UNIVERSITY OF CALIFORNIA Ids AXdFI.ES SCIICIOI. OH LAW LIliRARV cs VU ^ Oi^<^-ject. In order however to guide the student, as well as the teacher, in forming some connected plan of the whole subject which shall serve to indicate the relation of the cases to each other and form a ba.xis for other reading, the cases have been arranged in ac- cordance with an analysis which is ].resentcd at the beginning of the book and carried through it l>y means of headings and sub- lioadiii There is no intention l)y means of this analysis to lessen the labors of cither the teacher or the student by stating in condensed form what the law is, for it is believed that such condensed and analytical statements, useful as they may l)e as a summing up and conclusion of information already accjuired, arc entirely njislcading when relied upon as sources of information on the law, and detrimental in that they iudtu'e many students to omit Uiat careful and critical study which gives to a legal educa- tion it« principal disciplinary value. With the same view, all hcadnotcs or brief statements of points decided have been omitted. In ordor to bring the coUecticm within reasonable 8Coi)e, por- tionn ' le of the oj»iniouH, which have no bearing on tli<' point PREFACE. which the case is intended to ilhistrate, are omitted, and in most cases also the arguments of counsel. While the retention of each case intact would have been in itself advantageous, yet the corre- sponding advantage of being able to present within the necessary limits of such a collection other more important matter has been thought to justify such slight omissions as have been made. But all omissions, except in case of names and arguments of counsel, have been in some form indicated. No effort has been made to edit the opinions or correct the references ; but wherever a case has been found cited which is included in this collection, the fact is indicated by a reference in bold-faced type to the page where the case may be found. EMLIN McCLAlN. Iowa City, July, 1896. ANALYSIS. INTRODUCTION. Public Callings 1 I. CARRIERS OF GOODS. 1. Who are Common Carriers 11 a. Public Calling ; Compensation 11 b. Various Classes of Business 23 c. Baggage of Passengers 34 2. Delivery to Carrier 61 3. Duty to Serve the Public 66 a. Without Discrimination 66 h. For a Reasonable Compensation 88 4. Carrier's Liability . . 95 a. Act of God 95 h. Act of Public Enemy .... 114 c. Act of Shipper 119 d. Nature of Goods .... 130 e. Carrier's Fault or Negligence 138 5. Limitation of Liability 160 a. What Valid 160 h. In Case of Negligence 197 c. Agreed Valuation 206 d. Time for Claiming Damages 210 e. Consignee Bound 220 /. Available to Connecting Carrier 227 6. The Bill of Lading 233 a. As a Contract 233 b. As a Receipt 247 7. Delivery by Carrier 260 A. Termination of Exceptional Liability 260 B. Termination of Liability as Bailee 294 a. Delivery to Connecting Carrier 294 b. Delivery to Consignee 318 c. Delivery to Holder of Bill of Lading 330 (/. Delivery to True Owner 340 e. Delivery to Wrong Party by ^listake or Fraud 242 /. Stoppage in Transitu 361 g. Seizure under Legal Process 363 viii ANALYSIS. > Remf.dies as against Carkier 3S1 a. Who may Sue 3S1 b. Form of Action 401 c. IJurdeu of Proof 411 d. Evidence of Negligence 4:25 9. CAUItlEU's CoMI'KXSATlOX 431 a. Freight Charges 431 b. Lien 4G1 ii. I AKUIEUS (^F rASSEXGEKS. 1. Who Deemed 488 2. PiiJLic Calling 501 3. Who Dekmkh Passengers 528 ecial Calling 532 c. i . . 53G d. For Compensation 542 4. Liability for Injuries 560 a. I V' ' e 5G0 b. >. _ ^ >\'rong of Servants 596 c. Acta of Fellow-passengers or Others . 60f) */. Contributory Negligence ... 620 5. LlAHILITY FOR DeI. AY ... .... 637 6. Li.MiTATi'iN or LiAini.nv .... 641 7. TlCKn- . 663 8. Reui'latiun> 685 APPENDLX. Import \ ■ ■ Stati'tes kklatim; to Carriers .... 721 Index l'-)'J TABLE OF CASES PRINTED IN THIS VOLUME. PAGE Adams v. Scott 370 Allen r. Sackrider 11 Allender i-. Chicago, etc. R. Co. . . 529 American Ex. Co. v. Stack . . . 344 Anchor Line i'. Dater 224 Armentrout i\ St. Louis, etc. R. Co. 325 Ashniole v. Wainwright 457 Atchinson, etc. R. Co. v. Roach . . 306 Atchison, Topeka & Santa Fe R. Co. V. Denver & New Orleans R. Co. 79 Auerbach v. N. Y. C. & H. R. R. Co. 670 Ayres v. Chicago, etc. R. Co. ... 10 Babcock v. Lake Shore, etc. R. Co. . 227 Bailey v. Damon 434 (.'. Hudson River R. Co. . . . 322 Baldwin v. American Ex. Co. . . . 266 Bassett v. Spofford 484 Bastard v. Bastard 88 Bates V. Old Colony R. Co. ... 647 Batton V. South & North Alabama R. Co 618 Baylis v. Lintott 408 Beard v. Illinois Central R. Co. . . 157 Bennett v. Dutton 501 Blackstock v. New York, etc. R. Co. 142 lUiven v. Hudson River R. Co. . . 364 Blossom V. Dodd 193 Blumantle v. Fitchburg R. Co. . . 54 n. Boon V. Steamboat Belfast .... 189 Boyce v. Anderson 488 Boylan i'. Hot Springs R. Co. . . . 673 Bradshavv v. South Boston R. Co. . 698 Brien v. Bennett 528 Braithwait v. Power 444 Briggs V. Boston, etc. R. Co. . . . 473 Buckland v. Adams Exp. Co. . 30, 222 Buel V. New York C. R. Co. . . . 630 Campbell v. Conner 467 Central R. Co. v. Combs .... 679 Chase v. Alliance Ins. Co 459 Chicago, etc. R. Co. v. Flexman . . 603 V. Iowa 89 V. Jenkins 464 V. People 66 I'. Williams 716 Christie v. Griggs 560 Citizens' Bank v. Nantucket Steam- boat Co 15 PAGE Clark V. Burns 59 Clarke v. Rochester, etc. R. Co. . . 130 Colt V. McMechen 104 Congar v. Chicago, etc. R. Co. . . 119 Connolly v. Warren 50 Constable v. National Steamship Co. 151 Coup V. Wabash, etc. Ry.Co. ... 27 Cuba, The 443 Curling v. Long 431 Dale V. Hall 401 Davis V. Garret 147 V. James 381 Dawes v. Peck 382 Delaware, The 233 Duff V. Allegheny V. R. Co. . . . 548 Dwight V. Brewster 16 Edmunds v. Merchants' Desp. Transp. Co 356 Edwards v. White Line Transit Co. 372 Elkins V. Boston & Maine R. . . . 398 Empire Transp. Co. u.Wamsutta Oil, etc. Co 425 Evans v. Fitchburg R. Co 133 Everett v. Chicago, etc. R. Co. . • 688 Express Co. v. Caldwell 210 Faulkner v. Hart 286 Pick V. Chicago & N. W. R. Co. . . 606 Filer v. New York C. R. Co. . . . 629 Finn v. Western R. Co 3^6 First National Bank v. Marietta, etc. R. Co 56 Flint, etc. R. Co. v. Weir .... 17 Forward v. Pittard 97 Frank v. Ingalls 681 Frederick v. Marquette, etc. R. Co. . 604 Freeman v. Birch 3'.>7 Friend v. Woods 107 Garden Grove Bank v. Humeston, etc. R. Co 241 Geismer v. Lake Shore, etc. R. Co. . 145 Gibbon r. Paynton 160 Gilshannon i\ Stony Brook R. Co. . 536 Gisbourn v. Ilurst 12 Gleeson v. Virginia Midland R. Co. 590 Gordon v. Hutchinson 13 Grace v. Adams 220 TABLE OF CASES. PAGI rjran ! Rspi-!*. eto R. Co. r. Huntley 6*>1 itc K. Vo. • er I'aiket Co. . Grvat > >»ay i-. Slieplierd Grwn t ..ii..» .i.iivi I, etc. K. Co. . . lirusvcnor i-. New York Cent. K. Co. Hale e. New Jvrsev Steam Navigation Co Hall r. Ron fro Haniiihnl Uailroaii r. Swift . . Ham* r. I'ttcktvood Hart r. CliicaKo. etc. R. Co. . . n« ■ ' -ville, etc. R. Co. H. Co. . . . IlMn..;i.r r N.jwii-n H'->i«t"ii Jc T. U. Co. f. Moore Ujde r. Navigation Co Idaho. The . . Illinoit (Vnt. R. Co. c. Orein r. Wliitteinorv IngalU c Bill* jAi-iibui i: St. I'aul, etc R. Co. . JffTfr»oii ville K. ('•> • I{".'«t« JeiiL-k* (■ foli'iiiiiii Jt-rxine i-. Smith JuJo.jii I-. Western R. C KaiiM* City, etc. R. Co. r. .Morrison r. Riley Keelev ■ T'.,..T,in & Maine K (^>^. Kill r i.ctc. R. C«) r. * '1 : etc. R. ( " Kiniitck r. ' etc. R Co. . . Kir-t r. M etc. R. Co. . . Krul« 2;L' 374 lar, 4liM 3'j4 Lewi* r. New York Sleeping Car Co. 57 LivtTiKM>l Steam Co. r. Fhornix In*. Co -^3. 19: I« L & G. It Co. t;. Maris McArihur & Hurlliert r. Senr» .M I u!c« r. New Jertey Steanibout PAGE Murdock r. Boston, etc. R. Co. . . 701 .Muscliainii c Lancaster, etc. R. Co. . 2'.'8 MyiiarJ r. Syracuse, etc. R. Co. . . 201 Nashville, etc. R. Co. r. Sprayberry 676 Neaffic, The 25 Nevin r. Pullman 1'. Car Co. . . . 505 Nolton r. Western H. Co 632 Norway Plains Co. i-. Boston & Maine H. . ■ 274 Nunn I'. Georpia R 640 Nutting I". Connecticut R. R. Co. . 304 O'Brien v. Gilchrist ?.47 Ohio. etc. R. Co. c. Yohe .... 367 Olil Colony R. Co. r. Tripji . . . 522 Orange County Bank c. Brown . . 34 Ouimit v. Henshaw 2'J2 Packard v. Earl 209 Peinisvlvania R. Co. i'. Stern & Spie- gil ■ 830 Pershing c. Chicago, etc. R. Co. . 584 IVttrson r. Chicago, etc. R. Co. . . 31H Phillips r. Koilie 4i'.l Pierce v. Milwaukee, etc. R. Co. . . 19 Pittsburg, etc. R. Co. v. Hazen 147 n. V. Hinds 615 Pollard f. Vinton 252 Potts r. New York, etc. R. Co. . . 465 Powill r. .Myers 342 Po/zi V. Shipton 406 Price- r. (tswfgi), etc. R. Co. . . . 340 Proprietors, etc. r. Wood .... 95 Putnam -•. Hroadway, etc. 11. Co. 609 Quimby v. Boston >.<; Maine R. Co. 652 281 24 32t< 209 677 699 417 518 6f.'.t M< Fadden c .Mintouri Pacific R. Co M. Paddtnr. N. Y C R Co. . . .Manon i- Chitaifo, etc. R. Co. M |{. Co. r. Kirkwood M ' R Mi-uT r. I'ciinaylvania R. Co. . . . - .\|«-ri"ti r Funrk 451 Mi< hiifnn CVntrnI R. Co. v. Carrow 62 Mi< \>ni»u Souther • H ' Slmrti . . . ''<6 M '■• U ( :.. . 121 y, Culver . 4l'0 .M'.iitnMc Pickio Co. v. iJuUton,etC. ( .. 379 .M-.rri.on r. F.rle R. C '24 M - 114 M r.tral R Co ;',0|n. Muiu) t. iil;uu;ji . ' Ragan .v BulH-t r. Aiken .... h8 Kailroaroj)erty, as not unnecessa- -• -r. This is the very esscMice of government, and . 11 in the maxim sir utcrc tuo ut alicninn mm /ntlus. From this source come the jwlice powers, which, as was said by Mr. Chief Ju mey in the I^icense Cas'- . " lli.w. n.'JS, "uic nothing more or Icob lUaJi the j)owi.'rs of goviTiiiuiiit inherent in every sov- -••••■ •' ■' ■' ♦ ■ -iv, . . . the jtower to govern men and _ i s the government regulates tlic conduct of its citizens one toward.s another, and tiie manner in wliidi each shall use his own property, when such regulations become necessary PUBLIC CALLINGS. 3 for the public good. In their exercise it has been customary in' England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and in so doing to fix a maxi- mum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day statutes are to be found in many of the States upon some or all these subjects ; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property. With the Fifth Amendment in force. Congress, in 1820, conferred power upon the city of Washington "to regulate . . . the rates of wharfage at private wharves, . . . the sweeping of chimneys, and to fix tlie rates of fees therefor, . . . and the weight and quality of bread," 3 Stat. 587, sect. 7; and, in 1848, "to make all necessary regulations resj)ecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen, and draymen, and the rates of commission of auctioneers," 9 id. 224, sect. 2. From this it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regu- lating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular; it simply prevents the State from doing that which will operate as such a deprivation. This brings us to inquire^ as to. the principles upon which this power of regulation rests, in order that we may determine what is within and what without its operative effect^ Looking, then, to the common law, from whence came the right which the Constitution protects , we find that when private property is " affected with a pub- lic interest, it ceases to be juris privati only." This was said by /^ Lord Chief Justice Hale more than two hundred years ago, in his *^^/ treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without an objection as an essential element in the law of property ever since. Property does become clothed with a p^ublic interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use,^and must submit to be controlled by the public for the common_ggod^tq_the extent of the interest he has thus created^ He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control. Thus, as to ferries, Lord Hale says, in his treatise De Jure Maris, ^ 1 Harg. Law Tracts, 6, the king has "a right of franchise or privi- *«, . lege, that no man may set up a common ferry for all passengers, ^ without a prescription time out of mind, or a claarter from the king. 4 INTRODUCTION. He may make a ferry for his own use or the use of his family, but not for the common use of all the king's subjects passing that way; because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz. , that it give attendance at due times, keep a boat in due order, and take but reasonable toll; for if he fail in these he is finable." So if one owns the soil and landing-places on both banks of a stream, he cannot use them for the purposes of a public ferry, except upon such terms and conditions as the body politic may from time to time impose; and this because I the common good requires that all public ways shall be under the control of the public authorities. This i)rivilege or prerogative of the king, who in this connection only represents and gives another name to the body politic, is not primarily for his profit, but for the protection of the people and the promotion of the general welfare. And, again, as to wharves and wharfingers, Lord Hale, in his treatise De I'ortibus Maris, already cited, says: — "A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his cus- tomers can «igree for cranage, wharfage, housellage, pesage; for he doth no more than is lawful for any man to do, viz., makes the most of his own. ... If the king or subject have a public wharf, unto which all persons that come to that port must come and unlade or lade their goods as for the jturpose, because they are the wharfs only licensed by the queen, ... or because there is no wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, etc., neither can they V)e enhanced to an immod- enit«.* rate; but the dutii-'S must be reasonable and moderate, though settled by the king's license or charter. For now the wharf and crane and other conveniences are affected with a public interest, and they cease to be jitri.t privati only; as if a man set out a street in new building on his own land, it is now no longer bare jirivate i'lt.T.-sf, l.iif is affected by a public inten-st." • ment of the law by Lord Hale was cited with approba- tion and acted upon by Lord Kenyon at the beginning of the present centurj', in liolt v. Stennett, S T. K. GOG. And th«* saiiH' has been Indd as to warehouses and warohousomon. In AldnulL '• T.' 'liH, V2 t'ast, it'll, d»!cided in ISIO, it appeared that the Ix>ndon 1 .mpany had built warehouses in wliich wines were taken in store at such rates of charge as the company and tlio owners might agree upon. Afterwards the company obtained authority, under th- ' ' iiig aft, to receive wines from imports \)*iUit'- »'■ '• irtation were i)aid ; and the question was, ■ . arl>itrary rates for s\ich storage or must be content with a reasonable compensation. Upon this point Lord Ellenbfirough said (p. 537) : — PUBLIC CALLINGS. "There is no doubt that the general principle is favored, both in law and justice, that every man may fix whatever price he pleases upon his own property, or the use of it; but if for a particular pur- pose the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly, he must, as an equivalent, perform the duty attached to it on reasonable terms. The question then is, whether, circumstanced as this company is, by the com- bination of the warehousing act with the act by which they were originally constituted, and with the actually existing state of things in the port of London, whereby they alone have the warehousing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable compensation for such warehousing. And, according to him, whenever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a public port, and where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected, he is confined to take reasonable compensation only for the use of the wharf." And further on (p. 539) : — " It is enough that there exists in the place and for the commodity in question a virtual monopoly of the warehousing for this purpose, on which the principle of law attaches, as laid down by Lord Hale in the passage referred to (that from De Portibus Maris already quoted), which includes the good sense as well as the law of the subject." And in the same case Le Blanc, J., said (p. 541) : — "Then, admitting these warehouses to be private property, and that the company might discontinue this application of them, or that they might have made what terms they pleased in the first instance, yet having, as they now have, this monopoly, the question is, whether the warehouses be not private property clothed with a public right, and, if so, the principle of law attaches upon them. The privilege, then, of bonding these wines being at present conferred by the Act of Parliament to the company's warehouses, is it not the privilege of the public, and shall not that which is for the good of the public attach on the monopoly, that they shall not be bound to pay an arbitrary but a reasonable rent? But upon this record the company resist having their demand for warehouse rent confined within any limit; and, though it does not follow that the rent, in fact, fixed by them is unreasonable, they do not choose to insist on its being reasonable for the purpose of raising the question. For this pur- pose, therefore, the question may be taken to be whether they may claim an unreasonable rent. But though this be private property, yet the principle laid down by Lord Hale attaches upon it, that when private property is affected with a public interest it ceases to be Juris privati only; and, in case of its dedication to such a purpose 6 INTRODUCTinx, as this, the owners cannot take arbitrary and excessive duties, but the duties must be reasonable.'' We have quoted, thus largely, the words of these eminent ex- |)Ounders of the common law, because, as we think, we hud in them the i>rinciple wliich supi)orts the legislation we are now examining. Of Lonl Hale it was once said by a learned American judge : — '• In England, even on the rights of prerogative, they scan his words with as much care as if they had been found in Magna Charta; and, the meaning once ascertained, they du not trouble themselves to search any further." G Cow. (N. Y.) 53G, note. In later times, the same principle came under consideration in the Supreme Court of Alabama. The Court was called upon, in 1841, to decide whether the i)ower granted to the city of Mobile to regu- late the weight and price of bread was unconstitutional, and it was contended that " it wuuld interfere with the right of the citizen to pursue his lawful trade or calling in the mode his judgment might dictate;" but the court said, ''there is no motive ... for this ' interference on the part of the legislature with the lawful actions of ; individuals, or the mode in which private property shall be enjoyed, I unless such calling affects the public interest, or private property is employed in a manner which directly affects the body of the people. Upon this principle, in this State, tavern-keepers are licensed; . . . and the County Court is required, at least once a year, to settle the rates of innkeepers. Upon the same principle is founded th(' con- trol which the legislature has always exercised in the estiiblishment and regulation of mills, ferries, bridges, turnpike roads, and other kindred subjects." Mobile r. Yuille, 3 Ala. n. s. 140. From the same source comes the power to regulate the charges of common carriers, which was done in P^nglaiid as long ago as the third year of the reign of William and ^lary, and continued until within a comparatively recent period. And in the first statute we find the following suggestive preamble, to wit: — "And whereas divers wagoners, and other carriers, by combina- tion amongst themselves, have raised the prices of carriage of goods in many jjl.aces to excessive rates, to the great injury of the trade: lie it, therefore, enacted," etc. 3 W. & ^l. c. 12, sect. 24; 3 Stat, at Lart^'e (Tlreat liritain), 481. ' imon carriers exercise a sort of public otlice, and have duties Vj 11 in whioh the public is interested. New Jersey Xav. Co. V. ints' r.ank, G How. 3.S2. Their business is, therefore, ":t . with a public interest," within the meaning of the doctrine which Lord Hale has so forcibly stated. r.ut w. not go further. Enough has already been said to^ •' I private property is devoted to a ]>ul)lic use, it is • '••• "ilation. It remains only U) ascertain wliether til' .e plaintiffs in error, and the business wliich is . come within the operation of this jirinciplo. PUBLIC CALLINGS. 7 It matters not in this case that these plaintiffs in error had built their warehouses and established their business before the regula- I tions complained of were adopted. What they did was from the I beginning subject to the body politic to require them to conform to such regulation as might be established by the proper authorities for the common good. They entered upon their business and pro- vided themselves with the means to carry it on subject to this condition. If they did not wish to submit themselves to such inter- ference, they should not have clothed the public with an interest in their concerns. The same principle applies to them that does to the \ proprietor of a hackney-carriage, and as to him it has never been ' supposed that he was exempt from regulating statutes or ordinances i because he had purchased his horses and carriage and established i his business before the statute or the ordinance was adopted. Justice Field (dissenting).^ ....... The power of the State over the property of the citizen under the constitutional guaranty is well defined. The State may take his property for public uses, upon just compensation being made therefor. It may take a portion of his property by way of taxation for the support of the government. It may control the use and pos- session of his property, so far as may be necessary for the protection of the rights of others, and to secure to them the equal use and enjoyment of their property. The doctrine that each one must so use his own as not to injure his neighbor, — sic utere tuo ut alienum non Uedas, — is the rule by which every member of society must possess and enjoy his property; and all legislation essential to secure this common and equal enjoyment is a legitimate exercise of State authority. Except in cases where property may be de- stroyed to arrest a conflagration or the ravages of pestilence, or be taken under the pressure of an immediate and overwhelming necessity to prevent a public calamity, the power of the State over the property of the citizen does not extend beyond such limits. It is true that the legislation which secures to all protection in their rights, and the equal use and enjoyment of their property, embraces an almost infinite variety of subjects. Whatever affects the peace, good order, morals, and health of the community, comes within its scope; and every one must use and enjoy his property subject to the restrictions which such legislation imposes. What is termed the police power of the State, which, from the language often used respecting it, one would suppose to be an undefined and irresponsible element in government, can only interfere with the conduct of individuals in their intercourse with each other, and in the use of their property, so far as may be required to secure these objects. The compensation which the owners of property, not hav- ing any special rights or privileges from the government in counec- ^ Justice Strong concurred in the dissent. 8 IN'TRODUCTION. tion with it, may demand for its use, or for their own services in union with it. forms no element of consideration in prescribing regu- lations for that purpose. If one construct a building in a city, the State, or the municipality exercising a delegated power from the State, may require its walls to be of sufficient thickness for the uses intended; it may forbid the employment of inflammable materials in its construction, so as not to endanger the safety of his neighbors; if designed as a theatre, church, or public hall, it may prescribe ample means of egress, so as to atfurd facility for escajjc in case of accident; it may forbid the storage in it of powder, nitro-glycerine, or other explosive material; it may require its occupants to remove daily decayed vegetable and animal matter, which would otherwise accumulate and engender disease; it may exclude from it all occu- pations and business calculated to disturb the neighborhood or infect the air. Indeed, there is no end of regulations with respect to the use of property which may not be legitimately prescribed, having for their object the peace, good order, safety, and health of the com- munity, thus securing to all the equal enjoyment of their ]n-oi>erty; but in cst;iblishing these regulations it is evident that compensation to the owner for the use of his ju-operty, or for his services in union with it, is not a matter of any importance; whether it be one sum or another does not affect the regulation, either in resi)ect to its utility or mode of enforcement. One may go, in like manner, tlirough the whole round of regulations authorized b}- legislation, State or municipal, under what is termed the i)olice power, and in no instance will he find that the compensation of the owner for the use of his property has any influence in establishing them. It is only where some right or privilege is conferred by the government or municipality upon the owner, which he can use in connection with his property, or by means of whicli tiie use of his proi)erty is rendered more valuable to him, or he thereby enjoys an advantage over others, that the compensation to be received by him becomes a legitimate matter of regulation. Submission to the regulation of compensation in such cases is an implied condition of the grant, -••1 t!;<- State, in exercising its power of ])rescribing comjiensation, • rmines tin; conditions upon which its concessions shall be i. \Vhen the privilege ends, tl>e power of regulation ceases. tJuriHts and writers oji ]mblic law find authority for tlie exercise of tliis i»oliee power of the? St:ite and the numennis regulations which •• •- ''h-h in the doctrine alre.-idy stated, that every one must use hirt propt-rty consistently witii the rights of others, and the equal use and enjoyment by them of their ])niperty. "'rhe {)olic;c |>owor of the State," says the Sujireme Court of ^'ermont, " ext^'nds to the protection of the lives, limbs, healtli, comfnit. and ....;... ,.f .,]] j,or.i,f,i,H, ai„l tl,o protection of all ]»roperty in the State. „■ U> the maxim, air u(ere fuo uf ulitnium vox) /mlas, whicli being of universal application, it must, of course, be within the range PUBLIC CALLINGS. 9 of legislative action to define the mode and manner in which every one may so use his own as not to injure others." Thorpe v. Kutland & Burlingtou Kailroad Co., 27 Vt. 149. "We think it a settled principle growing out of the nature of well-ordered civilized society," says the Supreme Court of Massachusetts, "that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not heinjurious to the equal enjoyment of others having an equal right to the enjoy- ment of their i^roperty nor injurious to the rights of the community." Commonwealth v. Alger, 7 Cush. 84. In his Commentaries, after speaking of the protection afforded by the Constitution to private property, Chancellor Kent says: "But though property be thus protected, it is still to be understood that the law-giver has the right to prescribe the mode and manner of using it,so/o?' as may he neces- sary to prevent the abuse of the right, to the injury or annoyance of others, or of the public. The government may, by general regula- tions, interdict such uses of property as would create nuisances and become dangerous to the lives, or health, or peace, or comfort of the citizens. Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead may all be interdicted by law, in the midst of dense masses of population, on the general and rational principle that every jyerson ought so to use his property as not to injure his neighbors, and that 2}rivate interests must be made subservient to the general interests of the community." 2 Kent, 340. The Italics in these citations are mine. The citations show what I have already stated to be the case, that the regulations which the State, in the exercise of its police power, authorizes with respect to the use of property are entirely independent of any question of com- pensation for such use, or for the services of the owner in connec- tion with it. There is nothing in the character of the business of the defendants as warehousemen which called for the interference complained of in this case. Their buildings are not nuisances; their occupation of receiving and restoring grain infringes upon no rights of others, disturbs no neighborhood, infects not the air, and in no respect pre- vents others from using and enjoying their property as to them may seem best. The legislation in question is nothing less than a bold assertion of absolute power by the State to control at its discretion the property and business of the citizen, and fix the compensation he shall receive. The will of the legislature is made the condition upon which the owner shall receive the fruits of his property and the just reward of his labor, industry, and enterprise. " That gov- ernment," said Story, "can scarcely be deemed to be free where the rights of property are left solely dependent upon the will of the legislative body without any restraint. The fundamental maxims of 10 INTRODUCTION. a free government seem to require that the rights of personal liberty .i!;il jirivate property should be held sacred." Wilkesou r. Leland, i: I'et. G37. The decision of the Court in this case gives unrestrained license to legislative will. The several instances mentioned by counsel in the argument, and by the Court in its opinion, in which legislation has fixed the com- un which parties may receive for the use of their property a;. I 5- J vices, do not militate against the views I have expressed of the power of the State over the property of the citizen. Tliey were mostly cases of public ferries, bridges, and turni)ilces, of wharfingers, hackmen, and draymen, and of interest on money. In all these cases, except that of interest on money, which I shall presently notice, there was some special privilege granted by the State or municipality; and no one, I suppose, has ever contended that the St;ite has not a right to prescribe the conditions upon which such privileges should be enjoyed. The State in such cases exercises no greater right than an individual may exercise over the use of his own property wlien leased or loaned to others. The conditions upon which the privilege shall be enjoyed being stated or imi)lied in the legislation authorizing its grant, no right is, of course, impaired by their enforcement. The recipient of the privilege, in effect, stipu- lates to comply with the conditions. It matters not how limited the privilege conferred, its acceptance implies an assent to the regu- lation of its use and tlie compensation for it. The privilege wliieh tlie hackman and drayman have to the use of stands on the public streets, not allowed to the ordinary coachman or laborer with teams, constitutes a sufficient warrant for the regulation of their fares. In the case of the wareliousemen of Chicago, no right or privilege is conferred by tlie government upon them; and hence no assent of theirs can be alleged to justify any interference with their charges for the use of the property. WHO ARE COMAION CARRIERS. 11 I. CARRIERS OF GOODS. 1. WHO ARE COMMON CARRIERS, a. Public Calling; Compensation. ALLEN et ah, Appellants, v. SACKRIDER et al. 37 N. Y. 341. 1867. Parker, J. The action was brought against the defendants to charg e them, as common carriers, with damage to a quantity of grain shipped by the pLaintifts in the sloop of the defendants, to be trans- ported from Trenton, in the province of Canada, to Ogdensburgh, in_ this State, which accrued from the wetting of the grain in a storm. The case was referred to a referee, who found as follows: — "The plaintiffs, in the fall of 1859, were partners, doing busi- ness at Ogdensburgh, Tlie defendants were the owners of the sloop ^Creole;' of which Farnham was master. In the fall of 1859 the plaintiffs applied to the defendants to bring a load of grain from the bay of Quinte to Ogdensburgh. The master stated that he was a stranger to the bay, and did not know whether his sloop had capacity to go the^'B. Being assured by the plaintiff that she had, he engaged for the trip at three cents per bushel, and performed it with safety. In November, 1859, plaintiffs again applied to defendants to make another similar trip for grain, and it was agreed at one hundred dollars for the trip. The vessel proceeded to the bay, took in a load of grain, and on her return was driven on shore, and the cargo injured to the amount of $1346.34; that the injury did not result from the want of ordinary care, skill, or foresight, nor was it the result of inevitable accident, or what, in law, is termed the act of God. From these facts, my conclusions of law are, that the defend- ants were special carriers, and only liable as such, and not as com- mon carriers; and that the proof does not establish such facts as would make the defendants liable as special carriers; and, there- fore, the plaintiffs have no cause of action against them." The only question in the case is , were the defendants common carriers? The facts found by the referee do not, I think, make the defendants common carriers. They owned a sloop; but it does not appear that it was ever offered to the public or to individuals for use, or ever put to any use, except in the two trips which it made for the plaintiffs, at their special request. Nor does it appear tha~t the defendants were engaged in the business of carrying goods, or that they held themselves out to the world as carriers, or had ever 12 CARRIERS OF GOODS. o ffered their services as such. This casual use of their sloop in tr ,' plaintiffs' xirop)erty falls short of proof sufficient to si.. .. ... ... common carr iers . A commou carrier was defined, in Gisbourn r. Hurst, 1 Salk. 249,* to be, any man undertaking, for hire, to carry the goods of all persons indifferently; " and in Dwight i-. Brewster, 1 Pick. 50 [16], to be one who undertakes, for hire, to transport the goods of such as choose to eviploi/ hi/n, from jtlace to place." In Orange Bank V. Brown, 3 Wend. IGl, Chief Justice Savage said: "Every person who undertakes to carry, for a compensation, the c/oods of all jjer- sons indifferently, is, as to the liability imposed, to be considered a • : iiion carrier. The distinction between a common carrier and a piiviite or special carrier is, that the former h olds himself out in cnj/nnon, that is, to aH _persons who choose to employ him, as ready i'> c- iiiy for liin_; while the latter agrees^in some sp eci al case, with some priva te individual, to carry for hire." Story on Contracts, § 752 a. The employment of a common carrier is a public one, and he assumes a public duty, and is bound to receive and carry the goods of any one who offers. "On the whole," says Professor Parsons, " it seems to be clear that no one can be considered as a common carrier unless he has, in some way, held himself out to the public as a carrier, in such manner as to render him liable to an action if he should refuse to carry for any one who wished to employ him." 2 Pars, on Cont. [5th ed.] IGO, note. The learned counsel for the appellant in effect recognizes the necessity of the carrier holding himself out to the world as such, in order to invest him with the character and res|)onsibilities of a common carrier; and, to meet tliat necessity, says: "The 'Creole' w- •'. fr«'iglit vessel, rigged and manned suitably for carrying freight 1 GISBOURN V. HLTuST. COMMON BENXII, 1 .*^.llk. '2VJ. 1710. fo Iroerr Upon a Bpecial venlict the cose was, Th«- •^mAs in the declaration were the ] ' tiiid hy liim delivered in London to one Richardson, to carry down to I. •■ T' • V;:. 1. ...1 .... ....^ -iDt a common carri-T, Imt Tt -;■■!'■•■ small time 1 i in his rfct^rn^J"..k ^w 1 ccuild j^ t :n his wagon into the country for a reasonable ]>rice. \\ Inn lie returned I, •■ •••''■ •' 1 •• ■'■■•■• •'••■ 1-irti, wluT'- '• ■••■jitinued two nights n: ;.•'! til. r rent due for the hf.uiM>, wiiuii wiu) not an inn, but a private house ; and it was aj^aeed per cur. That t" ' • ' '•••■■• |K>rson exercising? a public trade or employment to 1k5 carried, V II th'- way of his trade or employ, are for tliat time under a h-j^al I ■ , and I 1 from distress for rent ; but this Immuk a private undertaking ;*■■■'•»■• ■'■ ! ■• • , . .1..,. I 'l-i. .' , .....I,.... .lii.j, for piivi- i r ; for tlie inw has given the privih'go in resjwct of the trader, 1 ~ •'( tho carrier; ami the case in <'ro. El. 5fl6, is stronger. Two t '. their wool to a neiglilwr's Ix-ani, which lie kept for his private uso, •nil It WM hold that it could not he distrnincd. WHO AKE COMMON CARRIERS. 13 from port to port; her appearance in the harbor of Ogdensburgh, waiting for business, was an emphatic advertisement that she sought employment." These facts do not appear in the findings of the referee, and, therefore, cannot, if they existed, help the appellants upon this appeal. It is not claimed that the defendants are liable, unless as common carriers. Very clearly they were not common carriers; and the judgment should, therefore, be affirmed. GORDON V. HUTCHINSON. 1 W. & S. (Pa.) 285. 1841. This was an action on the case by James B. Hutchinson against James Gordon. The defendant pleaded non assiimjjsit. The facts were that the defendant, being a farmer, applied at the store of the plaintiff for the hauling of goods from Lewistown to Belief onte, upon liis return from the former place, where he was going with a load of iron. He receive d an order and loaded the goods. On the way the head came out of a hogshead of molasses, and it was wholly lost. In this action the plaintiff claimed to recover the price of it. There was much proof on the subject of the occasion of the loss : whether it was in consequence of expansion of the molasses from heat, or of negligence on the part of the wagoner, of which there was strong evidence. The defendant took the ground that he was not subject to the responsibilities of a common carrier, but only answerable for negli- gence, inasmuch as he was only employed occasionally to carry for hire. But the Court below (Woodward, President) instructed the jury that the defendant was answerable upon the principles which govern the liabilities of a common carrier. Gibson, C. J. The best definition of a common carrier in its appli- cation to the business of this country is that which l\Ir. Jeremy (Law of Carriers, 4) has taken from Gisbourn v. Hurst, 1 Salk. 249 [12] , which was the case of one who was at first not thought to be a common carrier only because he had, /or so7ne small time before, brought cheese to London, and taken such goods as he could get to carry back into the country at a reasonable price; but the goods having been distrained for the rent of a barn into which he had put his wagon for safe keeping, it was finally resolved that any man undertaking to carry the goods of all persons indifferently, is, as to exemption from distress, a common carrier. Mr. Justice Story has cited this case (Commentaries on Bail. 322) to prove that a common carrier is one who holds himself out as ready to engage in the trans- portation of goods for hire as a business, and not as a casual occu- 14 CARRIERS OF GOODS. pation pro hac vice. My conclusion from it is different. I take it a wagoner who carries goods for hire is a common carrier, whether 'ion be his principal and direct business, or an occasional .....I ....... atal employment. It is true the Court went no further than to say the wagoner was a common carrier as to the privilege of exemption from distress; but his contract was held not to be a pri- vate undertaking as the Court was at first inclined to consider it, but a public engagement, by reason of his readiness to carry for any one who would employ him, without regard to his other avocations, and he would consequently not only be entitled to the privileges, but be subject to the responsibilities of a common carrier; indeed, they are correlative, and there is no reason why he should enjoy the one without being burdened with the other. Chancellor Kent (2 Com- mentaries, 597) states the law on the authority of Kobinson ik Dunmore, 2 Bos. & Vu\. 41G, to be that a carrier for hire in a par- ticular case, not exercising the business of a common carrier, is answerable only for ordinary neglect, unless he assume the risk of a common carrier by express contract; and Mr. Justice Story (Com. f)!i Bail. 2'J.S) as well as the learned annotator on Sir William Jones's Kssay (^Law of Bail. 103 d. note 3) does the same on the authority of the same case. There, however, the defendant was held liable on a special contract of warranty, that the goods should go safe; and it was therefore not material whether he was a general carrier or not. The judges, indeed, said tliat he was not a common carrier, but one who had put himself in the case of a common carrier by his agreement; yet even a common carrier may restrict his responsibility by a special acceptance of the goods, and may also make himself answerable by a special agreement as well as on the custom. The rpiestion of carrier or not, therefore, did not necessarily enter into the inquiry, and we .■in""t .su])po.se tlie judges lt.iv.- it their prin- cijtal attention. But rules which have received their form from the business of a people whose occupations are definite, regular, and fixed must be applied with mucli caution and no little qualification to the business ot :i •■■•'.>.h; who.se occujiations arc vague, desultory, and irregular. !m I 1, one who holds himself out as a general carrier is bound eujployment at the current price; but it will not be thought he is bound to do so here. Nothing was more common formerly rs to lie by in I'liiladelpliia for a rise of wages. ••'<»n to carry at requi'st upon the carrier's jiar- ' lion of tlie ])rofession, but it is certainly not Kowith us. In Pennsylvania, wo liad nocarriers exclusively l)etween lar plareH, liefore the establislunent of our public line.s of i; and according to tlie Engli.sli principle we couhl have ■ ■■■-■ .. •■ <•■•••■•• r^r it was not jtretended that a wagoner '•oiihl i , for any part of the Contin«Mit. But the policy of J ; him answerable as an insurer was more obviously WHO ARE COMMON CARRIERS. 15 dictated by the solitary and mountainous regions through which his course for the most part lay, than it is by the frequented thorough- fares of England. But tlie Pennsylvania wagoner was not always such even by profession. No inconsiderable part of the transporta- tion was done by the farmers of the interior, who took their produce to Philadelphia, and procured return loads for the retail merchants of the neighboring towns ; and many of them passed by their homes with loads to Pittsburg or Wheeling, the principal points of embark- ation on the Ohio. But no one supposed they were not responsible as common carriers; and they always compensated losses as such. They presented themselves as applicants for employment to those who could give it; and were not distinguishable in their appearance, or in their equipment of their teams, from carriers by profession. I can readily understand why a carpenter, encouraged by an employer to undertake the job of a cabinet-maker, shall not be bound to bring the skill of a workman to the execution of it; or why a farmer, tak- ing his horses from the plough to turn teamster at the solicitation of his neighbor, shall be answerable for nothing less than good faith; but I am unable to understand why a wagoner soliciting the employ- ment of a common carrier, shall be prevented, by the nature of any other employment he may sometimes follow, from contracting the responsibility of one. What has a merchant to do with the private business of those who publicly solicit employment from him? They offer themselves to him as competent to perform the service required, and, in the absence of express reservation, they contract to perform it on the usual terms, and under the usual responsibility. Now, what is the case here? The defendant is a farmer, but has occa- sionally done jobs as a carrier. That, however, is immaterial. He ajiplied for the transportation of these goods as a matter of busi- ness, an_d_consequently on the usual comlitions. His agency was noF sought in consequence of a special confidence reposed in him — there was nothing special in the case — on the contrary, the employ- ment was sought by himself, and there is nothing to show that it was given on terms of diminished responsibility. There was evi- dence of negligence before the jury; but, independent of that, we are of opinion that he ^s lialile as an_insurer. Jiuhjment affirmed.'^ CITIZENS' BANK v. NANTUCKET STEAMBOAT CO. 2 Story (U. S. C. C), 16. 1811. Story, Circuit Justice, . . , The suit is in substance brought to recover from the steamboat company a sum of inoncy, in bank bills" and accounts, belonging to the Titizons' Hank, whicl'i was intrusted 1 Ace. : Moss V. Bcttis, 4 Heisk. 601. Contra: Fish v. Chapman, 2 Ga. 349. 10 CARRIERS OF GOODS. by Jthe cashier of the bank to the master of the steamboat, to be carrieil in the steamboat from the island of Nantucket to the port of New liedfonlj across the intermediate sea, which mqa ey has b een los^, and never duly delivered by the master. . . . Having stated these preliminary doctrines, which seem necessary to a just understanding of the case, we may now proceed to a direct consideration of the merits of the present controversy. And in my judgment, although there are several principles of law involved in it, yet it mainly turns upon a matter of fact; namely, whether^he 8t' any wer e, or held themselves out to the public to be, commuu carriers of money and bank bills, as well as of passengers and goods and merchandise, in the strict sense of the latter terms; or the employment of the steamboat was, so far as the company are concerned, limited to the mere transportation of passengers and goods and mercliandise on freight or for hire ; and money and bank bills, although known to the company to be carried by the master, were treated by them as a mere jiersonal trust in the master by tlie owners of the money and bank bills, as tlieir private agents, and for which the company never held themselves out to the public as responsible, or as being within the scope of their employment and business as carriers. 'Hi' 'id of the defence of the company is, that, in point of fact, .wi^.-MiLjli the transportationof money and bank bills by the ni:ist«r was v.-oll known to them, yet it constituted no part of their iploy ment; that they never were , in fact, common Cfirriers ot m oney or bank bills ; th at th ey never heTd themselves out to the publ ic as such, and neverreceived any compensation there- for; that the master, in receiving and transporting money and bank bills, acted as the mere private agent of the particular parties, who intrusted the same to him, and not as the agent of the company or by their authority; that, in truth, he acted as a mere gratuitous bailee or mandatary on all such occasions; and even if he stipulated for, or received, any hire or compensation for such services, he did so, not as the agent of or on account of the company, but on his own private account, as a matter of agency for the particular bailors or mandators. Now, ce rtainly, if these matters are substantially made out by the evidence, they constitute a complete defence against the present suit. Dwicirr r. r.iiKWSTER. 1 rick. (.Mass.) '>0. 1«L»2. Tmk defendants contended that they were not liable as common carriers, their businosH being the conveyance of passengers and their Iti tliat the tJiking small packages was an affair of the drivers, WHO AKE COMMON CARRIEKS. 