770 FEDERAL REPORTBB. �difficulty. In the case of Railroad Co. v. Pratt, supra, Mr. Justice Hunt discussed the question wbether there was evi- dence enough in that case tending to prove a special contract to carry through, to justify the court in Bubmitting the ques- tion to the jury. This question was decided in the affirma- tive, but whather the evidence would have been regarded by the court as sufficient to establish the special contract, had that been the question, does not appear. It is well settled that, where thei:e is any competent evidence tending to estab- lish the fact in controversy, it is proper to go to the jury. Where a jury is waived, as in this case, the court is to de- termine not only the competency but the sufficiency of the evidence. In the case of Railroad Co. v. Pratt, tupra, the foUowing material facts appeared, whicb are not established in the present case : " First, the agent of the railroad Company expressly agreed to furnish the plaintiff two good stock cars to carry his horses to Boston; second, that on previous ship- ments the cars furnished by euch agent had always carried the horses through to Boston, and that the arrangements made by such agent had always been recognized by the other roads; third, at the time of the shipment a way-bill was made out, which showed that the horses were to be 'trans- ported by the Ogdensburg & Lake Champlain Eailroad Com- pany (the Company sued) from Pottsdam Junction to Boston, via Concord.'" �It was held that these facta, in connection with the further fact that the plaintiff had been for many years in the habit of transporting horses over defendant's road to Boston, and that a rate for the whole route was agreed upon and paid, would justify the jury in finding that there was an engagement to carry the horses through to Boston. It does not appear, from the report of that case, whether the iirst carrier was paid the price agreed upon for transportation over the whole route, but I infer that such was the case from the remark of the court that the "receipt of the entire pay affords a fair pre- sumption of an entire contract." In the present case the ques- tion is whether a special contract on the part of the defend- ant to carry through to Buffalo is established by proof that ����
