#### P. H. RAHILLY v. ST. PAUL & DULUTH RAILROAD COMPANY.1

November 6, 1896.

Nos. 10,102 — (30).

•Carrier — Ticket—Conditions—Transfer.

The defendant issued to D. a mileage ticket or book, which expressly provided that it was to be used only by D., “whose signature appears on the last page.” The ticket also provided that it was “subject to the conditions named in the contract * * * and made part hereof.” One of these conditions was that the ticket was not transferable, and, if presented by any other than the original holder, “whose signature is hereon,” the conductor would take it up, and collect full fare. The ticket was never signed by D. Plaintiff, having purchased the ticket from a broker, presented it in payment of his fare on one of defendant’s trains. The conductor took it up, and refused to return it to the plaintiff, whereupon plaintiff refused to pay his fare unless the conductor would return the ticket. *Edict.,*that plaintiff was not entitled to ride on the ticket; that the fact that it was not signed by the -original purchaser was immaterial, since, by accepting the ticket, he accepted all the terms and conditions therein contained. Also that plaintiff had no right to refuse to pay his fare unless the conductor would return the- ticket. Even if the conductor had no right to take it up, it was plaintiff’s duty to leave the train or pay his fare, and then pursue his remedy against the defendant for wrongfully withholding the ticket. ' •

Appeal by plaintiff from an order of the district court for Hennepin county, Smith, J., denying a motion for a new trial.

Affirmed.

*F. I). larrdbee,*for appellant;.

*Hadley <&*Armstrong, for respondent.

1

 Reported in 68 N. W. 853.

*154MITCHELL, J.

This action was brought to recover damages for the alleged wrongful act of defendant’s servants in attempting to remove him from one of its passenger trains while he was on his way from St. Paul to Duluth.

' The undisputed evidence is that plaintiff bought what is known-as a “mileage book” or “mileage ticket” from a broker or scalper, who-was a stranger to the defendant, and had no authority from it to sell its tickets. The following is a copy of this ticket, so far as here material:

> “Mileage Ticket No. 3051. To be used only by Mr. A. O. Dunk [in writing], whose signature appears on the last page. Good for 1000-miles travel and transportation of regulation amount of baggage when, officially stamped, subject to the conditions named in the contract attached to and made part hereof. * * * [Signed] W. A. Russell,. Gen. Pass. Agent.” Stamped: “(St. Paul & Duluth R. R. Pass. & Ticket Office.)”

Then followed the coupons, one for each mile of travel, there being 499 in the book; and on the inside of the back cover is the following:

> “Contract. The conditions under which this mileage ticket is sold by the St. Paul & Duluth Railroad Company, and purchased and used by the person named in this ticket, are: (1) It is positively not transferable, and, if presented by any other than the original holder, whose signature is hereon, or after date of expiration, the conductor will take it up and collect full fare.” [Then follow nine other conditions, not now material.] “I understand the above conditions, and do hereby agree to the same.”

As a matter of fact, Dunk’s signature was not attached. The plaintiff boarded defendant’s train, and, when the conductor called for his fare, handed him this mileage book. The conductor, on ascertaining that plaintiff’s name was not the one written in the book, told him that he could not ride on it, that nobody could ride on it except the man whose name was written in it, and that the book had been stolen from the man to whom it was issued. The plaintiff thereupon offered to pay his fare, provided the conductor would return him the mileage book. This the conductor refused to do, informing him that his orders and the rule of the company were to take up the mileage book if presented by any other person than the one whose name was written in the book. The plaintiff, however, persisted in refusing to pay his fare, except on condition that the con*155ductor would return Mm the mileage book. Then followed the acts of the defendant’s servants complained of, in attempting to put plaintiff off the train. Whether' in so doing they used any more force than was reasonably necessary was a question for the jury, and is not involved in tMs appeal.

The entire argument of plaintiff’s counsel may be summed up in two legal propositions: (1) That the mileage ticket was assignable, and good for the transportation of anybody, because it had never been signed by Dunk; (2) that, even if it was not transferable, and was not good for plaintiff’s fare, the conductor had no right to take it up, and that plaintiff had a right to insist on its return to him as a condition precedent to paying his fare. Neither of these positions is tenable.

The fact that the ticket was not signed by the original purchaser is immaterial. On its face it stated that it could be used only by Dunk, and the purchaser, in accepting the ticket, accepted all the terms and conditions therein expressed. Drummond v. Southern Pac. R. Co., 7 Utah, 118, 25 Pac. 733. See, also, Gulf, C. & S. F. Ry. Co. v. McGown, 65 Tex. 640; Illinois Cent. R. Co. v. Read, 37 Ill. 484. A majority of the court, including myself, are of opimon that the conductor had a right to take up the ticket whenever presented by a person other than the one to whom it was issued, because the conditions attached to and made part of the ticket expressly so provided. Some members of the court are not prepared to assent to this proposition, but we are all agreed that, even if the conductor had no right to take up the ticket, this would not give the plaintiff any right to refuse to pay Ms fare until and unless the ticket was returned. Having no right to ride on the ticket, it was his duty to pay his fare or leave the train, and then pursue his remedy against the defendant for wrongfully withholding the ticket from him.

Order affirmed.