Justice Gibson in the case of Overton v. Tyler, 3 Pa. 346, 45 Am. Dec. 645, that a negotiable instrument is a courier without lug. gage,' has been made to do much service in the discussion of this subject. The real question, however, is, Who shall determine what constitutes luggage'-the business world, or the judge in his library?"

The supreme court of Washington in holding that the negotiability of a promissory note is not affected by a stipulation therein for the payment of an attorney's fee in the event of suit to enforce collection, used this language: "It is only upon the conditions of such note being broken, and the promise to pay violated, that this condition has any force whatever; and even then it has no force until an action has been brought to enforce the liability growing out of such violation of the conditions of the note. After maturity a note without any such condition loses the protection awarded to negotiable paper by the rules of the law-merchant. Therefore, such condition, after it becomes effective, does not materially change the rights and obligations of the parties interested in such note. It seems illogical to hold that the force of a positive promise to pay a definite sum at a definite time shall be at all affected by a condition that, in ease of the violation of such promise, a penalty may be imposed upon the promisor. The contingency that, upon the violation of his promise, the maker of a note may be called upon to pay an amount over and above that which he had promised to pay, ought not to have any effect upon such promise. We think it would be more logical to hold, if it was necessary so to do to preserve the integrity of the absolute promise contained in the note, that the additional sum to be paid upon the bringing of suit was an incident to the suit, rather than to the note itself; that the condition should be held to be in the nature of a stipulation that the law, as to costs of court, should be deemed to be such that in that particular case it should include either the definite sum provided for as an attorney's fee, as in the note in question, or such a reasonable sum as the court might allow, as is often provided in notes of this kind. The real object of such condition is to enable the holder of the note, if he is obliged to bring suit thereon, to recover such a sum by way of costs or attorneys' fees as will reimburse him in whole or in part for the expenses which he may incur by reason of being compelled to go into court to collect such note. Such being the case, it seems to us that penalties of this kind may logically be considered as part of the costs incident to the action, and as being as far separated from the principal promise to pay contained in the note as are the costs which are allowed by the statute to the prevailing party": Second Nat. Bank of Colfax v. Anglin, 6 Wash. 403, 33 Pac. 1056.

"Upon a careful review of the authorities," to quote from Oppenheimer v. Farmers' etc. Bank, 97 Tenn. 19, 56 Am. St. Rep. 778, 36 S. W. 705, 33 L. R. A. 767, “We can perceive no reason why a note, otherwise endowed with all the attributes of negotiability, is rendered,

non-negotiable by a stipulation which is entirely inoperative until after the maturity of the note and its dishonor by the maker. The amount to be paid is certain during the currency of the note as a negotiable instrument, and it only becomes uncertain after it ceases to be negotiable by the default of the maker in its payment. It is eminently just that the creditor who has incurred an expense in the collection of the debt should be reimbursed by the debtor by whose default the action was rendered necessary and the expense entailed. So far from such a stipulation discounting the negotiability of the instrument, we think, with Mr. Daniel, that it is an indemnification assured by the maker against the consequences of his own act; that it is consonant with public policy because it adds to the value of the paper; has a tendency to lower the rate of discount, not only because it promises less expensive collection, but bears evidence of a greater degree of confidence on the part of the maker in his ability to pay without suit."

Stipulations in promissory notes for the payment of attorney's fees in case of forced collection are generally regarded as valid: See the note to Kittermaster v. Brossard, 55 Am. St. Rep. 438. In some jurisdictions, however, such stipulations are declared void by a statute, and where this is the law the insertion of such stipulations in commercial paper cannot affect its negotiability, for they are nullities, and without force and effect for any purpose: Jones v. Crawford, 107 Ga. 318, 33 S. E. 51, 45 L. R. A. 105; Chandler v. Kennedy, 8 S. D. 56, 65 N. W. 439; National Bank of Commerce v. Feeney, 9 S. D. 550, 70 N. W. 874, 46 L. R. A. 732; Merchants' Nat. Bank v. Sevier, 14 Fed. 662.