17 who received the compensation, and who were answerable for negli- gence only, and that the proprietors were not responsible, though it appeared that less wages were paid to the drivers, in consequence of the opportunity they had of earning small sums of money in this way; whereas large packages were usually entered on the way-bill, and the proprietors received the compensation for the trans- portation. Parker, C. J. ... On the second count, which charges the defendants as common carriers, we think the facts proved are suffix cient to constitute them such. Packages were usually taken in the stage-coach for transportation; large packages were entered in the book kept for the proprietors, and compensation taken for their use. That the principal business was to carry the mail and passengers is no reason why the proprietors should not be common carriers of merchandise, etc. A common carrier is one who undertakes, for hire or reward, to transport the goods of such as choose to employ him from place to place. This may be carried on at the same time with other business. The instruction of the judge in this particular, that the practice of taking parcels for hire, to be conveyed in the stagecoach, constituted the defendants common carriers, we think was right. FLINT, ETC. E. CO. V. WEIR. 37 Mich. 111. 1876. CooLET, C, J. . . . The evidence was put into the case by stipu- lation, and in the main the facts are undisputed. It appears that the plaintiff took passage upon the cars of the defendant from Detroit to Saginaw, and that he had with him a trunk, which he avers con- tained the articles of personal property described in the declaration. This trunk has been lost, but whether through any fault of the rail- way company is in dispute. It is, however, shown by the plaintiif himself that both he and his trunk were bein" carried, not for hire and reward, but gratuitously. There was consequently no contract for carriage by the railway compmny, and this action, which is in assumpsit, ca nnot be maintained. Xolton i'. Western R. Corp., 15 X. Y. 444, 446. There can be no question that a railway company which receives property for gratuitous carriage assumes, like any other gratuitous bailee, certain duties in respect to it, and that a suit will lie for a failure to perform these duties. But the obligation in such case is quite different from the obligation of a bailee who, for a considera- tion received or promised, \indertakes to carry or to perform aiij other service with respect to the subject of the bailment. In the 2 ' IS CARKIERS OF GOODS. latter case the terms of the contract, if an express contract was made, will be the measure of the duties to be performed; and in the absence of any express contract the law itself will impose upon the bailee a higher degree of care and watchfulness than it demands of him who, for the mere accommodation of the bailor, undertakes the charge of his goods. The gratuitous bailee must not be reck- less; he must observe such care as may reasonabl}- be required of him under the circumstances; but it is not the same care which is required of the bailee who, for his own profit, assumes the duty. This is elementiiry, and is so reasonable that it requires no discus- sion. When care is bargained for and compensated, sometliing is expected and is demandable beyond what can be required of him who undertakes a merely gratuitous favor. Reliance is placed by the plaintiff upon certain cases which are supposed to have decided that the obligation of a railway comi>any to carry safely is unaffected by the fact that no fare was paid. None of them so decides. . . . But we do not care to comment upon these cases, or to say more of tl iem than this: that the right of recovery in each of them where the f^arriacre was ;:]fratuitous was based u]ion the duty of one who u: y 1 In 111 s afely, — a duty inde} >fn- dent of a ny contract, and which the carrier owes, not exclusively to tli -on being carried^ but also to the State itself. In such a Oil. ■ , . .|>eeially if the mode of carriage is peculiarly subject to dan- gerous and destructive accidents, the carrier may well be recpiired to observe a high degree of care and diligence. But wh ere only jTToperty is in question, there is no reason wh} any di fferent rule should be ajvj^died to a railroad comj)any taking cliarge of property; gratuitously, to that which governs ^he relation in the case in any; other gratuitous bailment. Xor is it material that the gratuitous carriage of a trunk was accompanied by the gratuitous carriage of a person; tl»e duty to carry the trunk safely was only the same tliat the law would liave imposed had tlie trunk been taken iijion a freight train gratuit<^»usly; and no greater degree of care could bo dcmaiuled in one case than in the other. It may therefore be conceded that th« game extreme care is demandable of carriers of persons in all where injuries to persons are in question, and the concession will not in any manner affect the present suit. But as the jilaintiff has brought his action, not in tort, but u])on contract, there can be no recovery under his declaration, and the extent of the duty wliich, under the circumstances, was imposed upon the railway comi)any becomes immaterial. The judgment must \n* reversod, with costs, but as tlie facts are not embodied in a find- ing by the oirruit judge, so as to permit of our entering final judg- ment in this court, a new trial must be or' .m-.ved, when parties have become its customers with such an understanding, after losing their bags, to shelter itself under the pretext that the carrying of the bags was a mere gratuity, and it is therefore liable only for gross negligence. It makes no difference that the custom is described as being to carry the bags free. In determining whether they are really car- ried "free" or not, the whole transaction between the parties must be considered. And when this is done, it is found that all that is meant by saying that the empty bags are carried free, is, that the customers pay no other consideration for it than the freight derived from the business they give the company. But this, as already seen, is sufficient to prevent the transportation of the bags from being gratuitous. Smith v. E. K. Co., 24 N. Y. 222; see also Bissel v. Kailroad Co., 25 id. 442. . . . I can see no ground for any such difficulty as that suggested by the appellant's counsel on the re-argument. He said, if tliis undertaking to return bags free was to be considered a matter of contract on the part of the company, it would be unable to collect its freight on delivering grain upon the ground that its contract was not then completed. But this could not be so. The comjiany, on delivering the grain, parts with the possession of the property to the shipper or his consignee. And on doing that, it is of course entitled to its freight. And its agreement to return the bags without further charge, or to carry them free both ways when- ever its customer should deliver them empty for that purpose, could not liave the effect of destroying tliis right. The contract would be construed according to the intention of the parties. 8ce Angell on Carriers, § 309, note 3, and cases cited. And here it would be very obvious that neither of the ])arties contemplated any relin- rpiishment by the company of its right to freight on delivering the grain. The transaction for that purpose would be distinct, llt're tl • -^ ■■•"•■ndant's fvidonce showed that the jdaintitT was a "customer." 1 .iipany claims that he had complied with the custom on his part, 80 OB to make it applicable to him. But if lu' had done so, as that constitutes a sufficient consideration to prevent the carrying of his bags from being gratuitous, the comjiany is liable. • *•••••••••• I'.v TJiK CotitT. Tlie judgment is affirmed, with costs. WHO ARE COMMON CARRIERS. 21 GRAY V. MISSOURI RIVER PACKET CO., Appellant. 64 Mo. 47. 1876. ISToRTOx, Judge. This was an action in which defendant is sought to be charged as a common carrier for transporting a jack, the prop- erty of plaintiff, in so careless a manner as to occasion his death. The defendant by way of defence denied negligence as charged, and set up in his answer as a further defence that the shipment of the jack was to be made gratuitously and without compensation, and not for hire The following instruction asked by defendant was refused by the Court : " If the jury believe from the evidence that the jack in con- troversy was to be transported from Berlin on the south side of the Missouri River to Grider's landing on the north side of said river by said defendants, without hire or reward from plaintiff and solely and gratuitously to accommodate plaintiff, then the defendant is not liable in this action unless the jury should further find that the defendant was guilty of gross negligence, which the Court defines to be that omission of care which even the most inattentive and thoutrht- less never fail to take of their own concerns." The instruction asserted a correct principle of law as applicable to mere manda- taries. It was nevertheless rightfully refused by the Court, because under the view we take of the case, as disclosed in the record, there was no evidence on which to base it. It appears from the evidence that plaintiff applied to one Rider, captain of the Steamboat" Alice," which was being used by defendants in their business as carriers, to ship his horse and jack, and that he agreed to transport them for him. He asked Rider what would be the charge, who said in reply that he never took anything for less than a dollar, and directed plaintiff to bring on his stock. Rider testifies as follows: "I promised Gray to take his stock; he came and asked me what I would charge. I said ' not much, if anything.' I did not intend to charge him anything. I took him over purely to accommodate Gray." The secret intention of Rider, unexpressed and locked up in his breast, not to charge Gray anything for the transportation of his stock, does not tend to establish an agreement for its gratuitous transportation, especially when connected with what he did express, that he would "charge him not much, if anything." We apprehend that if Gray had been sued for the transportation of his stock, it would have been no reply to the action for him to have set up as a defence that Rider said when he was applied to for tlie price that he would not charge him much, if anything. After an injury results to property intrusted to a common carrier 22 CARRIERS OF GOODS. for transportation, who upon receiving it for that purpose declined to fix the price or charge for tlie transportation, he cannot be allowed to come in and defeat a recovery by saying that at the time of its reception he had a secret intention, unexpressed to the shipper or consignor, and not agreed to by him, not to charge anything, and that the transportation was gratuitous and not for hire. The instruc- tion copied as well as the first instruction asked by defendant upon a kindred subject were therefore properly refused. The seventh instruction given on behalf of plaintitf in so far as it contained the word ''gratuitously " was erroneous, but as under the views above expressed no injury could result therefrom to defendant it is no cause for disturbing the judgment. It is also objected that the court misdirected the jury l)}- its third instruction, in wliich they were told tliat if thej' found for plaintitf they would assess his damages at the actual value of the jack at the time he was shipped with the six per cent interest from that time. It is a general rule that when goods are delivered by a common carrier according to contract, the measure of damages is the value of the goods with interest from the day they should have been delivered, less the freight if unpaid. Sedg. on Dam. 424; King v. Shepherd, 3 Sto. 349; Gushing v. Wells, Fargo & Co., 98 Mass. 550; Woodward r. Illinois Central K. R. Co., 1 Bissel, 503; Corby r. Davidson, 13 Minn. 92; Mote v. Chicago & X. W. IJ. 11. Co.. 27 Iowa, 22. In the case of Atkinson v. Steamboat Castle Garden, 2S ]\Io. 124, Judge Scott remarks "that the allowance of interest in these cases depends on circumstances, and will be given or withheld in all other cases of unliquidated damages." When a loss occurs witliout neg- ligence in cases of tliis class, interest might be witlilield. In tlie case at bar the negligence as shown by the proof was of the grossest character, and the manner in which the jack was thrown down and dragged on to the boat might well have subjected the ]iarties engaged in it to a prosecution under the statute ff)r cruelty to animals. In conserpiencc of it plaintiff had an animal with l)rokon limbs thrown on liis hands to be cared for, till hv died from the injuries, one week after they were inflicteil. We think the circumstances justified the allowance of interest. While the instruction as to the measure of damages is silent in n ' '- '^ " duty of the jury to deduct from the value of the animals ail tlie freight, the silence of the court may be justilii'd by the silence of the witnesses in regard to what it was wortli. The defen' '•• nn a comii!"" '••"■rier; but when the case came before the C :l, Mr. .Ju ' .rier said he could not assent to the doc- WHO AKE COMMON CAKRIERS. 27 trine. I am aware that a contrary doctrine had been applied by the Supreme Court of Louisiana to steam-tugs towing between the city of New Orleans and the mouth of the Mississippi River. These tow-boats are distinguishable from those plying in the har- bor of Xew Orleans; but if it were otherwise, I think the weight of authority and reason is with those who hold tow-boats not to be common carriers. COUP V. WABASH, etc. RY. CO. 56 Mich. 111. 1885. Campbell, J. Plaintiff, who is a circus proprietor, sued defend- ant as a carrier for injuries to cars and equipments, and to persons and animals caused by a collision of two trains made up of his cir- cus cars, while in transit through Illinois. The court below held defendant to the common-law liability of a common carrier, and held there was no avoiding liability by reason of a special contract under which the transportation was directed. The principal questions raised on the trial arose out of discussions concerning the nature of defendant's employment, and questions of damage. Some other points also appeared. In the view which we take of the case, the former become more important, and will be first considered. Plaintiff had a large circus property, including horses, wild ani- mals, and various paraphernalia, with tents and appliances for exhibition. . . . The defendant company has an organized connection, under the same name, with railways running between Detroit and St. Louis, through Indiana and Illinois. On the 2oth of July, 1882, a written contract was made at St. Louis by defendant's proper age^t with plaintiff to the following effect. Defendant was to furnish men and motive-power to transport the circus by train of one or more divi- sions, consisting of twelve flat, six stock, one elephant, one baggage, and three passenger coaches, being in all twenty-three cars from Cairo to Detroit with privilege of stopping for exhibition at three places named, fixing the time of starting from each place of exhibi- tion, leaving Cairo August 19th, Delphi, August 21st, Columbia City, August 22d, exhibiting at Detroit August 23d, and then to be turned over to the Great Western Transfer Line boats. Plaintiff was to furnish his own cars, and two from another company at Cairo, in good condition and running order. It was agreed that "for the use of the said machinery, motive-power, and men, and the privileges above enumerated, plaintiff should pay $400 for the run to Delphi, $175 to Columbia City, and 3225 to Detroit, each sum to be paid before leaving each point of departure." It was further expressly stipulated that the agreement was not 28 CAKKIEKS OF GOODS. made with defendant as a carrier, but merely "as a hire of said machinery, motive-power, and right of way, and the men to move and work the same ; the same to be operated under the management, direction, orders, and control of said party of the second part (plain- tiff) or his agent, as in his possession, and by means of said em- ployees as his agents, but to run according to the rules, regulations, and time-tables of the said party of the first part." The contract further provides that defendant should not be respon- sible for damage by want of care in the running of tlie cars or other, wise, and for stipulated damages in case of any liability. It also provided for transporting free on its passenger trains two advertis- ing cars and advertising material. The plaintiff's cars were made up in two trains at Cairo, and divided to suit instructions. The testimony tended to prove that two cars were added to the forward train b}' order of plaintiff's agent, but in the view we take tlie question who did it is not impor- tant. The forward train was for some cause on which there was room for argument brought to a stand-still, and run into by the other train and considerable damage done by the collision. Defendant insisted that plaintiff made out no cause for recovery, and that the contract exempted tliem. I'laintiff claimed, and the court below held the exemption incompetent. Unless this undertaking was one entered into by the defendant as a common carrier, there is very little room for controversy. The price was shown to be only ten per cent of the rates charged for carriage, and the wliole arrangement was peculiar. If it was not a contract of common carriage, we need not consider how far in that character contracts of exemption from liability may extend. In our view it was in no sense a common carrier's contract, if it involved any principle of the law of carriers at all. The Ijusiness of common carriage, while it prevents any right to refuse the carriage of property such as is generally carried, implies, especially on railroads, that the business will be done on trains made up by tlie carrier and running on their own time. It is never the duty of the carrier, as such, to make up special trains on demand, or to drive such trains made up entirely by other ])ersons or by their ears. It is not important now to consider how far, except as to owners of goods in the cars forwarded, tlie reception of cars, loaded or unloaded, involves the responsibility of carriers as to the owners of'" -h. The duty to receive cars of other ))ersons, when • "• ., 'T 'ir^u.illy fixed by the railroad laws, and not by the com- iw. I'lut it is not incuml)cnt ui)on companies in their duty as common carriers to move such cars except in their own routine. Thoyare not olUigcd to accept and run them at all times and season.s, and not in the ordinary course of business. ' ' •• . • before us invcdvos very few things ordinarily uiidcr- t^^ ■ The trains were to be made up entirely of cars WHO AKE CO.MMON CAERIERS. 29 which belonged to plaintiff, and which the defendant neither loaded nor prepared, and into the arrangement of which, and the stowing and placing of their contents, defendant had no power to meddle. The cars contained horses which were entirely under control of plaintiff, and which, under any circumstances, may involve special risks. They contained an elephant, which might very easily involve difficulty, especially in case of accident. They contained wild ani- mals which defendant's men could not handle, and which might also become troublesome and dangerous. It has always been held that it is not incumbent on carriers to assume the burden and risks of such carriage. The trains were not to be run at the option of the defendant, but had short routes and special stoppages, and were to be run on some part of the road chiefly during the night. They were to wait over for exhibitions, and the times were fixed with reference to these exhibitions, and not to suit the defendant's convenience. There was also a divided authority, so that while defendant's men were to attend to the moving of the trains, they had nothing to do with loading and unloading cars, and had no right of access or regulation in the cars themselves. It cannot be claimed on any legal principle that plaintiff could, as a matter of right, call upon defendant to move his trains under such circumstances and on such conditions, and if he could not, then he could only do so on such terms as defendant saw fit to accept. It was perfectly legal and proper, for the greatly reduced price, and with the risks and trouble arising out of moving peculiar cars and peculiar contents on special excursions and stoppages, to stipulate for exemption from responsibility for consequences which might follow from carelessness of their servants while in this special employment. How far, in the absence of contract, they would be liable in such a mixed employment, where plaintiff's men as well as their own had duties to perform connected with the movement and arrangement of the business, we need not consider. It is a misnomer to speak of such an arrangement as an agreement for carriage at all. It is substantially similar to the business of towing vessels, which has never been treated as carriage. It is, although on a larger scale, analogous to the business of furnishing horses and drivers to private carriages. Whatever may be the lia- bility to third persons who are injured by carriages or trains, the carriage-owner cannot hold the persons he employs to draw his vehicles as carriers. We had before us a case somewhat resembling this in more or less of its features in Mann v. White River Log & Booming Co., 46 Mich. 38, where it was sought to make a carrier's liability attach to log-driving, which we held was not permissible. All of these special undertakings have peculiar features of their own, but they cannot be brought within the range of common carriage. 30 CARRIERS OF GOODS. It is therefore needless to discuss the other questions in the case, which involve several rulings open to criticism. We think the • ndant \Na3 not liable in the action, and it should have been i-.^i-n from the jury, and a verdict ordered of no cause of action. The judjj'meut must be reversed and a new trial granted. BUCKL.NJN'D c ADA^IS EXrKESS CO. 97 Mass. 1-2-1. 1SG7. Contract to recover the value of a case of pistols. In the Superior Court judgment was entered for the plaintiffs on agreed facts; and the defendants appealed to this court. BiGKLuw, C. J. "We are unable to see any valid reason for the suggestion that the defendants are not to be regarded as common carriers. The name or style under which they assume to carry on their business is wholly immaterial. The real nature of their occu- pation and of the legal duties and obligations which it imposes on them is to be ascertained from a consideration of the kind of service which they hold themselves out to the public as ready to render to those who may have occasion to eni])loy them. Upon this jtoint there is no room for doubt. Tliey exercise the employment of receiving, carrying, and delivering goods, wares, and merchandise for liire on belialf of all persons who may see Ht to re(]uire their services. In this capacity they take property from tlie custody of the owner, assume entire possession and control of it, transport it from place to place, and deliver it at a point of destination to some consignee or agent there authorized to receive it. The statement embraces all the elements essential to constitute the relation of com- mon carriers on tlie part of tlie defendants towards the iiersons who employ them. Dwight r. Brew.ster, 1 I'ick. 50, 53 [16] ; Lowell Wire Fence Co. v. iSargent, 8 Allen, ISl); L' Iledtield on Railways, 1-lG. 15ut it is urged in behalf of the defendants tliat tlioy ouglit not to be held to the strict liability of common carriers, for the reason tliat tlie contract of carriage is essentially modified by the jjeculiar mode in which the defendants undertake the performance of tlie service. The main ground on which this argument rests is, that i)ersons exer- cising tlie emjiloyment of exi)ress carriers or messengers over rail- ro;i'l'^ "'1 by steamboats cannot, from the very nature of the case, eX' iiiy care or control over the means of transi)ortation which they are obliged to adopt; that the carriages and boats in wliich the mcrcliandisc intrusted to them is jjlaced, and tlie agents or servants by whom tlioy are managed, are not sclented l)y them nor subject to their 'I'-^'-'t'on or Rnpervisif)n; and tliat the rules of common law, regul.' ■•; duties and liabilities of carriers, having been adapted WHO ARE COMMON CARRIERS. 31 to a different mode of conducting business, by which the carrier was enabled to select his own servants and vehicles and to exercise a personal care and oversight of them, are wholly inapplicable to a contract of carriage by which it is understood between the parties that the service is to be performed, in part, at least, by means of agencies over which the carrier can exercise no management or con- trol whatever. But this argument, though specious, is unsound. Its fallacy consists in the assumption that at common laAv, in the absence of any express stipulation, the contract with an owner or consignor of goods delivered to a carrier for transportation neces- sarily implies that they are to be carried by the party with whom the contract is made, or by servants or agents under his imme- diate direction and control. But such is not the undertaking of the carrier. The essence of the contract is that the goods are to be carried to their destination unless the fulfilment of this under- taking is prevented by the act of God or the public enemy. This, indeed, is the whole contract, whether the goods are carried by land or water, by the carrier himself or by agents employed by him. The contract does not imply a personal trust, which can be executed only by the contracting party himself or under his supervision by agents and means of transportation directly and absolutely within his con- trol. Long before the discovery of steam-power, a carrier who undertook to convey merchandise from one point to another was authorized to perform the service through agents exercising an inde- pendent employment, which they carried on by the use of their own vehicles and under the exclusive care of their own servants. It cer- tainly never was supposed that a person who agreed to carry goods from one place to another by means of wagons or stages could escape liability for the safe carriage of the property over any part of the designated route by showing that a loss happened at a time when the goods were placed by him in vehicles which he did not own, or which were under the charge of agents whom he did not select or control. The truth is that the particular mode or agency by which the service is to be performed does not enter into the contract of carriage with the owner or consignor. The liability of the carrier at common law continues during the transportation over the entire route or distance over which he has agreed to carry the property intrusted to him. And there is no good reason for making any dis- tinction in the nature and extent of this liability attaching to car- riers, as between those who undertake to transport property by the use of the modern methods of conveyance, and those who performed a like service in the modes formerly in use. If a person assumes to do the business of a common carrier, he can, if he sees fit, confine it within such limits that it may be done under his personal care and supervision or by agents whom he can select and control. But if he undertakes to extend it further, he must either restrict his liability by a special contract or bear the responsibility which the law affixes 32 CARRIERS OF GOODS. to the species of contract into which he voluntarily enters. There is certainly no hardship in this, because he is bound to take no greater risk than that which is imposed by law on those whom he employs as his agents to fulfil the contracts into which he has entered. It is not denieil tiiat in the present case the goods were lost or ^|,..r,-. ., ..,1 while tliey were being carried over a portion of the route e: d in the contract with the plaintiffs, and before they had reached the point to which the defendants had agreed to carry them. It is not a case where the agreement between the parties was that the merchandise was to be delivered over by the defendants to other carriers at an intermediate point, thence to be transported over an independent route to the point of destination without further agency on the part of the defendants. The stipulation was that the defend- ants should carry the property from the place where they received it to the point where it was to be delivered into tlie hands of the con- signee. The loss happened before the defendants had fulfilled tlieir promise. Judgment for jjlaiiiiijf.^ ROBERTS V. TURNER. 12 Johns. (N. Y. Sup. Ct.) 231. 1814. This was an action on the case, against the defendant, as a common carrier. The defendant resided at Utica, and jiursued the business of for- warding merchandise and ])roduce from Utica to Schenectady and Albany. The ordinary course of this business is, for the forwarder to receive the merchandise C)r produce at his store, and send it by the boatman, who trans]>orts goods on the Moliawk River, or by wagon to Sdienectady or Albany, for which he is ])aid at a certain rate j)or barrel, etc.; and his compensation consists in the difference b«'twe<'n the sum which he is obliged to pay for trans])ortation, and that wliich he receives from the owner of the goods. The defendant received from the ])laintifT, who resided in Caze- novia, in Madison County, by Aldrich, his agent, twelve liarnds of j,..t ,J,..^ f,, \,f, forwarded to Alliany, to Trf>tti'r; the ashes were I< . I a l)oat, to be carrinl down tin* Moliawk to Schenectady, and whilst proceeding down the river, the boat ran against a bridge and Hunk, and the jushes were therolw lost. The defendant's price for forwarding goods to Schenectady was ' I)vfen<]ant'i attorney roliwi in nrpim«'nl on I{f»>MTtH v. TiinxT, wliirli followg. WHO AKE COMMON CARRIERS. 33 twelve shillings per barrel, and the price which he had agreed to pay for the transporting the goods in question to that place was eleven shillings ; the defendant had no interest in the freight of the goods, and was not concerned as an owner in the boats employed in the carriage of merchandise. The judge being of the opinion that the testimony did not make out the defendant to be a common carrier, nonsuited the plaintiff; and a motion was made to set aside the nonsuit. Spenckr, J. On the fullest reflection, I perceive no grounds for changing the opinion expressed at the circuit. The defendant is in no sense a common carrier, either from the nature of his business, or any community of interest with the carrier. Aldrich, who, as the agent of the plaintiff, delivered the ashes in question to the defendant, states the defendant to be a forwarder of merchandise and produce from Utica to Schenectady and Albany; and that he delivered the ashes, with instructions from the plaintiff to send them to Colonel Trotter. The case of a carrier stands upon peculiar grounds. He is held responsible as an insurer of the goods, to prevent combinations, chicanery, and fraud. To extend this rigorous law to persons stand- ing in the defendant's situation, it seems to me, would be unjust and unreasonable. The plaintiff knew, or might have known (for his agent knew), that the defendant had no interest in the freight of the goods, owned no part of the boats employed in the carriage of goods, and that his only business in relation to the carriage of goods consisted in forwarding them. That a person thus circumstanced should be deemed an insurer of goods forwarded by him, an insurer too, without reward, would, in my judgment, be not only without a precedent, but against all legal principles. Lord Kenyon, in treat- ing of the liability of a carrier (5 T. R. 394), makes this criterion to determine his character; whether, at the time when the accident happened, the goods were in the custody of the defendants as com- mon carriers. In Garside v. The Proprietors of the Trent and Mersey Navigation (4 T. R. 581), the defendants, who were common carriers, undertook to carry goods from Stoneport to Manchester, and thence to be forwarded to Stockport, and were put into the defendants' warehouse, and burnt up before an opportunity arrived to forward them. Lord Kenyon held, the defendants' character of carriers ceased when the goods were put into the warehouse. This case is an authority for saying that the responsibilities of a common carrier and forwarder of goods rest on very different principles. In the present case, the defendant performed his whole undertak- ing; he gave the ashes in charge to an experienced and faithful boatman. 34 CARRIERS OF GOODS. TKANSPOKTATIOX CO. v. liLOCH BKOTHERS. S6 Tenn. 392. 1888. Caldwell. J. This action was brought in the Circuit Court of Davidson County, by Bloch Bros., against the ]\rerchants' Dispatch Transportation Co., as a common carrier, to recover the value of a certain case of merchandise. Verdict and judgment were for the plaintiffs, and the defendant has appealed in error. , . . The contention of the defendant in the court below was, that these stipulations in the bill of lading relieved it from liability for the loss of plaintiffs' goods, and the charge of the Trial Judge with respect thereto is now assailed as erroneous. . . . This instruction properly treats the defendant as a common car- rier. The duties which it undertakes, and which it holds itself out to the public as willing to undertake and perform, give it that char- acter. In very many cases it has been expressly adjudged to be a common carrier, and in others such has been assumed to be its char- acter without a discussion of tlie question. We cite a few of these cases: Merchants' Dispatch Transportation Co. i\ Comforth, 3 Colo. 280 (25 Am. R. 757); 45 Iowa, 470; 47 Iowa, 229; id. 247; id. 262; iiO 111. 473; 81) 111. 43; id. 152. Tlie text-writers say that despatch companies are common carriers, and class them witli express companies because of the many jioints of similarity in their business, and tlie fact tliat they alike generally use the vehicles of others in the transjiortation of freight. Lawson en Contracts of Carriers, sec. 233; Hutchinson on Carriers, sec. 72. c. Baggage of Passengers. ORANGE COUNTY T.ANK v. BROWN. Wond. fN. Y. Sup. Ct.) 8.",. 1832. Tjtis wa.1 an action on the ca.se. The suit was brought against the defendants as the owners of a 8t0 fmni the city of Now York to the banking house of the jtlnintiffs. in the village of Goslien. The dorlaration contained a count reciting that the defendants, on the 15th of Novembor, 1827, were the owners or ].rc)- WHO ARE COMMON CAREIERS. 35 prietors of a steamboat called the "Constellation," navigated on the Hudson River, between the cities of New York and Albany, for the carriage, conveyance, and transportation of passengers and their baggage and effects, for hire and reward, commonly called passage- money; touching upon the passage from New York to Albany at the village of Kewburgh, for the purpose of landing passengers and their baggage or effects ; that on the said 15th day of November, in the year, etc., one William Phillips, as the agent of the plaintiffs, at the special instance and request of the defendants, delivered to R. G. Cruttenden, then being master of the "Constellation," the trunk or baggage of him the said William Phillips, containing divers goods and chattels of them the plaintiffs, — to wit, bank notes amounting in the aggregate to the sum of $11,250, — to be safely and securely car- ried and conveyed in the said vessel from the city of New York to the village of Newburgh, for hire and reward then and there paid to Cruttenden as such master of the boat and agent of defendants, in that behalf. It is then averred that although the vessel on the same day arrived at Newburgh, yet that the defendants and their agent, not regarding their duty, did not deliver the said trunk or baggage containing the said bank notes to the said Phillips, but so negli- gently, carelessly, and improperly conducting the carriage and con- veyance thereof that for want of due care in the defendants and their agents, the trunk containing the bank notes aforesaid was wholly lost to the plaintiffs, to wit, at, etc. The declaration con- tained various other counts. The defendants pleaded the general issue. On the trial of the cause, Willi^jn Phillips was sworn as a witness on the part of the plaintiffs, and testified that in November, 1827, he went on board the "Constellation" at the city of New York, with the intention of proceeding to Newburgh, that on the wharf near the boat he met Cruttenden, the master of the boat, and told him that he had a trunk of importance whic h he wanted to put into the office. Cruttenden answered, "as soon as we get under weigh;" to which he replied that he wanted it in immediately, as he wished to go ashore. Cruttenden then told him to go to the young man or mate. He accordingly went to the office and spoke to a young man who appear ed to be doing business there, and told him he had a trimk of importance which he w ished to put into the office. The young man made the same answer as the master: "as soon as we get under weigh." The witness said he wished to go ashore, and was then told, "Come round to the door; you may put it there," pointing to a place behind the door. The witness deposited the trunk in the place pointed out, and went on shore, and was absent eight or ten minutes. While on shore he bought some oranges, which he held in a hand- kerchief until the boat got under weigh, when he went to the office to put the oranges into the trunk, and found that it was gone. He immediately apprised the master and the clerk of the fact; search 36 CAKRIERS OF GOODS. was made, but the trunk could not be found. He testified that there were in his trunk, when he went on board, seven sealed jjacka;/€s of bank notes, received by him from the tirst teller of the Bank of America, and which he had been requested by the president of the Bank uf Orange County to carry to that bank from tie Bank of America. When he received the packages, the president of the Bank of Orange County told him that it was his practice when he had charge of packages of money to carry to Goshen, to deliver them to the captain of the steamboat immediately upon going on board, and advised him to follow the same course, which he, the witness, considered as a direction to him, and acted accordingly. On his cross-examination, he said he did not inform the clerk that his trunk contained bank bills, nor did he ttdl Cruttenden, the master of the boat, that it contained anything more than his own property; nor did he tell him that he was going to Newburgh. It was satisfac- torily proved that the packages contained $11,250. The plaintiffs having rested, the defendants' counsel moved for a nonsuit on various grounds. The presiding judge ruled that the liability of the defendants rested on the general law respecting car- riers; that it admitted of some doubt whether the risk in this case commenced until the commencement of the voyage ; that it was mat- ter of doubt whether the defendants, in the case of mere baggage, were insurers for more than the property of the passenger; in most cases it would be a risk without compensation, which was not in the spirit of the law; that when a carrier is to be made liable for bank bills, not made up in a package pointing to its contents, common justice required that he should be informed of the nature of his charge, so that he might take the necessary precautions for the safety of the bills and for his own protection; that in liis opinion the information of Phillips to the master of the boat of the value and contents of the trunk, was not, under all the circumstances of the case, sufficient to entitle the plaintiff to recover, and on that ground he directed a nonsuit. A nonsuit was accordingly entered, which tlie i)laintiffs now move to set aside. Nklson, J. Tliis case is peculiar in many of its features, ami must be determined by a recurrence to some of the general and fun- damental i)rinciple8 whicli govern actions of this kind. The rule of the common law in relation to common carriers has been frequently Mf-ed a rigorous one, and its vindication by Lord JIt)lt affords ...;it evidence, if any wcire wanting, of tlu- truth of tlie obser- v.iiion. Ho says, in Lane v. Coulton, 1 Yin. Abr. L'l'J, though one may think it a hard case that a ])oor carrier tliat is robbed on the road, without any manner of default in liim, should be answcralde for all tho goo«l.s h(; takes, yet the inconveniency would be far more I ;T,f..l. r ,1.1.. if it were not so, for it would be in his power to combino TH, or to pretend a robbery or some other accident, witli- |out a iKJS.sibility of a remedy to the party, and the law will not WHO ARE COMMON CARRIERS. 37 expose him to so great a temptation. This reason, which I believe is the only one that has ever been given for the origin of the rule, and which probably had much foundation in fact in the early and rude age in which it must have been established, it is obvious, at this day, is nearly as applicable to every person intrusted with the property of another, as it is to the common carrier. In proportion, however, to the rigor of the liability, was exacted the compensation for it and the means of enforcing payment, which alfords a sort of equivalent for the harshness of the rule. Accordingly we find it frequently laid down in actions of this kind, as a fundamental proposition, that the common carrier is liable in respect to his reward, and that the compensation should be in proportion to the risk. So strictly was this rule adhered to that it was repeatedly decided by Lord Holt that the hackney coachman was not liable for the travelling trunk of the passenger which was lost, unless a dis- tinct price had been paid for the trunk as well as the person; and where it was the custom of the stagecoach for passengers to pay for baggage above a certain weight, the coachman was responsible only for the loss of goods beyond such weight. 1 Vin. Abr. 220, and cases there cited. So in the analogous case of the innkeeper, if a guest stops at an inn, and departs for a few days, leaving his goods, if they are stolen during his absence, the landlord is not liable as innkeeper, for at the time of the loss the owner was not his guest, and he had no benefit from the keeping of the goods. Cro. Jac. 188; 1 Vin. Abr. 225. It has since been determined that the stage coachman is responsible for the baggage of the passenger, though no distinct price was paid for it, upon the ground, however, still con- sistent with the principle of the above cases; to wit, that the reward for carrying the same was included in the fare for carrying the passenger. 1 Wheaton's Selwyn, 301, n, 1. Now, upon the ground that the defendants in t his case have received no compensa tio n or reward from the plaint iffs or any other person for the transportation or risk of the money in question, and that they were deprived of such reward by the unfair dealing of the agent of the plaintiffs with the defendants, I am of opinion the phuntii^ ^nnot^recover, and that they were properly nonsuited upon the trial. As a general rule where there has been no qualified acceptance of goods by special agreement, or where an agreement cannot be inferred from notice, the carrier is bound to make inquiry as to the value of the box or article received, and the owner must answer truly at his peril ; and if such inquiries are not made, and it is received at such price for transportation as is asked with reference to its bulk, weight, or external appearance, the carrier is responsible for the loss, whatever may be its value. If he has given general notice that he will not be liable over a certain amount, unless the value is made known to him at the time of delivery and a premium for insurance paid, such notice, if brought home to the knowledge 33 CARRIERS OF GOODS. of the owner (and courts ami juries are liberal in inferring such knowledge from the publication of the notice), is as efteetual in qualifying the accejitance of the goods as a special agreement, and the owner, at his peril, must disclose the value, and pay the premium. The carrier in such case is not bound to make the inquiry, and if the owner omits to make known the value, and does not therefore pay the premium at the time of delivery, it is considered as dealing unfairlv with the carrier, and he is liable only to the amount men- tioned in his notice, or not at all, according to the terms of his notice. 1 "Wheaton's Selw. 305, oOG, 308, and notes; 6 Com. L. R. 333; 4 Burr. 2298; 5 Com. L. 11. 470; 8 I'ick. 182; 11 Com. L. R. 243. In this case no notice has been given by the defendants limiting their responsibility, and they are no doubt liable to the full value of the baggage of the passenger lost, or of the goods lost, which they had received without any special agreement, qualifying the risk for transportation. The defendants cannot succeed upon this ground. But in the absence of notice, if any means are used to conceal the value of the article, and thereby the owner avoids paying a reason- able compensation for the risk, this unfairness and its consequence to the defendants, upon the principles of common justice as -well as those peculiar to this action, will exempt them from the respon- sibility; for such a result is alike due to the defendants, who have received no reward for the risk, and to the party who has been the cause of it by means of disingenuous and unfair dealing. Thus, where the plaintiff delivered to the carrier a box, telling him there was a book and tobacco in it, when it contained one hundred pounds, and it was lost, he should not recover. It is true tliat in such a case a party did recover, tliough Kolle, C. J., considered it a cheat; but it is clear that at this day he could not recover. 4 Burr. 2301. So where a box, in which there was a large sum of money, was brought to a carrier, who inquired its contents, and was answered it was filled with silk, upon whicli it was taken and lost, it was lield the owner could not rceover. Ili'ul. So where a bag sealed was delivered to a carrier, and was said to contain two hundred pounds, and a receipt was given for the same, when, in fact, it contained four hundred pounds, and it was lost, the carrier was held answer- able only for the two hundred j.ounds, as the reward extended no fartlier. 4 Burr. 2301; Selw. 30") (n.) These casi-s all j.rocecd upon tlio ground that tl»e carrier is deprived of Ids reward for the extra value of tlie article, and consequent extra risk incurred, by means of the unfair if not fraudulent conduct of the owner, and therefore f • T of the common-law rule is not ap]»lied to him, and he is < '^ ■ • Monsible for the loss in ease of gross negligrnee. If t H are to be made re8i)onsil»le to the jthiintiffs tlirougli the medium and acts of their agent, who was enii»lf»yed to carry the money frr>m New York to the bank, tlie plaintilFs also must be held WHO ARE COMMON CARRIEES. 