The only question in dispute relates to the measure of damages, and involves an interpretation of the clause in the so-called "uniform bill of lading" adopted several years ago by an agreement of the Interstate. Commerce Commission with the various common carriers of the country, one of the conditions of which, for the purpose of protecting the parties against variations and fluctuations in value, fixes a special rule of damages, different from the common-law rule, and reads as follows:

"The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading.

The action is brought solely to recover the "invoice price, if any," of the lost commodities; not to determine their value. The question, therefore, presented is: Has the Larkin Company premium merchandise, as sold and shipped, a determinable "invoice price"? No formal invoice is used by the plaintiff company in making its shipments, and the defendant contends that the premium merchandise shipped by it with a purchase of its products is sent only as a premium or bonus with such purchase of products, that nothing is paid therefor, and that therefore it has no "invoice price" within the meaning of the clause of the bill of lading.

It is the contention of the plaintiff, on the other hand, that at the time of shipping all of its commodities there is a definite price fixed by the catalogue issued to the public, under which the customer makes his purchase, fixed not only on the products sold, but also on the premium merchandise, and that there is therefore an "invoice price," within the meaning of the bill of lading, upon the premium merchandise.

The plaintiff conducts on a vast scale a mail order business of a peculiar character. It manufactures and sells its own products, and also furnishes certain merchandise as a bonus or premium with the purchase of its products, or it will sell such products and such merchandise separately. The customer uses a Larkin catalogue, which contains the offers of the plaintiff company as seller. The agreement of sale of the products and premiums is expressed in the catalogue, pursuant to which the offers are made and accepted by the purchaser. No formal invoices are necessary, because the business is a cash business. Articles of merchandise are shipped only upon receipt of the purchase price set forth in the catalogue. The purchaser orders commodities and premiums in accordance with the terms set forth in the catalogue, and at the time of sending the order forwards a remittance to pay for his purchase at the price fixed by the catalogue.

"Invoice price" is the amount at which the goods are invoiced to the purchaser, the cost or value of the property at the shipping point. 23 Cyc. 352; Pierce v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 874, 877, 52 Pac. 302, 40 L. R. A. 350; Le Roy v. United Insurance Co., 7 Johns. 343, 353.

The parties to this action agree that "the bona fide invoice price," as used in the bill of lading above quoted, means the actual, true, and honest amount paid, or agreed to be paid, for the article by the purchaser, regardless of whether or not there was a written invoice in

existence. The agreement as to what constitutes the "invoice price" leaves to be determined on this appeal only the question whether the premiums furnished by the Larkin Company have a separate definite price, and, if lost, must be paid for at such price, without reference to the cost of the products with which they are sent as a premium, or whether they must be paid for at the value of the lost articles, to be proved; and it being agreed that "invoice price" does not require the existence of a written invoice, but means the actual purchase price agreed upon and paid in advance, the question is whether the Larkin system of orders and sales, with premiums furnished, rests upon a fixed or definite cash price for premium merchandise between the customer and the Larkin Company. Does the proof here under review disclose such fixed cash price attaching to the premium merchandise separate from the products purchased with the premium merchandise, in accordance with the offers set forth in the catalogue?

Each cause of action of the five set forth in the complaint involves goods purchased under a different catalogue, and it becomes necessary, in order to determine the question involved, to examine the offers contained in these catalogues.

Each catalogue consists roughly of three divisions: The first division is a general statement, giving a detailed explanation of the so-called Larkin plan, telling the customer how to make out orders, and giving directions in minute detail as to the method of computing the cost of articles, making remittances, etc. The second division of the catalogue consists of an itemized list, illustrated with cuts of each of the so-called Larkin products-soap, perfumes, cereals, teas, paints, clothing, etc. The third division contains a list similarly itemized, and illustrated with cuts, of the so-called Larkin premium merchandise.

Each catalogue contains an itemized order blank attached by a perforated margin. The customer fills out this blank, forwarding it with his remittance. This order blank contains a list of Larkin products, specifying in each instance the full list price of the products. It also contains blanks for listing or describing the premium desired by the customer, etc.