f. Provisions for Exchange.-There is a sharp conflict among the authorities on the effect of making commercial paper payable with exchange. A number of courts have held that a bill of exchange or a promissory note is rendered non-negotiable by a stipulation therein to pay the sum specified "with exchange" or "with current exchange" on a place other than the place of payment, since uncertainty is thereby introduced into the paper owing to variations in the rate of exchange: Nicely v. Commercial Bank, 15 Ind. App. 563, 57 Am. St. Rep. 245, 44 N. E. 572; John Church Co. v. Spurrier, 20 Ind. App. 39, 50 N. E. 93; Nicely v. Winnebago Nat. Bank of Rockford, 18 Ind. App. 30, 47 N. E. 476; Culbertson v. Nelson, 93 Iowa, 187, 57 Am. St. Rep. 266, 61 N. W. 854, 27 L. R. A. 222; Fitsharris v. Leggatt, 10 Mo. App. 527; Chandler v. Calvert, 87 Mo. App. 368; First Nat. Bank v. Bynum, 84 N. C. 24, 37 Am. Rep. 604; Flagg v. School Dist. No. 70, 4 N. D. 30, 58 N. W. 499, 25 L. R. A. 363; Read v. McNulty, 12 Rich. 445, 78 Am. Dec. 467; Carroll County Sav. Bank v. Strother, 28 S. C. 504, 6 S. E. 313; Hughitt v. Johnson, 28 Fed. 865; Windsor Sav. Bank v. MacMahon, 38 Fed. 283, 3 L. R. A. 192; Second Nat. Bank v. Basuier, 65 Fed. 58, 12 C. C. A. 517; Russell v. Russell, 1 McAr. 263.

Other courts, however, have regarded such uncertainty as more apparent than real, and, acting from the standpoint of business expediency, have affirmed that the insertion in a bill or note of an agreement to pay the sum specified with exchange of a place, other than the place of payment, does not impair the negotiability of the instrument: Clark v. Skeen, 61 Kan. 526, 78 Am. St. Rep. 337, 60 Pac. 327, 49 L. R. A. 190; First Nat. Bank v. Nordstrom, 70 Kan. 485, 78 Pac. 804; Smith v. Kendall, 9 Mich. 241, 80 Am. Dec. 83; Johnson v. Frisbie, 15 Mich. 286; Haslach v. Wolf, 66 Neb. 600, 103 Am. St. Rep. 736, 92 N. W. 574, 60 L. R. A. 434; Whittle v. Fond du Lac Nat. Bank (Tex. Civ. App.), 26 S. W. 1106; Morgan v. Edwards, 53 Wis. 599, 40 Am. Rep. 781, 11 N. W. 21. A leading decision to this effect is Hastings v. Thompson, 54 Minn. 184, 40 Am. St. Rep. 315, 55 N. W. 968, 21 L. R. A. 178, and the following is an extract from the opinion of the court therein rendered: "The reason and purpose of the rule that the sum to be paid must be certain is, that the parties to the instrument may know the amount necessary to discharge it, without investigating facts not within the general knowledge of every one, and which may be subject to more or less uncertainty, or more or less under the influence or control of one or other of the parties to the instrument. The provision for the payment of the current rate of exchange between the place of payment and some other place is not within the reason of this rule, or subject to the evils or inconveniences which it was designed to prevent. While the rate of exchange is not always the same, and while it is technically true that resort must be had to extrinsic evidence to ascertain what it is, yet the current rate of exchange between two places at a particular date is a matter of common commercial knowledge, or at least easily ascertainable by anyone, so that the parties can always, without difficulty, ascertain the exact amount necessary to discharge the paper. It seems to us that within the spirit of the rule requiring precision in the amount to be paid, a provision for the payment of the current rate of exchange, in addition to the principal amount named, does not introduce such an element of uncertainty as deprive the instrument of the essential qualities of a promissory note. . . . . The lawmerchant, including the law of negotiable paper, is founded upon, and is the creature of, commercial usage and custom. Custom and usage have really made the law, and courts, in their decisions, merely declare it. The law of negotiable paper is not only founded on commercial usage, but is designed to be in aid of trade and commerce. Its rules should, therefore, be construed with reference to, and in harmony with, general business usages, and, as far as possible, with the common understanding in commercial circles. This was the very purpose of the statute of Anne, placing promissory notes on the same footing as bills of exchange, and thus setting at rest a question upon which there had been some difference of opinion in the courts. Now, we think we are safe in saying, and justified in taking notice of the fact, that if bankers or other business men accustomed

