It is argued that the special verdict is defective, in that it does not find the terms of the special contract between the appellee and the conductor, nor set out the substance of the cash fare receipt, nor find what the company's regulations were respecting the purchase of tickets for the excursion.

None of these questions were material. The action is not founded upon any special contract with the conductor, and the receipt was only evidence of the payment of fare, and 34 could have no possible effect upon the rights of the parties to any further extent. It was immaterial, under the theory of the case, what the company's rules were, with reference to requiring pas sengers to purchase tickets. The fact that appellee paid more than the advertised fare should subject him to no disadvantage.

Every essential issue was covered by the special verdict, and the appellee was entitled to judgment thereon. There is no material error in the record.

The judgment is affirmed.

RAILROADS-RULES AND REGULATIONS-TICKETS-EXPULSION.-A railroad company may prescribe a rule requiring all persons, before taking passage on its passenger trains, to procure tickets, and to exhibit them to the conductor at all proper times to entitle them to ride, and, in default thereof, to pay an additional sum, when it has furnished the necessary conveniences and facilities to travelers for procuring tickets. If the company has failed or neglected to furnish a traveler an opportunity to procure a ticket, and he applies for passage or enters its passenger train without having such ticket, but offers to pay the usual fare, the company cannot lawfully reject or eject him, as the company is bound to furnish all the conveniences, opportunity, and means necessary to comply with its rules: Poole v. Northern Pac. R. R. Co., 16 Or. 261; 8 Am. St. Rep. 289; Chicago etc. R. R. Co. v. Flagg, 43 Ill. 364; 92 Am. Dec. 133; Evans v. Memphis etc. R. R. Co., 56 Ala. 246; 28 Am. Rep. 771; McGowen v. Morgans' R. R. etc. Co., 41 La. Ann. 732; 17 Am. St. Rep. 415; Reese v. Pennsylvania R. R. Co., 131 Pa. St. 422; 17 Am. St. Rep. 818. A passenger, unable to purchase a ticket because of the failure of a railroad company to furnish him an opportunity to do so, may pay the excess demanded on the train under protest, and recover it by suit, or refuse to pay it, and hold the company liable in damages for an ejection: Forsee v. Alabama etc. R. R. Co., 63 Miss. 66; 56 Am. Rep. 801; St. Louis etc. R. R. Co. v. South, 43 Ill. 176; 92 Am. Dec. 103. A railway company may lawfully make and enforce a rule that passengers not procuring tickets before entering: a train shall pay a greater specified rate of fare, if it, when added to the regular rate, does not exceed the maximum charge allowed by law: Zagelmeyer v. Cincinnati etc. R. R. Co., 102 Mich. 214; 47 Am. St. Rep. 514, and note; Reese v. Pennsylvania R. R. Co., 131 Pa. St. 422; 17 Am. St. Rep. 818. See monographic note to Commonwealth v. Power, 41 Am. Dec. 483, on regulations which railroad companies may make respecting passengers and others not employees. A railroad company is required to furnish a convenient and accessible place for the sale of tickets, and to afford the public a reasonable opportunity to purchase them. Its right to discriminate in its fare between those who purchase tickets and those who do not, while just and reasonable, is dependent on the fact that a reasonable opportunity has been given to obtain tickets at the lowest rate of fare: St. Louis etc. R. R. Co. v.

South, 43 Ill. 176; 92 Am. Dec. 103. An action of tort will lie to recover damages for the wrongful expulsion of a passenger from a railway car, and though the complaint alleges a contract for carriage, the action is not for breach of the contract, but for tort by breach of duty: Gorman v. Southern Pac. Co., 97 Cal. 1; 33 Am. St. Rep. 157. The plaintiff, in such an action, may recover more than nominal damages, although he has received no personal injuries to his body by reason of such expulsion, and has suffered no pecuniary loss: Chicago etc. R. R. Co. v. Flagg, 43 Ill. 364; 92 Am. Dec. 133; but ordinarily the measure of damages is the cost of a ticket from the point of expulsion to the passenger's destination, together with an allowance for such damages as actually result from loss of time: Gorman v. Southern Pac. Co., 97 Cal. 1; 33 Am. St. Rep. 157. In an action by a passenger against a carrier, to recover damages for injuries received through its carelessness, the fact that the plaintiff was, at the time of the injury, traveling on Sunday, in violation of a statute of the state, is no defense to the action: Carroll v. Staten Island R. R. Co., 58 N. Y. 126; 17 Am. Rep. 221.