The fundamental requirement of all orders, as set forth in the statement of the Larkin plan, is that every order must total at least $10 at the full list price specified in the catalogue:

"There is only one condition; that is, that each order shall be for not less than $10 worth of Larkin products at our catalogue prices, which are the same as usually charged at the stores." Catalogue, 69th edition, page 1, column 1.

The primary characteristic of the Larkin plan is that, when an order is given for at least $10 worth of products at the catalogue list prices, the products will be furnished for $5 cash payment, or one-half of the list prices named in the catalogue. Section 19 of the above catalogue reads as follows:

"Buy Larkin products at one-half the catalogue prices. You will find the catalogue prices of the Larkin products (pages 18 to 38) at the same or less than similar articles cost at retail stores. You may buy for one-half of our catalogue prices $10 worth or more of our products without premium mer

chandise. Every $5 thus expended means a cash saving of $5, which saving is the bonus."

Same catalogue, page 3, paragraphs 19 and 20, reads:

"When you want to buy products or merchandise alone, you may buy Larkin products alone, and pay only one-half the catalogue prices for them, provided your order amounts to $5 cash or more."

A customer who sends an order for products totaling $10 at the full list catalogue price has the following options: (1) He may buy the products alone, totaling at full list catalogue prices $10, in which case he sends only $5 cash with his order. (2) He may buy products totaling at full list catalogue prices $10, and by remitting $10 in cash, instead of $5, may obtain a premium having a specified price of not more than $5. (3) He may send $10 cash, and instead of a $5 premium take additional products amounting to $10 more at full catalogue list prices. In other words, take for his $10 cash, products whose list prices total $20. (4) He may buy products totaling at full list catalogue prices $10, remitting $10 cash, instead of $5, and instead of then selecting a premium he may defer the selection of a premium, and take from the Larkin Company coupons or a duebill to be used by him later, the duebill being described (section 65) as "a convenient form of acknowledgment of purchase of any quantity of Larkin products, issued when you wish to postpone selecting the merchandise bonus due you," and entitling the one named therein to premium merchandise to the value given with the quantity of products purchased. In some of the catalogues certificates were formerly issued redeemable in the same manner.

By section 66, coupons are described as "tokens of merchandise bonus due," and they are issued only when asked for by secretaries of clubs, for distribution to purchasers of Larkin products in small quantities, etc. The precise method of arriving at the price of a premium is stated differently in some of the catalogues, but the above description of the method in which orders are given, and products and premiums are to be obtained, applies alike to all catalogues.

The Larkin Company business embraces two classes of goods: (1) Its own products; and (2) its premium merchandise. And on page 17 of the same catalogue is found the advertisement:

"You can buy premium merchandise alone (without products) at the sold alone price given in the offer."

Sold alone prices are advertised in connection with all premium merchandise, and this price is the bona fide "invoice price" referred to in the uniform bill of lading.

The proof in the court below demonstrates that each of the premiums included in the several causes of action set forth in the complaint has a definite cash price, ascertainable from the catalogue, and that the customers understand and pay this cash price; and the plaintiff and defendant having agreed that "invoice price" means the actual amount paid or agreed to be paid by the purchaser, the judgment of the City Court is affirmed, with costs.

MURPHY v. TWEEDLE.

(Supreme Court, Appellate Division, Fourth Department. January 3, 1917.) 1. DEEDS 144(2)-CONSIDERATION—"HOME AND Board."

In deed conveying property on condition that the grantees shall furnish the grantor with home and board, "home and board" means something reasonably sufficient for a man in his circumstances and situation, and involves, not only furnishing meals and a place to sleep, but such care, attention, and services as the grantor might reasonably expect in his home. [Ed. Note. For other cases, see Deeds, Cent. Dig. § 453; Dec. Dig. 144(2).

For other definitions, see Words and Phrases, First and Second Series, Home.]

2. CONTRIBUTION 6-CONSIDERATION FOR DEED-PAYMENT BY ONE GRAN

TEE.

Where one of two grantees in a deed furnished the grantor home and board, which was the consideration of the deed, she is entitled to compensation from the other grantee, on the theory that she furnished all the consideration which both had contracted to pay.