39 responsible to the defendant for his conduct; the obligation must be reciprocal. Instead of committing the several packages of money to the captain, which of themselves generally indicate their value, and in this case would have done so, as the figures (by which I under- stand the quantity of money in each package) could be seen upon them, and thereby enable the captain to exact a reasonable compen- sation for the risk, and apprise him of the necessity of greater care and caution in the safe conveyance of the money, which he naturally would bestow in proportion to the value, the agent of the plaintiffs put them into his trunk, and committed it to the captain as his bag- gage, affording no other indication of the value of its contents than that it was a trunk of importance. This was enough to attract the attention of the felon who might be standing by to its contents, but certainly was not calculated to afford information to the captain of the extraordinary character and value of those contents. The cap- tain might understand he had a costly wardrobe and other neces- saries and conveniences for travelling of great value, but not that the trunk contained eleven thousand dollars in bank bills, which the traveller was carrying for hire or friendship, and not as travelling expenses. It may be difficult to define with technical precision wh at may legitimately be included in the term baggage, as used in connection with travelling in public conveyances ; but it may be safely asserted that money , except what may be carried for the expenses of travel- linj;, is not thus included, and especially a sum like the present, which was taken for the mere purpose of transportation. We have already seen that formerly so strict was the rule that the carrier was liable only in respect to the reward adhered to, that he was not held liable for the loss of the baggage of the passenger unless a distinct price was paid for it. The law is now very properly altered, as a reasonable amount of baggage, by custom or the courtesy of the car- rier, is considered as included in the fare for the person; but courts ought not to permit this gratuity or custom to be abused, and under pretence of baggage to include articles not within the sense or mean- ing of the term, or within the object or intent of the indulgence of the carrier, and thereby defraud him of his just compensation, and subject him to unknown and illimitable hazards. If the amount of money in the trunk in this case is not fairly included under the term baggage, as used in the connection we here find it (and I can- not think it is), then the conduct of the agent was a virtual conceal- ment of that sum; his representation of his trunk and the contents as baggage was not a fair one, and was calculated to deceive the captain; and it would be a violation of first principles to permit the plaintiffs to recover. The case of Miles v. Cattle et al., 19 Com. L. R. 219, in some respects resembles this case. The plaintiff was going to L., and took a seat in a public conveyance. He had with him a bag labelled "T. Miles, traveller," containing clothes worth 40 CAUIMERS OF GOODS. about fifteen pounds. Before lie started, G. delivered Inm a parcel containing a fiftj-pound bank note, addressed to an attorue}- in L., which the plaintitf was desired to book at the defendants' office, and to be forwarded by the defendants to L. The plaintiff, instead of doing so, jjut the parcel in his own bag, intending to convey it to L. himself. If the parcel had been sent by the defendants, it would have cost four shillings and sixpence. The bag and contents were lost. The verdict was found for the fifteen pounds, with leave to a])pl3- to increase it, on the facts in the case, by adding the fifty I)Ounds. The court denied the application, principally upon the ground that the plaintiff had no interest in the fifty pounds. But it was conceded by the court that the owner could not recover on the facts. Tindale, J., says, in violation of his trust the plaintiff tliought proper not to deliver the parcel to the defendants, but to deposit it in his own bag; thereby depriving the owner of any remedy he might have had against the defendants, and the defend- ants of the sum they would otherwise have earned for the carriage of the parcel. In this case the president of the bank directed Pliillips to commit the packages directly to the captain, and had he followed such directions, the captain would have been enabled to charge a reward for the carriage of the same, and the captain, or the defend- ants, would have been responsible for its safety. His omission to follow the directions was a violation of his trust, for which the defendants are not accountable. It was decided in Sewall v. Allen ef al., in the Court of Errors, C Wend. 330, that the Dutchess and Orange Steamboat Company, and the members thereof, were not liable for the loss of packages of bank bills intrusted to the captain of the boat, on the ground that the carriage of bank bills was not within the ordinary l)usiness of the company; and so far as tlie usage extended, it was a personal trust committed to the captain, who alone received the compensa- tion, or, in other words, tlie company were neither by their charter or usage under it, common carriers of bank bills. From the facts api»earing in that case, I presume tlio ])rinciiile here decided by the highest judicial tribunal in tlie State would be ecpially a])plical)le to this company, though from the direction the cause took ujion the trial, facts sufficient do not appear to raise the question. If so, it seems to me imjiossible to maintain the proposition that the defend- ants would be holden responsiljle for tlie loss of an article in the trunk of a pa.ssengor, which in no sense of the term can be con- sidered a part of the baggage of the i)assenger, ami for the transpor- tation of which no compensation is received by tlie company, when, coi ly, they would not be accountable for the same article, if it haortation as her baggage the two trunks above described , whic h contained the larger ])ortion of the dress-laces brought with her from Europe. Ujion arriving at Niagara Falls she ascertained that oiir ui the trunks, during trans] lortations from Albany to the Falls, had been materially injured, its locks lyroken, its contents disturbed, and more than two hundred yards of dress-lace abstracted from the trunk, in which it had been carefully placed before she left the city of New York. The company declined to pay the sum demanded as the value of the missing laces ; and, having denied all liability therefor, this action was instituted to recover the damages which the defendant in error claimed to have sustained by reason of the loss of her property. Upon the first trial of the case, in 1873, the jury, being unable to agree, was discharged. A second trial took place in the year 1S75. Upon the conclusion of the evidence in chief at the last trial, the company moved a dismissal of the action, and, at the same time, submitted numerous instructions whicli it asked to be then given to the jury, among which was one peremptorily directing a verdict in its favor. That motion was overruled, and the court declined to instruct the jury as requested. Subsequently, upon the conclusion of the evidence upon both sides, the motion for a peremptory instruc- tion in behalf of the company was renewed, and again overruled. The court thereupon gave its charge, to which the comjjany filed numerous exceptions, and also submitted written requests, forty- two in number, for instructions to the jury. The court refused to instruct the jury as asked, or otherwise than as shown in its own charge. To the action of the court in the several respects indicated the company excepted in due form. The jury ret u rned a verdict against the comi)any for the sum of •'Ji'l "•""'-*' although the evidence, ill some of its aspects, jdaced the value of the missing laces very far in excess of tliat amount. It would extend this oj.inion to an imi)ro]ier length, and could serve no useful ])urpose, were we to enter ui)on a discussion of the various exceptions, unusual in tlieir number, to the action of the court in the admission and exclusion of evidence, as well as in refus- ing to charge the jury as requested by the com])any. Certain con- trolling propositions are presented for our consideration, and uiion their detormination the siibstantial rights of i)artics seem tf) depend. If, in rcHpect of tliese ])rf)i)ositions, no orror was committer usually carry for per- sonal u.se when travelling. "The implied undertaking," says Mr. Angell, "of the j)r()prietor8 of stagecoaches, railroads, and steam- WHO ARE COMMON CAKRIERS. 45 boats to carry in safety the baggage of passengers is not unlimited, and cannot be extended beyond ordinary baggage, or such baggage as the traveller usually carries with him for his personal con- venience." Angell, Carriers, sec, 115. In Hannibal Railroad u. Swift, 12 Wall. 272 [54] , this court, speaking through Mr. Justice Field, said that the contract to carry the person " only implies an undertaking to transport such a limited quantity of articles as are ordinarily taken by travellers for their personal use and convenience, such quantity depending, of course, upon the station of the party, the object and length of his journey, and many other considera- tions." To the same effect is a decision of the Queen's Bench in Macrow v. Great Western Railway Co., Law Rep. 6 Q. B, 121, where Chief Justice Cockburn announced the true rule to be "that whatever the passenger takes with him for his personal use or con- venience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities or to the ultimate purpose of the journey, must be considered as personal luggage." 2 Parsons, Contr., 199. To the extent, there- fore, that the articles carried by the passenger for his personal use exceed in quantity and value such as are ordinarily or usually carried by passengers of like station and pursuing like iourneys, they are not baggage for which the carrier by general law is respon- sible as insurer. In cases of abuse by the passenger of the privilege which the law gives him, the carrier secures such exemption from responsibility, not, however, because the passenger, uninquired of, failed to disclose the character and value of the articles carried, but because the articles themselves, in excess of the amount usually or ordinarily carried, under like circumstances, would not constitute baggage within the true meaning of the law. The laces in question confessedly constituted a part of the wearing apparel of the defend- ant in error. They were adapted to and exclusively designed for personal use, according to her convenience, comfort, or tastes, during the extended journey upon which she had entered. They were not merchandise, nor is there any evidence that they were intended for sale or for purposes of business. Whether they were such articles in quantity and value as passengers of like station and under like cir- cumstances ordinarily or usually carry for their personal use, and to subserve their convenience, gratification, or comfort while travel- ling, was not a pure question of law for the sole or final determina- tion of the court, but a question of fact for the jury , under proper guidance from the court as to the law governing such cases. It was for the jury to say to what extent, if any, the baggage of defendant in error exceeded in quantity and value that which was usually carried without extra compensation, and to disallow any claim for such excess. Upon examining the carefully guarded instructions given to the jury, we are unable to see that the court below omitted anything 46 CARRIERS OF GOODS. essential to a clear comprehension of the issues, or announced any principle or doctrine not in harmony with settled law. After sub- mitting to the jury the disputed question as to whether the laces were, in fact, in the trunk of the defendant in error, when delivered to the company at Albany for transportation to Niagara Falls, the court charged the jury, in substance, that every traveller was entitled to provide for the exigencies of his journey in the way of baggage, was not limited to articles which were absolutely essential, but could carry such as were usually carried by persons travelling, for their comfort, convenience, and gratification upon such journeys; that the liability of carriers could not be maintained to the extent of making them responsible for such unusual articles as the excep- tional fancies, habits, or idiosyncrasies of some particular individual may prompt him to carry; that their responsibility as insurers was limited to such articles as it was customary or reasonable for travellers of the same class, in general, to take for such journeys as the one which was the subject of inquiry, and did not extend to those which the caprice of a particular traveller might lead that traveller to take; that if the company delivered to the defendant in error, aside from the laces in question, baggage which had been carried, and which was sufficient for her as reasonable baggage, within the rules laid down, she was not entitled to recover; that if she carried the laces in question for the purj)0se of having them safely kept and stored by the railroad companies and hotel-keepers, and not for the purpose of using them, as occasion might require, for her gratification, comfort, or convenience, the company was not liable; that if any ])ortion of the missing articles were reasonable and jtroper for her to carry, and all was not, they sliould allow her the value of that portion. Looking at the whole scope and bearing of the charge, and inter- preting what was said, as it must necessarily have been understood bur authority does not extend to a re-examination of facts wliirh liave been tried by the WHO ARE COMMON CAKRIERS. 47 jury under instructions correctly defining the legal rights of parties. Parsons v. Bedford, 3 Pet. 446; 21 How. 167; Insurance Company V. Folsom, 18 Wall. 249. It is, perhaps, proper to refer to one other point suggested in the elaborate brief of counsel for the company. Our attention is called to section 4281 of the Eevised Statutes, which declares that " if any shipper of platina, gold, gold-dust, coins, jewelry, . . . trinkets, . . . silk in a manufactured or unmanufactured form, whether wrought up or not wrought up with any other material, furs or laces, or any of them, contained in any parcel, package, or bundle, shall lade the same as freight or baggage on any vessel, without, at the time of such lading, giving to the master, clerk, agent, or owner of such vessel receiving the same, a written notice of the true char- acter and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessels shall not be liable as carriers thereof in any form or manner; nor shall any such master or owner be liable for any of such goods beyond the value and according to the character thereof, so notified and entered." It is sufficient to say that the section has no application whatever to this case. It has reference alone to the liability of carriers by Walter who transport goods and merchandise of the kind designated. It has no reference to carriers by land, and does not assume to declare or restrict their liability for the baggage of passengers. Judgment affirmed. Mr. Justice Field, with whom concurred Mr. Justice Miller and Mr. Justice Strong, dissenting. I dissent from the judgment of the court in this case. I do not think that two hundred and seventy-five yards of lace, claimed by the owner to be worth $75,000, and found by the jury to be of the value of $10,000, can, as a matter of law, be properly considered as baggage of a passenger for the loss of which the railroad company, in the absence of any special agreement, should be held liable. KANSAS CITY, etc. R. CO. v. MOERISON. 34 Kan. 502. I8860 On March 2, 1884, William Morrison filed his petition against the Kansas City, Fort Scott & Gulf Railroad Company, in the District Court of Labette County, to recover $495.12, with interest thereon from February 8, 1884, the alleged value of certain wearing apparel and tools^ The petition also averred that the railroad company was a corporation operating a railroad from Fort Scott to Parsons, 48 CARRIERS OF GOODS. and was a carrier of passengers between those points on February 8, 18S4, and subsequent thereto; that the phiintifE on said date was a watchmaker and jeweller, and that the articles described in the peti- tion constituted the tools necessarily used by him in carrying on his occupation ; that on said February 8, the plaintiff was a passenger on the railroad from Fort Scott to Parsons, and at the same time delivered his trunk to the company to be carried as baggage between said points; that plaintiff arrived in Parsons on said day, and at once and on several occasions thereafter demanded of the company a delivery of his baggage, which was refused until February 23; that the trunk was delivered on that day, but that the wearing apparel and tools described in the petition were missing from it; and that such loss was caused by the negligence of the company. HoRTOX, C. J. . . . The evidence on the part of the railroad company established that the trunk reached Parsons on February 9, 1S84 ; that it was apparently in good order when it arrived ; that on February 15, the depot was burglarized, and the trunk broken open and robbed. The jury found that the plaintiff demanded his trunk on February 9, 1884, and again demanded it on February 1 1 ; and these findings are supported by the evidence because the demand made by the porter of the Belmont, on the 11th, was the same as if plaintiff had made the demand, as the porter was acting for him and in his interest. Therefore we may omit from this case all discussion of the liability of the defendant below as warehouseman or bailee for hire. If jilaintiff demanded his baggage, as testified to, and the company, having the trunk at its depot at Parsons, refused to deliver it, the company is resi)onsible to the owner for its contents, although the trunk was subsequently broken open and robbed with- out its fault. The liability of the railroad company was co-exten- sive with its custody of the trunk, and continued until it was safely delivered into the hands of its owner, if the owner called for and demanded the trunk witliin a reasonable time after it readied Parsons. All of this was done by the owner. A. 'I'. & S. F. VAd. Co. V. Brewer, 20 Kas. r,70; C. ]l. I. & Pac. ]:M. Co. v. Conklin, 32 id. 55; Thompson on Carriers, pp. 530-532. We tliink, therefore, that tliere is only one principal question pre- sented by tlie record for our determination; that is, wlietlu'r the tools of plaintiff below are proper baggage for a watchmaker and ' jeweller. The general rule is, that tlie implied obligation of a com- mon carrier to carry the baggage of a passenger does not extend beyond ordinary baggage; and it may bo said generally that by bag- ) gage wo are to understand such articles of jicrsonal convenience or I nt-ccHsity a.s are usually carried by i)as8engcrs for tlieir personal use, and not merchandise or other valuables, altlumgli carried in tlio trunks of passengers, wljich are not, however, designed for any such j use, but for otlier purposes, such as a sale and the like. Story on WHO ARE COMMON CARKIERS. 49 Bailments, 499; Hutchinson on Carriers, § 679. The decisions on the subject of passengers' baggage turn upon the question : What articles may baggage consist of? This is a mixed question of la-w- and fact, to be determined by the jury under proper instructions from the court. In Macro-w v. Railway Co., 2 L. R. 6 Q. B. 612, the question coming before the court as to -what -was properly included by the term baggage, the true rule was said by Cockburn, C. J., to be: — " That whatever the passenger takes with him for his personal use or convenience, according to the habits or wants of the particu- lar class to which he belongs, either with reference to the immediate necessities or to the ultimate purpose of the journey, must be con- sidered as personal luggage. This would include, not only all articles of apparel, whether for use or ornament, but also the gun case or fishing apparatus of the sportsman, the easel of the artist on a sketching tour, or the books of the student, and other articles of an analogous character, the use of which is personal to the traveller, and the taking of which has arisen from the fact of his journeying. . . . But merchandise, or furniture, or household goods, would not come within the description of ordinary luggage, unless accepted as such by the carrier." It is also held by the authorities that a reasonable quantity of his tools is proper baggage for a mechanic. Davis v. Railroad Co., 10 How. Pr. 330; Porter v. Hilderbrand, 14 Pa. St. 129. The case of Davis V. Railroad Co., supra, and Porter v. Hilderbrand, supra, are cited by Thompson in his work on Carriers, and also by Hutchinson in his book on the same subject; and are also referred to in other text-books without criticism or other unfavorable comment. Thompson on Carriers, 513; Hutchinson on Carriers, § 683. These cases are quite similar to the one at bar, excepting that the tools in controversy are more valuable. In Davis v. Railroad Co., the contents of the trunk consisted of ordinary wearing apparel, a gun, and a set of harness-maker's tools, worth ten dollars. The plaintiff was a harness-maker by trade, and it was proved that it is usual for those of that trade, in going from place to place, to take their tools with them in their trunks. In Porter v. Hilderbrand, the plaintiff was a carpenter, and his trunk contained $45 of cloth- ing and $55 of carpenters' tools. He was moving from Pennsylvania to the State of Ohio, and he delivered his trunk to the owners of a stage to carry it from Pittsburgh to Wooster, Ohio. In that case, the court speaking through Bell, J,, said: — " Another question disclosed by the record is, whether a recovery can be had for the value of the carpenters' tools, which the jury have found were a reasonable part of the plaintiff's baggage. . . . The right to carry tools as baggage is unquestionably open to abuse ; but in the language of the court in :McGill v. Rowand, 3 Barr. 451, the correction is to be found in the intelligence and integrity of the 4 50 CAKKIERS OF GOODS. jury called to determine under the circumstances of each case. It is, it is said, a common thing for journeymen mechanics to carry in their trunks, with clothing, a small and select portion of their tools. To this practice I see no such objection as ought to put this kind of property out of the protection afforded to the necessaries a traveller is compelled by legitimate considerations to transport with his per- son. Upon this score, the judgment rendered below is, I think, unobjectionable." The evidence shows that plaintiff below was a watchmaker and jeweller; that he went to Parsons to work at watchmaking; that the tools in his trunk were intended for repairing watches and were necessary for his work; and that they were the tools usualh" carried by a person of his trade or occupation. The plaintiff is tlierefore, strictly speaking, a mechanic, and a reasonable quantity of liis tools is proper baggage. The term " baggage " was fairly defined to the jury in the instructions of the court, and we do not think any of the instructions were misleading or prejudicial, although as a whole they were unnecessarily prolix. What was a reasonable quantity of tools for plaintiff below to carry, was a question for the jury. The judgment of the District Court must be affirmed.* GREAT XORTHERX RAILWAY, Appellant, v. SHEPHERD. 8 Exch. 30. 1S52. Parke, B. In this case, tliere being no special contract, the defendants were bound to carry the plaintiff and his luggage, which I term, according to the true modern doctrine on the subject, com- ! prises clothing and such articles as a traveller usually carries with i liim for his personal convenience; perhaps even a small i)resent. or a book for the journey, might be included in the term; but certainly not merchandise or materials bought for the purpose of being maiiii- factured and sold at a profit. Angell on Carriers, sec, 115; Story on • In the case at bar, we are of opinion that tlie feathor-bed was not a part of the pcnional baggage of the plaintiff, and that the defendants are not liable for it under th<-ir contract. The ca.se finds tlmt it wa.s not inti-ndcii for personal use during the voyag.!. It wa-s an article of furniture, and it is dillii ult to see how it can nny more properly bo called personal baggnge than any other article of household furniture. The pr<-»(idin(^' jiidgo correctly ruh-cl that, upon the facts proved, this was a . 15. r,l2. Contra: Ouimit r. Henshaw, 35 Vt. 604. 022. Tlie manu.tcrip' ' f a studint may !»• ' Hopkins r. Wostcott, Olilatch. 64; or the "i: k" of a travelling - : tileason i;. Transportation Co., 32 Wis. 85. WHO ARE COMMON CARRIERS. 51 Bailments, 526, 5th eel. note. In this case, nine-tenths of the articles were of the latter description. Now, if the plaintiff had carried these articles exposed, or had packed them in the shape of mer- chandise, so that the company might have known what they were, and they had chosen to treat them as personal luggage, and carry them without demanding any extra remuneration, they would have been responsible for the loss. So also upon any limit in point of weight if the company chose to allow a passenger to carry more , they would be liable. The judge states, that there was no evidence as to whether defendants carried passengers by this excursion train upon the terms contained in the 6th section of the 7 & 8 Vict. c. 85, unless the court shall be of opinion that the fact that the charge for each passenger was less than a penny a mile was of itself sufficient proof that they carried upon those terms. That, however, it is not necessary to decide; because, assuming that they did not carry on those terms, the defendants only agreed for the stipulated fare to carry passengers and everything which constituted personal luggage, and were not bound to carry merchandise or articles wholly uncon- nected with luggage. If, indeed, they had notice, or might have suspected from the mode in which the parcels were packed that they did not contain personal luggage, then they ought to have objected to carry them ; but the case finds that they had no notice of what the packages contained. Whether this was done for any fraudulent purpose, it is not necessary to inquire ; because, even if there was no fraudulent intent, the plaintiff has so conducted him- self that the company were not aware that he was not carrying lug- gage, and therefore the loss must be borne by him. It was con- tended that, after the accident happened, a new special contract was entered into, by which the company undertook to take care of the plaintiff's luggage. But this argument fails. If, indeed, an acci- dent had happened to a perfect stranger, and the company had agreed without compensation to forward his luggage, they would, according to Coggs v. Bernard, be responsible for its loss. But in this case the plaintiff was a passenger, and the intention of the com- pany was only to carry into effect the original contract; and from that alone their obligation arises. I am therefore of opinion that the company are not liable; and the judgment of the court below must be reversed. 52 CAKEIEKS OF GOODS. MICHIGAN CEXTKAL K. CO. v. CAEROW. 73 111. 318. 1874. Scott, J. . . . By common custom the personal luggage of the traveller is carried without extra charge. Passenger carriers do not assume to carry anything as baggage except such things as may be necessary to the convenience and comfort of the traveller, and per- haps sufficient money to defray the expenses of the journey. This fact is well known to all persons who seek passage in railway car- riages. With a great majority of travellers the amount of baggage carried is of no considerable value. The companies have no arrangements for the carrying and safe keeping of costly articles. The contract is simply for passage and the usual personal baggage not exceeding in weight the amount prescribed by the regulations of the company. If this implied contract with the carrier of passengers is to be varied, modified, or enlarged, it must be by direct notice of the contents of the package offered as baggage which, in effect, would amount to a special contract. The company may rely upon the representation that whatever is offered as baggage is that, and noth- ing else. The law seems to be settled that it need not inquire as to its contents. If the passenger has merchandise checked as baggage without such notice, the company cannot be held liable as a com- mon carrier. Cahill v. L. & N. W. Ry. Co., 10 C. B. n. s. 154; Chicago & Cincinnati Air Line R. R. Co. v. Marcus, sttpm ; Collins V. Boston & Maine R. R. Co., 10 Cush. 50G; Great Northern Rail- road Co. V. Shepherd, 8 W. H. & G. 30 [50] ; Batsou y. Donovan, 4 V,. & A. 21. Upon the doctrine of these cases, it is very clear appellant was not a common carrier of the goods destroyed. Apix'llee gave the agents of the company no notice whatever liis trunk contained valu- able merchandise. No one knew better than appellee the comjtany did not carry merchandise as baggage, free of charge, and without notice of the contents of the trunk there is neither reason nor authority for holding tlie company liable as an insurer against loss. In C'aliill V. L. & N. W. Ry. Co., supra, Willis, J., very aptly re- marks tliat" where a passenger takes a ticket at the ordinary charge, he must, according to common sense and common experience, be taken to contract witli the railway company for tlie carriage of liinu self and his jtersonal luggage only, and that he can no more extend the contract to tlie conveyance of a single package of merchandise than of his entire worldly possessions." So we say in this case, it was not in the power of appellee to extend the liability of the com- j»any on account of liis own convenience. There was no undertak- WHO ARE COMMON CARRIERS. 53 ing to carry merchandise, and he had no right to impose his goods subtilely upon the company, and then seek to make the obligation that of a common carrier. If he desired to have his merchandise or wares go upon the train with him, it was but just to the carrier he should disclose its nature and value, and if the company then chose to treat it as baggage, the liability of a common carrier would attach, but not otherwise. The case of the Great Northern Railway Co. v. Shepherd, supra, is a case where the passenger had a quantity of ivory handles in his baggage. No notice was given , and it was not so packed as to indi- cate to the carrier it contained merchandise. It was decided the carrier of passengers for hire is, at common law, only bound to carry their personal luggage. Therefore, if a passenger has merchandise among his luggage, or so packed the carrier has no notice it is mer- chandisBj he, is not responsible for its loss. The case of Cahill v. L. & N._W. Ry. Co., sxipra, in some of its features is like tEe case at bar. The plaintiff was a commercial traveller. He had checked, as baggage, a box covered with a black leather case, which had painted across the top, on each end, the word " Glass " in large white letters, and also the name of his employer in like legible letters. It contained valuable merchandise. No information was given by the plaintiff to the company's servants, nor was any inquiry made by them as to the contents of the box. It was held, in an action against the company for the loss of the box, that, inasmuch as it contained merchandise only and no per- sonal luggage, there was no contract to carry it, and consequently it was not liable for the loss. The case was reargued in the Exchequer Chamber, before a full bench. 13 J. Scott, 818. Cockburn, C. J., agreed with the judges of the Court of Common Pleas, if the company chose to take as ordinary baggage that which it knew to be merchandise, it is not competent, in the event of loss, to claim exemption from liability on the ground the article consists of merchandise. "But," he adds, " on the contrary, if a passenger who knows or ought to know that he is only entitled to have his ordinary personal luggage carried free of charge, choose to carry with him merchandise for which the com- pany is entitled to charge, he cannot claim to be compensated in respect to any loss or injury, by the company to whom he has abstained from giving notice of the contents." The fact the box was marked " Glass " was not a circumstance, in I the opinion of the court, that would charge the company with notice 1 it contained merchandise. It could regard it as an indication it was to be handled with more than ordinary care. This case is a much i stronger one than the present plaintiff's case. There was very much more to put the company on inquiry. It was ruled, however, it was not the duty of the company to inquire as to the contents of the luggage, but it was the duty of the plaintiff himself to give 54 CARKIERS OF GOODS. notice, and his failure to do so was sufficient to bar a recovery. To tlie same effect is the case of The l^elfast & Ballymena K. K. Co. v. Keys, 9 House of Lords Cases, ooG. The case of Dunlap v. The International Steamboat Co., 98 Mass. 371, is in entire conformity with the views expressed in the English cases. . . .^ HANNIBAL RAILEOAD v. SWIFT. 1-2 Wall. (U. S.) 2G2. 1870. Field, J. ... A considerable portion of the property, it is true, was not personal baggage, which the company was obliged to trans- port under the contract to carry the person; nor does it appear that it was offered to the company as such. It embraced buffalo robes, hair mattresses, pillows, writing-desks, tables, statuary, and pic- tures, in relation to which there could be no concealment, and it is not pretended that any was attempted. Where a railroad company receives for transportation, in cars which accompany its passenger trains, property of this character, in relation to which no fraud or concealment is practised or attempted upon its employees, it must 1 be considered to assume, with reference to it, the liability of com- mon carriers of merchandise. It may refuse to receive on the pas- senger train property other than the baggage of the passenger, for a contract to carry the person only implies an undertaking to transport such a limited quantity of articles as are ordinarily taken by travel- lers for their personal use and convenience; such quantity depend- ing, of course, upon the station of the party, the object and length of the journey, and many other considerations. But if property offered with the passenger is not represented to be baggage, and it is not so packed as to assume that appearance, and it is received for transportation on the passenger train, tliere is no reason why the carrier siiall not be held equally responsible for its safe conveyance as if it were placed on the freight train, as undoubtedly he can nuike the same charge for its carriage. ' • • • 1 Ace.: Humi'liroys v. IVrry, 148 U. .S. 627. . J But in IJlumantle r. Fitcliburg It. Co.. 127 Mass. 322, a package was received apiK-aring to be rn.rcha».li8c, an.l tl.e court say: In the case at bar, the plaintilT ofTeml and delivered the bundles as his j-ersonal h^KH'^H''. "'"^ rc-iuost.d that th.-y mi^'ht bo chcckwl fti such; an.l the bafjKaKc-niaHt.-r k-'V him clucks for th.-m n.-cor.in.Kly as he wu bound to do for iM-rsonal baKKtK" of i^ussenKers. by the St. of 1874, c. 3/2, § 130. There was no evidence that either the plaintiir or th.- ba^rKnp-'nnst'T "Kn-'-d or mt.-ndcl that thpy should be carried as fr.-iK'ht. or that th.- bangag'-mastcr had any autlionty to rccivf fn-JKht on a pas.Hi-n«(r train, or to bin-l the c.riKjration to carry mcrchandi.se as per»onal Uggage. The cose cannot be distinguishcl in principle from the previous do- WHO ARE COMMON CARRIERS. 65 HENDERSON v. LOUISVILLE, etc. R. CO. 123 U. S. 61. 1887. This was an action against a railroad company. Judgment for defendant. Plaintiff sued out this writ of error. Justice Gray. This was an action against a railroad corporation by a passenger to recover for the loss of a handbag and its contents. The plaintiff, a married woman, suing by authority of her hus- band, alleged in the original petition that on October 25, 1883, the defendant, being a common carrier of goods and persons for hire, received her into one of its cars as a passenger from her summer residence at Pass Christian, in the State of Mississippi, to her winter residence in New Orleans, having in her hand, and in her immediate custody, possession, and control, a leather bag of a kind usually car- ried. by women of her condition and station in society, containing f SSOiLin bank bills, and jewelry worth $4075 ; that while the plain- tiff, holding the bag in her hand, was attempting to close an open window_next her seat^, through which the cold wind was blowing upon her, the bag and its contents, by some cause unknown to her, accidentally fell from her hand through the open window upon the railroad J that she immediately told the conductor of the train that the bag contained property of hers of great value, and requested him to stop the train, and to allow her ta leave the car and retake the bag and its contentsj but he refused to do so, although nothing hin- dered or prevented him, and, against her protestations, caused the train to proceed at great speed for three miles to Bay St. Louis, where he stopped the train, and she despatched a trusty person to the place where the bagjhad fallen ; but before he arrived there, the bag, with its contents, was stolen and carried away by some person or persons to the plaintiff unknown, " and was wholly lost to the plaintiff by the gross negligence of the defendant as aforesaid." • ••••••••••a The mere statement of the case is sufficient to demonstrate the correctness of the judgment below. The facts alleged in the original petition constitute no breach or neglect of duty on the part of the defendant towards the plaintiff. She did not intrust her bag to the exclusive custody and care of the defendant's servants, but kept it in her own immediate possession, cisions of this court, already cited. Evidence tending to show that the baggage-master / knew or supposed the bundles to contain merchandise, or that other passengers had similar bundles, would not warrant the jury in finding that the defendant agreed to transport the plaintiffs merchandise, or became liable therefor as a common carrier. The instructions under which the case was submitted to the jury were therefore erroneous. CAKIilERS OF GOODS. without informing the defendant of the value of its contents, until after it had dropped from her hand through the open window. Even if no negligence is to be imputed to her in attempting to shut the window with the bag in her hand, yet her dropping the bag was not the act of the defendants or its servants, nor anything that they were bound to foresee or guard against; and after it had happened ' she had no legal right, for the purpose of relieving her from the I consequences of an accident for which they were not responsible, to [ require them to stop the train, short of a usual station, to the delay I and inconvenience of other passengers, and the possible risk of col- ' lisiou with other trains. Judgment affirmed. FIRST NATIONAL BANK e. .MARIETTA, etc. R. CO. 20 Ohio St. 259. 1S70. Scott, J. .......•• . Upon well-settled principles the defendant became bound, in consideration of the fare paid by IMcElroy, to use the highest degree of diligence and care in transporting him to his place of destination. And this contract for the carriage of his person necessarily included the wearing apparel Avhich accompanied his person, such reasonable sum of money as might be in good faith carried with him for the expenses of the journey, together with all such articles, to a reasonable extent, at least, as are ordinarily carried or worn upon the person for purposes of personal use, con- venience, or ornament; and we agree with counsel for plaintiff that the contract also included the carriage of "his baggage delivered to the defendant as sucIj to be carried, to the extent of an ordinary and reasonable wardrobe for one in his station in life, together with such articles as are usually found in tlic paraphernalia of a traveller." I But the notes for the loss of which this action is brought can neither be regarded as a part of tlie passenger's baggage, nor as : money intended to defray the expenses of the journey. Tlie statements ,of the petition show that the notes were simply Iteing transmitted, I for business jmrposes, from Greenfiehl to Cincinnati, and were not : intended to be used by the i)asscnger for defraying the expenses of hi.s journey or otherwise. The tri)) may have been umlertaken on account of the money, but the money was not carried on account of tlie trip. Nor was the defendant intrusted with the custody of these le.t.-s, or specially charged with any care or oversight in respect to tli.-m. They remained in the exclusive custody and contnil of l^IcElroy. And as they were clearly not included in the contract for the transportation of the passenger and his baggage, and were WHO ARE COMMON CARRIERS. 57 not subjected to the custody of the carrier, it is difficult to see how- he can be held liable for a want of care over them. We do not call in question the right of a passenger to carry about his person, for the mere purpose of transportation, large sums of money, or small parcels of great value, without communicating the fact to the carrier, or paying anything for their transportation. But he can only do so at his own risk, in so far as the acts of third per- sons, or even ordinary negligence on the part of the carrier or his servants is concerned. For this secret method of transportation would be fraud upon the carrier, if he could thereby be subjected to an unlimited liability for the value of parcels never delivered to him for transportation, and of which he has no knowledge, and has therefore no ojoportunity to demand compensation for the risk incurred. No one could reasonably suppose that a liability which might extend indefinitely in amount would be gratuitously assumed, even though the danger to be apprehended should arise from the inadvertent negligence of the carrier himself.^ LEWIS V. NEW YORK SLEEPING CAR CO. 143 Mass. 267. 1887. Two actions, each^with a cguirt in contxactaj^ recover for the loss of the plaintiff's. propejrfcy alleged. t o hav e been stolen while the plaintiff was riding as a passenger in the defendant' s~ car, through the negligence of the defendant's servant. . . . The jury returned a verdict for the plaintiff in each casej and the defendant alleged exceptions. Morton, C. J. The use of sleeping-cars upon railroads is modern, and there are few adjudicated cases as to the extent of the duties and liabilities of the owners of such cars. They must be ascertained by applying to the new condition of things the comprehensive and elastic principles of the common law. When a person buys the right to the use of a berth in a sleeping-car, it is entirely clear that the ticket which he receives is not intended to, and does not, express all the terms of the contract into which he enters. Such ticket, like the ordinary railroad ticket, is little more than a symbol intended to show to the agents in charge of the car that the possessor has entered into a contract with the company owning the car, by which he is entitled to passage in the car named on the ticket. Ordinarily, the only communication between the parties is that the passenger buys, and the agent of the car company sells, a ticket 1 Ace. : Weeks v. N. Y., N. H., & H. R. R. Co., 72 N. Y. 50. 58 CARRIERS OF GOODS. between two points; but the contract thereby entered into is implied from the nature and usages of the employment of the company. A sleeping-ear company holds itself out to the world as furnishing safe and. comfortable carSj and, when it sells a ticket, it impliedly stipulates to do sq^_. It invites passengers to pay for, and make use of, the cars for sleeping, all parties knowing that, during the greater part of the night, the passenger will be asleep, powerless to protect himself or to guard his property. He cannot, like the guest of an inn, by locking the door, guard against danger. He has no right to take any such steps to protect himself in a sleeping-car, but, by the necessity of the case, is dependent upon the owners a nd offi cers of the car to guard him and the property he has with him from danger from thieves or otherwise. The law raises the^duty on the part of the car^ company to afford Mm this protection. While Jt_is, not liable as a common carrier or as an innholder,jet it is its dut}- to use_reaspnable.ca?g_to_guard the passengers from theft, and if, through want of such care, the per- sonal effects of a passenger such as he might reasonably carry with Eim are stolen, the compmny is liable for it._^ Such a rule is required by public policy, and by the true interests .of both the passenger and the company; and the decided weight of authority supports it. Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474; Pullman Car Co. v. Gardner, 3 Penny. 78; Pullman Palace Car Co. V. Gaylord, 23 Am. Law Pteg. n. s. 788. The notice by which the defendant company sought to avoid its liability was not known to the plaintiff", and cannot avail the defendant. The defendant contends that there was no evidence of negligence Ion its part. The fact that two larcenies were committed in the (manner described in the testimony is itself some evidence of the want of proper watchfulness by the porter of the car; add to this the testimony that the porter was found asleep in the early morn- ing, that he was required to be on duty for thirty-six hours con- tinuously, wliich includt-'d two nights, and a case is presented which ; must be submitted to the jury. We have considered all the questions which have been argued in the two cases before us, and are of opinion that the rulings at the trial were correct. Exceptions overruled} » Cmtra: Pullman P. C. Co. v. Lowe, 28 Nebr. 239. WHO ARE COMMON CARRIERS. 59 CLARK V. BURNS. 118 Mass. 275. 1875. Contract, for the value of a watch,^ against the owner s of a s team; ship as common carriers, with counts in tort for negligence, and also counts charging them as innkeepers. The case was submitted to the Superior Court on an agreed statement of facts in substance as follows : — The defendants are the owners of the Cunard line of steamers, so called, which run between Boston and Liverpool, and New York and Liverpool, and are common carriers of passengers and freight between those places. On November 28, 1871, the plaintiff left Liverpool on board the steamship "Calabria," one of the Cunard line, for New York, as a first-class passenger. The plaintiff paid for his ticket, by which he became entitled to the usual accommodation on board the ship for sleeping and lodging, and to be supplied with proper food. He took with him and wore on his person in the daytime the watch referred to in the declaration. He occupied a state-room with two berths, one of which was occupied by another passenger, placed there by the defendants, and it is admitted that the watch was not taken by him. The state-room had a lock, but no key or other fastening. When the plaintiff went to bed on Sunday evening, December 3, at nine o'clock, he put his watch in the pocket made for it in his waistcoat, which he hung by the arm-holes on a hook in his state-room, intended for clothes to be hung on. He did not fasten his state-room door, having no means to do so. The lamp in the state-room was so placed that the steward had to come into the state-room and go to the farther end thereof to light it and to put the light out, and was in the habit of doing so at the time appointed, by the rules and regulations of the ship, for lighting the lamps and putting out the lights. Passengers are not allowed to light or put out the lamps. The lamps are put out at ten o'clock, p.m. When the plaintiff first arose to dress himself at the usual hour on INIonday morning, his watch was missing. He notified the captain imme- diately of his loss, and the purser made a thorough search of the state-room, and then a careful examination of the plaintiff's trunk and the trunk of the gentleman who occupied the other berth in the state-room, but without success. The plaintiff had the usual accommodations given to first-class passengers on board the defendants' steamers, and it is the usual custom of the defendants not to permit the locking of state-room doors, nor to permit passengers to control the lamps in their state- rooms or the windows thereof, but to give the stewards access at all times to the state-rooms in order that passengers may not, by the GO CARRIERS OF GOODS. use of matches, or by imprudently opening their windows, incur the risk to themselves, their fellow-passengers, and the ship and cargo. of fire, and of the entrance of water through the windows, and also that they may be accessible in case of accident or danger, or of their own helplessness from sickness or other causes. ^jC When the plaintiff reached Boston he called on the defendants' agent, Mr. Alexander, of whom he purchased his ticket, and re- quested of him payment for the loss sustained by him, and at the same time complained that the state-rooms were not allowed to be locked, to which Alexander replied, giving as a reason for the rule, that the state-rooms must be accessible for the safety of the ship, cargo, and passengers. The plaintiff had crossed the ocean three times before in boats of the Cunard line and had never had a key or fastening to his state-room, and understood that it was against the rule or custom of these ships. The watch was worth one hundred and twenty-five dollars. The pleadings may be referred to. If upon the foregoing facts the plaintiff' was entitled to recover, judgment was to be rendered for SI 25, and interest from date of the writ, with costs; otherwise judgment for the defendants, with costs. Upon the facts agreed, Brigham, C.J.j^ ruled that the plaintiff could not maintain this actioiij and ordered judgment for the defendants; and the plaintiff alleged exceptions. Gkav, C. J. The liuijilities of common carriers and innkeepers, though similar, are distinct. No one is subject to both liabilities at the same time, and with regard to the same property. The liability of an innkeeper extends only to goods put in his charge as keeper of a public-house, and does not attach to a carrier who has no house and is engaged only in the business of transportation. Tlie defendants, as owners of steamboats carrying passengers and goods for hire, were not innkeepers. They would be subject to the liability of common 'j carriers for the baggage of passengers in their custody, and might ^ perhaps be so liable for a watch of the passenger locked up in his ^ trunk with otlier l)aggage. But a watoli. worn by a passenger on ^ his person by day, and kept by him witliin reach for use at night. whether retained upon his per.son,.or placed under his pillow, or in a pocket of his clothing hanging near him, is not so intrusted to^ their custody and control as to make them lial)le for it as common ' carriers. Steamboat Crystal I'alacc r. Vandt'r]H)ol, 1GB. 