oral argument nor in his brief. We are therefore not called upon to consider whether it be substantial. In the same way he has waived the exceptions to the refusals to charge his requests in respect of the violation of section 663 of the Penal Code, and the charge of the plaintiff's request on that head. They may be serious, but it is not for us to seek out and enter into errors which the learned counsel for the defendant does not claim to be aggrieved by. The judgment and order should be affirmed.

WOODWARD and RICH, JJ., concur. HOOKER, J., concurs in result. JENKS, J., dissents, upon his dissenting opinion in Galloway v. Erie R. R. Co., 107 App. Div. 210, 95 N. Y. Supp. 17.

(116 App. Div. 780)

DANIEL v. MANHATTAN LIFE INS. CO.

(Supreme Court, Appellate Division, Second Department. January 11, 1907.) MASTER AND SERVANT-CONTRACT OF EMPLOYMENT-TERM OF EMPLOYMENTWRONGFUL DISCHARGE.

A contract of employment stipulated that either party might terminate it by a notice of 30 days. Thereafter the contract was extended for a year from a specified date. Similar renewals were subsequently made. the last renewal extending the contract for a year after a specified date. Held, that the master was liable for discharging the employé before the expiration of the year.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 11.]

Jenks, J., dissenting.

Appeal from Trial Term, Kings County.

Action by Walter Travers Daniel against the Manhattan Life Insurance Company. From a judgment for plaintiff granting insufficient relief, both parties appeal. Affirmed.

See 94 N. Y. Supp. 49.

The action was for damages for breach of a written contract of employment of the plaintiff by the defendant to solicit insurance, dated February 15th, 1894.

The contract contained no fixed term of employment, but was by its terms terminable by either party by a notice of 30 days.

It was afterwards amended in writing several times, and the plaintiff continued in the employment until discharged on April 6th, 1900, by a notice of 30 days.

An amendment of February 15th, 1897, provided that "The contract between the parties hereto dated February 15th, 1894, is hereby extended from the 1st day of March, 1897, to the 1st day of March, 1898, subject to the fol

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lowing modifications;" and then followed certain amendments in respect to plaintiff's compensation and making his agency exclusive.

An amendment of February 17th, 1898, provided "that the amendments to said contract contained in that certain agreement in writing dated New York, February 17th, 1897, is hereby extended to cover the period of one year, viz., from March 1st, 1898, to March 1st, 1899."

On March 1st, 1899, the parties added the following to the last amendment given above, viz.: "The amendments to said contract and the said contract so amended is by mutual agreement extended until March 1st, 1900.”

Finally on February 24th, 1900, the parties made the following agreement of extension:

"The contract between the parties dated February 15th. 1894, as amended by written amendment dated February 15th, 1897; also by one dated June 22d, 1898; also by one dated May 1st, 1899; also by one dated February 17th, 1896, which latter shall take the place of the agreement to pay fifteen per cent. (15%) advance contained in the contract; also by one dated May 18th, 1894-is hereby extended, as is also the amendment of February 15th, 1897, for one year after March 1st, 1900, all other amendments having lapsed."

Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, GAYNOR, and MILLER, JJ.

George W. McKenzie, for plaintiff.
Edward S. Rapallo, for defendant.

GAYNOR, J. The duration of the plaintiff's employment was fixed by a clause in the original agreement that either party might terminate the agreement by a notice of 30 days. Three several times that agreement as theretofore amended was in terms "extended" from the 1st day of March in one year to the same day in the following year, the final agreement of extension being dated February 24th, 1900, and providing that the said agreement as amended (all of the amendments being enumerated) "is hereby extended for one year aft

er March 1st, 1900."

* * *

The duration thus fixed was different to that first fixed; it is inconsistent with it; both cannot exist together. If the contract was to continue to be terminable by either side at will on a notice of 30 days, what was the meaning of extending it for a year? If the contract could still be terminated at will-if that was the intention-the words of extension for a fixed period were used to mean nothing.

The contract was extended a year from March 1st, 1900, and the defendant is liable for damages for discharging the plaintiff before the year was up.

The judgment should be affirmed.

Judgment and order affirmed, without costs.

HIRSCHBERG, P. J., and HOOKER and MILLER, JJ., concur.

JENKS, J. (dissenting). The action is for damages for the breach of a contract. On February 15, 1894, the parties made a contract whereby the defendant employed the plaintiff as its agent to solicit applications for life insurance. It contained a clause that the employment was terminable by either party upon a written notice of 30 days. The relation continued until April 7, 1900, when the defendant

served the plaintiff with a notice of termination. The original contract from time to time was amended and was changed, and the plaintiff now sues on the theory that the contract extant in 1900 was for a fixed period of one year from March 1, 1900, until March 1, 1901, and that the provision for termination was not then in the contract. At trial and immediately after the opening of counsel for plaintiff, the defendant moved for a dismissal of the complaint on the opening and upon the complaint. The motion was denied under exception, and the court stated that its views as theretofore expressed might stand as reason for the denial. The record then refers to an opinion handed down by the learned trial judge in denial of the motion. The plaintiff then offered in evidence

"The contract dated February 15, 1894, amendments to the contract dated October 10, 1894, amendments to the contract dated February 17, 1896, contract dated May 17, 1895, contract dated February 15, 1897, contract dated February 17, 1898, contract dated March 1, 1899, also one dated February 24, 1900, also notice of dismissal dated April 6, 1896, also letter from plaintiff to the defendant dated March 20, 1895, memoranda dated March 1, 1895, and May 13, 1895."

