edge, had he known any of disparagement. He was the indorser, and as such liable to his indorsee. Plaintiff might well, perhaps, have taken the note upon the indorsements of Steele & Malone, and John F. It is urged that if plaintiff had no actual knowledge impairing the validity of the note he was negligent; that he should have seen the note, and that had he done so, the marks and indorsements upon it were such as to excite suspicion and lead to investigation. We cannot agree with this contention. Had he made inquiries, and in fact learned all that could be known, he could have learned nothing to invalidate the note.

IV. Defenses to negotiable paper, like any other defenses, are to be established affirmatively by the party relying upon them. They cannot be established inferentially and arbitrarily by a jury, in the absence of all evidence. A suspicion or belief of want of good faith, unsupported by evidence, cannot be made the basis of a verdict.

The rule in this state in regard to commercial paper, wisely adopted in the interest of commerce and for the protection of purchasers, is announced by the Supreme Court in Merchants Bank v. McClelland, 9 Colo. 608, as follows:

"If there is nothing upon the face of a negotiable instrument, or in the written indorsement or assignment, to notify the assignee that the instrument was originally given upon an illegal consideration, (gambling debts excepted,) or obtained through fraud, the assignee who pays value therefor, and takes the same in good faith before maturity, may recover as against the maker. This is true, even though such assignee be in possession of facts or circumstances sufficient to arouse suspicion in the mind of a person of ordinary prudence, and though he is guilty of negligence in not first following up such information for the purpose of discovering the fraud or illegality to which the suspicious circumstances may seem to point." Followed and approved in Coors v. German Nat'l Bk., 14 Colo. 202, and in Rand v. Pantagraph Stationery Co., ante, p. 270.

The rule as above stated is more unrestricted and broader VOL. I-27

state of New See Bk. of Me

than that in some of the states, notably, the York, but is the rule of the federal courts. tropolis v. New England Bk., 1 How. 234; 6 How. 112; Murray v. Lardner, 2 Wall. 110; Hotchkiss v. Bank, 21 Wall. 354; Brown v. Spofford, 95 U. S. 474; Swift v. Smith, 102 U. S. 442; and is the rule in the great majority of the states.

The later decisions in the courts of England are in harmony with the American rule, as above stated. In Bank of Bengal v. Mcleod, 5 Moore, Indian Appeals 1; 7 Moore, P. C. C. 35, it is said: "The rule laid down in Gill v. Cubitt, 3 Barn. & Cress. 446, and Down v. Halling, 4 Barn. & Cress. 330, that the negligence of a party taking a negotiable instrument fixes him with the defective title of the party passing it, is no longer law." It is well settled that a party may be a bona fide holder notwithstanding the mala fides of his indorser. See 2 Rand. on Com. Paper, § 987; 1 Daniel on Neg. Insts. § 769; 1 Parsons, 261; Masters v. Ibberson, 8 Com. B. 100; Ayer v. Tilden, 15 Gray 178; Dillingham v. Blood, 66 Me. 140.

By the law merchant a purchaser is presumed to be a holder for value, and to have purchased in good faith any paper before its maturity, and this presumption must be overcome by competent testimony. Where there is no testimony impeaching the bona fides of the transaction of the holder, it is error to admit evidence of want of consideration, fraud in obtaining, irregularity in transferring, and the knowledge of defects or defenses by the intermediate holders or indorsers.

There was absolutely no testimony to show that the plaintiff was not a bona fide holder for value. All the testimony upon the transaction was in favor of its regularity and legality. There was no testimony to overcome the legal presumption, or to cast a suspicion upon it, hence all the instructions submitted upon the transactions prior to the title of John F., as well as those in regard to the consideration of the note, etc., were erroneous, upon which they could be predicated.

there was no basis There are several

other minor errors assigned which we do not find it necessary to examine. Sufficient has been said to aid in the determination of the case upon a new trial.

The judgment will be reversed, and the cause remanded for a trial de novo.

Reversed.

THE DENVER & RIO GRANDE R. R. Co., PLAINTIFF IN ERROR, V. MARSHALL DE WITT, DEFENDANT IN ERROR.