'Mi cm'. Pi()2] Tower y.' Utica Railroad, 7 Hill. -17; Abbott r. I'.radstreet, 55 ^Maine, 5.'{(>; I'ullman Talace Car Co, v. Smith, 7 Chicago Legal News, 237. Wliether the defendants' regulations as to keeping the doors of the state-rfjoms unlocked, the want of precautions against theft, and the other facts agreed, were siinicicnt to sliow negligence on the i)art of tlie defendants, was, taking the most favorable view for the plaintiff, a question of fact, upon which the decision of the court below was conclusive. Fox v. Adams Express Co., 1 1<» Mass. 21)2. l\Tce]>t ions overruled. DELIVERY TO CARRIER. 61 2. DELIVERY TO CARRIER. GROSVENOR, Respoxdent, v. NEW YORK CENT. R. CO., Appellant. 39 N. Y. 34. 1868. The complaint in this action alleges that, in April, 1861, the plaintiff delivered to the defendant, at Clifton Springs, a cutter, to be carried by it to Buffalo, and paid the defendant therefor, which the defendant agreed to do, and that by the negligence of the defendant, it became wholly lost to the plaintiff. The answer denies these allegations. The issue was tried in the Superior (Jourt of Buffalo, before Justice Clinton and a jury, when the following facts were proved: That the plaintiff called upon the defendant's depot agent at Clifton, and paid him the freight on the cutter, and the fare of his servant to Buffalo, and told him that he would send them down in the morning, to go by the afternoon train. The servant brought the cutter, by plaintiff's direction, to have it shipped to Buffalo, and arrived at the depot about six o'clock in the morning, "aiid placed it on the platform of the freight-house, next the railroad track, with one end next the freight-house, and the other toward the track, and went back after the thills; that he returned in about an hour with them and stopped in front of the passenger depot, about six rods from the freight-house, and saw the defendant's baggage- man, Hall, who, at the time, was sweeping out the depot, and said to him, there is some stuff to go to Buffalo. He asked on what train, to which he replied, the one o'clock, and then took the thills and laid them with the cutter. He had not then seen the baggage-man do anything with the freight, and did not ask for or take any receipt for the property; that one, Sutherland, was the defendant's agent there, and had been such agent for three years, and was alone authorized to receive and deliver freight, and resided in the depot. The defendant proved Hall was baggage-man, and had never received freight or given receipts therefor, except by his especial directions, and had no general orders on that subject. That 'freight is always received and delivered at the east end of the freight- house. That there is a platform alongside of the freight-house, next the track, and comes within a few inches of a freight-car on the track, which is used for receiving and delivering freight from and to the cars, when it is taken into or from the freight-house and weighed; and that it is received from and delivered at the east end of the depot. That the cutter when on the platform, where it was left by plaintiff's servant, could not be seen from the passenger depot. That the cutter, placed on the platform, as stated, would 62 CARRIERS OF GOODS. jiroject over it nine inches. That two or three hours after it was left, a car in a passing train caught the cutter and broke it, ami the first knowledge the agent had of its being there, was seeing it pass his otfice at the passenger depot on this car, broken. That it was the invariable custom fur the shipper to murk property and its des- tination, before the defendant received it, when he weighed it and ascertained the freight; and that the plaintiff's servant did mark a box, which he brought with the cutter in the afternoon, before ship- ment, and said he wanted it to go to Buft'ulo. At the close of the plaintiff's testimony, and at the close of the evidence, the defendant made a motion for a nonsuit, upon the ground, that, upon the undisputed facts, the plaintiff was not entitled to recover, which motion was denied by the court, and an exception taken to the decision by the defendant. The jury found a verdict for the plaintiff for ^78.10, for which judgment with costs was entered. The defendant appealed to the General Term of that court, where the judgment was affirmed. The defendant thereupon appealed to this court. ^IiLLKK, J. I am of the ox)inion that the court erred in refusing to nonsuit the plaintiff_upon_the trial. To render a party liable as a common carrier^ it^ must be established that the property was actually delivered to the common carrie r or to some person duly authorized to act on his behalf. The responsibility of the carrier does not commence until the delivery is completed. Angell on Car- riers, § 120; Story on Bailments, § 532. It is not enough that the jjroperty is delivered upon the premises, unless the delivery is accom- panied by notice to the proper person. Packard v. Getman, 6 Cow. 7."7; Trevor V. U. & S. R. R. Co., 7 Hill, 47; Blanchard i-. Isaacs, 3 Barb. 388; 2 Kent Com. 604; 1 I^irs. on Con. 654. The liability of the carrier attaches only from the time of the acceptance of the goods by him. Story on iiailments, § 533; 6 Cow. supra. To com- plete the delivery of the property witliiu the rules laid down in the authorities, I think it is also essential that the property should be placed in such a position that it may be taken care of by tlie ag«'nt or person having charge of tlie business, and under his imme- diate control. It must be accepted and received by tlie agent. It appears in the case at bar that the cutter of the plaintiff was jtlaced upon the jdatform of the defendant's freight-house, by a servant of the plaintiff, the freight having been previously paid, to be trans- ported to Buffalo. At the time when it was tlius left, a baggage- man in the (lefendant'-s employment, who was then engaged in sweeping out the depot, was notified that there was some freight to go to Buffalo in tlie noon train. The servant of the j)laintifT testifies that he liad seen thi.s person receive and jiut freight on the cars, and at this time he apparently had charge of the di'pot, although the proof on tlie part of the defendant shows that another employee was the real freight agent, and the person with whom the contract was DELIVERY TO CARRIER. 63 made for the carriage of the property, and that the baggage-man had no authority to receive it. Upon this state of facts, I am inclined to think that the plaintiff had established sufficient j^rima facie to submit to the jury the question whether the baggage-man was author- ized to receive the property, and whether the notice to him was of itself sufficient. Persons dealing with railroad corporations, and parties engaged in the transportation of freight, have a right to con- sider that those usually employed in the business of receiving and forwarding it, have ample authority to deal with them. It is enough to establish a delivery, in the first instance, to prove that a person thus acting received and accepted the property for the pur- pose of transportation, and even although it subsequently appears that another employee was actually the agent having charge of this department of business, yet the company who sanction the perform- ance of this duty by other persons in their employment, and thus hold out to the world that they are authorized agents, are not at liberty to relieve themselves from responsibility by repudiating their acts. So far, then, as this branch of the case is concerned, it was at least a question of fact, to be submitted to the jury under proper instructions, whether the baggage-man of the defendant, to whom it is claimed by the plaintiff the cutter was delivered, was the agent of the defendant, duly authorized to receive the same, and whether notice of its delivery was given to him as such agent. But whether he was such agent, or the duty of receiving freight devolved upon another person, the defendant could not be held liable under any circumstances, without an actual and complete delivery of the property into the possession of the corporation, and under its con- ^ trol. This, I think, was not done. The undisputed testimony shows that the cutter was placed upon the platform, and that within two or three hours afterward, it was carried away and broken to pieces by a passing train of cars. The fact that it was thus carried away evinces that it was carelessly exposed by the plaintiff's ser- vant; that the destruction of the cutter was occasioned by his negli- gence, and that the delivery was not as perfect and complete as it should have been. The accident would not have happened had the cutter been placed beyond the reach of passing trains. It was not enough that the agent was notified, to make out a valid acceptance and delivery. The place of delivery was important, and it was equaUy essential that due care should be exercised. Suppose tTie" servant had left the cutter on the track of the railroad, and notified the agent, would the defendant have been responsible? Clearly not, for the apparent reason that there was no delivery upon the premises, no surrender of the property into the possession of the agent. Until it was actually delivered, the agent was under no obligation to take charge of the property, even if notified. It is apparent that the plain' iff was in fault in not delivering the property to the defendant, and in leaving 64 CAKRIEKS OF GOODS. it in an exposed condition, which caused its destruction; and, hav- ing failed to establish this material part of his case, should have been nonsuited. As a new trial must be granted for the error stated, it is not important to examine the other questions raised and discussed. Judgment reversed, and new trial granted, with costs to abide the event. GKEEX V. :\IILWAUKEE & ST. PAUL K. CO. 38 la. 100. 1S74. Action- to recover the value of a trunk and contents of clothing alleged to have been lost or destroyed while in possession of defend- ant as a carrier. There was a trial to a jury, and a verdict rendered against plaintiff under an instruction of the court to the effect that there was no evidence sho.wing that the trunk was delivered to defendant or its agents. From a judgment rendered upon this ver- dict plaintiff appeals. Beck, C. J. The evidence discloses the fact that plaintiff, desir- ing to take passage by an early morning train on defendant's road at Boscobel, in the State of ^Yisconsin, for Decorah, sent her trunk the evening before by a drayman to defendant's depot. It was left by the drayman in the waiting-room, and as there were no emplo^^ees of defendant about the premises, no notice thereof was given to any one. This was after business hours in the evening. It was shown that plaintiff had quarterly, for three years, been in the habit of ' making tlie same journey she was about to take, and had always 'sent her trunk the evening before, as she did in this case, and that lother travellers were in the habit of doing the same thing when tliey went by the early train. The drayman testified tliat he had often ' left baggage at the depot under similar circumstances, but that his 1 custom was to notify the depot agent or servant of defendant. Upon this evidence the court directed the jury that tliere was no proof of the delivery of tlie trunk to defendant or its servants. It is not claimed that defendant would be liable without a delivery, either actual or constructive, of the property to its agent or servant. Tliat a delivery may be made at the pro])er place of receiving such bag'.,Mc,'e under tlie express assent or authority of the carrier witliout notiof to its emi)loy<'es will not, we j)resume, be disputed. It i% equallv elear upon princi])le that tliis assent may be presumed from of business or custom eljhe^arrier^ Upon evidence of tlii.H clijiraoter contracts based upon business transactions are con- stantly established. Tlie ritation of .-mtliority is not rrquivod to supfiort this Illicit ii, II. i>cr MiTriaiii v. ll.iitforil it \. II. li. Iv. Co., 20 Conn. '.i'A. DELIVERY TO CARRIER. 65 The instruction which is the foundation of plaintiff's objection directs the jury that there was no evidence of a delivery of the trunk to the defendant. In this we think there is error. There was evi- dence tending to show a course of business on the part of defendant, a custom, to receive baggage left at the station-house, as in this case, without notice to plaintiff's servants. Upon evidence of this character, it was proper that the facts should have been left to the determination of the jury, whether there had been a delivery of the property within the rules above announced, — whether a course of business, a custom, had been established, to the effect that a delivery of baggage at the station-house without notice, was regarded^ by the defendant as a delivery to its servants, and whether plain- tiff's trunk was received under this custorn. It is a well-settled rule that the courts cannot determine upon the sufficiency of evidence to authorize a verdict where there is a conflict, or some evidence upon the whole case. In such a case an instruction to the effect that there is no evidence, and directing a verdict accordingly, is erroneous. Way V. Illinois Cent. R. R. Co., 35 Iowa, 585. The judgment of the District Court is reversed, and the cause remanded. Meversed. MICHIGAN SOUTHERN, etc. R. CO. v. SHURTZ. 7 Mich. 515. 1859. Martin, C. J. The principal question presented by this case, is whether the railroad company are liable as common carriers for the wheat deposited in their warehouse,^ to await orders for trans- portation, and a determination of what shall be its destination. We think they are not, nor should they be. By their charter the com- pany have no right to charge as warehousemen for storage of goods awaiting transportation; but this disability does not of itself create any liability. When the goods are delivered to be transported to a specified point, the liability of the company as carriers commences immediately ; but if they are deposited to await orders, — if the company cannot carry them because ignorant of the contemplated destination, or because no destination has been concluded upon by the owner, — it would be gross injustice to hold them subject to the extraordinary liabilities of common carriers, while^thus awaiting the determination of their owner. While the wheat was lying in their warehouse awaiting the determination of Shurtz as to its destination, the company cannot be regarded as anything more than gratuitous bailees, and are liable only as such. If the intention of Shurtz' cannot be clearly seen to have been that it should be transported to 5 66 CARRIERS OF GOODS. any particular place, how can they be seen to be carriers of it? Can the company be carriers of a thing not to be carried? But when ^ Shurtz had determined to what point he would have his wheat trans- ported, and had notified the company of such determination, then their liability as carriers commenced, and it became their duty to 1 forward it without delay. This is the obligation of their charter, smd_a_want^f facilities for Jrausportation will not relieve them from that liability. 3. DUTY TO SERVE THE PUBLIC. a. WitJioiit discriminntlon. t CHICAGO & N. W. RY. CO. v. PEOPLE. 56 111. 365. 1S70. Lawrexce, C. J. This was an application for a mandamus, on the relation of the owners of the Illinois River elevator, a grain warehouse in the city of Chicago, against the Chicago and North- western Railroad Company. The relators seek by the writ to com- pel the railway company to deliver to said elevator whatever grain in bulk may be consigned to it upon the line of its road. There was a return duly made to the alternative writ, a demurrer to the return, and a judgment pro forma upon the demurrer, directing the issuing of a peremptory writ. From that judgment the railway company has prosecuted an apjical. Since the 10th of August, ISGG, the Chicago and Northwestern Company, in consequence of certain arrangements and agreements on and before that day entered into between the company and the owners of certain elevators known as the " fJalena," " Nmtliwcstern," "Munn & Scott," -'Union," "City," "Munger and Armor," and "Wheeler," has refused to deliver grain in bulk to any elevator except those above named. There is also in force a rule of the company, adopted in 1864, forbidding the carriage of grain in Imlk if consigned to any |)articular elevator in Chicago, thus reserving to it.self the scdection of the warehouse to wliieh the grain siioiild bo delivered. The rule also })rovidcs that grain in bags shall be charged an additional price for transportation. Tliis rule is still in force. In the oral argument of this case it was claimed, by counsel for the respondent, that a railway company was a mere private corpora- DUTY TO SEEVE THE PUBLIC. 67 tion, and that it was the right and duty of its directors to conduct its business merely with reference to the pecuniary interests of the stockholders. The printed arguments do not go to this extent, in terms, but they are colored throughout by the same idea, and in one of them we find counsel applying to the Supreme Court of the United States, and the Supreme Court of Pennsylvania, language of severe, and almost contemptuous, disparagement, because those tribunals have said that "a common carrier is in the exercise of a sort of public office." N. J. Steam Nav. Co. v. Merch. Bank, 6 How. 381; Sanford v. Kailroad Co., 24 Penn. 380. If the language is not critically accurate, perhaps we can pardon these courts, when we find that substantially the same language was used by Lord Holt, in Coggs V. Bernard, 2 Lord Raymond, 909, the leading case in all our books on the svibject of bailments. The language of that case is, that the common carrier "exercises a public employment." We shall engage in no discussion in regard to names. It is immaterial whether or not these corporations can be properly said to be in the exercise of "a sort of public office," or whether they are to be styled private or quasi-public corporations. Certain it is, that they owe some important duties to the public, and it only con- cerns us now to ascertain the extent of these duties as regards the case made upon this record. It is admitted by respondent's counsel that railway companies are common carriers, though even that admission is somewhat grudg- ingly made. Regarded merely as a common carrier at common law, and independently of any obligations imposed by the acceptance of its charter, it would owe important duties to the public, from which it could not release itself, except with the consent of every person who might call upon it to perform them. Among these duties, as well defined and settled as anything in the law, was the obligation to receive and carry goods for all persons alike, without injurious discrimination as to terms, and to deliver them in safety to the con- signee, unless prevented by the act of God or the public enemy. These obligations grew out of the relation voluntarily assumed by the carrier toward the public, and the requirements of public policy, and so important have they been deemed that eminent judges have often expressed their regret that common carriers have ever been permitted to vary their common-law liability, even by a special contract with the owner of the goods. Regarded, then, merely as a common carrier at common law, the respondent should not be permitted to say it will deliver goods at the warehouses of A. and B., but will not deliver at the warehouse of C, the latter presenting equal facilities for the discharge of freight, and being accessible on respondent's line. But railway companies may well be regarded as under a higher obligation, if that were possible, than that imposed by the common law, to discharge their duties to the public as common carriers fairly 68 CARRIERS OF GOODS. and irapartinlly. As has been said by other courts, the State has endowed them with something of its own sovereignty, in giving them the right of eminent domain. By virtue of this power, they take the hinds of the citizen against his will and can, if need be, demolish his house. Is it supposed these great powers were granted merely for the private gain of the corporators? On the contrar}-, we all know the companies were created for the public good. The object of the legislature was to add to the means of travel and commerce. If, then, a common carrier at common law came under obligations to the public from which he could not discharge himself at his own volition, still less should a railway company be permitted to do so, when it was created for the public benefit and has received from the public such extraordinary jjrivileges. Rail- way charters not only give a perpetual existence and great power, but they have been constantly recognized by the courts of tliis country as contracts between the companies and the State, imposing reciprocal obligations. The courts have always been, and we trust always will be, ready to protect these companies in their chartered riglits, but, on the other hand, we should be equally ready to insist that they perform faithfully to the public those duties which were the object of their chartered powers. The contract in question is peculiarly objectionable in its char- acter and peculiarly defiant of the obligations of the respondent to the public as a common carrier. If the principle implied in it were conceded, the railway companies of the State might make similar contracts with individuals at every important point upon their lines, and in regard to other articles of commerce besides grain, and thus subject the business of the State almost wholly to their control, as a means of their own emolument. Instead of making a contract with several elevators, as in the present case, each road that enters Chicago miglit contract with one alone and thus give to the owner of such elevator an al'. W. TvY. CO. , Appellant. 71 Wis. 372. 18SS. Appeal from the Circuit Court for Sauk County. This case was here on a question of jileading upon a former appeal. 58 Wis. 537. The amended complaint is to the effect tliat the defendant, being a common carrier engaged in the transportation of live-stock, and accustomed to furnish cars for all live-stock offered, was notified by the plaintiffs, on or about October 13, 1882, to have four such cars for the transportation of cattle, hogs, and sheep at its station La Valle, and three at its station Eeedsburg, ready for load- ing on Tuesday morning, October 17, 1882, for transportation to Chicago; that the defendant neglected and refused to provide such cars at either of said stations for four days, notwitlistanding it was able and might reasonabl}' have done so; and also neglected and refused to carry said stock to Chicago with reasonable diligence, so that they arrived tliere four days later than they otlierwise would have done; whereby the plaintiffs suffered loss and damage, by decrease in price and otherwise, $1700. Tlie answer, in effect, admitted the defendant's incorporation with the privileges alleged; "that it was at times engaged in the trans- portation over its roads of live-stock when and if it was able to do so, and was accustomed to furnish suitable cars therefor upon reason- able notice when within its power to do so; and to receive, transi)ort, and deliver such live-stock witli reasonable despatch, but only upon special contracts at tlie time entered into betw(>on the shi])it('r and this defendant, and upon such terms and conditions as sliould be agreed upon in writing; that one of the lines of this defendant's railway is located as in said amended comidaint stated." Tlie answer al.so, in effect, alleged that "within a rea.sonable time, and as soon as it reasonably ooiild, and as soon as it was within its l)Ower to do so," after the application of the jilaintiffs for such cars, the defendant "forwarded four suitable and empty cars to La Valle," and "tljree suitable and empty cars to Ileedsburg," which cars were severally forwarded with reasonable despatch, and arrived in duo, course and as soon as they could with reasonable desjiatoh bf> for- warded over its line; that at the times «»f such rosjicctive shipments the plaintiffs entered into an agreement in writing with the defend- ant for the transportation of said stock at 8i)ccial rates, and in con- DUTY TO SERVE THE PUBLIC. 71 sideration thereof it was agreed that the defendant should not be liable for loss from the delay of trains not caused by the defendant's negligence. At the close of the trial the jury returned a special verdict to the effect, (1) at the times named the plaintiffs were copartners at Reeds- burg, engaged in buying and shipping live-stock to the Chicago market for sale ; (2) that at the times stated the defendant was a common carrier, and as such engaged in the transportation of live- stock, and accustomed to furnish cars for and transport all live-stock offered for that purpose ; (3) that one of its lines ran from La Valle and Reedsburg to Chicago; (4) that October 13, 1882, the plaintiffs, being fully apprised of the state of the Chicago market for live-stock and prices , proceeded to buy therefor seven car-loads of cattle , hogs, and sheep, four to be loaded at La Valle and three at Reedsburg; (5, 6,7, 8, 9, 10, 14) that the plaintiffs notified the defendant's agents at the respective stations, October 13, 1882, to have such cars in readiness at said stations respectively, October 17, 1882, and that such notices were reasonable, and such agents promised to order the cars and have them in readiness at the time; (11) that two cars were furnished at Reedsburg, October 17, 1882, and one October 19, 1882; (12) that the four were furnished at La Valle, October 19, 1882 ; (13) that the defendant furnished two as soon as it reasonably could, but five it did not; (15) that the plaintiffs received no notice before October 17, 1882, that the cars would not be furnished as ordered; (16, 17, 18) that prior to that time, and with the expecta- tion that the cars would be on hand as ordered, the plaintiffs had bought sufficient stock to load said several cars, and had the same at said respective stations on the morning of October 17, 1882; (19) that the defendant, being able to furnish such cars, disregarded its duty as a common carrier of live-stock in not having the same on hand when ordered ; (20) that had the cars been so furnished, they would have arrived at Chicago on the morning of October 18, 1882; (21) as it was, two arrived thereon Thursday, October 19,1882, a.m., and five on Friday, October 20, 1882, at 5.45 p.m.; (22, 23, 24) that the market value of hogs in Chicago, on Friday, October 20, was f 7.36 per hundred, on Saturday, October 21, was $7.11, and on Monday, October 23, $6.81; (25, 26, 27) that the loss on the hogs, by reason of depreciation of the market, was $140.08; that the total damages of the plaintiffs on all the stock were $825.97, made up of the following items, to wit: Taking care of and feeding stock, $50; shrinkage on hogs, cattle, and sheep, $408.35; depreciation in value on hogs and sheep, $172.58; and interest on the above sums until the rendition of the verdict, $195.04. The defendant thereupon moved for judgment in its favor upon the verdict and record, which was denied. Thereupon the defendant moved to set aside the verdict, and for a new trial, upon the grounds that the verdict is against the weight of the evidence, and for errors 72 CAURIERS OF GOODS. of the court in its charge to the jury and in its rulings on the trial, and because the damages were excessive and contrary to the proofs, which motion was denied. Thereupon, and upon the motion of the plaintiffs, judgment was ordered in their favor on the special verdict for SS25.97 damages and costs. From the judgment entered thereon accordingly the defendant appeals. Cassoday, J. There is no finding of any agreement on the part of the defendant to have the cars in readiness at the stations on Tuesday morning, October 17, 1882. There is no testimony to support such a finding. One of the plaintiffs testified, in effect, that he told the agent that he would want the cars on the morning of the day named; that the agent took down the order, put it on his book, and said, "All right," he would try and get them, but that they were short because they were then using more cars for other purposes ; that nothing more was said. It appears in the case that the cars were in fact furnished. It also appears tliat, as the ship- ments were made, special written contracts therefor were entered into between the parties, whereby it was, in effect, agreed and understood that the plaintiffs should load, feed, water, and take care of such stock at their own expense and risk, and that they would assume all risk of injury or damage that the animals might do to themselves or each other, or which might arise by delay of trains; that the defendants should not be liable for loss by jumping from the cars or delay of trains not caused by the defendant's negligence. The court, in effect, charged the jury that there was no evidence of any negligence on the part of the defendant causing delay in any train after shipment, and hence that the delay of the two cars admitted to have been furnished in time was not before them for consideration. This relieves the case from all liability on contract. It also narrows the case to the defendant's liability for the delay of two days in furnishing the five cars at the stations named, as ordered by the plaintiffs, and in the absence of any contract to do so. In Kiohardson v. C. & N. W. M. Co., Gl Wis. GOl, 18 Am. & Eng. R. Cas. 5.'30, it was, in effect, ht-ld comi)ctent for a railroad company engaged in the business of transporting live-stock to exempt itself by express contract "from damage caused wholly or i)erhaps in i)art by the instincts, habits, jjropensities, wants, necessities, vices, or locomotion of such animals." And it was tlu'n said: "Since the a<-tifni is not basod upon contraot, tlw^ ])laintiff must rt'oover, if at all, by reason of the defendant's liability as a common carrier upon mere notice to furnish cars and a readiness to ship at the time notified. Did sucli notice and readiness to shii) create such liability? "We have seen that a carrier of live-stock may, to at least a certain extent, limit its liability. Wlit'ther the defendant was nocustomed to so limit its liability, or to carry all live-stock tendered u]ion notice, without restriction, does not appear from the record. If it was accustomed to so limit, and the limitation was legal, it should DUTY TO SERVE THE PUBLIC. 73 at least have been so alleged, together with an offer to comply with the customary restriction. If it was accustomed to carry all live- stock offered upon notice and tender, and without restriction, then it would be difficult to see upon what ground it could discriminate against the plaintiff by refusing to do for him what it was constantly in the habit of doing for others." In that case there was a failure to allege any such custom or hold- ing out on the part of the defendant, or that reasonable notice had been given to the defendant to furnish suitable cars to the i)erson applying therefor, or that the same was within its power to do so; and hence the demurrer was sustained. The allegations thus want- ing in that case are present in this complaint. It is, moreover, in effect admitted that the defendant was at times, when able to do so, engaged in the transportation of live-stock over its roads, one line of which runs through the stations in question ; that it was accus- tomed to furnish suitable cars therefor, upon reasonable notice, when within its power to do so; and to receive, transport, and deliver such live-stock with reasonable despatch, but only upon special con- tracts at the time entered into between the shipper and the defend- ant, and upon such terms and conditions as should be agreed upon in writing. It is, moreover, manifest that the defendant actually undertook to furnish the cars at the time designated by the plain- tiffs ; that it succeeded in furnishing two of them on time ; that there was a delay of two days in furnishing the other five ; and that the plaintiffs were willing to, and did, submit to the terms and condi- tions of carriage imposed by the defendant by signing the special written contracts mentioned. It must be assumed^ also, that such special written contracts were substantially the same as all contracts made by the defendant at that season of the year for the shipment of similar live-stock under similar circumstances. Otherwise the defendant would be justly chargeable with unlawful discrimination ; the right to do which the learned counsel for the defendant frankly disclaimed upon the argument. We are therefore forced to the conclusion that at the time the plaintiffs applied for the cars the defendant was engaged in the business of transporting live-stock over its roads, including the line in question, and that it was accustomed to furnish suitable cars therefor, upon reasonable notice, whenever it was within its power to do so; and that it held itself out to the public generally as such carrier for hire upon such terms and conditions as were prescribed in the written contracts mentioned. These things, in our judgment, made the defendant a common carrier of live-stock, with such restrictions and limitations of its common-law duties and liabilities as arose from the instincts, habits, propensities, wants, necessities, vices, or locomotion of such animals, under the contracts of carriage. This proposition is fairly deducible from what was said in Richard- son V. C. & N. W. E. Co., supra, and is supported by the logic of 7-i CARRIERS OF GOODS. numerous cases. Xorth Penn. R. Co. v. Commercial Bauk, 123 U. S. 727; :Moulton v. St. P., M. & M. E. Co., 31 Miuu. 85, 12 Am. & Eng. K. Cas. 13; Lindsley v. C. M. & St. P. P. Co., 36 Miuu. 539; Evaus r. F. P. Co., Ill Mass. 142; Kimball v. K. & B. R. Co., 20 Vt. 247, C2 Am. Dec. oG7; Rixford v. Smith, 52 N. H. 355; Clark v. R. & S. R. Co., 14 X. Y. 570, G7 Am. Dec. 205; South & N. A. R. Co. r. Henleiu, 52 Ala. 600; Baker v. L. & ^\ R. Co., 10 Lea, 304, 10 Am. & Eug. R. Cas. 149; Philadelphia, W. & B. R. Co. v. Lehman, 50 Md. 209; McFaddeu v. M. 1'. R. Co., 92 Mo. 343; 3 Am. & Eug. Cyclop. Law, pp. 1-10, and cases there cited. This is in harmony •with the statement of Parke, B., in the case cited by counsel for the defendant, that "at common law a carrier is not bound to carry for every person tendering goods of any description, but liis oliVKjatlon is to carry accord iny to lus jiuhl'tc j>rofrss!(t/i.^' Johnson v. Midland li. Co., 4 Exch. 372. Being a common carrier of live-stock for hire, with the restrictions and limitations named, and holding itself out to the public as such, the defendant is bound to furnish suitable cars for such stock, upon reasonable notice, whenever it can do so with reasonable diligence without jeopardizing its other business as such common carrier. Texas & P. R. Co. v. Nicholson, 01 Tex. 491; Chicago & A. R. Co. v. Erickson, 91 111. 013; Rallentine v. X. M. R. Co., 40 Mo. 491; Guinn v. W., St. L. & P. R. Co., 20 Mo. App. 453. Whether the defendant could with such diligence so furnish uiion the notice given, was necessarily a question of fact to be determined. The plaintiffs, as such shippers, had the right to command the defendant to furnish such cars. But they had no right to insist upon or expect compliance, except upon giving reasonable notice of the time when they would he required. To be reasonable, such notice must have been sufHcient to enable the defendant, with reason- able diligence under the circumstances then existing, to furnish the cars without interfering with jjrevious orders from other shi})pers at the same station, or jeopardizing its business on other portions of its road. It must l)e rememborod tliat the defendant has many lines of railroad scattered througli different States. Along each and all of these different lines it has stations of more or less importance. Tlie company owes the same duty to shippers at any one station as it does to tlie shippers at any other statiuu of the same business importance. The rights of all shippers applying for such cars under the same circumstances are necessarily equal. No one station, much less any one shipper, lias tlie riglit to command tlic entire resources of the company to the exclusion or jtrojiulice of other stations and otlicr shippfrs. Most of sueh suital)lt' cars must necessarily l>c scattered alonj; and up'" -'"•h different lines of railroad, loaded or unloailed. Many will n- ily be at the larger centres of trade. The con- ditions of the market are not always the same, but are lialde to DUTY TO SEKVE THE PUBLIC. 75 fluctuations, and may be such as to create a great demand for such cars upon one or more of such lines, and very little upon others. Such cars should be distributed along the different lines of road, and the several stations on each, as near as may be in proportion to the ordinary business requirements at the time, in order that shipments may be made with reasonable celerity. The requirement of such fair and general distribution and uniform vigilance is not only mutually beneficial to producers, shippers, carriers, and purchasers, but of business and trade generally. It is the extent of such busi- ness ordinarily done on a particular line, or at a particular station, which properly measures the carrier's obligation to furnish such transportation. But it is not the duty of such carrier to discrimi- nate in favor of the business of one station to the prejudice and injury of the business of another station of the same importance. These views are in harmony with the adjudications last cited. The important question is whether the burden was upon the plain- tiffs to prove that the defendant might, with such reasonable dili- gence and without thus jeopardizing its other business, have furnished such cars at the time ordered and upon the notice given; or whether such burden was upon the defendant to prove its ina- bility to do so. We find no direct adjudication upon the question. Ordinarily, a plaintiff alleging a fact has the burden of proving it. This rule has been applied by this court, even where the complaint alleges a negative, if it is susceptible of proof by the plaintiff. Helper v. State, 58 Wis. 46. But it has been held otherwise where the only proof is peculiarly within the control of the defendant. Mecklem v. Blake, 16 Wis. 102; Beckmann v. Henn, 17 Wis. 412; Noonan v. Ilsley, 21 Wis. 144; Great Western R. Co. v. Bacon, 30 111. 352; Brown v. Brown, 30 La. Ann. 511. Here it may have been possible for the plaintiffs to have proved that there were at the times and stations named, or in the vicinity, empty cars, or cars which had reached their destination and might have been emptied with reasonable diligence, but they could not know or prove, except by agents of the defendant, that any of such cars were not subject to prior orders or superior obligations. The ability of the defend- ant to so furnish with ordinary diligence upon the notice given, upon the principles stated, was, as we think, peculiarly within the knowl- edge of the defendant and its agents, and hence the burden was upon it to prove its inability to do so. Where a shipper applies to the proper agency of a railroad company engaged in the business of such common carrier of live-stock for such cars to be furnished at a time and station named, it becomes the duty of the company to inform the shipper within a reasonable time, if practicable, whether it is unable to so furnish, and if it fails to give such notice, and has induced the shipper to believe that the cars will be in readiness at the time and place named, and the shipper, relying upon such conduct of the carrier, is present with his live-stock at the time and 76 CARRIERS OF GOODS. place named, and finds no cars, there would seem to be no good reason why the company should not respond in damages. Of course, these observations do not involve the question wliether a railroad company may not refrain from engaging in such business as a com- mon carrier; nor whether, having so engaged, it may not discontinue the same. The court very properly charged the jury, in effect, that if all the cars had been furnished on time, as the two were, it was reasonable to presume, in the absence of any proof of actionable negligence on the part of the defendant, that they would have reached Chicago at the same time the two did, — to wit, Thursday, October 19, 1882, a.m., — whereas they did not arrive until Friday evening. This was in time, however, for the market in Chicago on Saturday, October 21, 1882. This necessarily limited the recovery to the expense of keep- ing, the shrinkage, and depreciation in value from Thursday until Saturday. Chicago & A. R. Co. v. Erickson, 91 111. 613. The trial court, however, refused to so limit the recovery, but left the jury at liberty to include such damages down to Monday, October 2.3, 1882. For this manifest error, and because there seems to have been a mistrial in some other respects, the judgment of the Circuit Court is reversed and the cause is remanded for a new trial. SAEGEXT V. BOSTON & LOWELL RAILROAD CORPORATION. 115 Mass. 110. 1874. Tort against the Boston & Lowell Railroad Corporation, and the Nashua & Lowell Railroad Corporation. Wklls, J. This action is founded upon the supposed oldigation of the defendants, as common carriers, to provide facilities and accommodations to enable the plaintift' to transact his business as expressman over and upon the railroads of the defendants. For this purpose he requires that his merchandise and parcels sliall be trans- ported, not as freiglit under the general charge and control of the managers and servants of tlie railroads, but in tlieir passenger trains and under the e.vclusive control and sui)ervision of the plaintiif and his agents; who also require special accommodations and facilities in the cars and stations of the defendants, for the receipt and distribu- tion f*f their packages. It is not alleged tliat tliere is any contract for .such services. The contract whi<'h once existed, and the course of business in previous years, arc recited for the purpose of showing the niai\ner in which tlie business of the plaintiff had grown up and the good-will connected therewith had been gained, as bearing upon DUTY TO SERVE THE TUBLIC. 77 the damages caused by withdrawing from him the means for its further prosecution. The complaint is, that under the guise of a proposal to sell or let the privilege which the plaintiff and his asso- ciates had before enjoyed, to be used exclusively by the one party who would pay most for it, the defendants had in fact denied it to all, and assumed the conduct of the business of express carriage and parcel delivery by its own agents and servants. The allegation of the second count, that the defendant had refused to receive and transport articles of freight for the plaintiff in the usual modes of transportation of freight, is abandoned. We know no principle or rule of law which imposes upon a rail- road corporation the obligation to perform service in the transpor- tation of freight, otherwise than a carrier of goods for the owner in accordance with their consignment; or which forbids it from establishing uniform regulations applicable alike to all persons com- posing the public to whom the service is due. We are pointed to no provision in the charters of these defendants, or in the general laws relating to railroads, which subjects the use of their roads to the convenience or requirements of other carriers than the corpora- tions authorized to construct and operate them, and such other rail- roads as may have been authorized to enter upon or unite with and use them. Gen. Sts. c. 63, § 117. All the provisions of law for the regulation of railroads contem- plate the unlimited exercise by the corporation of the rights and duties of general carriers of goods and passengers; and this involves the right to adopt any and all reasonable rules and regulations to direct the mode in which their business shall be transacted. They cannot be required to convert their passenger trains to the purposes of freight at the discretion of parties not responsible for the manage- ment of the trains ; nor can they be compelled to admit others than their own agents and servants upon their trains or to their stations for the custody, care, receipt, and delivery of freight or parcels. Whether the defendants, in establishing and conducting the busi- ness of their own "parcel department," undertake to collect and distribute goods and parcels in a manner which involves acts vltra vires, does not affect the question ; nor, if they do so, does it afford the plaintiff any ground of action. His claim is for their refusal to furnish to him certain claimed facilities upon the roads. That refusal does not involve any acts or exercise of powers ultra vires. Nor does the fact that for many years the defendants did afford certain facilities to separate and independent carriers, as express companies, confer any right upon them or impose any obligation, either of contract or duty, upon the defendants to continue the same unchanged. Whatever may have been contemplated, when the charters for these roads were granted, as to the parties by whom and the mode in which the- tracks would be used for the running of trains or car- 78 CARRIERS OF GOODS. riages upon them, and the manner in which tolls would be received, it cannot be doubted that since the St. of 1845, c. 191, the direction of the use of the roads, and the control of all carriages upon them, are exclusively in the directors of the corporations owning them. It is a franchise of a public nature, it is true; and the directors are bound to conduct its exercise with a view to public convenience. But they, and not the individual members of the public, are intrusted with the discretion, authority, and duty, in the first instance, to deter- mine what the ^public convenience requires. They are subject, in this respect, to the oversight and regulation of the legislature. It is only when they disregard such regulations as are provided by law, or required by a reasonable consideration of the public convenience and purposes of their charter, that individuals are entitled to complain. The plaintiff's counsel argues that it is unreasonable, and a viola- tion of the legal obligations of the defendants, to make any discrimi- nation between individuals; or to refuse to the plaintiff privileges which they grant to any other party; and therefore that the arrange- ment of the defendants with another express company, by which the plaintiff was excluded from similar facilities, was a violation of his legal rights. Such does not appear to be the rule of the common law as held in Massachusetts. Fitchburg Railroad v. Gage, 12 Gray, 393. If such a rule has been established by the St. of 1807, c. 339, the plaintiff's case is not maintained upon that ground; 1st, because the contracts with other parties complained of were made before the statute, to wit, in December, 18(35, for one year from January 1, 1866, and renewed only for one year from January 1, 1.S67, — and although the report finds that during the time from January 1, 1866, to the date of the writ November 15, lS71,the plaintiff "has repeatedly demanded to be allowed to carry on his express business over said roads as formerly," it does not appear that any such demand was made after that statute took effect and before the arrangenir-nt witli those other i)arties expired. 