J., said forcibly in Jerome v. Smith:[1] “The mere fact of having had it, without having it to deliver in payment on reasonable request, would not entitle any one to the passage, any more than having a sufficient amount of money to pay the fare with, without paying it, would.” The Supreme Court of Illinois, in the case of Pullman Palace Car Co. v. Reed,[2] attempted to limit this rule, but the limitation would hardly be approved elsewhere.
When the ticket has been lost, or destroyed, recovery may be had as in the case of a lost bill; that is, by a bill in equity offering indemnity. In those jurisdictions where recovery may be had at law on a lost note, upon giving indemnity to the defendant, the same thing may be done in case of a lost ticket. Such was the case of Snyder v. Wolfley[3] in Pennsylvania. In that case Gibson, J., said, “With respect to a negotiable security which passes by mere delivery, and which is not destroyed but lost, the remedy is always in chancery, on terms of giving security against the defendant’s eventual liability. . . . By the express terms of the ticket, whatever prize should be drawn opposite to its number, was to be payable only to the bearer; which by necessary implication, would require the production of the ticket itself; or as an equivalent, in case of its loss, security against damage from payment being made without having it delivered up.”
The fact that the ticket must be delivered to the maker at the time of performance has an important effect upon the right secured by a railroad ticket. As performance is concurrent with surrender, performance must be regarded as a unit. As soon, therefore, as the passenger is received upon the train, and his carriage toward the point of destination begun, the contract secured by the ticket is performed; or, at least, the only right of the ticket-holder is to be carried through safely to his destination. Accordingly, a ticket is used as soon as the train starts on its journey; its surrender may then be called for by the conductor. This point appears clearly in a case already referred to, Auerbach v. R.R. Co.[4] In that case a ticket from Buffalo to New York was to expire on the 26th of September. On the evening of that day the bearer took the train for New York, and his ticket was called for and punched. He was allowed to travel until after midnight, but early in the morning of the 27th he
