But in case said land is sold before October 1st, 1890, then the last two payments are to bear interest from April 1st, 1890, to the date of sale. And in case any payments are not made as above* provided, the amount paid herein is forfeited, and this receipt is from that time void and inoperative; and when the payment [sic] are made as above provided the land to be conveyed to said Eugene W. Coughran and Nathan H. Cottrell, or their assigns, with good title free from incumbrances.

"Signed in presence of

"Geo. H. Burgitt."

"H. H. Henderson. "E. A. Reed. "Millie G. Reed.

The plaintiffs alleged that they made the first and second payments provided for in the contract in accordance with the terms thereof; that on or about November 1, 1890, upon the request of the plaintiffs, E. A. Reed and H. H. Henderson tendered them a deed for the said interest in the lands; that thereupon they examined the title to the property, found the same to be defective, and, because of the defects therein, refused to accept the deed; and that as to these transactions between the parties to the contract the defendants had due notice. It was alleged that Reed and H. H. Henderson had never been able, and were not able at the time the complaint was filed, to convey a fee simple and unincumbered title to the one-tenth interest in the lands described in the bond and contract; that for a long time prior to April 12, 1890, the property was owned in fee simple by the Union Pacific Railway Company, which company, by deed of that date, conveyed all of the E. 1⁄2 and the N. 1⁄2 of the N. W. 4 of said section 15 to one James Taylor; that in and by that deed the company reserved to itself "the exclusive right to prospect for coal and other minerals within and underlying said land, and mine and remove the same if found," and also "the right of way over and across said lands, and space necessary for the conduct of said business thereon, without charge or liability therefor"; that the title of Reed and H. H. Henderson to the said interest was obtained by deed to them from Taylor, dated October 17, 1890, which deed was made subject to the said mining rights reserved to the company; that the lands were situated in a mining district, and that the said reservation rendered the title to the lands doubtful and unmarketable, and greatly diminished their probable value; that, furthermore, the property was subject to a mortgage. The plaintiffs allege that they had performed all the conditions of the contract upon their part, except to pay the sum of $3,333 on April 1, 1891, and that neither Reed and H. H. Henderson nor the defendants had ever tendered to them any other or different title than the alleged defective one aforesaid, or had ever refunded to them the amount of the first two payments. They asked for judgment in the sum of $5,000.

The defendants, on January 8, 1892, filed separate answers, wherein they denied that the said second payment made by the plaintiffs was made in accordance with the provisions of the contract, or that the title to the property was defective, or that the refusal of the plaintiffs to accept the deed tendered to them by Reed and H. H. Henderson was on account of any defect in the title, or that the lands were mineral lands, or that a reservation of mineral rights therein would be an incumbrance upon the title thereto. Further answering, they alleged that shortly before the execution of the said bond the plaintiffs had entered into negotiations with Reed and H. H. Henderson for the purchase of the said interest in the lands; that at that time Reed and H. H. Henderson held the said interest under executory contracts for the conveyance thereof to them; that Reed and H. H. Henderson fully informed the plaintiffs of the character of their title; that the said contract was then entered into, and the plaintiffs, in receiving the same, required some guaranty that Reed and H. H. Henderson would perfect their rights under the said executory contracts by April 1, 1891,-that being the agreed time, as alleged, at which the plaintiffs would be entitled to a conveyance from Reed and H. H. Henderson; that thereupon it was agreed and understood that the defendants, as sureties, would execute a bond in the sum of $5,000, with Reed and H. H. Henderson as principals, guarantying that on or before April 1, 1891, Reed and H. H. Henderson should execute and deliver a deed as stipulated in the contract, provided that the plaintiff's should perform all the conditions of the contract upon their part; that the bond was prepared and attached to the contract, and was signed by Reed and H. H. Henderson and by the defendants; that by inadvertence in the preparation of the bond the time therein stated for the delivery of the deed was October 1, 1890, instead of April 1, 1891; that, therefore, the bond was not in accordance with the agreement and understanding of the parties thereto.