2d, because the declaration docs not charge any such wrong. The allegation is that the jtarties witli whom tlie supjjosed contracts were made "were and are only the paid agents of said defendant cor^xirations, and not the i)roprietor8 of said express privileges, and tliat tliey havo continued as such, and such only, to the date of tliis writ; and tliat the profits accruing from said fraudulent arrangement are the jirop- erty of said defendant corporations." The whole scope and drift of the declaration is to cliarge the defendants with "consi)iring and illegally contriving," by means of jjretendfd contracts with other parties, to deprive the plaintiff of tlie profits of his express business in order to ojjcrate the same to their own use. The gravamen of his complaint then is not that the defendants have refused to give him "equal terms, facilities, and accommodations" with other persons and companies, but simply that they have refused to give him such DUTY TO SERVE THE PUBLIC. 79 facilities as he requires, for his special business as carrier, over their roads. His claim must stand upon the right to demand such facilities independently of any enjoyment of like facilities by others. As an absolute right this cannot be maintained. The plaintiff contends that the " parcel department " which the defendants have established, to the exclusion of the plaintiff and others desiring to make like arrangements, is in contravention of the equality required by the statute, as much as if it were conducted in the interest of a third party. But we think the statute was intended to apply to the dealings of the railroad corporation with the public, and not to the mode in which it should arrange and conduct the different branches of its business as carrier. All the plaintiff can demand is that, in each of those branches, he shall have equal terms with other persons and companies. The report finds that when the plaintiff demanded to be allowed to carry on his express business over said roads as formerly, " there was sufficient accommodation in the defendants' baggage cars for the plaintiff as well as other occupants of said cars." But there was no refusal to carry the plaintiff and his freight upon the same terms and in the same manner as the defendants performed like services for other persons and companies. It was a refusal only to permit the plaintiff to occupy a portion of the space in the cars and stations in the same manner and for the same purposes as the defendants themselves used and occupied them, paying therefor, and for the required transportation, some special rate which could not well be adjusted otherwise than by special agreement. The plaintiff fails to make out a legal cause of action, and the Judgment must be for the defendants ^ ATCHISON, TOPEKA & SANTE e6 E. CO. v. DENVER & NEW ORLEANS R. CO. 110 U. S. 667. 1884 This was a bill in equity filed by the Denver & New Orleans Rail- road Co., a Colorado corporation owning and operating a railroad in that State, between Denver and Pueblo, a distance of about one hundred and twenty-five miles, against the Atchison and Topeka & Santa Fe Railroad Company, a Kansas corporation, owning and operating a railroad in that State from the Missouri River, at Kansas City, westerly to the Colorado State line, and also operating from there, under a lease, a road in Colorado from the State line to Pueblo, built by the Pueblo & Arkansas Valley Railroad Company, 1 Ace. : Express Cases, 117 U. S. 1. Contra: Xew England Exp. Co. v. Maine Cent. E. Co., 57 Me. 188 ; McDuffee v. Portland, &c. R., 52 N. H, 430. 80 C.UtRIERS OF GOODS. — a Colorado corporation. The two roads so operated by the Atchison, Topeka & Santa Fe Company formed a continuous line of communication from Kansas City tu Pueblo, about six hundred and thirty-four miles. The general purpose of the suit was to com- pel the Atchison, Topeka & Santa F^ Company to unite with the Denver & New Orleans Company in forming a through line of rail- road transportation to and from Denver over the Denver & New Orleans road with all the privileges as to exchange of business, divi- sion of rates, sale of tickets, issue of bills of lading, checking of baggage and interchange of cars, that were or might be customary with connecting roads, or that were or might be granted to the Denver & Eio Grande Ttailroad Company, another Colorado corpora- tion, also owning and operating a road i)arallel to that of the Denver & New Orleans Company between Denver and Pueblo, or to any other railroad company competing with the Denver & Xew Orleans for Denver business. [In 1879 the Atchison, Topeka & Santa Fe Company made an arrangement with the Denver «& Pio Grande Company for connec- tions between Pueblo and Denver, with division of rates as to joint business.] In 1882 the Denver & New Orleans Company completed its road between Denver and Pueblo, and connected its track with that of the Atchison, Tojjcka & Santa Fe, in Pueblo, twelve or fifteen hundred feet easterly from the junction of the Denver & Kio Grande and about three-quarters of a mile from the union depot, at which the Atchison, Topeka & Santa Fe and the Denver & Kio Grande inter- change their business, and where each stopped its trains regularly to take on and let off passengers and receive and deliver freight. The Denver & New Orleans Company erected at its junction with the Atchison, Topeka & Santa Fe platforms and other accommoda- tions for the interchange of business, and before this suit was begun the general superintendent of the Denver »& New Orleans Comjiany made a request in writing of the general manager of the Atchison, Topeka & Santa F(* [tliat througli bills of lading be given over the two roads, and that the Atcliison, Topeka & Santa Fe road deliver cars to the Denver & New ( )rlcans road at the junction of the two roads; also that tickets be placed on sale over the two roads, and a system of tlirough cliocking of baggage be adopted in the method usual between roads liaviiig a joint running arrangement]. This request was refused, and the Atcliison. Tojieka & Santa F^ Company continued its through business with thr Denver tS: Pio Grande as before, but declined to receive or deliver freight or jias- sengcrs at the junction of the Denver & New Orleaiis road, or to give or take through bills of lading, or to sell or receive through tick»'ts, or to cheek baggage over that line. All p.'issengers or frcnght coming from or destined for that line were taken or delivered at the regular depot of the Atchison, Topeka & Santa F6 Company in Pueblo, DUTY TO SERVE THE PUBLIC. 81 and the prices charged were according to the regular rates to and from that point, which were more than the Atchison, Topeka & Santa Fe received on a division of through rates to and from Denver under its arrangement with the Denver 6i Rio Grande Company. Mr. Chief Justice Waite At common law, a carrier is not bound to carry except on his own line, and we think it quite clear that if he contracts to go be- yond, he may, in the absence of statutory regulations to the contrary, determine for himself what agencies he will employ. His contract is equivalent to an extension of his line for the purpose of the con- tract, and if he holds himself out as a carrier beyond the line, so that he may be required to carry in that way for all alike, he may, never- theless, confine himself in carrying to the particular route he chooses to use. He puts himself in no worse position, by extending his route with the help of others, than he would occupy if the means of trans- portation employed were all his own. He certainly may select his own agencies and his own associates for doing his own work. The Atchison, Topeka & Santa Fe Company, as the lessee of the Pueblo & Arkansas Valley Railroad, has the statutory right to establish its own stations and to regulate the time and manner in which it will carry persons and property and the price to be paid therefor. As to all these matters, it is undoubtedly subject to the power of legislative regulation, but in the absence of regulation it owes only such duties to the public, or to individuals, associations, or corporations, as the common law, or some custom having the force of law, has established for the government of those in its con- dition. As has already been shown, the Constitution of Colorado gave to every railroad company in the State the right to a mechani- cal union of its road with that of any other company in the State, but no more. The legislature has not seen fit to extend this right, as it undoubtedly may, and consequently the Denver & New Orleans Company comes to the Atchison, Topeka & Santa Fe Company just as any other customer does, and with no more rights. It has estab- lished its junction and provided itself with the means of transacting its business at that place, but, as yet, it has no legislative authority to compel the other company to adopt that station or to establish an agency to do business there. So far as statutory regulations are concerned, if it wishes to use the Atchison, Topeka & Santa Fe road for business, it must go to the place where that company takes on and lets off passengers or property for others. It has as a rail- road company no statutory or constitutional privileges in this partic- ular over other persons, associations, or corporations. It saw fit to establish its junction at a place away from the station which the Atchison, Topeka & Santa Fe Company had, in the exercise of its legal discretion, located for its own convenience and that of the public. It does not now ask to enter that station with its track or to interchange business at that place, but to compel the Atchison, 6 82 CARRIERS OF GOODS. Topeka & Santa Fe Company to stop at its station and transact a connecting business there. No statute requires that connected roads shall adopt joint stations, or that one railroad company shall stop at or make use of the station of another. Each company in the State has a legal right to locate its own stations, and, so far as statutory regulations are concerned, it is not required to use an}- other. A railroad company is prohibited, both by the common law and b}' the Constitution of Colorado, from discriminating unreasonably in favor of or against another company seeking to do business on its road; but that does not necessarily imply that it must stop at the junction of one and interchange business there, because it has estab- lished joint depot accommodations, and provided facilities for doing a connecting business with another company at another place. A station may be established for the special accommodation of a par- ticular customer; but we have never heard it claimed that every other customer could, by a suit in equity, in the absence of a statu- tory or contract right, compel the company to establish a like station for his special accommodation at some other place. Such matters are, and always have been, proper subjects for legislative considera- tion, unless prevented by some charter contract; but, as a general rule, remedies for injustice of that kind can only be obtained from the legislature. A court of chancery is not any more than is a court of law, clothed with legislative power. It may enforce, in its own appropriate way, the specific performance of an existing legal obli- gation arising out of contract, law, or usage, but it cannot create the obligation. In the present case, the Atchison, Topeka & Santa Y4 and the Denver & Rio Grande Companies formed their business connection and estalilished their junction or joint station long before the Denver & New Orleans road was built. The Denver & New Orleans Com- pany saw fit to make its junction with the Atchison, Topeka & Santa Fe Company at a different place. Under these circumstances, to hold that, if the Atcliison, Topeka & Santa Fe continued to stop at its old station, after the Denver & Xew Orleans was built, a re- fusal to stop at the junction of the Denver & New Orleans was an unreasonable discrimination as to facilities in favor of the Denver & Rio Grande Company, and against the Denver & New Orleans, would be in effect to declare that every railroad comjiany whioii forces a connection of its road with that of anotlier company has a right, under the Constitution or at the common law, to require the company with which it connects to do a connecting business at the junction, if it does a similar business with any other company under any other circumstances. Such, we think, is not the law. It may be made so by the h-gislative department of the government, l)ut it does not follow, as a necessary consequence, from the constitutional right of a mechanical union of tracks, or the constitutional proliibi- tion against undue or unreasonable discriminations in facilities. DUTY TO SERVE THE PUBLIC. 80 This necessarily disposes of the question of a continuous business, or a through line for passengers or freight, including through tickets, through bills of lading, through checking of baggage, and the like. Such a business does not necessarily follow from a connection of tracks. The connection may enable the companies to do such a business conveniently when it is established, but it does not of itself establish the business. The legislature cannot take away the right to a physical union of two roads, but whether a connecting business shall be done over them after the union is made depends on legislative regulation, or contract obligation. An interchange of cars, or the hauling by one company of the cars of the other, implies a stop at the junction to make the exchange or to take the cars. If there need be no stoj), there need be no exchange or taking on of cars. The only remaining questions are as to the obligation of the Atchison, Topeka & Santa Fe Company to carry for the Denver & x^ew Orleans when jjassengers go to or freight is delivered at the regular stations, and the prices to be charged. As to the obligation to carry, there is no dispute, and we do not understand it to be claimed that carriage has ever been refused when applied for at the proper place. The controversy, and the only controversy, is about the place and the price. That the price must be reasonable is conceded, and it is no doubt true that in determining what is reasonable the prices charged for business coming from or going to other roads connecting at Pueblo may be taken into consideration. But the relation of the Denver & New Orleans Company to the Atchison, Topeka & Santa Fe is that of a Pueblo customer, and it does not necessarily follow that the price which the Atchison, Topeka & Santa Fe gets for transporta- tion to and from Pueblo, on a division of through rates among the component companies of a through line to Denver, must settle the Pueblo local rates. It may be that the local rates to and from Pueblo are too high, and that they ought to be reduced, but that is an entirely different question from a division of through rates. There is no complaint of a discrimination against the Denver & Xew Orleans Company in respect to the regular Pueblo rates; neither is there anything except the through rates to show that the local rates are too high. The bill does not seek to reduce the local rates, but only to get this company put into the same position as the Denver & Ptio Grande on a division of through rates. This cannot be done until it is shown that the relative situations of the two companies with the Atchison, Topeka & Santa Fe', both as to the kind of service and as to the conditions under which it is to be performed, are substantiall}^ the same, so that what is reasonable for one must necessarily be reasonable for the other. "When a busi- ness connection shall be established between the Denver & New Orleans Company and the Atchison, Topeka & Santa Fe at their junction, and a continuous line formed, different questions may 84 CARUIEliS OF GOODS. arise; but so long as the situation of the parties continues as it is now, we cannot say that, as a matter of hiw, the prices charged by the Atchison, Topeka & Santa Fe, for the transportation of persons and property coming from or going to the Denver & New Orleans, must necessarily be the same as are fixed for the continuous line over the Denver & Eio Grande. All the American cases to which our attention has been called by counsel relate either to what amounts to undue discrimination be- tween the customers of a railroad company, or to the power of a court of chancery to interfere, if there is such a discrimination. None of them hold that, in the absence of statutory direction, or a specific contract, a company having the power to locate its own stopping-places can be required by a court of equity to stop at another railroad junction and interchange business, or that it must, under all circumstances, give one connecting road the same facilities and the same rates that it does to another with which it has entered into special contract relations for a continuous through line and arranged facilities accordingly. The cases are all instructive in their analogies, but their facts are different from those we have now to consider. We have not referred specially to the tripartite agreement or its provisions, because, in our opinion, it has nothing to do with this case as it is now presented. The question here is whether the Denver & Xew Orleans Company would have the right to the relief it asks if there were no such contract, not whether the contract, if it exists, will be a bar to such a right. The real questit)n in the case, as it now comes before us, is whether the relief required is legislative in its character or judicial. AVe think it is legislative, and that upon the existing facts a court of chancery can afford no remedy. The decree of the Circuit Court is reversed, and tlie cause remanded with direction to dismiss the bill without i)rejudice. STATE, Kx lu-.i.. '•. CINCINNATI, i:tc. R. CO. ■17 Ohio St. 130. 1890. r.K.\i)i:ii:v, J. These actions are brought under the fourlli clause of sec. (37G1, Hevised Statutes, whicli authorize an action (»f quo warranto to be l)rought against a corporation "when it has misused a fnmchise, jirivilfj^'f, or right conferred upon it l)y law, or when it claims or hoUls by contract or otherwise, or has exercised a fran- chise, privilege, or right in contravention of law." DUTY TO SERVE THE PUBLIC. 85 The petitions charge, among other things, that the defendants misused their corporate powers and franchises by discriminating in their rates of freight in favor of certain refiners of petroleum oil connected with the Standard Oil Company, by charging other shippers of like products unreasonable rates, by arbitrarily and suddenly changing the same, and finally, by confederating with the favored shippers to create and foster a monopoly in refined oil, to the injury of other refiners and the public; and further, that the defendants claimed and exercised, in contravention of law, the right to charge, for shipping oil in tank cars, a lower rate of freight per hundred pounds than they charged for shipping the same in barrels, in car-load lots. The defendant, by answer, among other matters, denied charging any shippers unreasonable rates of freight, or that they arbitrarily or suddenly changed such rates, and denied any confederacy with any one to establish a monopoly. The actions were referred to a referee to take the evidence and to report to this court his findings of fact and conclusions of law there- from ; all which has been done, and the cases are before us upon this report. To the report of the referee exceptions were filed by all parties. The defendants, however, do not now insist upon their exceptions to the finding of the referee in so far as it relates to the facts; indeed, it is difficult to conceive any grounds for their doing so, for these findings are mainly based upon the testimony of the officers and agents of the railroad companies. That the Cincinnati, Washington & Baltimore Eailway Company did discriminate in its rates for freight on petroleum oil in favor of the Camden Consolidated Oil Company, and that the Cincinnati, New Orleans & Texas Pacific Eailway Company did the same in favor of the Chess-Carly Company, is shown by the finding of the referee, which is clearly sustained by the evidence. That these discriminat- ing rates were in some instances strikingly excessive, tended to foster a monopoly, tended to injure the competitors of the favored shippers and were in many instances prohibitory, actually excluding these competitors from extensive and valuable markets for their oil, giving to the favored shippers absolute control thereof, is established beyond any serious controversy. The justification interposed is that this was not done pursuant to any confederacy with the favored shipper or with any purpose to inflict injury on their competitors, but in order that the railroad companies might secure freight that would otherwise have been lost to them. This we do not think sufficient. We are not unmindful of the difficulties that stand in the way of prescribing a line of duty to a railway company, nor do we under- take to say they may not pursue their legitimate objects, and shape their policy to secure benefits to themselves, though it may press severely upon the interests of others; but we do hold that they 86 CARRIERS OF GOODS. cannot be permitted to foster or create a monopoly, by giving to a favored shipper a discriminating rate of freight. As common car- riers, their duty is to carry, indifferently, for all who may apply, and in the order in which the application is made and upon the same terms; and the assumption of a right to make discriminations in rates for freight, such as was claimed and exercised by the defend- ants in this case, on the ground that it thereby secured freight that it would otherwise lose, is a misuse of the rights and privileges con- ferred upon it by law. A full and comi)lete discussion of the prin- ciples and a thorough collection of the authorities, bearing upon the duties of railroad companies toward their customers, is to be found in the opinion of Athertun, J., in tlie case of Scotield c. Railway, 43 Ohio St. 571, to which nothing need be now added. It appears that of the two methods of shipping oil, that by the bar- rel in car-load lots and that in tank cars, the first only was available to George Rice and the other refiners of petroleum oil at ]\rarietta, Ohio, as they owned no tank cars, nor did the defendants own or undertake to provide any ; but that both methods were open to the Camden Consolidated Oil Company and the Chess-Carly Company, by reason of their ownership of tank cars, and that the rate per bar- rel in tank cars was very much lower than in barrel jiackages in box cars; that, in fact, the Cincinnati, Washington cS: P>altimore Kail- way Company, after allowing the Camden Consolidated ( )il Company a rebate, and allowing the Baltimore & Ohio Railway Company for switching cars, received from the Camden Consolidated Oil Company only about one half the open rates it charged tlie Marietta refiners, and that both railroad companies claimed tlie riglit to make different rates, based upon tlie different methods of shipping oil, and the fact of the ownership by shippers of the tank cars used b}' them. It was the duty of the defendants to furnish suitable vehicles for transport- ing freight offered to them for that i)uritose, and to offer e(pial terms to all sliippers. A railroad is an improved higliway; the ])ul)lic are equally entitled to its use; it must provide equal accommodation fur all upon the same terms. The fact that one shipper may be jiro- vided with vehicles of his own entitles him to no advantage over his competitor not so jirovided. The true rule is announced by the Interstate Commerco Cfimmission, in tlie ro])ortof the case of George Rice V. The Louisville & Nashville Railroad Company rt al. "The fact that the owner supplies the rolling stock when his oil is shipped in tanks, in our opinion, is entitled to little weight when rates are under consideration. It is properly the business of railroad com- panies to su])ply to their customers suital)le vehicles of transjiorta- tion (Railroad Co. v. Pratt, 22 Wall. 12:{), and then offer their use to every bf»dy imj)artially." Ragt; 50 of the repurt of the case. No doul)t a sliipper who owns cars may be paid a reasonable comjiensa- tion for tlie use, so that the compen.sation is not made a cover for discriminating rates, or other advantages to such owner as a shipper. DUTY TO SERVE THE PUBLIC. 87 Nor is there cany valid objection to such owner using them exclu- sively, as long as the carrier provides equal accommodations to its other customers. It may be claimed that if a railroad company permit all shippers indifferently, and upon equal terms, to provide cars suitable for their business, and to use them exclusively, no discrimination is made. This may be theoretically true, but it is not so in its application to the actual state of the business of the country; for a very large portion of the customers of a railroad have not a volume of business large enough to warrant equipping themselves with cars, and might be put at a ruinous disadvantage in the attempt to compete with more extensive establishments. Aside from this, however, a shipper is not bound to provide a car; the duty of providing suitable facilities for its customers rests upon the railroad company, and if, instead of providing sufficient and suit- able cars itself, this is done by certain of its customers even for their own convenience , yet the cars thus provided are to be regarded as part of the equipments of the road. It being the duty of a rail- road company to transport freight for all persons indifferently, and in the order in which its transportation is applied for, it cannot be permitted to suffer freight cars to be placed upon its track by any customer for his private use, except upon the condition that, if it does not provide other cars sufficient to transport the freight of other customers in the order application is made, they may be used for that purpose. Were this not so, a mode of discrimination, fatal to all successful competition by small establishments and operators with large and more opulent ones, could be successfully adopted and practised at the will of the railroad company and the favored shipper. The advantages, if any, to the carrier, presented by the tank- car method of transporting oil, over that by barrels in box cars in car-load lots, are not sufficient to justify any substantial difference in the rate of freight for oil transported in that way; but if there were any such advantages, as it is the duty of the carrier to furnish proper vehicles for transporting it, if it failed in this duty it could not in justice avail itself of its own neglect as a ground of discrimi- nation. It must either provide tank cars for all its customers alike, or give such rates of freight in barrel packages, by the car- load, as will place its customers using that method on an equal footing with its customers adopting the other method. Judgment ousting defendants from the right to make or charge a rate of freight per hundred pounds for transporting oil in iron tank cars, s\ihstantially lower than for transporting it in barrels, in car- load lots. SS CARRIERS OF GOODS. b. For a reasonable compensation. BASTARD V. BASTARD. King's Bench. 2 Shower, 81. 1079. Case against the defendant as a common carrier, for a box deliv- ered to him to be carried to B. and lost by negligence. ■Williams moved in arrest of judgment, for that there was no par- ticular sum mentioned to be paid or promised for hire, but only j>ro vi^rcede ratio7iabUi ; resolved well enough, and judgment given pro plaintiif ; for perhaps there was no particular agreement, and then the carrier might have a quantum vieruit for his hire, and he is therefore as chargeable for the loss of the goods in the one case as the other. RAGAN & BUFFET v. AIKEN. 9 Lea (Teuu.), 009. 18S2. Cooper, J. ••••••••• • The third ground of demurrer is that the facts stated in the bill do not show a case of improper discrimination within the meaning of the franchises under which the defendant is operating his road. The facts are that the defendant, to induce merchants in Lee County, Virginia, and Hancock County, Tennessee, to ship over his road, instead of taking a different route, has entered into a con- tract with them not to charge exceeding 15 cents per luindred pounds on their goods. And the question is whether the delendant can make such a contract, under the circumstances stated. The English authorities hold that at common law the common carrier is not bound to carry at equal rates for all customers in like condition. The authorities are collected in ISIcDuffee v. I'ortland & Rochester Railroad, 52 N. H. •l.'^O, and in 3 Am. & Eng. R. Cas. G02. In this country, the courts have generally litdd otlierwisc, and that statutes prohibiting discrimination are merely declaratory of the common law. Sinking Fund Cases, 99 U. S. 17; Messenger r. Pennsylvania Railroad Compajiy, .30 N. J. L. 107, 531. Discrimi- nation in rates of freight, if fair and reasonable, and founded on grounds consistent witli the public interest, are allowable. Ilersh V. Northern, etc Railroad Company, 71 Ra. St. 181; Chicago, etc. Railroad Company r. Reople, 07 IlL H: I'itchburg Railroad Com- pany V. Gage, I'J Gray, 393. The important point to every freighter DUTY TO SERVE THE PUBLIC. 89 is that the charge shall be reasonable, and a right of action will not exist in favor of any one unless it be shown that unreasonable ine- quality had been made to his detriment. A reasonable price paid by such a party is not made unreasonable by a less price paid by others. Or, as said by Crompton, J., to the plaintiff, upon the trial of such a suit : " The charging another party too little is not charging you too much." Garten v. B. & E. Eailroad Company, 1 B. & S. 112, 154, 165; McDuffee v. Portland & Kochester Railroad, 52 iST. H. 430. In determining whether a company has given undue preference to a particular person, the court may look to the interests of the company: Ransome v. Eastern Counties Railway, 1 C. B. N. s. 437; 1 id. 135. In other words, if the charge on the goods of the party complain- ing is reasonable, and such as the company would be required to adhere to as to all persons in like condition, it may, nevertheless, lower the charge to another person if it be to the advantage of the company, not inconsistent with the public interest, and based on a sufficient reason. It is obvious that the intention of the defendant, in this instance, was not to discriminate against the complainants in favor of any person of the same place, and in the same condition. His object was to get business for his road from persons at a dis- tance from its terminus, which otherwise would reach their destina- tion by a different route. Under these circumstances, we cannot see that the contracts complained of are against public policy, or that the complainants have been damaged, if the charges on their goods were reasonable. The bill contains no allegation that the charges made against, and paid by, the complainants were unreasonable. Without such an averment there has been no damage. The third ground of demurrer was, therefore, well taken. ^ CHICAGO, BURLIN"GTON & QUINCY R. CO. v. IOWA. 94 U. S. 155. 1876. Appeal from the Circuit Court of the United States for the Dis- trict of Iowa. Mr. Chief Justice Waite. Railroad companies are carriers for hire. They are incorporated as such, and given extraordinary powers, in order that they may the better serve the public in that capacity. They are, therefore, engaged in a public employment affecting the public interest, and, under the decision in Munn r. Illinois, 94 U. S. 113 [1], subject to legislative control as to their rates of fare and freight, unless protected by their charters. 1 Ace: Fitchburg R. Co. v. Gage, 12 Gray, 393; Ex parte Bensou, 18 S. C. 38 ; Johnson v. Pensacola, etc. R. Co., 16 Fla. 623. 90 CARRIERS OF GOODS. The Burliugton and ^lissouri Eiver Railroad Company, the bene- fit of whose charter the Chicago, Burlingtun and Quiney Railroad Company now claims, was organized under the general corporation law of Iowa, with power to contract, in reference to its business, the same as private individuals, and to establish by-laws and make all rules and regulations deemed expedient in relation to its affairs, but being subject, nevertheless, at all times to such rules and regu- lations as the general assembly of Iowa might from time to time enact and provide. This is, in substance, its charter, and to that extent it is protected as by a contract; for it is now too late to con- tend that the charter of a corporation is not a contract within the meaning of that clause in the Constitution of the United States which prohibits a State from passing any law impairing the obliga- tion of a contract. Whatever is granted is secured subject only to the limitations and reservations in the charter or in the laws or constitutions which govern it. This company, in the transactions of its Imsiness, has the same rights, and is subject to the same control, as private individuals under the same circumstances. It must carry wlien called upon to do so, and can charge only a reasonable sum for the carriage. In the absence of any legislative regulation upon the subject, the courts must decide for it, as they do for private persons, when contro- versies arise, what is reasonable. But when the legislature steps in and prescribes a maximum of charge, it operates upon this corjiora- tion the same as it does upon individuals engaged in a similar busi- ness. It was within the power of the company to call upon the legislature to fix permanently this limit, and make it a part of the charter; and, if it was refused, to abstain from building tlie road and establishing the contemplated business. If that had been done, tiie charter might have presented a contract against future legisla- tive interference. But it was not; and the comi)any invested its cajtital, relying upon the good faith of the people aiul the wisdom and imjtartiality of legislators for protection against wrong under the form of legislative regulation. It is a matter of no importance that the power of regulation now under consideration was not exercised for more than twenty years after this company was organized. A power of government which actually exists is not lost by non-user. A good government never puts forth its extraordinary powers, except under circumstances whifh require it. That government is the best which, wliile ])er- forming all its duties, interferes the least with the lawful jmrsuits of its people. In ir,01, during tlie third year of tlio reign of William and ]Mary, Tarliiimt-nt provided for the regulation of tlii' rates of charges by common carriers. This statute remained in force, witli some amend- ment, until IHL'7, when it was rejiealed, nnd it lias never been re-enacted. No one supposes that the power io restore its pro- DUTY TO SERVE THE PUBLIC. 91 visions has been lost. A change of circumstances seemed to render such a regulation no longer necessary, and it was abandoned for the time. The power was not surrendered. That remains for future exercise, when required. So here, the power of regulation existed from the beginning, but it was not exercised until in the judgment of the body politic the condition of things was such as to render it necessary for the common good. Neither does it affect the case that before the power was exercised the company had pledged its income as security for the payment of debts incurred, and had leased its road to a tenant that relied upon the earnings for the means of paying the agreed rent. The com- pany could not grant or pledge more than it had to give. After the pledge and after the lease the property remained within the jurisdiction of the State, and continued subject to the same govern- mental powers that existed before. The objection that the statute complained of is void because it amounts to a regulation of commerce among the States, has been sufficiently considered in the case of Munn v. Illinois. This road, like the warehouse in that case, is situated within the limits of a single State. Its business is carried on there, and its regulation is a matter of domestic concern. It is employed in State as well as in interstate commerce, and, until Congress acts, the State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in so doing those without may be indirectly affected. It remains only to consider whether the statute is in conflict with sec. 4, art. 1, of the Constitution of Iowa, which provides that "all laws of a general nature shall have a uniform operation," and that "the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." The statute divides the railroads of the State into classes, accord- ing to business, and establishes a maximum of rates for each of the classes. It operates uniformly on each class, and this is all the Constitution requires. The Supreme Court of the State, in the case of McAunich v. M. & M. Railroad Co., 20 Iowa, 343, in speaking of legislation as a class, said, " These laws are general and uniform, not because they operate upon every person in the State , for they do not, but because every person who is brought within the relation and circumstances provided for is affected by law. They are general and uniform in their operation upon all persons in the like situa- tion, and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation." This act does not grant to any railroad company privileges or immunities which, upon the same terms, do not equally belong to every other railroad company. Whenever a company comes into 92 CARRIERS OF GOODS. any class, it has all the ''privileges and immunities" that have been granted by the statute to any other company in that class. It is very clear tliat a uniform rate of charges for all railroad com- panies in the State might operate unjustly upon some. It was proper, therefore, to provide in some way for an adaptation of the rates to the circumstances of the different roads; and the general assembly, in the exercise of its legislative discretion, has seen fit to do this by a .system of classification. Whether this was the best that could have been done is not for us to decide. Our province is only to determine whether it could be done at all, and under any circumstances. If it could, the legislature must decide for itself, subject to no control from us, whether the common good requires that it sliould be done. Decree affirmed. Mr. Justice Field and 'Mv. Justice Strong dissented. HEAG.V^' V. FARMERS' LOAN & TRUST CO. 154 U. S. 3G2. 1894. !Mr. Justice Brewer. ........ It appears from the bill that, in pursuance of the powers given to it by this act, the State commission [Reagan et al."] has made a body of rates for fares and freights. This body of rates, as a whole, is challenged by the plaintiff [defendant in error, trustee under a railroad trust deedj as unreasonable, unjust, and working a destruction of its rights of property. The defendant denies the power of the court to entertain an inquiry into that matter, insist- ing that the fixing of rates for carriage by a public carrier is a matter wholly within the ]iower of the legislative department of the government and beyond examination by the courts. It is doubtless true, as a general proposition, that the formation of a tariff of charges for the transportation by a common carrier of persons or property is a legislative or administrative rather than a judicial function. Yet it has always been recognized tliat, if a carrier attempted to eharge a shipper an unreasonable sum, the courts had jurisdiction to inquire into that matter and to award to the shi])per any amount exacted Iroin liiin in excess of a reasonable rate; and also in a reverse case to render judgment in favor of the carrier for the amount found to be a reasonable eharge. The ]irov- ince of the courts is not ehanged, nor the limit of judicial impiiry altered, because the legislature instead of the carrier prescribed tlu^ rates. Tlio courts are not authorized to revise or change the luuly of rates imposed by a legislature or commission; they do not deter- mine whether one rate is ]>referabln to another, or what under all circumstances would be fair and reasonable as between the carriers DUTY TO SERVE THE PUBLIC. 93 and the shippers; they do not engage in any mere administrative work; but still there can be no doubt of their power and duty to inquire whether a body of rates prescribed by a legislature or a com- mission is unjust and unreasonable, and such as to work a practical destruction to rights of property, and if found so to be, to restrain its operation. In Chicago, Burlington & Quincy Railroad v. Iowa, 94 U. S. 155 [89], and Peik v. Chicago & Northwestern Railway, 94 U. S. 164, the question of legislative control over railroads was presented, and it was held that the fixing of rates was not a matter within the absolute discretion of the carriers, but was subject to legislative control. As stated by Justice Miller, in Wabash, etc. Railway v. Illinois, 118 U. S. 557, 569, in respect to those cases: " The great question to be decided, and which was decided, and which was argued in all those cases, was the right of the State, within which a railroad company did business, to regulate or limit the amount of any of these traffic charges." There was in those cases no decision as to the extent of control, but only as to the right of control. This question came again before this court in Railroad Commission Cases, 116 U. S. 307, 331, and while the right of control was re-affirmed, a limitation on that right was plainly intimated in the following words of the Chief Justice : "From what had thus been said, it is not to be inferred tliat this power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation. Under pretence of regulating fares and freights the State cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law." This language was quoted in the subsequent case of Dow v. Beidelman, 125 U. S. 680, 689. Again, in Chicago & St. Paul Railway v. Minnesota, 134 U. S. 418, 458, it was said by Mr. Justice Blatchford, speaking for the majority of the court: — " The question of the reasonableness of a rate of charge for trans- portation by a railroad company, involving as it does the element of reasonableness, both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring the process of law for its determination." And in Chicago & Grand Trunk Railway v. Wellman, 143 U. S. 339, 344, is this declaration of the law : — " The legislature has power to fix rates, and the extent of judicial interference is protection against unreasonable rates." Budd V. New York, 143 U. S. 517, announces nothing to the contrary. The question there was not whether the rates were reasonable, but whether the business, that of elevating grain, was within legislative control as to the matter of rates. It was said in the opinion : " In the cases before us, the records do not show that 94 CARRIERS OF GOODS. the charges fixed by the statute are unreasonable.'' Hence there was no occasion for saying anything as to the power or duty of the courts in case the rates as established had been found to be unreas- onable. It was enough that upon examination it appeared that there was no evidence upon which it could be adjudged that the rates were in fact open to objection on that ground. These cases all support the proposition that while it is not the province of the courts to enter upon the merely administrative tluty of framing a tariff of rates for carriage, it is within the scope of judicial power and a part of judicial duty to restrain anything which, in the form of a regulation of rates, operates to deny to the owners of property invested in the business of transportation that equal protection which is the constitutional right of all owners of other property. There is nothing new or strange in this. It has always been a part of the judicial function to determine whether the act of one party (whether that party be a single individual, an organized body, or the public as a whole) operates to divest the other party of any rights of i^erson or property. In every constitu- tion is the guarantee against the taking of private property for public purposes without just compensation. The equal protection of the laws which, by the Fourteenth Amendment, no State can deny to the individual, forbids legislation, in whatever form it may be enacted, by which the property of one individual is, without compensation, wrested from him for the benefit of another, or of the public. This, as has been often observed, is a government of law, and not a government of men, and it must never be forgotten that under such a government, with its constitutional limitations and guarantees, the forms of law and the machinery of government, with all tlieir reach and power, must in their actual workings stop on the hither side of the unnecessary and uncompensated taking or destruction of any private property, legally acquired and legally held. It was, therefore, within the competency of the Circuit Court of the United States for the Western District of Texas, at the instance of the plaintiff, a citizen of another State, to enter upon an in(iuiry as to the reasonableness and justice of the rates prescribed by the railroad commission. Indeed, it was in so doing only exer- cising a powur expressly named in the act creating the commission. carrier's liability. 95 4. CARRIER'S LIABILITY. a. Act of God. PROPRIETORS OF THE TRENT NAVIGATION v. WOOD. King's Bench. 3 Esp. 127. 