1. CONSTRUCTION OF CARRIER'S CONTRACT TO TRANSPORT GOODS.—An express company received a package of merchandise for transportation to "R.," a point not on its line, which it undertook to forward to the station on its line most convenient to the point of destination and there deliver to other parties to complete the transportation. The express company had two lines in that section of the state, the “Northern" and the “Southern," the latter passing nearer “ R.,” and the nearest station being connected therewith by a line of stagecoaches. "D." being a well known point on the "Southern" route, the consignor, to insure a speedy delivery, caused the package to be marked for shipment, "via D." On its arrival at the latter point the company's agent stopped it, claiming the contract for transportation was completed under the shipping directions, by its carriage to that station. He conceded that if consigned to "R." without the words "via D.," it would have been carried forty or fifty miles further to the station nearest "R." In an action brought by the consignee for damages occasioned by the delay, held, that the express company violated its contract by stopping and detaining the package at "D.”

2. SIGNIFICATION OF SHIPPING DIRECTIONS.-The term via is never used to designate a terminal point, and the fact that the consignor directed that goods delivered a carrier for transportation to "R," be shipped "via D.," which was a point on the route selected but not the nearest or most available to "R.," affords no ground of defense to an action for the damages sustained by reason of their detention at "D."

3. MEASURE OF DAMAGES FOR FAILURE TO TRANSPORT.-The contract for shipment does not contemplate nor cover damages for loss of time by the consignee in awaiting the arrival of the goods at the point of destination, and evidence of damages of this character was

inadmissible. It was likewise error to instruct the jury to consider such evidence in their estimate of damages.

Error to District Court of Arapahoe County.

Messrs. WOLCOTT & VAILE, and Mr. HENRY F. MAY, for plaintiff in error.

Mr. S. C. HINSDALE, for defendant in error.

REED, J. Defendant in error was a traveling salesman of dry goods by samples, the goods sold to be afterwards delivered. About the 12th of July, 1888, he had sold goods. for delivery in the town of Rico, and ordered them from a house in Denver. Plaintiff in error, it appears, was, in addition to its ordinary business, doing an express business over its lines of railroad. The town of Rico is shown to have been, not upon a railroad, but some forty miles west of it, the nearest station where goods were carried at that time being Rockwood, from which stages ran to Rico. It also appears that there were two railroad routes by which goods might be forwarded to Rico, one known as the Northern and the other as the Southern, the distance from Rockwood to Rico being much shorter than from any point on the Northern route. Durango is an important business point on the Southern route, some forty or fifty miles south of Rockwood, which was the terminus of the railroad at that time. The goods were put up by the Denver house, directed to defendant in error at Rico, "via Durango; " were delivered to plaintiff in error to be carried by express, and a receipt or shipping bill taken. In the ordinary course of transportation the goods should have reached Rico in two or at most three days. The goods were stopped by plaintiff in error's agent at Durango, there being no public carrier from that point to Rico. No notice was given by the agent to the consignee of such arrival or detention, he waiting at Rico and daily expecting the arrival of the goods. Failing to arrive, he instituted inquiries and after a time learned the facts from the agent at

Durango, who declined to forward the goods except upon payment of $3 for carriage to that point. The payment was made and the goods forwarded to Rockwood, reaching Rico eight or ten days after shipment. The suit was brought for damages for a failure to perform the contract within the proper time.

It is contended by the plaintiff, that the defendant in error having selected the route, and the package being directed via Durango," the contract was complied with by the transportation to Durango, and the detention proper until called for by consignee. This contention cannot prevail. “Via,” “by way of," is never used to designate a terminal point, but when there are two or more available routes, to designate by which the thing should be conveyed. The plainly marked destination was Rico. The contract was to carry to that point if its lines of business extended there, if not to deliver to another carrier, if any such there was; if there was no such, to carry to the nearest available point or station and notify the consignee. It appears in evidence that Rockwood was the point to which goods by express were carried by rail at that time, and there delivered to parties running coaches to be carried and delivered at Rico. To comply with its contract plaintiff in error, in the absence of other instructions, was required to forward the goods by its ordinary route and use reasonably available means to enable the goods to reach their destination. This was not done, nor was notice given of the detention. Take an extreme, but parallel case,—a package of goods is shipped by express to Kansas City, Mo., directed "via Pueblo," a designation of the route; will it be contended that the carrier could terminate the transportation at Pueblo? So with Durango, a point on the route. The point to which the goods were to be carried was beyond the terminus of its route. Its responsibility would only cease upon the delivery of the goods in good order to the next carrier at such terminus. This principle of law is so well known and established that authorities in its support seem unnecessary. An almost parallel