Barrett

Action for damages for the forcible ejection of plaintiff from one of defendant’s cars. The. defense was, that the plaintiff had refused to pay his fare, and that therefore the defendant was justified in ejecting him. The trial court gave judgment for the plaintiff, and the defendant appeals upon the findings.

The 'material portions of the findings are as follows:—»

It is stipulated by counsel “that if plaintiff were entitled to damages, five hundred dollars' was a fair and just estimate thereof.”

The question on the merits to which counsel have mainly directed their arguments is, whether the passenger was bound to tender the exact fare. It is argued for the appellant that the rule in relation to the performance of contracts applies, and that the exact sum must be tendered. But we do not think so. The fare can be demanded in advance as well as at a subsequent time. (Civ. Code, sec. 2187.) And so far as this question is concerned, we see no difference in principle where the fare is demanded in advance and where it is demanded subsequently. If it be demanded in advance, there is no contract. The Carrier simply refuses to make a contract. Consequently the rule in relation to the…