The case came on for trial in the said court November 29, 1892, before the court and a jury. Thereupon the plaintiff's introduced evidence tending to show, among other things: That the said lands were, on November 1, 1890, subject to a mortgage for the sum of $9,000, recorded July 2, 1889. That on October 17, 1890, the defendants placed in the custody of the Ogden State Bank a deed bearing that date, whereby Reed and H. II. Henderson conveyed to the plaintiffs the said interest in the said lands, subject to one-tenth of the said mortgage; two notes, unsigned, dated October 17, 1890, payable to Reed and H. H. Henderson on April 1, 1890, for the aggregate amount of $2,433, being the amount of the last payment under the said contract, less $900, or one-tenth of the amount of the said mortgage; and an unexecuted mortgage of the interest in the lands described in the con

tract, in favor of Reed and H. H. Henderson. That the bank was instructed to deliver the deed to the plaintiffs when they should have executed the notes and the last-mentioned mortgage, and should have returned them to the bank to be delivered by it to Reed and H. H. Henderson. That subsequently to October 8, 1890, and not later than the 12th of that month, the bank received the sum of $3,334 from the plaintiffs, with instructions to pay the same to Reed and H. H. Henderson, and did pay the same to them some time within the month following. It was further shown that Reed and H. H. Henderson derived their title to the property from James Taylor, by deed dated October 17, 1890. That Taylor's title was obtained from the said railway company; and that the deed from the company to Taylor as well as the deed of Taylor to Reed and H. H. Henderson contained the reservation of mineral rights as set out in the complaint.

After all the evidence on behalf of the plaintiffs had been introduced, the defendants moved for a nonsuit. The motion was granted, and judgment was entered in favor of the defendants. The plaintiffs then appealed to the supreme court of the territory of Utah, where the judgment of the said district court was affirmed. Coughran v. Bigelow, 9 Utah, 260, 34 Pac. 51. Thereupon they sued out a writ of error from this court.

C. W. Bennett, for plaintiffs in error. thur Brown, for defendants in error.

Ar

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

The ruling of the supreme court of the territory of Utah in affirming the action of the trial court ordering a nonsuit of plaintiffs is assigned as error. It was held by this court in Elmore v. Grymes, 1 Pet. 469, that a circuit court of the United States had no authority to order a peremptory nonsuit against the will of the plaintiff. This case has been followed in repeated decisions. Crane v. Morris, 6 Pet. 598; Castle v. Bullard, 23 How. 172.

The foundation for those rulings was not in the constitutional right of a trial by jury, for it has long been the doctrine of this court that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it upon whom the onus of proof is imposed; and that, if the evidence be not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly, and, if the jury disregard such instruction, to set aside the verdict. Parks v. Ross, 11 How. 362; Schuchardt v. Allens, 1 Wall. 359; Pleasants v. Fant, 22 Wall. 120. And, in the case of Oscanyon v. Arms Co., 103 U. S. 264, it was said by Mr.

Justice Field, in delivering the opinion of the court, that the difference between a mo-* tion to order a nonsuit of the plaintiff and a notion to direct a verdict for the defendant is "rather a matter of form than of substance."

That the cases above cited which held that the circuit court of the United States had no authority to order peremptory nonsuits were based, not upon a constitutional right of a plaintiff to have the verdict of a jury, even if his evidence was insufficient to sustain his case, but upon the absence of authority, whether statutory or by a rule promulgated by this court, is shown by the recent case of Central Transp. Co. v. Pullman's Palace-Car Co., 139 U. S. 24, 38, 11 Sup. Ct. 478, where it was held that since the act of congress of June 1, 1872 (17 Stat. 197), re-enacted in section 914 of the Revised Statutes, courts of the United States are required to conform, as near as may be, in questions of "practice, pleadings, and forms and modes of proceeding" to those existing in the courts of the state within which the trial is had, and a judgment of the circuit court of the United States for the Eastern district of Pennsylvania, ordering a peremptory nonsuit, in pursuance of a state statute, was upheld. It is the clear implication of this case that granting a nonsuit for want of sufficient evidence is not an infringement of the constitutional right of trial by jury.

As there was a statute of the territory of Utah authorizing courts to enter judgments of peremptory nonsuit, there was no error in the trial court in granting the motion for a nonsuit in the present case, nor in the judg ment of the supreme court affirming such ruling, if, indeed, upon the entire evidence adduced by the plaintiffs, enough did not appear to sustain a verdict.

We are thus brought to the question whether the trial court was mistaken in its view of the plaintiff's evidence.

The facts of the case are somewhat peculiar. The suit is against sureties on a bond conditioned for the performance by the principals of the terms of a contract for the sale of land to the parties plaintiff. The chief difficulty arises from the fact that there is a discrepancy between the terms of the contract as they appear in the written instrument itself and as they are described or narrated in the bond.