to dealing in commercial paper were asked whether such an instrument is a promissory note, and whether they would deal with it as negotiable paper, the answers would, in almost every instance, be unhesitatingly in the affirmative." In the subsequent case of Smith v. First State Bank, 95 Minn. 496, 104 N. W. 369, the supreme court of Minnesota declared that this doctrine should not be further extended, and held that a note with a promise to pay a sum definite and "collection charges" was not negotiable.

Where commercial paper is made payable at the place that it is drawn, all the authorities agree that the addition of the words "with exchange" does not impair its negotiability, for the reason that on such paper there can be no exchange. The expression “with exchange" in cases of this kind is meaningless, and may properly be rejected as surplusage: Hill v. Todd, 9 Ill. 101; Clauser v. Stone, 29 Ill. 114, 81 Am. Dec. 299; Christian County Bank v. Goode, 44 Mo. App. 129; Buck v. Harris, 125 Mo. App. 365, 102 S. W. 640; Orr v. Hopkins, 3 N. M. 45, 1 Pac. 181.

CASES

IN THE

SUPREME COURT

OF

IOWA.

MCGOVERN v. INTERURBAN RAILWAY COMPANY. [136 Iowa, 13, 111 N. W. 412.]

INTERURBAN RAILROADS -Duty to Provide Platforms Negligence. An interurban railway company operating a car which, for the accommodation of passengers, is stopped at highway crossings where they desire to alight need not provide a passenger platform at each of such crossings, but must exercise at least reasonable care to enable a passenger to alight with as little danger as practicable, and if the car is stopped and he is thereby invited to alight, at a place more hazardous than that at which the car might conveniently have been stopped, the railway company is negligent. (p. 217.) INTERURBAN RAILWAYS - Negligence, Contributory.— A passenger on an interurban car which is stopped for him to alight at a highway crossing may reasonably assume that the car has been stopped in the portion of the highway where he is invited to alight, unless warned of danger, and he is not conclusively negligent in accepting the invitation to alight at a place which is in fact unsafe. (pp. 217, 218.)

INTERURBAN RAILWAYS-Negligence, Contributory — A passenger on an interurban railway does not assume the risk involved in stopping the car for him to alight at more dangerous place than that where it is usually stopped. (p. 218.)

INTERURBAN RAILWAYS-Negligence-Assumption of Risk. An interurban railway owes a duty to a passenger to furnish him a safe place to alight at his destination, and is not relieved of such duty by knowledge on the part of such passenger that it had not previously been discharging such duty as to himself or other passengers. (p. 218.)

TRIAL.—Instructions which can in no way be misleading cannot be complained of. (p. 219.)

INTERURBAN RAILWAYS-Negligence.-A contract by an interurban railway to carry a passenger to a specific destination implies a duty on its part to furnish such passenger a safe place to alight at such destination, and a failure to perform such duty is negligence. (p. 220.)

INTERURBAN RAILWAYS-Negligence-Question for Jury.— In general, it is not the duty of the employés of an interurban railway company to give passengers assistance in alighting at their destination, but, under special circumstances, such duty may arise, and it is then a question which may properly be submitted to the jury. (pp. 220, 221.)