1785. This was an action of assumpsit. The declaration stated that the plain tiffs, as proprietors of the Trent Navigation, undertook to carry the defendant's goods from Hull to Gainsborough ; that i n the ri ver Hu mber, the vessel on board which the def e ndant's goods were, sunk, by driving against an anchor in the river; and the goods were, in consequence of the accident, considerably damaged. That the plaintiffs repaired the damage the goods had sustained, and sen t them ho me to the defend- ant; and the breach was, that the defendant refused, t o pay the money the plaintiffs had expended in the recovery of the goods. There was also a co unt in the declaration for money had and received, which was for freight. At the trial the plaintiffs were nonsuited. A rule having been obtained, to show cause why the nonsuit should not be set aside, it came on to be argued on this. The counsel for the defendant being desired to begin, — Cowper contended, that the defendant was not liable to pay this money; there was no pretence to say that the accident happened from the act of God; for it was expressly stated and proved that the acci- dent was occasioned by the negligence of the persons on board a barge in the river, in not having his buoy out, to mark the place where his anchor lay. A great deal of evidence was adduced at the trial to prove this ; but, as between the carriers and the owners of the goods, the misconduct of a third person is immaterial, since a remedy lies over against the party so offending. The plaintiffs would have been liable had the goods been totally lost; and there- fore a fortiori shall answer this damage themselves. Bower, on the same side. The question is. Whether the plaintiffs as carriers are liable for the damage done to the goods in question ? The law in all cases throws the burden, when there is a loss, upon a common carrier, even if the goods are taken by robbery, where it is impossible for him to save them ; and the reason is, to prevent any collusion between him and the thief. He is certainly liable in all cases, except the two, of accidents happening by the act of God, or of the king's enemies. Here is no pretence for either. A damage taking place by a natural accident that could not be fore- seen, may be called the act of God; but this arose from the miscon- 96 CAKIilERS OF GOODS. duct of a third person, and cannot therefore come within the meaning of tliat expression. Bearcroft, for the plaintiffs. This is a question that concerns all common carriers; they are the bailees of goods; and as they get a profit by this undertaking, they are also liable to answer for losses, if the smallest degree of negligence is proved; but in the present case there was no possibility of seeing or knowing of the anchor that did the mischief, and therefore the accident happened from an inevitable necessity; which, though it may not come up to the precise idea of the act of God, is 3'et such a necessity as affords a justification to the plaintiffs. Plomer, on the same side. There is no neglect proved on the part of the plaintiffs; and as to the remedy over against a third jjcrson, it must first be determined who are immediately answerable for the loss, before it can be known who is entitled to this remedy. It was in evidence at the trial, that there is considerable danger in the voyage from Hull to Gainsborough, and that it is therefore usual for the owners of the goods to insure them; and as tliere was no insurance in this case, but only the price of the freiglit, whicli has been paid into court, I contend that it was only a special acceptance on the part of tlie plaintiffs, and therefore tliat they are not liable for the loss occasioned by the accident which has happened. It is like a voyage to the East Indies; and as there is a great risk in all sea-voyages, it would be very unreasonable to make a i)arty liable generally to answer the loss where he has not stipulated for the purpose. The evidence at the trial of an usage to insure goods for this voyage varies the case very much from that of a common carrier, where there is no insurance; therefore, as it appears that tliere was a special accey)tance in this case, the plaintiffs are not liable to answer tlie damages done to the goods. Lord Mansfield asked, if there was any case wliich made dis- tinction between a land and a water carrier. And, none being men- tioned, Cmi'per, in reply, put a case of an East Indian in the Downs running down another vessel ; and said that the owners of the vessel run down would ct-rtainly have an action against the other for the damage, and would also be liable as common carriers to their employers. That this accident happened in Die river Humber, clearly infra corpus comitatus ; and thorefore was not a sea-voyage. A custom to insure was certainly ])roved; but because it is usual, a man is nfit obliged to do it; and a carrier will be equally answeraljle. If a man pleases, he may insure his goods by the Chester wagon; but if he does, still the wagoner must be liable in case of a loss. Lord Manskikm). This is cert ainly a sea-voyage . It is a general question, and no case has been cited exactly in point; but it is c lear til it 111.- cirri.r \< 1! ililc in all cases, ovr.i.t fur accid ents hapjien- 1: . (.r by the kin The act of (ind is a natural necessity, and inevitably such, as winds, storms, etc. caerier's liability. 97 The case of robbery is certainly very strong, but not a natural nece s- sity ; and in this case there is an injury by a private man, within the reason of the instance of robbery ; yet I think the carriers ought to be liable. There is some sort of negligence here; for as the buoy could not be seen, there should have been, on that account, a greater degree of caution used. WiLLEs, Justice, of the same opinion. AsHHURST, Justice. The general rule is, tha t the carrier is liable in every instance, except f or accidents happeni ng" by the act of Gol T or the king's enemies ; but another rule" is now attempted to be set up ; which is, that the carrier ought not to be liable, where no negligence is imputable to him; but no case has been cited to prove this doctrine; and I think that good policy and convenience require the rule to be adhered to which has hitherto prevailed. It will naturally lead to make carriers more careful in general. If this sort of negligence were to excuse the carrier, when he finds that an accident has happened to goods from the misconduct of a third person, he would give himself no farther trouble about the recovery of them ; nor do I think that in this case the carrier is entirely free from every imputation of negligence. His not seeing the buoy ought to have put him upon inquiring more minutely about the anchor. BuLLER, Justice. This case is very different from those relied upon by the plaintiffs ; two grounds have been made for the plain- tiffs : first. That upon general principles of law they are not liable ; and secondly, That they are not liable, because this was a special acceptance, which excluded the risks of the sea; but for this there is no color at all. It was proved , at the trial, that it was usual to insure; but that do es not show that the carrier is n ot liable where there is no insurance : the merchant is not bo und to insure, nor does that vary th e obligation. Neither is it to be presume d, that because" the price of i nsurance is low, this r isk is excluded when not insuredj the carrier knows the degree of danger, and propo rtions his premium accordingly. ~ As to the general principle, there is no distinction between a land and a water carrier. In the case of a robbery the carrier is subject to force which he cannot resist; yet he shall be liable. In this case, I think there was a degree of negligence in point of fact ; but the negligence in point of law was sufficient. Jiule discharged. FORWAED y. PITTARD. King's Bench. 1 Term R. 27. 1785. This was an action on the case against the defendant as a common carrier, for not safely carrying and delivering the plaintiff's goods. 7 98 CARRIERS OF GOODS. This action was tried at the last summer assizes at Dorchester, before Mr. Baron Perryn, when the jury found a verdict for the plaintiff, subject to the opinion of the court on the following case : *• The defendant was a common carrier from London to Shafts- bury . That on Thu rsday t he 14th of Oct ober, 1784, the plaintiff delivered to him on AVe yhill twelve pockets of hops to be carried by him to Andover, and to be bv liiiu iorwardc-d to Slial'tsburv bv his ] >uljlie road wagon, which travels from Loudon througli Andover to Shaftsbury. That, by the course of travelling, such wagon was not to leave Andover till the Satu rday evening following . That in tlie night of^ the following day after the deliver}- of the hops, a tire brok e out in a booth at the distance of one hundrL-d vards from the booth in which t he defendant luul dt-ix'sited the ho])S, whic l i burn t for some time witli unextinguishable violence, and duriuir that time communicated itself to the said bo oth in whicli the defendant had de])Osited tht- ho]is. and entirely consumed tliem without any actual ne gligence in the defenda nt. Tliat the fire was not occasione d by li'ditniii''." A^. Bond, for the plaintiff. The question is, whether a carrier is liable for the loss of goods occasioned by fire, without any negli- gence in him or his servants. The general proposition is, that the carrier is liable in all cases, except the loss be occasioned by the act of God or the king's enemies. Lord Raymond, 909; 1 Wils. 281. And this doctrine has lately been recognized by this Court, in the case of the Company of the Trent Navigation v. Wood. East. 25 Geo. 3 B. R. Tlie only doubt is on the construction of the words "the act of God." It is an effect immediately produced without the interposition of any human cause. In Amies and Stephens, 1 Stra. 128, these words were held to include the case of a ship being lost by tempest. In the books, under the head of "waste," there is an analogous distinction to be found: if a house fall down by tempest, or be burned by liglitning, it is no waste; but burning by negligence or mischance is waste. Co. Lit. 53, «, b. Before the Gth of Anne, 6 Ann. c. 31; 10 Ann. c. 14, an action lay against any person in whose house a fire accidentally began: tliis shows tliat an accidental fire was not in law considered as tlie act of God; but the jicrson was punishable for negligence. Sui)pose a fire liappens in a house where there are different lodgers, each of whose lodgings is considered as a separate house: if the fire be communi- cated from one lodging to another, and the Court say the first fire was the act of man, at wliat time will it bo said that it ceases to be the act of nian and commences to be tlic act of God ? If it were not the act of man in tlie first house, it is impo.ssiblc to draw the line. In the case of the Company of the Trent Navigation and Wood, Lord Mansfield said, "By the act of God is meant a natural, not merely an in'"vit:iblo, accident." If it be contended for the defendant that it is licrc stated that a caerier's liability. 99 there was no actual negligence, that will not serve him; for this action was not founded in negligence. Lord Holt says, there are several species of bailments, and different degrees of liability annexed to each; and a carrier is that kind of bailee who is answer- able though there be no actual negligence. '«., Borough, for the defendant, observed that the point in this case -, ''♦ was not before the Court in any of the cases cited. The general "^^^ question here is, Avhether a carrier is compellable to make satisfac- r^ ^^ tion for goods delivered to him to carry, and destroyed by mere -^':, '' accident, in a case where negligence is so far from being imputed ' * to him that it is expressly negatived ? This action of assumpsit '^ "^ .^' must be considered as an action founded on what is called the custom ^ \ of the realm relating to carriers. And from a review of all the ''^,- S cases on this subject it manifestly appears that a carrier is only ^"^l liable for damage and loss occasioned by the acts or negligence of ** himself and servants, that is, for such damage and loss only as human care or foresight can prevent; and that there is no implied contract between him and his employers to indemnify them against unavoidable accidents. The law with respect to land carriers and water carriers is the same. Eich v. Kneeland, Cro. Jac. 330; Hob. 17, 5 Burr. 2827. In Yid. 27. The declaration, in an action against a waterman for negligently keeping his goods, states the custom relative to carriers thus, '' absque suhstractione, amissione, seu spoliatione, portare tenentur, ita quod pro defectu dictorum communium portatorum sen servientium suorum, hujusmodi bona et catalla eis sic ut prefertur deliberata, non sint 2>erdita, amissa, seu spoliata." It then states the breach, that the defendant had not delivered them, and "pro defectu bonce custodice ipsins defendentis et servientium suorum pjerdita et amissa fuerunt.'' In Brownl. Red. 12, the breach in a declaration against a carrier is, " defendens tarn negligenter et improvide custodivit et carriavit, &c." In Clift. 38, 39, Mod. Intr. 91, 92, and Heme, 76, the entries are to the same effect. In Eich and Kneeland, Hob. 17, the custom is stated in a similar way; and in the Exchequer Chamber it was resolved, "that though it was laid as a custom of the realm, yet indeed it is common law." On considering these cases, it is not true that " the act of God and of the king's enemies " is an exception from the law. For an exception is always of some- thing comprehended within the rule, and therefore excepted out of it; but the act of God and of the king's enemies is not within the law as laid down in the books cited. All the authorities cited by the counsel for the plaintiff are founded on the dictum in Coggs i\ Bernard, 2 Lord Eaymond, 909, where this doctrine was first laid down ; but Lord Holt did not mean to state the proposition in the sense in which it has been contended he did state it. He did not intend to say, that cases falling within the reasoning of what are vulgarly called "acts of God" should not 100 CARRIERS OF GOODS. also be good defences for a carrier. After saj-ing (Lord Kaymond, 918), "the law charges the persons, thus intrusted to carry goods, against all events but the acts of God and of the enemies of the king," he proceeds thus, '*for though the force be never so great, as if an irresistible multitude of people should rob him, neverthtdess he is chargeable.' And this is a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their waj'S of dealing; for else these carriers might have an opportunity of undoing all persons who had any dealings with them, by combining with thieves, etc. , and yet doing it in such a clandestine manner as would not be possible to be discov- ered." As Lord Holt therefore states the responsibility of carriers in case of robbery to take its origin from a ground of policy, he could not mean to say that a carrier was also liable in cases of accidents, where neither combination or negligence can possibly exist. It appears from the Doctor and Student (Dial. 2, c. 38, j). 270) that, at the time that book was written, the carrier was held liable for robberies which diligence and foresight might prevent. And what is there said agrees precisel}- with the custom, and does not bear hard on the carrier. If he will travel b}' night, and is robbed, he has no remedy against the hundred; for then he is not protected by the statute of Winton, and he ought to be answerable to the employer. If he travel by day and is robbed, he has a remedy. Now the carrier may not perhajis be wortli suing; and the employer may bring the action against the hundred in his own name; which action he would be deprived of, if the carrier travelled by night. There is not a single authority in all the old books wliich says that a carrier is responsible for mere accidents. He only engages against substraction, spoil, and loss, occasioned by the neglect of himself or his servants. Tliese words plainly jioint at acts to be done, and omissions of care and diligence. But in tlie i)resent case there is no act done; and tliere cannot be said to be any omission of care and diligence, since they could not have prevented the calamity. Lord Holt, in Coggs o. lU-rnard, seems to have traced, with great attention, the different species of bailments. He cites many jxis- sages from Bracton, who has nearly copied them from Justinian. So that it is probal)le that the custom relating to carriers took its origin from the civil law as to iKiilmcnts. Now it is observable that in no one case of bailment is tlif bailcf answ('ral)le for an accident; lif is only liable for want of diligence. Tin- nnly difference in thi.s •ct between the civil and the English law is, that the former (JuHtin. lib. .;, l.", s. 'J, .''i, I, tit. .'Jo, s. 5) distinguishes between the difffrr-nt >: of diligence rcfpiired in the different species of briiliucnt; v. mimi lIjc hitter does not. carrier's liability. 101 In all the cases to be found in our books may be traced the true ground of liability, negligence. If the law were not as is now con- tended for, the question of negligence could never have arisen ; and the case of robbery could not have borne any argument; whereas the case of Mors v. Slue, 1 Vent. 190, 238, [114] came on repeatedly before the Court, and created very considerable doubts. In the case of Dale v. Hall, 1 Wils. 281, and the Proprietors of the Trent Navigation v. Wood, 3 Esp. 127 [95], there were clear facts of negligence. In the first, the rats gnawed a hole in the hoy, which undoubtedly might have been prevented. And in the other, each of the judges, in giving his opinion, said there was negligence. In the Year Books, 22 Ass. 41, there is a case of an action against a waterman for overloading his boat so that the plaintiff's horse was drowned. This case is recognized in Williams v. Lloyd, S. W. Jones, 180, where it is said " it was there agreed that if he had not surcharged the boat, although the horse was drowned, no action lies, notwithstanding the assumpsit; but if he surcharged the boat, other- wise; for there is default and negligence in the party." The Court in 22 Ass. 41, said, " it seems that you trespassed when you surcharged the boat by which the horse perished." The same case is to be found in 1 Ko. Abr. 10, pi. 18, Bro. Tit. Action sur le Case 78. And it is also recognized in Williams v. Hide and Ux. Palm. 548. In Winch. 26. To an action against a carrier, there is a special plea that the inn in which the goods were deposited was burned by fire, and that the plaintiff's goods were at the same time destroyed, without the default or neglect of the defendant or his servants. To this the plaintiff demurred, not generally but specially, "that the plea amounted to the general issue." In all actions founded in negligence, the negligence is alleged and tried, as a fact; as in actions against a farrier, smith, coachman, etc. It is the constant course in such actions to leave the question of negligence to the jury. It appears in Dalston v. Janson, 5 Mod. 90, that the defendant formerly used to plead particularly to the neglect. In 43 Edw. .3, 33; Clerk's Assist. 99; Mod. Intr. 95, and Brown. Red. 101, which were actions founded in negligence, the negligence is traversed. Now a traverse can be only of matter of fact. And here negligence is expressly negatived by the case. However, if the Court should be of the opinion that the carrier is answerable for every loss, unless occasioned by the act of God or the king's enemies, he then contended that, as the act of God was a good ground of defence, this accident, though not within the tvords, was within the reason, of that ground. It cannot be said that misfortunes occasioned by lightning, rain, wind, etc., are the immediate acts of the Almighty; they are permitted, but not directed by him. The reason why these accidents are not held to charge a carrier, is, that they are not under the control of the contracting 102 CARRIERS OF GOODS. party, and therefore cannot affect the contract, inasmuch as he engages only against those events which by possibility he may pre- vent. Lord Bacon, in his Law Tracts, commenting on this maxim. Keg. 5, necessitas inducit j)rivUeijlnm quoad jura jjrivata, says, '"the law charges no man with default where the act is compulsur}- and not voluntary, and where there is not a consent and election; there- fore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as in pre- sumption of law man's nature cannot overcome, such necessity carrieth a privilege in itself." Necessity, he says, is of three sorts, and under the third, he adds, "If a fire be taken in a street, I may justify pulling down the walls or house of another man to save the row from the spreading of the fire." Now in the present case, if any person, in order to stop the progress of the flames, had insisted on pulling down the booth wherein the hops were deposited, and in doing this the hops would have been damaged, the carrier would not have been liable to make good such damage; for it would have been unlawful for him to have prevented the pulling down the booth. It is expressly found, in the present case, that the fire burnt with unextinguishable violence. The breaking out of the fire was an event which God only could foresee. And the course it would take was as little to be discovered by human penetration. Bond, in reply. There are several strong cases where there could not be any negligence. It is not sufficient in these cases to negative any negligence; for everything is negligence Avhich the law does not excuse, 1 Wils. 282. And the question here is, is this a case which the law does excuse ? In Goffe v. Clinkard, cited in Wils. 282, there was all possible care on the part of the defendants. The judg- ment in the case of Gibbon v. Peyton and another, 4 Burr. 2208, which was an action against a stagecoachman for not delivering money sent, is extremely strong; there Lord Mansfield said, 4 liurr. 2030, "a common carrier, in respect of the premium he is to receive, runs the risk of them, and must make good the loss, though it happen without any fault in him; the reward making him answer- able for tlieir safe delivery." Tliat a carrier was liable in the case of a robbery was first held in 9 Ed. 4, pi. 40. A bailee only engages to take care of liis goods as his own, and is not answerable for a robbery; but a carrier insures. 1 Veutr. 11)0, 2.'J8; Sir T. Kaym. 220, s. <;. ; 1 Mod. S.^. In Barclay and lieygena, E. 24, G. 3, B. K., which was an action against a master of a ship to recover the value of some goods put on board his ship in order to be carried to St. Sebastian ; it was jjroved that an irresistible force broke into the sliip in the river Tliames, and stole the goods; yet the defendant was ln-ld answerable. In Suitc.n and Mitoljcl, at the sittings at (iuildhall alter Tr. LTj, (i. 3, the ques- tion was not disputed as far as to tlie value of the ship and freight. carrier's liability. 103 There is no distinction between that case and a land carrier. And there can be no hardship in the Court's determining in favor of the plaintiff; for when the law is once known and established, the parties may contract according to the terms which it prescribes. As to- negligence being a matter of fact, that is answered by the decision in the Company of the Trent Navigation against Wood. Lord jNfAxsFiELD. There is a nicety of distinction betw een the act of God and inevitable necessity. In these cases actual negli- gence is not necessary to suppor t the action. Cur. adv. vult. Afterward Lord Mansfield delivered the unanimous opinion of the Court. After stating the case — The question is, whether the common carrier is liable in this case of fire ? It appears from all the cases for one hundred years back, that there are events for which the carrier is liable independent of his contract. By the nature of his contract, he is liable for all due care and di lige nce; and for any negligence he is suable on his contract. But ther e is a further degree o f responsibility by the c u stom of the realm , — that is, by the common law; a carrier is in the nature of an in surer. It is laid down that he is liable for every accident, except by the act of God or the king's enemies. Now what is the act of God ? I consider it to mean something in opposition to the act of man; for every- thing is the act of God that happens by his permission; everything by his knowledge. But to prevent litigation, collusion, and the' \V necessity of going into circumstances impossible to be unravelled, -v"* the law presumes against the carrier, unless he shows it was done* ^ by the king's enemies, or by such act as could not happen by the- ,^ intervention of man, as storms, lightning, and tempests. "^t^ If an armed force come to rob the carrier of the goods, he is liable; and a reason is given in the books, which is a bad one, viz., that he ought to have a sufficient force to repel it; but that would be impossible in some cases, as, for instance, in the riots in the year 1780. The true reason is, for fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil. In this case, it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man; for it is expressly stated not to have happened by lightning. The carrier therefore in this case is liable, inas muc h as he i s liable for inevitable accident. Judgment for the plaintiff. ."»-<»■ 104 CARRIERS OF GOODS. COLT r. .M'MECHEX. 6 Johns. (N. Y. Sup. Ct.) IGO. 1810. This was an action on the case, against the defendant, as a common carrier of goods for hire, in a certain sloop, called the "Mariraret," between Kinderhook and New York, on the Hudson Eiver. The declaration stated that the plaintiffs were possessed of certain goods, etc., which the defendant, by his servant Matthew M'Kean, master of the said sloop, received on board to carry, trans- port, and convey from New York to Kinderhook landing, for a reas- onable price or compensation, etc., but that the goods were never delivered, etc. I'lea, not guilty. Spencer, J. The plaintiffs have moved for a new trial on two grounels: 1st, For a misdirection to the jury, in stating that the failure of the wind was the act of God; and, 2d, For that the ver- dict was against evidence, on the point submitted to the jury, in relation to the negligence or carelessness of the master of the sloop, after she struck. There can be no contrarie ty of opinion, on the law which renders common carriers liable. However rigid the rule may l>e, t hey are respon sible for every inj ury do ne to goods^ int rusted to them to carry, unless it proceeds fro m the act of God, or the enemies of the land. What shall be con sidered the act of God, as contra-distin- guished from an act resulting from human means, affords the only difficulty in the case. The cause was summed up to the jury on this point, "that if they were satisfied from the whole evidence, that the vessel ran ashore in consequence of tlie sudden failure of the wind, the law would consider it as tlie act of God, and exculpate the defendant." l'>y finding a verdict for the defendant, the jury have believed the testi- mony of Captain M'Kean, and the other witnesses produced by the defendant, in their account of tlie manner and circumstances under which the vessel grounded. The substance of that testimony is, that t he vess e l bein^^ on Iter passa^^e from New York to Kiii(UTliook, late in the montli of N'>venil)er, 1800, proceeded on th e passag e to ^^ ' '■ILM'j ^vhere t: e\ came to^ from thence they weighe d anchor and beat ag ai nst the win d ; from the latenegs - of the season. aiid for f ear of ic ' it:ain was anxious to uu .cc 'Livingstdn' s dock, wliicli was (■.,; ...« .... a place (jf safe ty, and awAvhic h they had nenrlv arrivcl. v,)icn tlie ru'fident ] ia])pen cd ; tliat the wind was 1. ilih- the m to i .nsiderable prog ress, a nd would li.avc l)ecn suffi cient, if it bad coutiiiued, _to li • ' ' ' ' " ' , d the (hifk, in a few more tacks; t_: .,. ... ; shore, an d had ap]iroa f,lied it, as Tjj . w lien they [lut down tin- helm to liring lier CARKIElt'S LIABILITY. 105 about, the jib sail be gan to fill, the vessel par tly changed her tack, when th e wind suddenly ceased blowing, and the headway unde r which the vessel was, shot her on the bank. Captain M'Kean states, that he was well acquainted with the shore, and had before approached as near as he did then, when beating to windward; and that, when standing for the west shore, he had wind enough to enable him to manage the vessel with safety; that as the water fell, the stern of the sloop settled, and did not rise until flood tide, in consequence of which the water rushed in at the windows, and thereby the plain- tiff's goods were wet and damaged. He states, distinctly, that the sudden and entire failure of the wind was the sole cause of the vessel's grounding. The case of Amies v. Stevens, 1 Str. 128, shows that a sudden gust of wind, by which the hoy of the carrier, shooting a bridge, was driven against a pier and overset, by the violence of the shock, has been adjudged to be the act of God, or vis divina. The sudden gust, in the case of the hoyman, and the sudden and entire failure of the w ind sufficient to enable the vessel to beat, are equally to be considered the a ct s of God. He caused the gust to blow in the one case; and in the other, the wind was stayed by Him. It has been said, that the captain was guilty of negligence in attempting to beat, and in approaching the shore as near as he did when the disaster happened, the wind being, as he states, light and variable. It may be observed, that the master had his choice of alternatives, either to improve the wind he then had, in order to reach a place of safety, or to be exposed, in the middle of the river, to the effects of ice. The season of the year, and the interests of all concerned, justified the captain in attempting to reach Living- ston's dock. It was not, as I recollect, pretended, on the trial, that his conduct was improper and unusual, in approaching the shore as near as he did on the tack in which the vessel grounded; at all events, the case does not show that the judge expressed any opinion on that point; and the plaintiff must have had the full benefit of that objection to the captain's conduct. I should undoubtedly have been of opinion, as the captain was situated, taking into view the lateness of the season, the narrowness of the channel, and the fact that he was not nearer the shore than is usual and customary in beating, that he was not guilty of negligence or improper conduct in that respect. No rule of law having been violated, in the charge to the jury, if there even were grounds for saying tliat there is some degree of negligence imputable to the master, that point has been under the consideration of the jur}-, or it Avas not insisted on before them, and, in either case, when the plaintiffs attempt to fix the defendants with a loss from a very rigid rule of law, I should not disturb the verdict of a jury, to give them another opportunity to urge that objection. In the case of The Proprietors of the Trent Navigation 106 CARRIERS OF GOODS. f. Wood, the vessel was sunk, by driving against an anchor, in the river Humber, and the goods were considerably damaged by the accident; it was not pretended by the counsel that this Avas the act of God, and Lord Mansfleld considered it the injury of a private man, within the reason of the instance of robbery. Abbott, in his notice of this case (Abbott, 25G), observes that both parties were held to have been guilty of negligence, the one in leaving his anchor without a buoy, the other in not avoiding it; as when he saw the vessel in the river, he must have known that there was an anchor near at hand; or if it was to be taken, that negligence was impu- table only to the master, who had lel't liis anchor Avithout a buoy, that he was answerable over to the masters and owners of the vessel, whose cargo had been injured. Again, he observes (p. 227), that if a ship is forced on a rock or shallow, by adverse winds or tempests, or if the shallow was occasioned by a recent collection of sand, where ships could before sail with safety, the loss is to be attributed to the act of God, or the perils of the sea. Upon a position so I)lain, in my apprehension, as that the sudden cessation of a wind which was comijetent, at the very moment when the vessel began to come about, for the avoidance of the shoal, was the act of God, and did not arise from the fault or negligence of man, I am at a loss for further illustration. The second point, on which a new trial is sought, was fairly and fully before the jury; and without entering upon it further, I can- not but express my perfect concurrence in 0})inion with them ; the master did everything which could reasonably be expected of him to prevent the vessel from sinking. Accordingly, my opinion is against a new trial. TiioMi'Sox, J., Van Ness, J., and Yates, J., concurred. Kent, Ch. J. I concur in the gener al doctrine, that the sudd en failure of the wi nd wa s an act of_God. It w as an event whicli could not happen by the intervention of man, nor be })rcventcd by human prudence. But I tliink here was a degree of negligence, imjiutable to tlie master, in sailing so near the slmre under a "liglit, variable wind," that a failure in coming about would cast liim aground. He ougljt to have exercised more caution, and guarded against such a probable event, in that case, as the want of wind to bring his vessel about. A common carrier is only to be excused from a loss happening in si)ite of all human effort and sagacity. Trent Navigation v. Wood, 3 Esp. N. 1'. 127 [95]. A casus for- tuifns wa.s defined, in tlie civil law, to be quoil fnfo mntlvglt, nn'ris dilifjentisshno posait contingerc. lUit as this point does not api)ear to have been jarticularly urged at tlie trial, ami tlie verdict nega- tives the charge of negligence; and as the resi)onsibility of com- mon carriers may be dcr-mcd sufliciently strict, I am content not to interfere with thf verdiet, thoiigli I tliink that the evidence would have warranted the conclusion of negligence to a certain extent. J 11(1 gmv lit fur the defendant. cakkier's liability. 107 FRIEND, ETC. V. WOODS. 6 Gratt. (Va.) 189. 1849. Daniel, J. By the common law a carrier is treated as an insurer against all d amage to, or loss of, goods intrusted to him for trans- portation, except such as may arise from the act of God, the act of the enemies of the country, or the act of the owner of the goods. In the case of Murphy, Brown & Co. v. Staton, 3 Munf. 239, it was decided by this Court that the owners of boats engaged in the upper navigation of James River were subject to this rule, and liable for losses arising from the dangers of that navigation. It was also further decided in that case that if a loss happens, the onus lies on the carrier to exempt himself from liability ; and that his defence ' is not sustained by showing that the navigation is attended with so much danger that a loss may happen, notwithstanding the utmost efforts to prevent it, and that the person conducting the boat pos- sessed competent skill, used due diligence, and provided hands of sufficient strength and experience to assist him. ( The propriety of the decision it is believed has not been ques- tioned. We have at least no report of any effort to disturb it. The case may therefore be regarded as settling that the liabilities of common carriers upon our navigable streams are fixed by the com- mon-law rule, and that losses arising from the ordinary dangers of navigation, however great and however carefully guarded against, do not fall within the exception. It is contended by the plaintiffs in error, that the evidence offered by them in the Court below tended to show that the loss sustained by the plaintiff was occasioned by such an extraordinary peril as negatived all legal inference of negligence on the part of the carrier, and made the loss referrible to the act of God ; and that the instruc- tion given by the Court at the instance of the plaintiff was erroneous and prejudicial to them. It appears from the bill of exceptions, that the plaintiff, having proved that he delivered at the Kanawha Salines, in the county of Kanawha, on board of a steamboat in the charge of the defendants, who were the owners thereof, and common carriers, a quantity of salt, to be carried on the said boat to Nashville, in the State of Tennessee, for the transportation of which the defendants were to receive a stipulated freight per barrel; and that the said boat freighted with said salt proceeded on her voyage as far as to the confluence of the Elk River with the Kanawha, when she stranded, sprung a leak, and lilled with water, whereby a portion of the salt was wholly lost, and the balance much damaged and impaired in value; and the defendant s having then introduced evidence tendinis 108 CARRIERS OF GOODS. to prove that the water in the riverjwas in good navii:;able condition ; that the boat was cond ucts through jhe ordinary channel for steam- boat na vigation; that some ei ght or ten days before the boat pro- ceeded on her voyage th ere was a rise of Elk River, a tr ibutary of the Kanawha, a nd the ice gorged at its mouth, and a bar of sand and gravel formed in the channel along which the boat had to pass, and that the oflScers and crew of the boat were ignora nt of the for- matlon of the b ar when the boat stranded upon it, and that the otticers and crew used their efforts to save the salt after the boat had so stranded; the plaintiff moved the Court to instruct the jury upon the law governing the case : Whereupon the Court instructed the jury that if they believed from the evidence that the boat was stranded by running upon a bar previously formed in the ordinary channel of the river, but that the existence of the bar might by human fore- sight and diligence have been ascertained and avoided, although the navigators or those in charge of the boat were ignorant of its exist- ence at the time the boat ran upon it, the defendants were liable for the loss (if any) of the salt freighted by them on the boat occa- sioned by its stranding; although the jury might be satisKed that the defendants, after the boat stranded, used all the means within their power and control to preserve the freight on board the boat from being lost or injured. Among the strongest authorities cited in behalf of the plaintiffs in error are the cases of Smyrl v. Niolon, 2 Bailey's B. 421, and Williams v. Grant, 1 Conn. K. 487. In the former it was held that a loss occasioned by a boat's running on an unknown "snag" in the usual channel of the river, is referrible to the act of God, and that the carrier will be excused; and in the latter it was said that strik- ing upon a rock in the sea not generally known to navigators, and actually not known to the master of the ship, is the act of God. And other authorities go so far as to assert that if an obstruction be secretly sunk in the stream, and, not being known to the carrier, his boat founder, he would be excused. The last proposition stands condemned by the leading cases, both Englisli and American. In the case of Forward v. Pittard, 1 T. li. 27 [97] Lord .Mansfield says, that "to prevent litigation, collusion, and the necessity of going into circumstanfcs impossible to be unravelled, the l;i\v i>n- sumes against tlie carrier, unless he shows it was done by tlie king's enemies, or by such an accident as could not liappen by the inter- vention of man, as st^)rms, liglitning, and tempests." Tlie same doctrine is strongly stated in M 'Arthur v. Scars, 21 Wend. 11. I'.JO, where it is said that " no matter wluit degree of prudence may be exercised by the carrier and his servants; although the delusion by which it is V)afTli'd, or tlic force by wliir-li it is overcome, l)e inevi- table; yet if it bo the result of human mean.s, the carrier is rcsponsil)lc." These cases clearly restrict the excuse of the carrier, for losses carrier's liability. 109 occasioned by obstructions in the stream, to such obstructions as are wholly the result of natural causes. And the cases in which the carriers have been exonerated from losses occasioned by such obstruc- tions as Smyrl v. Niolon, and Williams v. Grant, before mentioned, will, I think, upon examination, be found to be cases in which either the bills of lading contained the exception "■ of the perils of the river," or in which that exception has been confounded with the exception of the "act of God." In the case of M'Arthur v. Sears, a distinction between the two phrases is pointed out. It is shown that the exception "of dangers of perils of the sea or river," often contained in bills of lading, are of much broader compass than the words "act of God; " and the case of Gordon v. Buchanan, 5 Yerg. R. 71, is cited with approbation, in which it is said that " many of the disasters which would not come within the definition of the act of God would fall within the former exception; such, for instance, as losses occasioned by hidden obstructions in the river newly placed there, and of a character that human skill and foresight could not have discovered and avoided." In a note to the case of Coggs v. Barnard, in the American edition of Smith's Leading Cases, 43 Law Lib. 180, the American decisions are collated and reviewed, and a definition is given to the expression "act of God," which expresses, I think, with precision, its true meaning. The true notion of the exception is there held to be "those losses that are occasioned exclusively by the violence of nature ; by that kind of force of the elements which human ability could not have foreseen or prevented; such as lightning, tornadoes, sudden squalls of wind." " The principle that all human agency is to be excluded from creating or entering into the cause of mis- chief, in order that it may be deemed the act of God, shuts out those cases where the natural object in question made a cause of mischief, solely by the act of the captain in bringing his vessel into that particular position where alone the natural object could cause mis- chief: rocks, shoals, currents, etc., are not, by their own nature and inherently, agents of mischief and causes of danger, as tempests , lightning, etc., are. " The act of God which excuses the carrier must therefore, I think, \ be a direct and violent act of nature. » The rule, it is insisted, is a harsh one upon the carrier, and it is argued that the Court should be slow to extend it further than it is fully sustained by the cases. However harsh the rule may at first appear to be, it has been long established, and is well founded on maxims of public policy and convenience; and, viewing the carrier in the light of an insurer, it is of the utmost importance to him, as well as to the public who deal with him, that the acts for which he is to be excused should have a plain and well-defined meaning. When it is understood that no act is within the exception, except such a violent act of nature as implies the entire exclusion of all 110 CARRIERS OF GOODS. human agency, the liabilities of the carrier are plainly marked out, and a standard is fixed by which the extent of the compensation to indemnify him for his risks can be readily measured and ascertained. The rule, too, when so understood, puts to rest many perplexing questions of fact, in the litigation of which the advantage is always on the side of the carrier. Under this rule the carrier is not per- mitted to go into proofs of care or diligence, and the owner of the goods is not required to adduce evidence of negligence till the loss in question is shown to be the immediate result of an extraordinary convulsion of nature, or of a direct visitation of the elements, against which the aids of science and skill are of no avail. So understanding the law, I do not perceive how the defendants in error could have been prejudiced by the instruction complained of, and am of opinion to affirm the judgment. Judgment affirmed.^ EAILPtOAD CO. V. REEVES. 10 Wall. 176. 1869. In error to the Circuit Court for the Western District of Ten- nessee, the case being this: — Reeves sued the Memphis and Charleston Railroad Company as a common carrier for damage to a quantity of tobacco received by it for carriage, the allegation being negligence and want of due care. Tlie tobacco came by rail from Salisbury, North Carolina, to Chat- tanooga, Tennessee, reaching the latter place on the bth of March, 18G7. At Chattanooga it was received by the Memphis and Charles- ton Railroad Company on the 5th of March, and reloaded into two of its cars, about five o'clock in the afternoon. The Memiihis and Charleston Railroad track extends from J In Gordon v. Little, 8 Serg. & Rawle, 533, it was ht-ld that a general usage, Boftcning the responsibility of cnrriors on the westcra waters, wa.s adniissihlf in tluir (lcf.;ncf. Tliis was the rase of n keel-boat sailing from Pittsburg, in Tennsylvania, to H.jpkinhvillf, Kentucky. I'.ut no olfer of that kind was made in the case at bar ; and it may be very questionable, since the late eases in thi.s court denying all restriction even by notice, whcthfr such a custom, which must arise from the management of carriers, wouhl Ijc su-stainable in true ix.liiy, owing to the opening which it gives for fraud and collusion, etc. In Aynmr v. Astor, before citeil, and The Schooner K.-.-side, '2 Sumn, 507, 5C0, n g.niral .(.tiitii.-rcial custom enlargingthe phrase "jK-rilsor (hingcrs of the seas," in a bill of lading, s« as to comi.r.hiiid causes of loss Ijcyond their legal imiK»rt, was denied. Mr. Justice Story, in the last aise, very properiy expresses a ;• !,. r 1 !• luftanro. to tlu^ reccj.tinn «)f such proof in cases where it bos not heretofore 1,.. II uji ii.-d. Ho finally rejicted it, be<-ause it worked a contradi.:ti«in of the written n«recment. Tumcy v. Wilson, 7 Yerg. 340, S. 1'. I'.ut sec Cherr>' v. Holly, 14 Wendell, L'O, and IlarU-r v. liraee, 3 Conn. U. l*. Also l.Awrenco r. M'firegor, 1 Wright, VoZ. ron the point that, for the purpose of charging the company with negligence in shipping the goods over the wrong road, notice to any of its agents was notice to the company. In other Avords, the court held, that the knowledge of the agents residing in the State of Iowa, and transacting the business of the company there, of a place in that State named luka, and that goods destined for that place were to be deposited at the nearest station on the line of the company's road, called Toledo, was the knowledge of the company, so as to make the comi)any responsible for any injury resulting from the mistiike of its agents residing and transacting its bu.siness at the city of Chicago, in the State of Illinois, in forwarding the goods from the latter place by another railroad, instead of over the com- l>any's own road, although such mistake occurred without any negli- gence whatever on the ])art of the agents making it, but after they had taken reasonable and proper care to ascertain the route by which the goods should be forwarded, and had forwarded them in accord- ance with the information so oljtained. This, we think, was an erroneous appli cat io n of the doctrin e that notice to the agent is notice to the_|ii 1. Such noti ce, t o be binding upon the prin- pjlial, must be inui- ■- lo the age n t when acting within the sc()]ie (jf },i^ •, N-ncv. rm d must relate to tlie business, or, as most of the ^. .• it. tlio vprij business, in which he is engaged, or is ^ 'd, by authority' of his ]irincipal. It ^T ,'ent coming to him wliile he is coir- ■ ciiuu. iiii ' i "' tlie courjie ot' t he very t ransaction f ,,f til. suit, o r so near before it tliat the agen t iTl it._Story on Agency, § 40, and 1? KentVCom. 030, and vote, and cases cited. Notice, therefore, to the agents in Iowa, distant some two or three hundred miles from the city of Chicago, who have distinct duties to ])erform, and were n' ♦ ■■* -11 concerned in tlie business of forwarding tlie goods from C. . was not such notice as will bind the company in relation to that business, the same having been transacted by other agents, who had no such notice. Tliis seems very dear when we consider tl . ' nd uj.on which this doctrine of constructive n. I .,,.;. ,1 ic fhurgeable with the; knowli-dge of his a titnti'd iji bin ]ilfioe. nml represi-nts I, 'm to be an carrier's liability. 121 obvious perversion of the doctrine, and to lead to most injurious results, if, in the same transaction, the principal were likewise to be charged with the knowledge of other agents, not engaged in it, and to whom he had delegated no authority with respect to it, but who were employed by him in other and wholly different departments of his business. The complaint charges that the place called luka, in Tama County, Iowa, to which the goods were intended to be sent, was known to the agents of the company residing and doing business along the line of its road in the State of Iowa, and that the station wliere such goods were to be deposited was Toledo. The answer alleges that the same place was unknown to the officers and agents of the com- pany at Chicago ; that they were informed that said luka was situ- ated in Keokuk County, in the State of Iowa, and near the line of the Burlington & Missouri Railroad; that they examined a map of Iowa used by shippers, and kept in the office of defendant, for the purpose of ascertaining where said luka was situated; and that said map represented said luka as being in Keokuk County aforesaid. The answer further alleges that the goods were directed to "C. E. Cox, luka, Iowa," without giving the name of the county , or other directions to indicate to what part of the State, or to wh at railroad station in the State, the same were consigned, or by what line of railroad the same were to be forwarded. It appears to this court , therefore, upon the pleadings that no cause of action for negligence is stated against the co mpa ny, but that^ if there was negligence on the part of any one, it was upon the part of the plaintiff in not hav- ing marked the goods with the name of the county, or otherwise with that of the railway station, or with the line of road by wh ich they were to be sent. The demurrer to the answer should, there- fore, have been overruled; and the order sustaining it must be reversed, and the cause remanded for further proceedings, according to law. MILTIMORE V. CHICAGO, etc. R. CO. 37 Wis. 190. 