In аctions of this character it is not necessary that the plaintiff should allege a strictly legal tender of his fare. It was so held in the case of Pickford v. The Grand Junction Railway Company, 8 M. & Wels. 372. It is sufficient to allege that he was ready and willing and offered to pay the defendant suсh sum of money as it was legally entitled to charge. The transportation and payment of the fare are contemporaneous acts. If the plaintiff was ready and willing and offered to pay the legal fare when demanded by the Conductor of the train, the defendant was bound to carry him, provided there was room in the cars and the plaintiff was a fit person to be admitted. This results from thе nature of the defendant’s business, which makes it its duty to receive all persons as passengers who offer to become such, upon their offering to pаy the legal fare. Whenever the performance of a duty or obligatiоn is thus cast upon the one party in consequence of a contemporaneous act of payment by the other, it is sufficient if the latter is ready and willing to pay when the former is ready to undertake the duty. (Rawson v. Johnson, 1 East, 203.)
The complaint in this case might have been drawn with more directness and precision in this respect, but wе are disposed to hold that the Court below did not err in overruling the demurrer. It would have been more certain had the amount of the fare been stated whiсh the plaintiff offered to pay, and that the person to whom the offer wаs made was the Conductor in charge of the train; hut we are not prepаred to say that it is not sufficiently certain in it present form.
The point that the defendant was not bound to carry the plaintiff because the fare which he offеred to pay was in legal tender notes, is not tenable. Conceding that a statute authorizing defendant to demand coin in payment of fare would he constitutional, no such statute exists, and there being no contract in writing stipulating for coin, we find nothing in the
Whether the defendant could have legally exаcted payment in coin before the plaintiff was admitted into the cars and the journey commenced, is a question not involved in this case, and upon which we express no opinion. Having received the plaintiff* and proceeded several miles upon the journey, the defendant must be held to have сonsented to receive in payment of the fare any good and lawful money which the plaintiff might tender when called upon for payment. The kind of monеy to be paid bad then ceased to be an open-question, for the contract was already made and in process of performance.
The verdict, however, was excessive. Ho special damages werе alleged or proved. It is not pretended that this is a case for punitive dаmages, or that the business of the plaintiff suffered in any way by reason of his not being tаken to Colfax. It does not appear whether the plaintiff proceeded on to Colfax or returned to Auburn after he was put out of the cars, or, whichever he did, if he did either, that he was put to any expense in doing it. Whether the plaintiff was going to Colfax upon urgent business or merely for pleasure, is not shown. In short, there is no evidence in the transcript which has any bearing upon the question of damages except the naked fact that he was put out of the cars at a point ten or twelve miles from the place of his destinatiоn, and about five from the place of his departure. Such being the only evidence bearing upon the question, we think the verdict greatly disproportionate to the injury proved, within the rule in Aldrich v. Palmer,
A new trial must be granted, unless the plaintiff elects, within fifteen days, to take a judgment for one hundred dollars, which sum we think amply sufficient compensation for the injury which he sustained.
So ordered.