GARRIGUS v. HOME FRONTIER AND FOREIGN MISSIONARY SOCIETY.

[3 INDIANA APPEALS, 91.]

NEGOTIABLE INSTRUMENTS-NOTE OR WILL.-A writ ten instrument in which the maker expresses a desire "to advance the cause of missions, and to induce others to contribute to that purpose," and promises, absolutely and unconditionally, to pay a certain sum of money, the payment to be made out of his estate one month after his death, is a promissory note, and not a will, and, having a good and valid consideration, it may be enforced by suit.

DEATH.-A promissory note payable after the death of the maker is a valid obligation.

DELIVERY. - The payee's possession of a promissory note raises a presumption of delivery.

EXECUTORS AND ADMINISTRATORS-CLAIM AGAINST ESTATE.-It is sufficient to file a note, executed by one deceased, against his estate, without accompanying the same with a formal complaint.

M. Garrigus, M. Bell, and W. C. Purdum, for the appellant. J. C. Blacklidge, W. E. Blacklidge, C. C. Shirley, and B. C. Moon, for the appellee.

91 NEW, C. J. The appellee, as plaintiff, filed a claim against 92 the estate of Elizabeth Stover, the appellant's decedent, founded upon the following written instrument:

"November 10th, 1884.

"Desiring to advance the cause of missions, and to induce others to contribute to that purpose, I promise to pay to the order of the 'Home Frontier and Foreign Missionary Society of the Church of the United Brethren in Christ,' the sum of

six hundred ($600) dollars, with interest from, at the rate of per cent per annum. Said sum and interest to be paid out of my estate one month after my death.

her

"MRS. ELIZABETH X STOVER.

"Executed in our presence:

"W. S. Fields.

"Amelia Jolon.”

mark

A demurrer to the claim for want of facts was overruled, and exception taken. There was a trial by the court, with finding and judgment for the appellee in the sum of eight hundred and four dollars.

The errors assigned by the appellant are, that the complaint does not state facts sufficient to constitute a cause of action, and that the court erred in overruling the appellant's motion for a new trial.

The first objection urged to the complaint is, that the instrument sued on is without sufficient consideration to support it, and that, therefore, the action cannot be maintained.

The promissory note sued on, for such we think it must be regarded, was executed "to advance the cause of missions, and to induce others to contribute to that purpose."

We are referred by counsel for the appellant to cases which would seem to hold that a promise, such as that made by the decedent in the case at bar, however worthy the object intended to be promoted, is gratuitous, and cannot be enforced; that the appellant, as the personal representative of the promisor, may refuse to perform the promise, although his refusal may disappoint reasonable expectations, and may not be justified in the forum of conscience.

93 The promise of the decedent, under the decisions of this state, cannot be held to be void for want of consideration.

The case of Johnston v. Wabash College, 2 Ind. 555, was an action for debt upon the following promissory note:

$50. Warren County, March 5th, 1842. "For value received, I promise to pay Wabash Manual Labor College and Teachers' Seminary fifty dollars, five years from date, with interest payable annually on the first day of February. (Signed) "JAMES JOHNSTON."

The only objection made to the recovery on the note was, that it was given without consideration. The court held that the accomplishment of the object in aid of which the money was

promised formed a good and valid consideration for the promise to pay it.

The case of Roche v. Roanoke Classical Seminary, 56 Ind. 198, was a claim filed against the appellant's decedent, founded upon a written obligation in these words:

"March 1st, 1873.