The contract is clear and unambiguous. It is dated April 26, 1890. After acknowledging receipt of $3,333 as part purchase price of an undivided one-tenth part of a certain tract of land, describing it, it proceeds as follows: "The full purchase price being ten thousand dollars, to be paid as follows: $3,334 on October 1st, 1890, and $3,333 on April 1st, 1891, with interest at eight per cent. per annum on deferred payment from October 1st. 1890. But in case said land is sold before October 1st, 1890, then the last two payments are to bear interest from April 1st, 1890, to the date of sale. And in case any payments

are not made as above provided, the amount paid herein is forfeited, and this receipt is from that time void and inoperative; and when the payments are made as above provided the land to be conveyed to said Eugene W. Coughran and Nathan H. Cottrell, or their assigus, with good title free from incumbrances."

The obvious meaning of these provisions is that, if the sum of $3,334 is paid on October 1, 1890, and the sum of $3,333 is paid on April 1, 1891, with interest from October 1, 1890, then it shall be the duty of the vendors to convey the property to the vendees or their assigns with a good title free from incumbrances; but that, if said deferred payments are not made as provided for, then the amount previously paid shall be forfeited and the contract become void.

The bond, bearing even date with the contract, contains the following language: "The condition of the above obligation is such that the above-bounden E. A. Reed and H. H. Henderson, on or before the 1st day of October next, or in the case of their death before that time, if the heirs of the said E. A. Reed and H. H. Henderson, within three months after their decease, shall and do upon the reasonable request of the said Eugene W. Coughran and Nathan H. Cottrell, their heirs or assigns, make, execute, and deliver, or cause so to be made, a good and sufficient warranty deed, in fee simple, free from all incumbrance, and with the usual covenants of warranty, of the following-described premises: • provided, the said Eugene W. Coughran and Nathan H. Cottrell comply with their part of the contract this day made and delivered to them by the said E. A. Reed and H. H. Henderson, and a copy of which is hereto attached, then the above obligation to be void; else to remain in full force and virtue."

It will be observed that by the terms of the contract the deed of conveyance was not to be made until the purchase money had been paid in full, but the recital in the bond calls for the making and delivery of the deed on or before the 1st day of October, 1890.

The solution of the difficulty thus created will be found by reading the bond in the light of the contract, to secure the performance of which was the purpose of the bond. That contract provided, indeed, that the vendors should execute and deliver a proper deed, but also provided that the title should not pass until the deferred payments were made. To construe the bond as compelling a conveyance before such payments were made would deprive the vendors of the security given them by retaining the title, and also of their stipulated right to forfeit the cash payment and rescind the sale, if the payments were not made as provided in the contract.

The obligatory portion of the bond was expressly made dependent on the proviso that Coughran and Cottrell should comply with their portion of the contract that day made,

and a copy of which was attached, one of the terms of which was that the sum of $3,334 should be paid on October 1, 1890. This payment was not so made on that day. The acceptance by the vendors of the payment subsequently made on or about October 12th was, of course, a waiver by them of their right to rescind and declare a forfeiture, but such waiver did not bind the sureties, who were relieved from liability by the failure of the vendees to perform the precedent act of payment at the time provided in the contract. Bank of Columbia v. Hagner, 1 Pet. 465; Kelsey v. Crowther, 162 U. S. 404, 16 Sup. Ct. 808.

The contention on the part of the plaintiffs in error that the alleged inability of the vendors to make a conveyance of the character called for by the contract relieved them from the duty of payment is only true so far as they might choose to make such inability the ground of a right to rescind. They could not elect to abide by and enforce the contract, except*upon performance or tender of payment on their part. Telfner v. Russ, 162 U. S. 171, 16 Sup. Ct. 695; Kelsey v. Crowther, 162 U. S. 404, 16 Sup. Ct. 808. These were the views that prevailed in the supreme court of the territory, and its judgment is accordingly affirmed.

1. Where a complaint against two railroad companies designates them as several defendants, and alleges that each is a corporation, and that they jointly own and operate the road on which plaintiff was injured, and jointly committed the acts causing such injury, an allegation that they together "were a common carrier of passengers on said road" cannot be construed to mean that they were a single company, and so incapable of separate liability.

2. An allegation that plaintiff, as a passenger on defendant's road at the time of the injury, was traveling on a certain kind of ticket, does not render the action one ex quasi contractu; there being no allegation of any undertaking or promise, or breach thereof, by the defendant. 7 C. C. A. 489, 58 Fed. 760, affirmed.

3. An amendment of the complaint against two railroad companies for injuries alleged to have been caused by their joint negligence, by merely striking out one of the defendants, and alleging that the injury was caused by the negligence of the remaining defendant, does not introduce a new cause of action. 7 C. C. A. 489, 58 Fed. 760, affirmed.

4. An amendment stating that plaintiff, at the time of the injury, was traveling on defendant's road on a second-class ticket, instead of first-class, as stated in the original complaint, does not change the cause of action.