[Ed. Note. For other cases, see Contribution, Cent. Dig. §§ 10-12; Dec. Dig. 6.]

3. CONTRIBUTION 7-AMOUNT-PROFIT-PERSONAL SERVICES.

Such grantee is not entitled to make a profit from the board and care of the grantor, but can recover, not only for the expense incurred, but also the money value of the services rendered.

[Ed. Note. For other cases, see Contribution, Cent. Dig. § 13; Dec. Dig. 7.]

4. JUDGMENT

744-RES JUDICATA-PARTITION-CONTRIBUTION.

A suit to partition land, conveyed by a deed requiring the grantees to furnish the grantor with home and board, in which the grantee who furnished all of the consideration made no claim for contribution, while it bars any lien for such contribution, does not defeat the right to contribution.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1278-1281; Dec. Dig. 744.]

5. NEW TRIAL 74-SUFFICIENCY OF EVIDENCE-AMOUNT OF RECOVERY. In an action for contribution, by one grantee who had furnished all the home and board to the grantor required by the deed, to recover contribution from the other grantee, a verdict based on testimony which included profit for personal services was properly set aside.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 150; Dec. Dig. m74.]

Appeal from Trial Term, Monroe County.

Action by Bessie M. Murphy against Bertha A. Tweedle. From an order granting defendant's motion to set aside the verdict of the jury in favor of plaintiff and for a new trial, plaintiff appeals. Affirmed. Argued before KRUSE, P. J., and FOOTE, LAMBERT, MERRELL, and DE ANGELIS, JJ.

George S. Van Schaick, of Rochester, for appellant.

Charles E. Bostwick, of Rochester (Hugh J. O'Brien, of Rochester, of counsel), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

FOOTE, J. The action was brought to recover the sum of $1,017.50, being one-half the expense alleged to have been incurred by plaintiff in furnishing a home and board to Edwin F. Sergisson, the father of both plaintiff and defendant, from September 7, 1910, to the time of the death of said Sergisson on June 15, 1914. Prior to September 7, 1910, said Sergisson was the owner of a double or twofamily house on Parcells avenue in the city of Rochester. On that day he conveyed the same to plaintiff and defendant, his two daughters, as tenants in common by quitclaim deed, subject to an existing mortgage thereon, which by the deed the grantees assumed and agreed to pay. The deed also contained this clause:

"This conveyance is also made subject to the understanding that the parties of the second part are to provide during the life time of the said party of the first part for home and board for said first party."

At the time this deed was made plaintiff was occupying one part of this double house as her home with her husband, and her father was residing with her under an arrangement by which plaintiff and her husband paid no rent, but furnished to plaintiff's father his board and lodging in lieu thereof and without other expense to him. After the making of the deed plaintiff continued to occupy the same part of the house as before, and her father continued to reside with her as before to the time of his death. The father was in failing health at the time the deed was made, and thereafter required and received from plaintiff more care and attention, and had special food prepared for him different from that of the rest of the family.

There was no agreement or understanding between plaintiff and defendant for the occupation of the house by plaintiff and her family after the deed was made, or for the maintenance at the house of the father of the parties by plaintiff; but there was evidence of the attorney who drew the deed for the father that at the time the deed was made plaintiff stated her willingness to continue the same arrangement whereby for the rent she would furnish a home and board for her father. Plaintiff, however, denied making such statement. There was also a dispute as to whether defendant was aware, prior to her father's death, of the clause in the deed for furnishing a home and board to the father; defendant testifying that she had no knowledge of it until after her father's death, and plaintiff testifying that defendant saw the deed a short time after it was made and recorded. After the death of the father, plaintiff brought an action against defendant for partition of the premises conveyed by said deed, and the premises were sold in that action, and plaintiff and defendant each received the sum of $660 as the proceeds of the sale above incumbrances.

Thereafter plaintiff brought this action, alleging that she had performed services and incurred expense in providing a home and board for the father of the parties in accordance with the terms of said deed, to the amount and reasonable value of $3,000; that the reasonable rental value of the half of the house occupied by her was $5 per week, amounting to $965, to be deducted, leaving $2,035 as the value of the home and board furnished by plaintiff, one-half of