dissenting: The opinion of the Court, as announced by Mr. Justice Brown, if carried to its legitimate conclusion, will permit common carriers to make contracts for mileage upon their own terms, and however unreasonable any stipulation may be, it will be binding because, 'as he says, it is a special contract based uj)on a consideration.
I think the error consists in assuming that the parties to the contract are upon equal terms, and in a matter of this importance that Ave ought not to go outside of the facts of this case, and prejudge questions not before us.
The question does not arise as to whether the General Assembly has the povTer to compel common carriers to issue mileage books because they are making such contracts, and I see no reason for suggesting that the power does not exist until the question is presented, nor for intimating that other, and perhaps more stringent, regulations may be adopted.
It is admitted in this case that the plaintiff had a mileage book, which is said in Harvey v. R. R., 153 N. C., 571, to constitute a contract of carriage, subject to certain restrictive stipulations for a wrongful breach of which the company may, under given conditions, expel the holder from its train.
*194Tbe restrictive conditions, so far as applicable to tbis case, are tbat a ticket shall be procured on tbe mileage book, and tbat wben tbe ticket is presented to tbe conductor tbe mileage book shall accompany it.
Tbe first of these conditions was complied with, and tbe plaintiff was on the train of tbe defendant with a ticket which be bad lawfully procured upon bis mileage book.
He did not present bis mileage book to tbe conductor with bis ticket, and was expelled from tbe train.
Tbe question is, therefore, presented under tbe rule adopted in tbe Harvey case, as to whether tbe failure to present tbe mileage book with tbe ticket was a wrongful breach of tbe stipulation in tbe contract, created by issuing tbe mileage book, which justified tbe expulsion of tbe plaintiff from tbe train under tbe conditions then existing.
I think there is evidence that there was no wrongful breach of the stipulation, and if so, tbe judgment of nonsuit should be set aside and a new trial awarded.
I assume that tbe conductor has the right to demand the mileage book, wben necessary to identify tbe bolder, or for -the purpose of seeing tbat tbe ticket presented corresponds with it; but I deny tbat be has any right to make such demand for tbe annoyance of tbe passenger, or in order tbat be may assert bis authority.
In tbis case tbe plaintiff went from Charlotte to Ellenboro on tbe morning of tbe day be was expelled, and presented to tbe conductor bis ticket and mileage book; there was a controversy at the time as to tbe right to see tbe book, the' plaintiff telling the conductor to look at it good, as be would not see it again, and also informing him tbat be would be back that afternoon; be was expelled on tbe return trip from Ellenboro by tbe same conductor who bad compared tbe ticket and the mileage book on the morning of tbat day, and after be ‘bad accepted tbe ticket from tbe plaintiff, which be retained, and bad been reminded of tbe conversation about tbe mileage book on tbe trip to Ellenboro.
Tbis, as it seems to me, furnishes some evidence tbat tbe demand to see tbe mileage book was not in good faith.