"For value received, I promise to pay to the order of the trustees of Roanoke Classical Seminary, of the United Brethren in Christ, at Roanoke, Indiana, as endowment fund, the interest annually, at six per cent, on the sum of one hundred dollars, for such a term of years as will be required for said interest to equal the principal. And should such interest not be paid, as aforestated, then the principal itself shall be at once collectible, otherwise never. Without any relief from valuation or appraisement laws.

The second paragraph of the answer was a plea of failure of consideration, to wit: That said note was signed as a subscription to an endowment fund of the appellee, then and there being subscribed to; that said endowment fund was to be the sum of thirty thousand dollars, and no other sum, and that said sum had not yet been raised or subscribed, etc.

The court, in ruling upon the sufficiency of this paragraph of the answer, say, among other things: "The truth is, 94 that the note sued on required no consideration to support it other than 'the accomplishment of the object in aid of which the money was promised.' The appellee was authorized by law to accept donations, and appellant's decedent, in his lifetime, had the right to make such a donation. And having made the contract in suit, neither he nor his administrator can escape or avoid the obligation, upon the plea that it was without consideration, or that its consideration had wholly failed. The contract of the dece dent was in writing and must speak for itself, without regard to matters not mentioned therein. It was not a promise to pay a sum certain as a part of any other sum, or upon condition that a certain sum should be donated or subscribed by others to the fund mentioned in the note. It was the absolute and unconditional promise of the maker of the note, not dependent by its terms upon the acts of any other man or body of men, to pay as therein stipulated, for the purpose therein expressed. And, in our opinion, the only matters which could have been answered in this action, to constitute a failure of consideration of the note in suit, would have been an alleged abandonment by the appellee

of the enterprise for which it was incorporated, and in aid of which the note was executed."

The cases, in some of the other states, holding to a different doctrine will, as a rule, be found to have adopted the reasoning of the court in the case of Trustees v. Stewart, 1 N. Y. 581, a case which the supreme court of this state has refused to follow, and has held to be at variance with the weight of authority: See Higert v. Trustees, 53 Ind. 326; Northwestern Conference v. Myers, 36 Ind. 375; Pierce v. Ruley, 5 Ind. 69; Jewett v. Salisbury, 16 Ind. 370; Leviston v. Junction R. R. Co., 7 Ind. 597; Mansur v. Indianapolis etc. Ry. Co., 8 Ind. 487; Musselman v. Cravens, 47 Ind. 1; Petty v. Trustees, 95 Ind. 278; Bryan v. Watson, 127 Ind. 42.

It is further urged against the sufficiency of the complaint 95 that the written instrument which is therein declared upon was simply an attempt, by the decedent, to dispose of that amount of his estate after his death, was therefore testamentary in its character, and without legal efficacy as executed.

We cannot adopt that view. The instrument in no respect resembles a will. It does not attempt a testamentary disposal of property, but promises expressly to pay a sum of money to a party named, and, being in the form of a contract to pay money, may be said to import a consideration.

It is none the less a promissory note because made payable after the death of the maker: Story on Promissory Notes, sec. 27; 1 Daniell on Negotiable Instruments, sec. 46; Hathaway v. Roll, 81 Ind. 567; Price v. Jones, 105 Ind. 543; 55 Am. Rep. 230; Wolfe v. Wilsey, 2 Ind. App. 549.

In the case of Moore v. Stephens, 97 Ind. 271, relied on by the appellant's counsel, there was no promise to pay. There the decedent, in the instrument sued on, simply directed that at his death his estate should pay a certain sum of money to the beneficiary therein named.

It is further objected to the complaint that it is not shown that the note went into the possession of the appellee before the decedent's death.

It is sufficient to file a note executed by one deceased, against his estate, without accompanying the same with a formal complaint: Pulley v. Perfect, 30 Ind. 379; Smith v. Denman, 48 Ind. 65; Noble v. McGinnis, 55 Ind. 528; Hathaway v. Roll, 81 Ind. 567; Price v. Jones, 105 Ind. 543; 55 Am. Rep. 230; Wolfe v. Wilsey, 2 Ind. App. 549.

The possession of a note will raise a presumption of delivery: