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tion has failed. One, however, who had bought a ticket days beforehand, who had gone to great expense on account of the performance in the way of carriage-hire, who had suffered great disappointment through the postponement, might doubtless recover against the maker of the ticket in an action of contract, in which his damages might well exceed the price he had paid for his ticket.[1] In the same way one who has bought a ticket before taking the train would, from the time he purchased the ticket until he presented it in the train, have a claim against the company. It is this claim for which the purchaser paid money; and this claim is the ticket.

This objection was avoided by the courts, which passed gradually and insensibly from Chief Justice Denio’s theory to the true one. Thus, Wheeler, J., said in Jerome v. Smith,[2] “When the plaintiff bought the ticket …. he bought what was symbolic evidence of a right that whoever should have it might ride, and what any other person could use as well as he. The title to it, and right to a passage upon it, would pass by mere delivery, and whoever should have it could pay the fare of a passenger with it by delivering it in payment.” The court abandoned the notion that the fare was paid when the ticket was purchased; but no intimation was given as to the nature of the ticket before it was presented in the train. It is clear, however, that the right it gives the bearer to ride is an irrevocable, that is, a contractual right. If this were not so the company might at any time abandon the use of tickets, or increase the price of them, and refuse to receive the tickets previously issued; yet this plainly could not be done by the custom of railroads.

It became inevitable, therefore, that a contract should be recognized as existing before the ticket was presented in payment; and the courts have gradually reached the truetheory. In the leading case in Ohio,[3] Sutliffe, J., said, “Upon payment of his passage money, and obtaining a general receipt, or passenger ticket, from an office, for his conveyance to a designated point upon the carrier’s line, the passenger in either case is entitled to present his receipt or ticket for his passage, at any reasonable time, on any outgoing regular means of public conveyance of the carrier, and demand


  1. McCrae v. Marsh, supra.
  2. 48 Vt. 230; see also Van Buskirk v. Roberts, 31 N. Y. 661.
  3. R.R. Co. v. Bartram, 11 Oh. St. 457.