5. Where the original complaint in an action against a railroad company for injuries alleges that defendant was incorporated under the laws of a certain state, an amendment stating that it was incorporated under act of congress does. not change the cause of action. 7 C. C. A. 489, 58 Fed. 760, affirmed.

graphs each defendant was alleged to be a corporation, duly incorporated under the laws of the state of Massachusetts, and having its principal place of business outside of the state of California. Soon after the filing of the complaint, each defendant presented its separate application for removal of the cause to the federal court. In that of the Atchison, Topeka & Santa Fé road, it was averred that it was a corporation organized, existing, and doing business under and by virtue of the laws of the state of Kansas. The Atlantic & Pacific Company averred in its application that it was a corporation duly created, organized, and existing under an act of congress, which, it was expressly alleged, authorized it to construct and operate, as a common carrier of passengers and freight, certain described lines of railroad, including the line of railroad upon which plaintiff received her injury. The answer filed on behalf of the defendants was "joint and several," and it was therein admitted that the defendant, the Atlantic & Pacific Company, plaintiff in error here, was operating the line of railroad in question. The case presented by the complaint, giving to the language employed the reasonable inferences which it should receive, was one where each of two corporations was proceeded against as a common carrier of passengers, exercising their respective corporate powers concurrently, the two corporations acting together, just as several individuals might have done.

Looking then to the averments of the complaint, we find it stated that the defendants, as common carriers, jointly owned and operated a described line of railroad; that on November 3, 1890, the plaintiff was a passenger on a train of cars then being run by the defendants, which train was derailed and thrown from the track, and the plaintiff injured. Was this an action ex quasi contractu, as now claimed?

Before proceeding to answer this question, we observe that it seems manifest, from the attacks originally made upon the amended complaint, that this claim is an afterthought. The motion to strike from the files, demurrer, answer, and motion for judgment upon the pleadings, proceeded upon the assumption that the cause of action stated in both complaints was subject to a limitation of two years, whereas it did not appear upon the face of the complaint but that the agreement, if any, made by the alleged contract was entered into in the state of California, in which event the statutory limitation for commencing the action would have been four years. The fact that a written contract was executed in Ohio, which it is claimed was established on the trial, was not at any time specially set up as a defense to the amended complaint.

It is clear that the original complaint is not susceptible of the construction now attempted to be given to it. Though it is alleged that the plaintiff was the holder of,

and traveling upon, a certain ticket, no undertaking or promise by the defendants was averred, nor is there any allegation of the breach of any undertaking or promise. The reference to the ticket, joined with the allegation immediately preceding it, that the plaintiff was a passenger on the described line of railroad, was evidently introduced by the pleader to show the existence of the relation of passenger and carrier between the plaintiff and the defendants. Because of such relation, the duty to exercise due care in the carriage of the passenger was imposed upon the defendants, and from the recital of the negligent acts committed arose the implication of the failure of the defendants to perform that legal duty. As said by Martin, B., in Legge v. Tucker, 1 Hurl. & N. 500, 501:

"In the case of carriers, the custom of the realm imposes on them a duty to carry safely, and a breach of that duty is a breach of the law, for which an action lies founded on the common law, and which does not require a contract to support it."

Legge v. Tucker was in form an action on the case for the negligence of a livery stable keeper in the care and custody of a horse. It was held that the foundation of the action was a contract, and that, whatever way the declaration was framed, it was an action of assumpsit. The line which distinguishes the case at bar from an action ex quasi contractu is thus expressed in the remarks of Watson, B., who said (page 502):

"The action is clearly founded on contract. Formerly, in actions against carriers, the custom of the realm was set out in the declaration. Here a contract is stated by way of inducement, and the true question is whether, if that were struck out, any ground of action would remain. Williamson v. Allison, 2 East, 452. There is no duty independently of the contract, and therefore it is an action of assumpsit."

The doctrine is very clearly expressed in Kelly v. *Railway Co. [1895] 1 Q. B. 944, where the court of appeals held that an action brought by a railway passenger against a company for personal injuries caused by the negligence of the servants of the company while he was traveling on their line was an action founded upon tort. In reading the judgment of the court, A. L. Smith, L. J., said (page 947):

"The distinction is this: If the cause of complaint be for an act of omission or nonfeasance, which, without proof of a contract to do what has been left undone, would not give rise to any cause of action (because no duty apart from contract to do what is complained of exists), then the action is founded upon contract, and not upon tort. If, on the other hand, the relation of the plaintiff and the defendants be such that a duty arises from that relationship, irrespective of contract, to take due care, and the defendants are negligent, then the action is one of tort." So, in the case at bar, there was a duty