The defendant objected to the letter of March 20, 1895, the memoranda dated March 1, 1895, and March 13, 1895, as immaterial, irrelevant, and incompetent, and the court sustained the objection to the memoranda dated May 13, 1895, to both letters of March 20th and to the memoranda of March 1st. When the plaintiff rested, the defendant renewed its motion on the original grounds, and also moved on the ground that the plaintiff had failed to prove any cause of action. The motion was denied under exception. Again, at the close of the testimony of both sides, the defendant renewed the motion to dismiss upon all the evidence in the case, that no cause of action had been proven, and that the plaintiff had failed to state a cause of action in the complaint. This motion was denied under exception, and the case was submitted to the jury on the theory that the contract extant on March 1, 1900, was for the fixed period of a year, and that the defendant did not have the right under the contract to terminate it by its written notice of 30 days. The various writings and memoranda excluded by the court were annexed to and made part of the complaint, and were undoubtedly before the court when at the outset it rendered its opinion. But part of them had been excluded by the court upon the trial, as I have indicated, and therefore, when the later motions to dismiss were made, the court had before it only the contract dated February 15, 1894, and the amendments thereof dated October 10, 1894, and February 15, 1896, and the contracts dated May 17, 1895, February 15, 1897, February 17, 1898, March 1, 1899, and February 24, 1900.

The construction of the contract by the learned trial court is that as it existed in April, 1900, when the defendant served a notice of termination, the provision for such a termination was not extant. None of the changes or amendments of the contract in express terms either canceled that provision or even referred to it. The original contract, when amended or changed, was invariably extended or con

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tinued in express terms, and the final writing, which is the "contract" sued upon, reads as follows:

"New York City, February 24th, 1900. "The contract between the parties dated February 15th, 1894, as amended by written amendment dated February 15th, 1897; also by one dated June 22, 1898; also by one dated May 1st, 1899; also by one dated February 17th, 1896, which latter shall take the place of the agreement to pay fifteen per cent. (15%), advance contained in the contract; also by one dated May 18th, 1894— is hereby extended, as is also the amendment of February 15th, 1897, for one year after March 1st, 1900, all other amendments having lapsed."

The proposition of the learned trial court is that the provision for termination was so inconsistent with the modifications of the contract as continued on February 15, 1897, and at later dates, that ex necessitate the provision for termination no longer existed after 1897, and consequently did not exist in April, 1900.

The rule is stated by Andrews, C. J., in Miller v. Hannibal & St. Jo. R. R. Co., 90 N. Y. 430, 433, 43 Am. Rep. 179:

"But it is the imperative duty of courts to give effect, if possible, to all the terms of an agreement. The construction is to be made upon a consideration of the whole instrument, and not upon one or more clauses detached from the others; and this principle applies as well to instruments partly printed and partly written as to those wholly printed or wholly written. Barhydt v. Ellis, 45 N. Y. 107."

See, too, Kratzenstein v. Western Assurance Co., 116 N. Y. 54-57, 22 N. E. 221, 5 L. R. A. 799, Vann, J., writing for the court.

In Barhydt v. Ellis, supra, the court, per Rapallo, J., say:

"Effect must be given, if possible, to every part of an agreement; and it is only when there is an inconsistency or repugnancy which is totally irreconcilable that a discrimination will be made as to which part shall be made to yield to the other. Harper v. N. Y. City Ins. Co., 22 N. Y. 443; Harper v. Albany Mut. Ins. Co., 17 N. Y. 198."

I come, then, to the question whether any of the changes or amendments made in the contract (which, as I have said, was invariably continued in express terms) show an inconsistency or repugnancy totally irreconcilable with the provision making the contract terminable upon 30 days' written notice. The changes or amendments mainly relied upon to show this situation are provisions which extend the contract for one year. In the final contract such extension is expressed as follows:

*

*

"The contract between the parties dated February 15th, 1894, as amended * is hereby extended, as is also the amendment of February 15th, 1897. for one year after March 1st, 1900, all other amendments having lapsed."

So that the first question is whether a provision which permits a contract of employment to be terminable by either party on 30 days' notice, in a contract which does not fix a definite term, must be excluded as irreconcilably repugnant or inconsistent, if the contract bet amended so as to fix a definite term of employment. I think that the contract may be read as efiective in both provisions, namely, as fixing the term of a year, unless sooner terminated by either party in accord with its specific provision therefor. I know of no rule that does not