1875. Action for damages alleged to have been caused by the negligence of the defendant company in transporting a wagon for the plaintiffs, on its cars from Janesville to Chicago. The answer denied negli- gence, and alleged a special contract that the wagon should be trans- ported wholly at the owners' risk in respect to the cause from which the damage resulted. The evidence showed the facts to be, that the plaintiffs, by one Ripley, their agent, applied for transportation of the wagon in an open or platform car, as they desired it shipped without taking it 1-22 CAKKIERS OF GOODS. apart; that the price was agreed upon, and the company agreed that it shoukl be sent on the train which was to leave the same evening at 9.15 o'clock, provided it was received in time, and that, if there was a flat car in the yard, it should be placed where he could run it on; that Ripley applied to the employee of the company, whose duty was to make up trains, for a car, who informed him that they would have a car placed for him, and, if he got the wagon there before 5 o'clock, they would help him load the wagon upon the car; that he took the wagon up to be loaded a little after 5 o'clock. The employees of the plaintiff loaded it upon the car. Two of the employees of the company went back, at Eipley's request, after hours, and helped load it; and one suggested that he take off the wheels, but Ripley said he could fasten them so they would not roll, and tied the wheels, and nailed down blocks upon the floor to keep it from rolling. The company gave a receipt for the wagon which contained the agreement that the company should not be " respon- sible for loss or damage to any . . . article whose bulk rendered it necessary to transport in open cars, . . . unless it can be shown that such damage or loss occurred through negligence or default of the agents of the company." The train, with the car containing the wagon, left for Chicago that evening while a high wind was prevail- ing. The wagon, being in the condition in wliich the plaintiff's agent had left it, was blown off from the car in transit, and injured. The issue was tried by the court, who found that the defendant was negligent in removing the wagon, during the prevalence of the high wind, without taking precaution to secure it to the car, so as to prevent it from being blown off; and that by reason of such negligence the injury occurred. From judgment on the finding the defendant appealed. Cole, J. The learned circuit judge found from the evidence that the defendant company was guilty of negligence in removing the wagon from Janesville, the place of shipment, and in carrying it forward toward Chicago, its point of destination, without taking the ])recaution to secure it to the car, so as to prevent it from being thrown from the car by the violence of the wind jtrevailing at the time. Upon this ground the company was hi-ld liable for the injury to the wagon upon being blown off the car. \Ye feel constrained to dissent from this view of the case. The evidence shows, beyond all doubt or question, that the ])laintiffs Ives chose an open or jdatform car upon which to transport l:i'- V. igon to Chicago. They did not wish to have the wagon taken apart ho that it could be transi)orted in a box car, but chose the platform car, upon which the wagon could be carried standing, as the cheaper mode of conveyance. Tlio company certainly was not It ff)r this manner of transporting the wagon. The evidence < !• ^ owH that the plaintiffs a.ssumcd the labor and responsibility of • the wagftii. TJii.liv w.m tulil wlirii lie bargained for tlie carrier's liability. 123 car, by the agents of the company, that if he got the wagon to the cars before five o'clock, they would help him load it, but if he got there after that time, he would find his car by the freight-house platform, upon which to place the wagon. He got to the freight depot late, but met a couple of the Avorkmen coming away, who went back and aided him in loading the wagon. But Ripley him- self took the entire charge and responsibility of loading the wagon, as it was understood he would do, and of securing it to the car. Whatever means and appliances he deemed necessary and proper to be used to secure the property while in transit, he used, or might have used, without the control or interference of any one. The state of the weather, the nature of the property, its exposure to violent winds, he should have considered and provided for. It seems to us there is no reason for saying that the company was guilty of negli- gence, and did not take due precautions to secure the wagon, in view of the established fact that the plaintiffs undertook to attend to these matters themselves. The company received the property for transportation, loaded and secured as the plaintiffs saw fit to load and secure it; and why should negligence be imputed to it for not taking ijrecautions to guard against the plaintiffs' want of care? It is said the company was exceedingly careless and negligent in attempting to carry this covered wagon at the time and in the man- ner it did, without making any effort to attach the same more firmly to the car. But the obvious answer to this argument is, that the plaintiffs themselves assumed the risk and responsibility of loading and securing the wagon, and the company was not called upon to see that they had properly performed their duty in that regard. The plaintiffs had ordered that the wagon should be sent by the night train, and the agents of the company had agreed to take it, if loaded. According to the testimony of Carter, one of the plaintiffs, the wind blew very hard between eight and nine, while the train on which the wagon was to go did not leave Janesville until 9.15. There was ample time to countermand the order to ship the wagon that night, or to see that it was so secured that it could not be blown from the car by the violence of the wind. It seems to us that whatever negligence there was in securing the wagon must be imputed to the plaintiffs. The case is not distinguishable in prin- ciple from Betts v. The Farmers' Loan & Trust Company, 21 Wis. 81, and the decision there made is controlling here. There the owner of cattle shipped by railroad, who had undertaken to put them in the car, knew that the door of the car was in an unsafe condition, but neglected to inform the station agent, who was igno- rant of the fact; and it was held that he could not recover for injuries received by the cattle in escaping from the car in conse- quence of such defect. So, under the circumstances of this case, it seems to us, the company was not obliged to take further precau- tions to fasten or secure the wagon on the car. The plaintiffs had 124 CARRIERS OF GOODS. taken upon themselves that care and responsibility, and it they failed properly to secure it against the violence of the wind, and it was injured, the loss is attributable to their fault. It follows from these views that the judgment of the Circuit Court must be reversed, and the case remanded with directions to dismiss the complaint. WHITE V. wixxisi:m:\iet CO. 7 Cush. (Mass.) 155. 1551. This was an action on the case against the proprietors of a ferry for an injury to the plaintiff's property, occasioned by his horse and loaded wagon falling overboard from one of the defendants' boats^ while i^assing from Boston to Chelsea. Dewey, J. To a certain extent, persons keeping and maintaining a ferry are common carriers, and subject to the liabilities attaching to common carriers. It would be so, if a bale of goods or an article of merchandise was delivered by the owner to the agent of a ferry company, to be carried from one place to another for hire. Upon receiving such goods for transportation, the ferry company stipulate to carry them safely, and subject themselves to strict liability for the safe carriage and delivery of such goods; being only exempted for losses occasioned by those acts, which are denominated "acts of God, or of a public enemy." The principle above stated would embrace the case of a horse and wagon received by a ferryman to be transported by him on a ferry-boat, the ferryman accepting the exclusive custody of the same for such purpose, and the owner having, for the time being, surrendered the possession to tlie ferryman. But the traveller uses the ferry-boat as he would a tcdl bridge, personally driving his horse upon the boat, selecting his position on the same, and himself remaining on the boat; neither jiutting his liorse into tlie care and cust(jdy of the ferryman, nor signifying to ''!"i or his servants any wish or purjjose to do so; and the only L-ssion and custody, l)y the ferryman, of tlie horse and vehick' to wliich he is attached, is that which necessarily results from the traveller's driving his horse and wagon, or other vehicle, on board tlie boat, and i)aying the ordinary toll for a ])assage; in supIj case, the ferry comi)any would not l)e t'ljargeal)le Avith tlie full liabilitios of common carriers of merchandise. The liability in this case would 1)6 one of a different character; and if the proprietors of the Icrry were chargeable for loss or daniage to the jiroperty, it would be upon difTerrMit jirinciides. In reference to ])ersons thus using the ferry, the '■'■"■• ■•■' have roBponsible duties to perf(n-m; the neglect of which 11. them for the loss of goods and property placed carrier's liability. 125 on board their boat, when tlie loss has been occasioned by their default. It is the duty of a ferry company to provide a good and safe boat, suitable for the business in which they are engaged; and they are required to have all suitable and requisite accommodations for the entry upon, and safe transportation while on board, and the departure from the boat, of all horses and vehicles passing over such ferry. They are required to be provided with all proper and necessary servants and agents requisite for the safe and proper con- ducting of the business of the ferry, and with all proper and suit- able guards and barriers on the boat, for the security of the property thus carried on the boat, and to prevent damage from such casualties as it would naturally be exposed to, though there was ordinary care on the part of the traveller. For neglect of duty in these respects they may be charged, but the liability is different from that of com- mon carriers. The case of such a traveller, though not entirely similar, much more resembles that of a traveller upon a toll bridge or turnpike road; who, while he uses the easement of another, yet retains the possession and custody of his horse and wagon. The party, thus driving his own horse upon the boat, and retaining the custody of him, is bound, like the traveller on the toll bridge or the turnpike road, to use ordinary care and oversight in resj)ect to his horse while on the boat, and if he does not use such ordinary care and oversight in respect to him, and for want thereof the horse leaps overboard, or receives on the boat some injury, all which might and would have been avoided, if the party had used proper care and diligence, such party must himself bear the loss which has thus been occasioned by his own neglect. In deciding upon the nature and extent of the liability of ferry- men, and how far they are to be charged as common carriers, regard is to be had to the nature of the employment, and especially to the thing to be transported. This principle is practically applied in the well-known distinction relating to the liability of the proprietors of stagecoaches and other vehicles, as to the carriage of persons. No person thus carried in a public vehicle can recover damages for an injury to his person, if his own want of ordinary care contributed to the injury. Such carriers are not common carriers, with all the liabilities as such. One reason for the distinction is, that persons thus carried are not and cannot be placed under the same custody and control as bales of goods. Being intelligent beings, and having the power of locomotion, and having the opportunity on the one hand by their own voluntary acts, of exposing themselves to greater hazard, and on the other of guarding to some extent against perils, the law properly requires a person thus carried to exercise ordinary care and vigilance to avoid exposure to danger; and if this is not exercised, and an injury is sustained, the carrier is not liable therefor. The same principle is also further illustrated in the various 126 CAERIEKS OF GOODS. decisions of the courts, in cases of actions instituted for the purpose of charging the carriers of slaves as common carriers of merchandise. It was successfully, and certainly most properly contended, as to the carriage of slaves, that in those States where slavery is allowed by law, and where slaves are to some purposes treated as chattels, yet as they are human beings, and cannot and ought not to be stored away and confined like bales of goods, and placed under the abso- lute control of the carrier, the principle of the common law appli- cable to common carriers of merchandise could not be applied to the carriers of slaves. This was so held in Boyce v. Anderson, 2 Pet. 15U; Clark v. McDonald, 4 McCord, 22.3. As having some bearing also on this question, we may allude to the modification of the principle of general liability as common carriers, in those cases where the owner of goods accompanies them in their transit, retaining a certain control over them, as in Brind V. Dale, 8 Car. & P. 207, where it was held, that if the owner of goods accompanies them to take care of them, and is himself guilty of negligence, he is not entitled to recover. This case also affirms, as a rule of law, a principle often found elsewhere, and which bears directly, as we think, upon the case before us, "that a party cannot recover, if his own negligence was as much the cause of the loss as that of the defendant." Thus we perceive that a modification of the liability attached to common carriers occurs, as the nature of the thing to be carried, and the extent of the custody and control over it, by the carrier, varies. "We think that the propriety of such a modification of what is cer- tainly a very stringent rule of liability, in reference to cases where the entire custody and control of the i)roperty is not with the carrier, is quite obvious. Tlie case of a traveller conveyed by means of a ferry-boat, where the traveller enters upon the boat driving his horse attached to a wagon, or other vehicle, selecting his own place upon the boat, and continuing to retain under his own custody his horse and wagon, ueitlier committing it to the care of the ferryman or his servants, or signifying any wish or purpose so to do, })resents anutlier instance where the lial>ility of the carrier must be considered as of a restricted character; and, as in the case of a carrier of persons, duties devolve upon the traveller, and he is bound to use ordinary care and dili- gence in respect to his horse and vehicle, in order to prevent, as far aa he can, l>y such care, any injury occurring from fright, or from other cause immediately resulting from the movements of the horse. When such horse or other animal is not surrendered into the custody of the ferryman, tlie driver is bound to do all that can be effected by r<-.i s.,ii.'ii,l(. diligoTJCe and supervision, to ])revent a loss of his ])ro])- ciiy (jr(;;t,iioned by his horse l)eeoming restless or aiTriglitcd. If the traveller wholly neglects his duty in this respect, leaving his horse without any oversight, and tlie horse, without the fault of the ferry- carrier's liability. 127 man, becomes affrighted and throws himself and the vehicle to which he is attached overboard, when, by proper care and attention of the driver, this casualty would in all reasonable probability have been avoided, the loss must fall upon the traveller. This case is to be decided by the application of these principles to the agreed facts stated by the parties. These, briefly stated, are as follows: The defendants keep and maintain a ferry between Boston and Chelsea, and the plaintiff, travelling with his horse and wagon loaded with merchandise, drove the horse and wagon upon the ferry-boat of the defendants, paying the usual toll for his horse and wagon. The plaintiff did not occupy the place assigned him by the agent, but selected his own position; no further objection being made after he had taken it. He did not commit the charge of the horse and wagon to the particular custody of the servant of the defendants, or express any wish or purpose to do so. The horse had not been accustomed to pass over upon this ferry-boat. The plaintiff remained on board the boat, but left his horse and was at some distance from him with no one to have an oversight over him, or to restrain him, if frightened. In this state of things, the horse became frightened at the ringing of the bell, as the boat approached the shore, and sprang forward, struck the chain thrown across the forward end of the boat, with such force as to cause the hook connected with it to give way, and thereupon the horse and wagon went overboard. The horse was drowned, and the merchandise in the wagon greatly injured. The facts, as stated, also show that the iron hook, by which the i chain was fastened, was defective and insufficient in strength for' the purposes it was designed to answer; though the defendants and their agent had no knowledge of that fact. This defect was one] for which the defendants were answerable, and which, under other) circumstances, might have charged them with the loss. But, unfor-j tunately for the plaintiff, the facts also show a want of ordinary care and diligence on his part, in the oversight and care of his horse, and that, by want of such care and oversight, this loss was in all probability occasioned. Every person is bound to use reasonable care to prevent damage to his property, and if the injury is attributable to himself in part, he cannot recover, although there may have been negligence on the part of the other party also. This doctrine is fully sustained by the case of Smith v. Smith, 2 Pick. G21, and by 2 Greenl. on Ev. §§ 220, 473, and cases there cited. The court are of opinion that, upon this ground, there must be Judgment for the defendants. 128 CAKKIEKS OF GOODS. HAKT V. CHICAGO, etc. E. CO. 69 Iowa, 485. 1886. Ox the eighteenth day of April, 1S83, plaintiff delivered to defendant, at the city of Des Moines, one car-load of property, •which l;he latter undertook to transport to the town of INIiller, in Dakota Territory. The property shipped in the car consisted of six horses, two wagons, three sets of harness, a quantity of grain, a lot of household and kitchen furniture, and personal effects. The contract under which the shipment was made provided that the horses should be loaded, fed, watered, and cared for by the shipper at his own expense, and that one man in charge of them would be passed free on the train that carried the car. It also provided that no liability would be assumed by the defendant on the horses for more than $100 each, unless by special agreement noted on the contract, and no such special agreement was noted on the contract. Plaintiff placed a man iji charge of the horses, and he was permitted to, and did, ride in the car with them. When the train rejiched Bancroft, in this State, it was discovered that the hay which was carried in the car to be fed to the horses on the trip was on lire. The car was broken open, and the man in charge of the horses was found asleep. The train men and others present attempted to ex- tinguish the fire, but before they succeeded in putting it out the horses were killed, and tlie other property destroyed. This action was brought to recover the value of tlie jjroperty. There was a verdict and judgment for plaintiff, and defendant appeals. Rkkd, .1. 1. There was evidence which tended to prove that the fire was communicated to the car from a lantern which the man in charge of the horses had taken into the car. This lantern was fur- nished l)y plaintiff, and was taken into the car by his direction. Defendant asked tlie Circuit Court to instruct the jury that if the fire which destroyed the property was caused by a ligiited lantern in the sole use and control of plaintiff's servant, who was in the car in charge of the jtroperty, plaintiff coiild not recover. The court refused to give this instruction, but t(dd the jury that, if the lire was occasioned by tlio fa\ilt or ni'gligence of plaintiff's servant, who was in charge of the property, there could bo no recovery. The jury might liave found from the evidence that the fire was communicated to the hay from the lantern, but that plaintiff's servant was not guilty of any negligcnc-n in the matter. Tlie question ])resonted by thin assi'^Munent of error, then, is whether a common carrier ii rispon il'l'- for the injury or destruction of property while it is in the cour ; ansportation, when the injury is caused by some act carriek's liability. 129 of the owner, but which is unattended with any negligence on the part of the owner. The carrier is held to be an insurer of the safety of the prop- erty while he has it in possession as a carrier. His undertaking for the care and safety of the property arises by the implication of law out of the contract for its carriage. The rule which holds him to be an insurer of the property is founded upon considera- tion of public policy. The reason of the rule is that, as the car- rier ordinarily has the absolute possession and control of the property while it is in the course of shipment, he has the most tempting opportunities for embezzlement or for fraudulent collusion with others. Therefore, if it is lost or destroyed while in his cus- tody, the policy of the law imposes the loss upon him. Coggs v. Bernard, 2 Ld. Raym. 909; Forward v. Pittard, 1 Durn. & E. 27 [97]; Riley v. Home, 5 Bing. 217 [169]; Thomas v. Railway Co., 10 Mete. 472; Roberts v. Turner, 12 Johns. 232 [32]; Moses v. Railway Co., 24 N. H. 71; Rixford v. Smith, 52 id. 355. His undertaking for the safety of the property, however, is not absolute. He has never been held to be an insurer against injuries occasioned by the "act of God, or the public enemy, and there is no reason why he should be; and it is equally clear, we think, that there is no consideration of policy which demands that he should be held to account to the owner for an injury which is occasioned by the owner's own act; and whether the act of the owner by which the injury was caused amounted to negligence is immaterial also. If the immediate cause of the loss was the act of the owner, as between the parties, absolute justice demands that the loss should fall upon him, rather than upon the one who has been guilty of no wrong; and it can make no difference that the act cannot be said to be either wrongful or negligent. If, then, the fire which occasioned the loss in question was ignited by the lantern which plaintiff's servant, by his direction, took into the car, and which, at the time, was in the exclusive control and care of the servant, defendant is not liable, and the question whether the servant handled it carefully or other- wise is not material. This view is abundantly sustained by the authorities. See Hutch. Carr., § 216, and cases cited in the note; also Lawson Carr. §§ 19, 23. [The other paragraphs of the opinion relate to the validity of a contract purpoi-ting to limit defendant's liability. The Court holds that in this respect there was no error.] The judgment of the Circuit Court will be Reversed. 9 130 CARRIERS OF GOODS. d. Xature of goods. CLARKE i: EOCHESTER, etc. 11. CO. 14 X. Y. 571. 1856. The action was brought in the Supreme Court, to recover damages for the loss of a horse, by means of the alleged negligence of the de- fendants as common carriers. On the trial before W. F. Allex, J., at the Oneida Circuit, in October, 1853, it appeared tliat the plain tiffs embarked four horses on one of the defendants' earSj at Rochester, to be carried, for liire, eastward the whole length of the defendants' road, and beyond, and that when the train arrived at Auburn it was found that one of them was dead. This horse had a halter around liis head and nose, Avliich was tied to a staple driven into the side of the car. Wlien found, he was lying upon his side, his head still held up by the halter, and blood was running from his nostrils. On the part of the defenceTt was shownTIiat one of the'plaintiffs was present when the horses were put into the car, and assisted in fastening the one Avhich was killed. It appeared that one of tlie plaintiffs was allowed, in the bargain for the carriage, a passage for himself on the train wliich carried the hcjrses, there being a passen- ger car attached to that train, but that he in fact took passage in a passenger train of the defendants, which started at a later hour, and '; which passed the cattle train before it reached Auburn. There was evidence jn'o and coii, as to whether this car was a suitable one for the trausjiortation of horses; the jilaintiffs' witnesses testify that it was too low, and tliose of the defendants that it was one of the kind commonly used for carrying horses. Tlie defendants' counsel moved for a nonsuit, on the ground that the defendants were not responsible for the class of injuries which result, wholly or in part, from the conduct of animals intrusted to them to carry. They also contended that it was tlie duty of the plaintiff, under the facts proved, to have gone in the train with the horses and to have taken care of them, and that the defendants' duty was limited to transporting the car wliich contained them in safety. Tlie motion was denied, and the defendants excepted. The juilge left it to the jury to determine whether, by the con- traot, tiie plaintiff was to go with the horses and take care of them, Stating that in that case the defendants were not responsible. He charged tliat, if such was not the contract, the defendants wer.; responsible, unless the injury was rec(dved by a danger ineiilent to this mode of earringc of this species of jjroperty, and which the defendants could not, by the exercise of diligence and care, prevent, or by inevitable accident; that, in the absence of any agreement to CAKRIEIi's LIABILITY, 131 the contrary, it was the business of the defendants to provide a per- son to look after the horses on their passage, if their safety required such oversight. The defendants' counsel excepted, and there was a verdict for the plaintiffs. The judgment having been affirmed at a general term in the fifth district, the defendants appealed. Denio, C. J. The fact that the plaintiff was allowed a passage for himself on the train in which his horses were carried did not prove conclusively, if at all, that he was to attend to their safety during the journey. It may very well be that he desired to be present at the time and place of delivery in order to take care of them there, and that the privilege of taking passage in the same train was allowed him for that purpose. The charge which per- mitted the jury to find an agreement which would relieve the" defendants from the obligation to keep an oversight of the animals was as favorable to them as they could require. As to the carrier's liability respecting the transportation of this sort of property, several theories have been suggested on the argu- ment and in our consultations upon this case. The plaintiffs contend for the rule that the carrier is bound to transport in safety and deliver at all events, save only the known cases in which a carrier of ordinary chattels is excused, while the defendants maintain that they are not insurers at all against the class of accidents which arise from the vitality of the freight. We are of opinion that neither of these positions is well taken. A bale of goods or other inanimate chattel may be so stowed as that abso- lute safety may be attained, except in transportation by water, where the carrier usually excepts the perils of the navigation, and except in cases of inevitable accident. The rule, established from motives of policy, which charges the carrier in almost all cases, is not therefore unreasonable in its application to such property. But the carrier _^of animals, by a mode of conveyance opposed to their habits and instincts, has no such means of securing absolute safety. They may die of fright, or by refusing to eat, or they may, notwith- standing every precaution, destroy themselves in attempting to break away from the fastenings by which they are secured in the vehicle used to transport them, or they may kill each other. _In_ _such cases, supposing all proper care and foresight to have been exercised by the carrier, it would be unreasonable in a high degree to charge him with the loss. The reasons stated by Chief Justice llarshall, in pronouncing the judgment of the Supreme Court of the United States, in Boyce v. Anderson, 2 Peters, 350, have consider- able application to this case. It was there held that the carrier of slaves was not an insurer of their safety, but was liable only for ordinary neglect; and this was put mainly upon the ground that he could not have the same absolute control over them that he has over inanimate matter. Where, however, the cause of the damage for which recompense is sought is unconnected with the conduct or pro- 132 CAKKIERS OF GOODS. peusities of the animal undertaken to be carried, the ordinary re- sponsibilities of the carrier should attach. Palmer v. The Grand Junction Itailway Company, 4 Mees. & Wels. 74i), was the case of an action against the railway company for negligence in carrying horses, by which one was killed and others injured; but the damage was occasioned by the carriages running off the track of the road down an embankment, and the case did not turn at all on the pecu- liarity of the freight, but mainly on the question whether the defendants had limited their responsibility by a notice. The jury found that notice had not been given and that the defendants had been guilty of gross negligence. 'Mr. Baron Tarke, in giving the opinion of the court, declared that the common-law duty of carriers was cast upon the defendants. The precise question now before us was not discussed, but it was assumed that the law of carriers applied to the case. X^'t-re is no reason why it should not, in all ^ases of accident unconnected with the conduct of the animals. But the rule which would exempt the carrier altogether from accidents arising out of the peculiar character of the freight, irrespective of the question of negligence, would be equally unreasonable. It would relieve the carrier altogether from those necessary precau- tions which any person becoming the bailee, for hire, of animals is bound to exercise, and the owner, where he did not himself assume the duty of seeing to them, would be wholly at the mercy of the carrier. The nature of the case does not call for any such relaxa- tion of the rule, and, considering the law of carriers to be estab- lished upon considerations of sound policy, we would not depart from it, except wliere the reason upon which it is bnsed wliolly fails, and then no further than the cause for the exception requires. We cannot, therefore, assent to the position of the counsel for either of the parties in this case. The learned judge who tried this case gave to the jury the true principle of liability in such cases. Laying out of view the idea of inevitable accident, which it was not jiretended had occurred, he instructed them that the defi-ndants were res])onsible, unless the damage was caused by an occurrence incident^ to the carriage of animals in a railroad car, and which the defendants could not, by the exercise of diligence and care, have prevented. This accords. with our understanding of the law. .There was suflioiont evidence of negligence to be submitted to the jury. Besides wliat was said by the witness as to the size of the car, it^ was qiiite probable tliat if a projier watch had been kej>t, tlie horse would liave been saved from strangulation. It was for the jury to say whether prudence did not require that a servant of tlie defendants should have been stationed in or about the horse-car. 80 as to observe the conduct and comlition of tlie animals constantly or at short intervals. W»r think no error was committed on the trial to the prejudice of the defendants, and that the judgment should be aflirmed. carrier's liability. 133 EVANS V. riTCHBURG R. CO. Ill Mass. 142. 1872. Tort against common carriers to recover for injuries to the plaintiff's horse. Ames, J. According to the established rule as to the liability of a common carrier, he is understood to guarantee that (with the well- known exception of the act of God and of public enemies) the goods intrusted to him shall seasonably reach their destination, and that they shall receive no injury from the manner in which their trans- portation is accomplished. But he is not, necessarily and under all circumstances, responsible for the condition in which they may be found upon their arrival. The ordinary and natural decay of fruit, vegetables, and other perishable articles ; the fermentation, evapora- tion, or unavoidable leakage of liquids ; the spontaneous combustion of some kinds of goods, — are matters to which the implied obligation of the carrier, as an insurer, does not extend. Story on Bailments, §§ 492 a, 576. He^ is liable for all accidents_an d mism anagement incident to the transportation and to the means and applianc es by which it is effected^ but not for injuries produce d by, or re sulting from, the inherent defects or essentia l qu alities of t he articles which he undertakes to^transport^ The extent of his duty in this respect is to take all reasonable care and use all proper precautions to pre- vent such injuries, or to diminish their effect, as far as he can; but his liability, in such cases^ is by no means that of an insurer^ Upon receiving these horses for transportation, without any special contract limiting their liability, the defendants incurred the general obligation of common carriers. They thereby became responsible for the safe treatment of the animals, from the moment they received them until the carriages in which they were conveyed were unloaded. Moffat V. Great Western Railway Co., 15 Law T. x. s. 630. They would be unconditionally liable for all injuries occasioned by the improper construction or unsafe condition of the carriage in which the horses were conveyed, or by its improper position in the train, or by the want of reasonable equipment, or by any mismanagement, or want of due care, or by any other accident (not within the well- known exception) affecting either the train generally or that partic- ular carriage. But the transportation of horses and other domestic animals is not subject to precisely the same rules as that of pack- ages and inanimate chattels. Living animals have excitabilities and volitions of their own which greatly increase the risks and difficulties of management. They are carried in a mode entirely opposed to their instincts and habits; they may be made uncon- trollable by fright, or, notwithstanding every precaution, may 134 CARRIERS OF GOODS. destroy themselves in attempting to break loose, or may kill each other. If the injury in this case was produced by the fright, res- tiveuess, or viciousuess of the animals, and if the defendants exer- cised all proper care and foresight to prevent it, it would be unreasonable to hold them responsible for the loss. Clark r. Rochester «& Syracuse Kailroad Co., 4 Kern. oTO. Thus it has been held that if horses or other animals are transported by water, and in consequence of a storm they break down the partition between them, and by kicking each other some of them are killed, the carrier will not be held responsible. Laurence v. Aberdein, o B. & Aid. 107. Story on Bailments, § 576. Angell on Carriers, 214 a. The carrier of cattle is not responsible for injuries resulting from their viciousness of disposition, and the question what was the cause of the injury is one of fact for the jury. Hall v. Renfro, 3 'Met. (Ky.) ol [25]. And in a New York case, Conger v. Hudson River Rail- road Co., 6 Duer, 375, Mr. Justice AYoodrufE says, in behalf of the court: "We are not able to perceive any reason upon which the shrinkage of the plaintiff's cattle, their disposition to become res- tive, and their trami)ling upon each other when some of them lie down from fatigue, is not to be deemed an injury arising from tlie nature and inlierent character of the property carried, as truly as if the property had been of any description of perishable goods." It appears to uS, therefore, that the first instruction which the defendants requested the court to give should have been given. If the jury found that the defendants provided a suitable car, and took all proper and reasonable precaution to prevent the occurrence of such an accident, and that the damage was caused by the kicking of one horse by another, the defendant was entitled to a verdict. Tliat is to say, they might be held to great vigilance, foresiglit, and care, but they were not absolutely liable as insurers against injuries of that kind. As tliere was evidence also tending to show that tlie halter was attached by the plaintiff to tlie jaw of one of the liorses in a manner which might cause or increase restiveness and bad tem- per, and also evidence that their shoes were not taken off, the defendants were entitled to the instruction tliat if the injuries were caused by the fault or neglect of tlie i)laintiff in these particulars, he could not recover. This court has recently decided that for unavoidal)le injuries done by cattle to themselves or each other, in tlieir passage, the common carrier is not liablf. Smith r. New H;iv.'n & Xorthamj.ton Railroad Co., 12 Allen, 5:51. This is another iiK.il*! of saying that a railroad corporation, in undertaking the trans- portation of cattle, does not insure their safety against injuries occa- sioned by tlieir viciousness and unruly rtmduct. Kendall r. London & Southwestern Riailway Co., L. K". 7 ICx. 373. Tlu- jury should therefore have been instructed that if the injury ha]»i»enf(| in that way, and if thn defendants exercised ]»roper care and foresight in placing and securing the hors<'S while uniler their charge, they are carrier's liability. 135 not to be held liable in this action. Upon this point the burden of proof may be upon the defendants, but they should have been per- mitted to go to the jury upon the question whether there had been reasonable care on their part. Exceptions sustained. KINNICK BROS. v. CHICAGO, etc. R. CO. 69 Iowa, 665. 1886. Plaintiff delivered a car-load of hog;sJo^.defendant.at Drakeville, in this State, for transportation to the Union stock-yards at Chicago. A passenger^ train on defendant's road was thrown from the track near Ottawa, Illinois, and the obstruction caU-Sed by the_ accident delayed the train on which the plaintiff's hogs were shipj^ed for about twelve hours^ When the train arrived at Chicago, eighteen of the hogs were dead, and others were so injured as to depreciate, their value in market. Plaintiff brought this action to recover the damages occasioned by the injury, alleging that defendant had vio- lated its undertaking as a common carrier to deliver the hogs in Chicago within a reasonable time and in good order; also, that the injury was caused by defendant's negligence. The defendant in its answer denied that the delay in delivering the hogs in Chicago was caused by any negligence on its part, and averred that the train was delayed by unavoidable accident; and averred that the hogs were loaded on the car by plaintiffs; that they had full charge of the work of loading them; that, without defendant's knowledge or con- sent, they overloaded the car; and that the injury to the hogs while being transported was occasioned by such overloading. The verdict and judgment were for plaintiffs, a motion for a new trial being denied. Defendant appealed. Reed, J. I. Defendant offered evidence on the trial to prove that the wreck which obstructed the track, and delayed the train on which the hogs were being transported, occurred without fault on its part, and that it caused the track to be cleared and sent the train forward as soon after the accident as practicable ; but the evidence was excluded by the court on the plaintiff's objection. Defendant sought to prove these facts in excuse of the delay in delivering the hogs at Chicago. There was no express undertaking by the defend- ant to transport the property to its destination within any specified time. The law, however, implies an undertaking by it to deliver it there within a reasonable time. But, with reference to the time to be occupied in transporting the property, the carrier is not held to the extraordinary liability to which he is held for its safety while it is in his custody , and he may excuse delay in its delivery by proof 136 CARRIERS OF GOODS. of misfortune or accident, although not inevitable or produced by , act of God (Hutch. Carr., § 330; Parsons r. Hardy, 14 Wend. 215) ; ' so that, if plaintiffs had sought to recover merely on the ground that there was delay in the transportation of the property, there would ! be no doubt, perhaps, but defendant would have been entitled to ; show the facts which the excluded evidence would have tended to ' prove as an excuse for the delay. But that is not the substance of I their complaint. It is true, they allege that there was delay, but they do not claim that they were damaged by the mere fact of the delay, and the ground upon which they seek to recover is that the property was in bad condition when it reached its destination. It was not disputed that the property was in bad condition when it arrived in Chicago. The burden was therefore on defendant to establish facts which would relieve it from liability because of its bad coiuHtion._ It was an insurer of the safety of the property wliile in its charge for trans- portation, and it was not released from that extraordinary liability for its care by the accident which caused the delay, even though it offered an excuse for the delay. It was bound, notwitlistanding the accident, to use the highest degree of care during the delay for the safety of the property. If the removal of the hogs from the car during the time was necessary for their protection from injury, and it was possible to remove them, defendant was bound to do so ; and it was bound to give them whatever personal attention was necessary for their protection from injury during the time. lUit it did not offer to show that it had unloaded them from the cars, or tliat it was impossible to unload them, or that it was not necessary for their safety to unload them, or that the injury did not occur in con- sequence of its failure to give tliem sucli personal attention as was essential to tlieir safety. liut the extent of its offer was to show facts which tended merely to excuse the delay in their transporta- tion. We are very clear that those facts do not afford an excuse for the bad condition of the property at the time of its delivery. The evidence was immaterial, and was rightly exchided. II. It was shown on the trial that it is the disposition of hogs, when being transjjorted on oars, to struggle to get near to the doors when the train is standing, if the weather is hot, and to crowd away from them if it is cold, and that in doing this they are apt to "pile up," and that when this occurs those beneath nr.' liable to be .smothorfd, unless they rccr-ive immediate attention. Tiie court instructed the jury, in effect, that, when the defendant contracted to carry the hogs to their destination, the law imposed upon it the obligation to carry them in a ijrojier manner, and deliver them in good condition, considering the ordinary perils of tlie road, and that, if it failed to deliver them in sueh eondition, it w.as resjion- sible in fl;.tn . '..s for such failure. The instruction holds that defendant ■ ; insurer of tlie safety of the property, and that its carrier's liability. 137 liability extended to all injuries to the property during its trans- portation, except such as may have resulted from the ordinary perils of the road, such as the usual shrinkage in weight, and such loss from death as would ordinarily occur on the trip with good care and management. Counsel for appellant contend that, as the cause of the injury in question was connected with the natural propen- sities and characteristics of the property, it was one against which the carrier is held not to be an insurer, and that the instruction is erroneous on that ground. It was held in effect, by this court in McCoy v. Keokuk & D. M. R'y Co., 44 Iowa, 424, that, when the cause of damage for which recompense is sought, is connected with the character or propensities of the animals undertaken to be carried, the ordinary responsibility of the carrier does not attach. The reasons for the exception to the general rule as to the liability of the carrier, which arises when he undertakes to transport live-stock, are very apparent. There are dangers incident to the transportation of that character of property which are created entirely by the disposition and propensities of the animals, and against which it is often impossible for the carrier to make adequate provision. But the rule of the common law is modi- fied only so far as is rendered necessary by the character of the property in this respect. In every other respect the carrier is held to be an insurer of the property. In our opinion, the present case is not within the exception to the rule. The injury was caused by the '•' piling up " of the hogs while struggling to get near to or away from the doors of car. The pro- pensity, however, was to do this only when the train was standing. Owing to the obstruction of the track, it was kept standing at a station for twelve hours, and, without doubt, it was during that time that the injury occurred. But the danger was not one against which provision could not be made. The injury might have been prevented either by unloading the hogs or giving them personal attention while in the car. There is no claim that this could not have been done, and we think defendant was bound to do it. As there Avas nothing shown which tended to take the case out of the general rule, the court was right in instructing that defendant was bound by that rule. III. Plaintiffs loaded the hogs on to the car without assistance or direction from defendant's agents or employees. Defendant claimed that the car was overloaded, and that the injury was caused by such overloading. The court instructed the jury that, if defendant had knowledge of the number of hogs in the car, and of the condition of the car as to the loading when it received it, or if it might have known these facts, it could not escape liability for the damage on the ground that the car was overloaded. Exception is taken to this instruction. But we think it correct. It is not claimed that there was any deceit or misrepresentation by plaintiff as to the condition 138 CAKRIERS OF GOODS. of the car or to its loading. Defendant's agent, who made the con- tract for it, went to the car after the loading was done, and closed and sealed it. There was nothing to prevent him from seeing the manner in which it was loaded. As defendant received the jjroperty nnder these circumstances, and undertook to transport it to its des- tination, it should be held to have assumed all the liabilities of a common carrier with reference to it. The judgment of the District Court will be Ajffiryncd. e. Carrier^s Fault or Xegligence. SCOVILL V. GRIFFITH. 12 X. Y. 509. 1855. Action' commenced in the Supreme Court in 1S40 against the defendant as a common carrier to recover for his omission to trans- port to and deliver at Albany merchandise, shipped by the plaintiffs on board the defendant's boat at New York, consigned to Albany, whereby, as the plaintiffs alleged, the property, being of the value of three hundred and twenty-four dollars, became lost to them, and they also lost the benefit of the sale of the same to one CJreenman, to their damage of one hundred dollars; the plaintiffs demanded judgment for four hundred and twenty-four dollars, being the amount of the value of the merchandise and the damages alleged to have been sustained by not selling it. The cause was tried in the city of New York, before Mr. .Justice Edwards and a jury. It ai)peared that on and prior to tiie 24th of May, 1841), the defendant was the owner of a lino of barges, known as "Griffith's New York and Troy Line," emjjloyed in transporting goods and merchandise on the Hudson River; that tlie plaintiffs were merchants in the city of New York; that prior to the delivery of the ])roperty in question on board the defendant's boat, the plaintiffs had contracted to sell it to one Greeninan, they to deliver it at the store of Ainsworth & Northroj), in Albany, when it was to become his. A witness on the part of tlie jdaintiffs testified that on the 2'M of May, the defendant agreed with tlie jjlaintifTs to transport all the merchandise tliey might desire to send to Troy or Albany at six cent.s a package; that the defendant, on this occasion, informed tlie plaintiffs that his boats diil not go to Albany, but tliat when they wished the goods to go to All)any, to send tlie carman with them to lii.s office, and ho would give directions as to the l)oat tliey slutuld be delivered uj)on. White, a carman, sworn on belialf of the jtlaiii- tiffs, testifii-d that on the li4th of May lie, at the plaintiff's re(iuest, carrier's liability. 139 delivered nine packages of medicine on board the barge "McCoun," then lying at one of the piers in New York, she being one of the boats belonging to the defendant's line, to be transported and delivered at Albany; that when he received the packages he took with him the plaintiff's receipt book with the receipt hereinafter set out Avritten therein, except the name of the boat and the signa- ture thereto; that he called with the goods at the office of the defendant's line to get directions as to the boat upon which they should be delivered ; that he showed the receipt written in the book to a person in the office, who directed him to deliver the packages on board the "McCoun;" that on going to the boat the cajjtain, Wilson, when he saw the goods were marked for Albany, refused to receive them, saying the boat did not go there ; but upon being informed by the witness that there was an understanding with the defendant that they should be taken on the boat, he received them, inserted the name of the boat in the receipt, and signed it. The receipt was as follows : — " New York, May 24, 1849. "Eeceived from A. L. Scovill & Co., in good order, on board the Griffith's line, bound for Albany, marked S., S. H. Greenman. " Care of Ainsworth & Northrop, ] McCoun, "No. 15 State street, Albany, j 9 boxes Mdse. "Wilson." This witness further testified: That when the captain saw the packages marked as stated in the above receipt, he said they should be marked Troy instead of Albany, and that he, the witness, replied that they were correctly marked, and showed him the above receipt prepared for signature, and also informed him that he was directed at the office to deliver them on that boat; that the captain still declining to receive and receipt them, he commenced reloading them on his cart, when the captain told him that his boat did not go to Albany, but to leave the goods and he would take them ; that there- upon they were delivered on board and the receipt signed. The plaintiffs further proved, that the usual time for transporting mer- chandise from New York to Albany was twenty-four hours; that Greenman, who resided in the western part of the State, advised Ainsworth & Northrop that the property would be delivered there for him about the 26th of May, and that he called and sent there for it several times soon after that date, and that, it not arriving, he gave them no further directions in reference to it. The plaintiffs further proved that the packages were taken by the boat to Troy, where they remained in the defendant's warehouse until the 7th of July, 1849, when they were delivered by the defendant to a carrier to be taken to Albany and delivered to Ainsworth & Northrop; and that the carrier on tliat day took them to the latter firm at Albany and offered to deliver them, subject to the payment of five shillings, 140 CARKIERS OF GOODS. his charge for bringing them from Troy ; but the latter firm refused to receive the goods because, as they stated, the time for delivery had passed and they had orders not to receive the i)roperty ; and that thereupon the carrier stored the packages in Albany, where they remained at the time of the trial. The plaintiff proved the value of the property to be S324. The court, among other things, charged the jury that if, from the testimony, they should find that there Avas an agreement by the defendant, or those whose acts would bind him, to carry the prop- erty in question to Albany, then a question arose as to the rule of damages. That mere delay, although unreasonable, did not make the defendant chargeable for the value of the goods. That in this case there was no claim that the property was injured or deteriorated by the delay. That if they had been materially injured or deteri- orated, this might authorize an abandonment of them by the owner, and give the plaintiffs a right to charge the defendant for their value; but as it was, the rule would be the difference between the highest market price of the goods, when or after they should have been delivered, and wlien they were actually tendered, and tlie expense the plaintiffs were put to by the delay. To this portion of the charge there was no exception. The plaintiffs' counsel requested the judge to charge, that if there was an agreement to carry the goods to Albany, that unreasonable delay in the delivery of goods made the defendant liable to account for their full value; that tlie law imposed tliis liability upon com- mon carriers, as a penalty for delay, although it might not be so with other bailees. The court refused to so charge, and the counsel for the plaintiffs excepted. The jury rendered a verdict in favor of the plaintiff for §10; and judgment was rendered in favor of the defendants for the amount of their costs, less the SlO. This judg- ment was atlirmed by the Supreme Court at a general term in the 1st district. The plaintiffs appealed to this court. Hand, J. Tlie jury have found the contract of bailment in this case, and assessed the damages for its violation by the defendant. As to the time in which liis contract is to be performed, a common carrier is bound to use all reasonalde diligence. That was not done in this case; and on the (jnestion of damages, the jury probably took a view of the circumstances very favorable to the defendant. lUit their verdict cannot be disturbed solely ujmn tliat ground. Nor did the judge err in the admission of evidence as to the circumstances under whicli the receipt was given. The ])roposition was not to vary or explain the terms of the receijjt; and the defendant liad a right to show, if such was the fact, tliat it was obtained from liis agent or servant under sucli circumstances as did not bind him. There wa.s no exce])tion to tl>e charge as given; and the only ques- tion really ari.sing on this bill of exceptions is, whether tlu' judge should have told the jury that, if there was a contract to carry the cakrier's liability. 141 goods to Albany, the plaintiffs were entitled , as a matter of law, to recover the fi;ll value of the goods on account of the delay. The plaintiffs asked for an unqualified charge on this point, without reference to the motives of the defendant, or any circumstances that might be supposed to explain the transaction. I think the judge could not have charged as requested. The plaintiffs state in their complaint that the property was wholly lost to them, and that they lost the sale to Greennaan. But the testimony does not sustain that allegation; not in a legal sense. Before the Code, a good way of ascertaining legal obligations was by considering the remedies by which they Avere enforced. A sup- posed uniform and universal remedy in all cases has, in a measure, deprived us of these aids ; but still some light may be obtained from analogy. This property was, from some cause, detained in Troy, some half dozen miles from Albany, about six weeks; and the defendant, during that time, made no effort to send it to its desti- nation. This was inexcusable delay, and undoubtedly entitled the plaintiffs to all real damages sustained by them which were the natural consequence of the neglect. But it does not follow that the plaintiffs had a right to refuse and abandon the property and recover its full value. There is no evidence of a refusal to deliver, nor, indeed, that the plaintiffs ever demanded the property or gave the defendant notice that it had not been received. They were not bound to do either to give them a right of action. But the judge could not say to the jury, as matter of law, that there had been a conversion; nor does it appear that the property had deteriorated in condition or had seriously depreciated in value, nor was it lost. Where there has been a deterioration and loss, the carrier is liable. Davis V. Garrett, 6 Bing. 716; Ellis v. Turner, 8 T. E. 531; Story on Bail. § 508. In Ellis v. Turner, which was an action on the case, the carrier conveyed the goods beyond the place of destina- tion, intending to deliver them on his return, but they were greatly damaged by the sinking of the vessel without any want of ordinary care or attention of the master or crew, and the carrier was held liable to make good the loss. Under the former system, to main- tain trover against a carrier, there must have been an unjustifiable refusal to deliver, or delivery to a wrong person, or sale or destruc- tion, or some actual wrong or injurious conversion ; something more than mere omission. Packard v. Getman, 4 Wend. 613; Hawkins V. Hoffman, 6 Hill, 586; 2 Saund. R. 49. i. k. m. It was not necessary that the wrong should be intentional; but, as a general rule, a mere nonfeasance did not and does not work a conversion. And indeed every unauthorized intermeddling with the property of another is not a conversion. It was held by the Court of Exchequer in England that the act of the ferryman in putting the horses of the plaintiff on shore out of his ferry-boat, though the jury should find it was done wrongfully, was not a conversion of the property, 142 CARRIERS OF GOODS. unless done with the intent to convert it to his own use or that of some third person, or unless the act had the etfect to destroy it or change its quality. Fouldes r. AVilloughby, 8 M. .Sc W. 540. If it had appeared in this case that the defendant, from gross negligence, evincing a disregard of his contract and the rights of the plaintiffs, had carried tlie property by and on to another port, and had, with actual knowledge of all the facts, kept it several weeks, 1 am not prepared to say the jury might not have found that there was some- thing more than omission, or that the evidence would not have sus- tained a verdict that the defendant was guilty of conversion, if rendered under a proper charge from the court. However, that point need not be decided here, for it was not raised upon the trial; plaintiffs putting this part of their case upon the ground of mere delay, insisting that the defendant should pay for the property as a penalty for that delay, and thus, as it were, impliedly treating the case as a continuing bailment, rather than one of loss or actual conversion to the use of the defendant. If the facts of the case would not have sustained trover, the remedy would naturally have been an action of assumpsit or case; and the plaintiffs have not shown that they would have been entitled to recover for the full value of the property in either of those actions. . . . Tlie judgment should be affirmed. BLACKSTOCK v. NEW YORK, etc. R. CO. 20 N. Y. 48. 1859. Appeal from the Superior Court of the city of New York. The action was brought against the defendant as a common carrier, for a delay in the carriage of a large quantity of j.otatoes in barrels and sacks, from llornellsville in Steuben County, to the city of New York. They were received by the defendant on different days in June, 1854, and would have been delivered, according to tlie usual course of business, witliin five days, but they were detained about seventeen days, and when delivered were found to have become unmercliantable, and were nearly wortldess on account of the delay in their transportation. Tlie delay was occasioned by the refusal of a large number of the defendant's engineers (110 out of a total number of lOS) to^work, uu.l.T tlie following circumstances: On the 15th of ISIay, 1S54, the defendant adopted a new rule for the government of its engineers, to the effect that they were respectively to be accountable f«)r run- ning the train off the track at a switch, at atiy station where the train .should atop. This rule was a substitute for a former one ui)on carrier's liability. 143 the same general subject, which had been found impracticable, and which had not therefore been enforced. The referee before whom the case was tried, found, in substance, that the new rule was a reasonable and proper one, which ought to have been submitted to by the engineers. They did perform their duties under it for a time, but when it was ascertained that it would be steadily enforced , a combination, which is called in the case "a strike," was entered into, and they gave notice that they should stop work unless the regulation should be rescinded in two days. That not being done, they refused to perform any further services, and persisted for four- teen days ; at the expiration of which period they returned to their duties, and have since served under the new rule. The defendant used diligent efforts to procure other engineers to run its trains, but was not successful. The delay in transporting the ix)tatoes was owing to the circumstances mentioned. The potatoes were owned by, and the cause of action (if any) accrued in favor of, one Eosbotham, who had assigned it to the plaintiff. The referee found that the conduct of the defendant's engineers did not furnish a defence, and reported in favor of the plaintiff for $800 damages, for which judgment was entered and aifirmed at a general term. The case was submitted on printed briefs. Denio, J. The position that the defendants are not responsible, because the misconduct of their servants was wilful and not negli- gent, cannot be sustained. The action is not brought on account of any injury done to the property by the engineers , but for an alleged non-performance of a duty which the defendants owed to the owner of the property. If their inability to perform was occasioned by the default of persons for whose conduct they are responsible, they must answer for the consequences without regard to the motives of those persons. In the common case of a contract for services, as for building a house, which the builder had been unable to perform because his workmen had abandoned his service, proof that their conduct was wilful and every way unjustifiable would not give the party injured an action against them, nor would it excuse the party who had made the contract. A similar point was taken in Weed v. The Panama Kailroad Company, 17 N. Y. 362, where the miscon- duct of the defendants' servants in detaining a train of cars was active, but it was held not to furnish any answer to the action for the detention. The cases in which it has been held that if a ser- vant, while generally engaged in his master's business, wilfully commit a trespass, as by intentionally driving his master's carriage against the carriage of another person, the master is not liable, have no application to the present case. It has been repeatedly held, and may be taken as settled law, that a carrier is not under the same absolute obligation to carry the goods intrusted to him in the usual time which he is to deliver them ultimately at their destination. Conger v. The Hudson River E. E. 144 CARRIERS OF GOODS. Co., 6 Duer. 375; Wibert r. The X. Y. & Erie K. R. Co., 2 Kern. 245. But in the absence of a legal excuse, he is answerable lor auy delay to forward them in the time which is ordinarily required for transportation, by the kind of conveyance which he uses. In the case referred to from Kernan's Reports, we held that where a railroad was fully equipped with engines and freight carriages, but more property was ottered at a particular point than could be sent forward at once, the delay was justifiable, provided no unfair prefer- ence wa^ given to other freight over that of the plaintiff. In the present case, the excuse arises wholly out of the misconduct of the defendants' servants who wrongfully refused to perform their duty, and thus deprived the defendants, for the time, of the ability to send forward the property ; and the question is whether the defend- ants' ease can be separated from that of the engineers, so that it can be held that though the latter were culpable, their employers, the defendants, were without fault, and consequently not responsible to the plaintiff. This involves a consideration of the legal effect of the relations which exist between these several parties. In the first l)lace, there was no privity between the plaintiff" and the engineers. The latter owed no duty to the former which the law can recognize. If they had committed a positive tort or trespass upon the property, the owner might pass by the employers and hold them resi)onsible, but for a nonfeasance, or simple neglect of duty, they were only answerable to their employers. The maxim in such cases is respon- deat superior. Story on Agency, § 3U9; Denny v. The Manhattan Co., 2 Denio, 115; s. c. in error, 5 id. 639. Although the nature of the contract between the railroad company and the engineers is not disclosed in the finding, it is quite improbable that it was such that the latter might throw up their employment upon two days' notice without any legal cause. If it were of that character, the liability, moral as well as legal, would rest upon the defendants, for in that case they would have neglected a most ordinary i)recaution for secur- ing the continuous running of their trains. Assuming then that abandoning their work was a breach of contract on the part of the engineers, they by that act became resjjonsible to the defendants for all its direct consequences. The case therefore is one in wliich the actual delinquents, through whose fault the injury was sustained, were responsible to the defendants, Imt were not responsible to the plaintiff. This shows the ecpiity of the rule, whidi holds the mas- ter or employer answerable in such cases. Its policy is not less apparent. Those who intrust their goods to carriers have no means of ascertaining the character or disposition of their subordinate a^'oiits or servants; they have no agency in their selection, and no cuutrol over their actions. In the case of a loss by the misconduct of a servant, the party injured has no means of ascertaining whether due caution was exercised by the master in employing him, or pni- dence in retaining him; and in the case of a controversy between carrier's liability. 145 the master and the servant as to which was the real delinquent, the owner of the property must generally be without the necessary evi- dence to charge the liability upon the master. The rule which the law has adopted, by which the master is held responsible for the acts of his servants, is the one best calculated to secure the observ- ance of good faith on the part of persons intrusted with the property of others. The motive of self-interest is the only one adequate to secure the highest degree of caution and vigilance by the master. The principle itself is extremely well settled. Story on Agenc}', § 452; 2 Kent Cora. 259; Harlow v. Humiston, 6 Cow. 189; Ellis V. Turner, 8 Term E. 531. I cannot see anything in the circumstances of the defendants to take the case out of the rule. Being a corporation, all their business must necessarily be conducted by agents, and if they are not liable for their acts and omissions, parties dealing with them have no remedy at all. A railroad corporation is no doubt peculiarly ex- posed to loss from the misconduct of its engineers; and in the present case it does not appear that the slightest blame can attach to any of the superior officers of the company. Still the property intrusted to the defendants to carry has been lost from a failure on their part to perform the duty with which they were charged, and the only answer which they are able to make to the demand for compensa- tion is that the failure was caused by the misconduct of their ser- vants. This we have seen cannot avail them as a defence. I have looked into the exceptions to the rulings of the judge upon the trial, and think those rulings were in both the instances where exceptions were taken entirely correct. The judgment of the Supreme Court must be affirmed. GEISMER V. LAKE SHORE, etc. R. CO., Appellant. 102 N. Y. 563. 1886. Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made at the October Term, 1884, which overruled defendant's exceptions and directed judgment for plaintiff on a verdict (reported below, 34 Hun, 50). This action was brought to recover damages for alleged negligence on the part of defendant in the performance of a contract for trans- portation of livestock. Earl, J. We are of opinion that the learned trial judge fell into error as to rules of law of vital and controlling importance in the disposition of this case. 10 146 CAKRIEKS OF GOODS. A railroad carrier stands upon the same footing as other carriers, and may excuse delay in the delivery of goods by accident or mis- fortune not inevitable or produced by the act of God. All that can be required of it in any emergency is that it shall exercise due care and diligence to guard against delay and to forward the goods to their destination; .and so it has been uniformly decided. "Wibert v. X. Y. & Erie Railroad Co., 12 N. Y. 245; lilackstock r. X. Y. c^- Erie Railroad Co., 20 id. 4S. In the absence of special contract there is no absolute duty resting upon a railroad carrier to deliver the goods intrusted to it within what, under ordinary circumstances, would be a reasonable time. Xot only storms and floods and other natural causes may excuse delay, but the conduct of men may also do so. An incendiary- may burn down a bridge, a mob may tear up the tracks or disable the rolling stock or interpose irresistible force or overpowering intimi- dation, and the only duty resting upon the carrier, not otherwise in fault, is to use reasonable efforts and due diligence to overcome the obstacles thus interposed and to forward the goods to their destination. While the court below conceded this to be the general rule, it did not give the defendant the benefit of it because it held that the men engaged in the violent and riotous resistance to the defendant were its employees for whose conduct it was resi)onsible, and in that hold- ing was the fundamental error committed by it. It is true that these men had been in the employment of the defendant. But they left and abandoned that employment. They ceased to be in its ser- vice or in any sense its agents, for whose conduct it was responsible. They not only refused to obey its orders or to render it any service, but they wilfully arrayed tliemselves in positive hostility against it, and intimidated and defeated the efforts of employees who were will- ing to serve it. They became a mob of vicious law-breakers to be dealt with by the government, whose duty it was, by the use of adequate force, to restore order, enforce jiropcr rosjicct for i>rivate property and private rights and obedience to law. If th«>y had burned down Ijridgcs, torn u]) traeks, or gone into ])assenger cars and assaulted passengers, ui)iin what principle could it be held that as to such acts they were the employees of the defendant for whom it was responsible? If they had sued the defendant for wages for the eleven days whi-n they were thus engaged in blocking its busi- nes.s, no one will claim that they could have recovered. It matters not, if it be true, that the strike was conceived and organized while the strikers were in the emi)loyment of the defend- ant. In doing that, they were not in its service or .seeking to pro- mote its interests or to discharge any duty thoy owed it; but tliey were engaged in a matter entindy outside of their employment and seek- ing their own ends and not the interests of the defendant. The mischief did not come from the strike — from the refusal of tlie C AERIE r'S liability. 147 employees to work, but from their violent and unlawful conduct after they had abandoned the service of the defendant. Here upon the facts, which we must assume to be true, there was no default on the part of the defendant. It had employees who were ready and willing to manage its train and carry forward the stock, and thus perform its contract and discharge its duty; but they were prevented by mob violence which the defendant could not by reason- able efforts overcome. That under such circumstances the delay was excused has been held in several cases quite analogous to this which are entitled to much respect as authorities. Pittsburg & C. E. R. Co. V. Hogen, 84 111. 36; Pittsburg, C. W. L. R. Co. v. Hallowell, 65 Ind. 188; Bennett v. L. S. & M. S. E. E. Co., 6 Am. & Eng. E. Cas. 391; I. & W. L. E. E. Co. v. Juntzen, 10 Bardwell, 295. The cases of Weed v. Panama E. E. Co., 17 N. Y. 362, and Blackstockj\ N. Y. &Erie E. E. Co., IBosw. 77; affirmed, 20 K Y. >^ 48 [142], do not sustain the plaintiff's contention here. If in this *^ case the employees of the defendant had simply refused to dis- r* "^ charge their duties, or to work, or had suddenly abandoned its ser- ^^ ^ vice, offering no violence, and causing no forcible obstruction to its " business, those authorities could have been cited for the maintenance of an action ujpon principles stated in the opinions of those cases. Judgment reversed.^ DAVIS V. GAEEETT. Common Pleas. 6 Bing. 716. 1830. The declaration stated, that theretofore, to wit, on 22d of Jan- uary, 1829, at London, in the parish of St. Mary-le-Bow, in the ward of Cheap, the plaintiff, at the special instance and request of the defendant, delivered to the defendant on board a certain barge or vessel of the defendant called the "Safety," and the defendant then and there had and received in and on board of the said barge or vessel from the plaintiff a large quantity, to wit, 114^ tons of lime of the plaintiff of great value, to wit, of the value of £100, to 1 Where employees suddenly refuse to work, and are discharged, and delay results from the failure of the carrier to supply promptly their places, such delay is attrib- utable to the misconduct of the employees in refusing to do their duty, and this misconduct in such case is justly considered the proximate cause of the delay ; but when the places of the recusant employees are promptly supplied by other competent men, and the "strikers" then prevent the new employees from doing duty by lawless and irresistible violence, the delay resulting solely from this cause is not attributable to the misconduct of employees, but arises from the misconduct of persons for whose acts the carrier is in no manner responsible. Per Dickey, J., iu Pittsburg &c. R. Co. V. Hazen, 84 111. 36. 148 CAKKIERS OP GOODS. be by the defendant carried and convej-ed in and on board the said barge or vessel from a certain place, to wit, Bewly Cliff in the county of Kent, to the Kegent's Canal in the county of Middlesex, the act of God, tlie king's enemies, lire, and all and every other dangers and accidents of the seas, rivers, and navigation, of what nature or kind soever excepted, for certain reasonable reward to be therefore paid b)^ the plaintiff to the defendant : that the said barge or vessel afterwards, to wit, on, etc., at, etc., departed and set sail on the intended voyage, then and there having the said lime on board of the same to be carried and conveyed as aforesaid, except as afore- said, and it thereby then and there became and Avas the duty of the defendant to have carried and conveyed the said lime on board of the said barge or vessel from Bewly Cliff to tlie Kegent's Canal, the act of God, and such other matters and things excepted as were above mentioned to have been excepted by and according to the direct, usual, and customary way, course, and passage, without any voluntary and unnecessary deviation or departure from, or delay or hindrance in the same; but the defendant, not regarding his duty in that behalf, but contriving and wrongfully intending to injure and prejudice the plaintiff in that respect, did not carry or convey the said lime on board of the barge or vessel from Bewly Cliff aforesaid to the Kegent's Canal, although not prevented by the acts, matters, or things excepted as aforesaid, Or any of them, by and according to tlie direct, usual, customary way and passage, without any volun- tary and unnecessary deviation or departure from, or delay or hin- drance in the same, but on the contrary thereof, afterwards, and before the arrival of the said barge or vessel as aforesaid at the Kegent's Canal, the defendant by one Jolin Town, the master of the said barge or vessel, and the agent of the defendant in the behalf, to wit, at, etc., without the knowledge and against the will of the plaintiff', voluntarily and unnecessarily deviated and departed from and out of such usual and customary way, course, and passage, with the said l>arge or vessel so having tlie said lime on board of tlie same, to certain ])arts out of sucli usual and customary course and passage, to wit, to a certain place called the East Swale, and to a certain place called Whitstable Bay, and did then and there volun- tarily and unnecessarily carry and navigate tlie said barge or vessel with the lime on board tliereof as aforesaid to the said i)arts (mt of such usual and customary course and passage as aforesaid, and delay and detain the said hist-nientioned barge or vessel witli the lime on board thereof, for a long space of time, to wit, f<»r the space of twenty-four hours then next following: and the said barge or vessel 80 having the said lime on board of the same, was by reason of such deviation and departure, and delay and detention out of sufh usual and customary course and passage, and before her arrival at the Regent's Canal aforesaid, to wit, on, etc., at, etc., e}^)osed to and assailed by a great storm and great and lieavy sea, and was thereby carrier's liability. 149 then and there wrecked, shattered, and broken, and by means thereof the said lime^f the plaintiff so on board the said barge or vessel as aforesaid, became and was injured, burned, destroyed, and wholly lost to the plaintiff, to wit, at, etc., whereby the plaintiff lost divers great gains, profits, and emoluments, amounting to a large sum of money, to wit, the sum of £50, which he might and otherwise would have made thereby, to wit, at, etc. At the trial before Tindal, C. J., London sittings after Michael- mas Term last, it appeared that the master of the defendant's barge had deviated from the usual and customary course of the voyage mentioned in the declaration, without any justifiable cause; and that afterwards, and whilst such barge was out of her course, in consequence of violent and tempestuous weather, the sea communi- cated with the lime, which thereby became heated, and the barge caught fire; and the master was compelled, for the preservation of himself and the crew, to run the barge on shore, where both the lime and the barge were entirely lost. A verdict having been found for the plaintiff, Taddy, Sergt., obtained a rule nisi for a new trial, or to arrest the judgment. Tindal, C. J. There are two points for the determination of the court upon this rule: first, whether the damage sustained by the plaintiff was so proximate to the wrongful act of the defendant as to form the subject of an action ; and, secondly, whether the decla- ration is sufficient to support the judgment of the court for the plaintiff. As to the first point it appeared upon the evidence that the master of the defendant's barge had deviated from the usual and customary course of the voyage mentioned in the declaration with- out any justifiable cause; and that afterwards, and whilst such barge was out of her course, in consequence of stormy and tempestuous weather, the sea communicated with the lime, which thereby became heated, and the barge caught fire, and the master was compelled for the preservation of himself and the crew to run the barge on shore, where both the lime and the barge were entirely lost. Now the first objection on the part of the defendant is not rested, as indeed it could not be rested, on the particular circumstances which accompanied the destruction of the barge; for it is obvious that the legal consequences must be the same, whether the loss was immediately, by the sinking of the barge at once by a heavy sea, when she was out of her direct and usual course, or whether it hap- pened at the same place, not in consequence of an immediate death's wound, but by a connected chain of causes producing the same ulti- mate event. It is only a variation in the precise mode by which the vessel was destroyed, which variation will necessarily occur in each individual case. But the objection taken is, that there is no natural or necessary 150 CARRIERS OF GOODS. connection between the wrong of the master in taking the barge out of its proper course, and the loss itself; for that the same loss might have been occasioned by the very same tempest, if the barge had proceeded in her direct course. But if this argument were to prevail, the deviation of the master, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the plain- tiff to recover. For if a ship is captured in tlie course of deviation, no one can be certain that she might not have been captured if in her proper course. And yet, in Tarker c. James, 4 Campb. 112, where the ship was captured whilst in the act of deviation, no such ground of defence was even suggested. Or, again, if the ship strikes against a rock, or perishes by storm in the one course, no one can predicate that she might not equally have struck upon another rock, or met with the same or another storm if pursuing her right and ordinary voyage. The same answer might be attempted to an action against a defendant who had, by mistake, forwarded a parcel by tlie wrong conveyance, and a loss had thereby ensued; and yet the defendant in that case would undoubtedly be liable. But we think the real answer to the objection is, that no wrong- doer can be allowed to apportion or qualify his own wrong; andtliat as a loss has actually happened whilst his wrongful act was in oper- ation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss, if his wrongful act had never been done. It might admit of a different construction if he could show, not only that the same loss might have happened, but that it must have hajipcned if the act comjilained of had not been done; but there is no evidence to that V extent in the present case. Upon the objection taken in arrest of judgment, the defendant relies on the authority of the case of Max v. Roberts. The first ground of objection ui)on which the judgment for the defendant in that case was aflTirmed is entirely removed in the jiresent case. For in this declarati(uj it is distinctly allegcil that tlie defendant had and received the lime in and on l)oard of liis barge, to br l.y hiiu carried and conveyed on the voyage in question. As to the second objection mentioned by the learned Lord, in giving the judgment in that case, viz., that there is no allegation in the dfclaration that there was an undertaking to carry directly to Waterford, it is to be observed, that this is mentioned as an addi- tional ground for the judgment of the Court, after one in whicli it may fairly be inferred from the language of the Chief Justice that all the judges had agreed; and whieh first objectioTi a])])ears tons amply .sufTieient to 8Upi)ort the jiidgment of the Court. Wr cannot, therefore, give to that second reason the same weight as if it were the only ground of the judgment of the Court. And, at all events, carrier's liability. 151 we tliiuk there is a distinction between the language of this record and that of the case referred to. In the case cited, the allegation was, that it was the duty of the defendant to carry the goods directly to Waterford ; but here the allegation is, " that it was his duty to carry the lime by and according to the direct, usual, and customary way, course, and passage, without any voluntary and unnecessary deviation and departure." The words usnctl and customary being added to the word direct, more particularly when the breach is alleged in "unnecessarily deviating from the usual and customary way," must be held to qualify the meaning of the word direct, and substantially to signify that the vessel should proceed in the course usually and customarily observed in that her voyage. And we cannot but think that the law does imply a duty in the owner of^a vessel, whether a general ship or hired for the special ^purpose of the voyage, to proceed without unnecessary deviation in the usual and customary course. TVe therefore think the rule should be discharged, and that judg- ment should be given for the plaintiff. Rule discharged. CONSTABLE v. NATIONAL STEAMSHIP CO. 154 U. S. 51. 1894. Mr. Justice Brown. This case invqh^es the liability: of a s_team- ship company for the loss^by fire of a consignment of _^ood_sjinloaded without personal noticeto jhecons.ignee upon the^ wharf of a com- pany other thanthe one owning the ve_ssel.__ By the Limited Liability Act, Eev. Stat. 4282 [721], no ship-owner is liable to answer for the loss of any merchandise shipped upon his vessel by reason of any fire " happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner," and in the case of The Scotland, 105 U. S. 24, the exemptions and limitations of this act were held to apply to foreign as well as domestic vessels. A similar exemption from fire happening with- out the "fault or privity" of the owner is contained in the British Merchants' Shipping Act of 18.54, 17 and 18 Vict. c. 104, sec. 503. The bill of lading in this case also contains exemptions of liability from loss caused by fire "before loading in the ship or after unload- ing." There is no comma after the word "loading" or "ship," Init obviously it should be read as if there were. In view of the fact that, under no aspect of the case, would the owner of the vessel be liable for the consequence of any fire occurring, on board of such a vessel without his fault, and that an attempt is made in this case 152 CAKKIEKS OF GOODS. to impose the liability, not of a warehouseman, but of a common carrier and insurer against fire, after the contract of carriage has been fully performed, it would seem that such liability ought not to be raised out of the contract in this case except ujion clear evi- dence, and for the most cogent reasons. The liability of the com- pany for the goods, while upon the wharf is a mere incident to its liability for them while upon the ship; and if the liability is more extensive under the incidental contract of storage than it was under the principal contract of carriage it is an exception to the general rule that the incidental liability of a contracting party is not broadei;_ than his liability upon the principal contract. It is claimed, however, that the berthing of tliis ship at a pier other than her own was in legal effect a deviation, which rendered the company an insurer of the cargo discharged at such pier without notice, until its actual delivery to the consignee. In tlie law mari- time a deviation is defined as a " voluntary departure without neces- sity, or any reasonable cause, from tlie regular and usual course of the sliip insured." 1 Bouvier's Law Diet. 417; Hostetter v. Park, 137 U. S. 30, 40; Davis v. Garrett, 6 Bing. 71G; Williams v. Grant, 1 Conn. 487; as, for instance, where a ship bound from New York to Norwich, Conn., went outside of Long Island, and lost her cargo in a storm, Crosby v. Fitch, 12 Conn. 410; or where a carrier is guilty of unnecessary delay in pursuing a voyage or in the transpor- tation of goods by rail. Michaels v. N. Y. Central Kailroad, 30 X. V. oOJ. But, if such deviation be a customary incident of the voyage, and according to the known usage of trade, it neither avoids a polify of insurance, nor subjects the carrier to the responsibility of an insurer. (Jliver v. ^Maryland Ins. Co., 7 Cranch, 4S7; Colum- bian Ins. Co. V. Catlett, 12 Wheat. 383. In Hostetter v. Park, l;57 U. S. 30, it was held to be no deviation, in the I'ittsburg and New Orleans barge-trade, to land and tie up a tow of barges, and detaoli from the tow such barge or barges as were designated to take on cargo en roi/fc, and to tow tlie same to the several points where the cargo might be stored, it having l)een .shown that sueh delays were within the general and established usage of tlie trade. So, in Gracie v. ^Marine Ins. Co., 8 Craneh, 75, it was held to be no devia- tion to land goods at a lazaretto or quarantine station, if tlie usage of the trade permitted it, thf)ug]i l)y the bill of lading the goods were "to be safely landed at Leghorn." See also J'heljis r. Hill. 1 Q. li. D. (1891), 005. Upon the whole case we are of opinion : — 1. That the stipulation in the bill of lading that res])on(lent should not be liable for a fire hajijieiiin" at'tcr unloading the cargo WM reaHonable and valid. 2. That tlie discharge of the cargo at the Inman pier was not, in carrier's liability. 153 the eye of the law, a deviation such as to render the carrier an insurer of the goods so unladen. The decree of the Circuit Court is therefore affirmed. STEAMBOAT LYNX v. KING. 12 Mo. 272. 1848. King and Fisher brought their action against the "S. B. Lynx," on a contract of affreightment. A parcel of wheat (880 sacks) , was shipped on board the " Lynx " and her barges, from a place in Illinois, above the lower rapids, consigned to K. & F. at St. Louis. The barge that contained the wheat was brought down in tow by the "Lynx," to the head of the rapids. The water was too low for the boat to descend the rapids with her barges in tow, and therefore the barge which contained the wheat (and other wheat belonging to others) , after being lightened by putting 200 sacks of wheat on board of the "Lynx," was taken down to the foot of the rapids at Keokuk in safety, and in the manner accustomed there, and was moored there in the accustomed place, and was stanch and well manned. In the after part of the same day, while the barge was waiting for the " Lynx " to descend the rapids, a violent storm arose, and forced a great quantity of the water of the river over the gunwale and into the barge, by which a portion of the wheat was wet. Every effort was made by the crew to protect the barge and its cargo from the storm and Avetting. The hands worked all night, and part of the next day, to free the boat from water. The storm and wetting of the wheat occurred in the evening and night of Tuesday, and in the afternoon of Wednesday, the " Lynx " descended the rapids, and tak- ing the barge in tow, ran down to St. Louis in thirty hours, arriv- ing there on Thursday evening, and delivered the freight on the levee next day, Friday. The time was the latter part of May, and the weather was very warm and damp, with frequent rains. The defendant moved the court for the following instruction : " If the jury believe from the evidence that the wheat in question was damaged by an unavoidable accident of the river, and not by the negligence of the officers and crew of the 'Lynx,' they ought to hnd for the defendant, as to the wheat." Which instruction the court refused to give, but gave to the jury, at the instance of the plaintiffs, the following: — " It was the duty of the defendant to use all the means in his power to cause the wheat to be dried after it was wet by the storm ; 154 CARRIERS OF GOODS. and if the jury believe from the evidence that the wheat might have been dried by the defendant, and he did not do it, then the defend- ant is liable for all damage to the wheat by reason thereof." Under this instruction, there was a verdict for the plaintiffs, and a motion for a new trial, which was overruled; and the defendant brings the case here by a writ of error. Is'aptox, Judge, delivered the opinion of the court. The only question presented by this record arises out of the refusal of the court to give an instruction asked on behalf of the boat, and the giving an instruction for the plaintiffs King & Fisher. The instruction given was this: "It was the duty of the defendant to use all the means in his power to cause the wheat to be dried after it was wet by the storm; and if the jury believe from the evi- dence that the wheat might have been dried by the defendant, and he did not do it, then the defendant is liable for all damages to the wheat by reason thereof." The instruction refused was as follows: " If the jury believe that the wheat in question was damaged by an unavoidable accident of the river, and not by the negligence of the officers and the crew of the ' Lynx, ' tliey ought to find for the defendants." The doctrine that a common carrier is responsible for all losses, except those occasioned by the act of God, or the public enemy, or such others as are expressly excepted in the bill of lading, has been uniformly maintained in this State. Dagget v. Price «& Shaw, 3 Mo. R. 2G4. Exi)erience has shown the general results of this principle to be highly beneficial in the main, although perhaps its application in x^articular cases may have been harsh, and we should regret to see any departure from it. But when the carrier is held responsible, not only for every damage not occasioned by inevitable accident, but also for the consequences of such accidents themselves, in cases where any possible skill or labor could restore the value of the property injured, either in whole or in part, the doctrine, it strikes us, is carried to an extent not warranted by the law, and ni>t justified by reason or principle of public policy. In order to view this matter in a proper light, we must recur to the original and well-scttlod jirinciple, — a currier is responsible for all losses brought about by liis own acts, or want of action, for every loss which could have been prevented by human exertion, with the exceptions heretofore stated. 11 a tempest springs up, or dauiage from any other quarter tlircatcns, lie is certainly to use all iimjior exfTtions to ]»revent loss, and when an injury lias been sustained by •■ . -Mse beyond his power to prevent, to use every means to jtrevent ..;r injury. A damage may result to tlio bailment after an injury received from inevitable accident, whidi. altliougli it wouhl not have happened liae held to devolve upon the class of navigators which has succeeded them. The abstract principle, however, avowed in this opinion of Bird V. Cromwell, we cannot consider as api)licable to the circum- stances of the jjresent case. The other judges concurring, the judgment is reversed, and the cause remanded. cakrier's liability. 157 BEARD V. ILLINOIS CENTRAL R. CO. 79 Iowa, 578. 1890. Action to recover damages for injury sustained by plaintiffs from the negligence of defendant in transporting a car-load of butter, which it had received from an intermediate carrier, whereby the butter was greatly injured. There was a verdict and judgment for plaintiff. Defendant appeals. Beck, J. I. The plaintiff delivered to the Burlington, Cedar Rapids & Northern Railway Company, at West Union, in two consignments, a large quantity of butter for transportation to New Orleans. The facts as to both separate consignments are identical. In the further statement of facts they will be referred to as but one transaction. The butter was put in refrigerator cars by the com- pany first receiving it and was transported therein over connecting roads to St. Louis, where it was transferred by drays across the river, and delivered to the St. Louis, Alton & Terre Haute Rail- way Company, known as the "Cairo Short Line," and put in a common box car, and a lined fruit car, each of which was sealed, as is usually done, and sent on the same day to Duquoin, Illinois, and delivered to defendant, which transported it to New Orleans, in the same cars. The butter was not examined by defendant, and no attempt was made to ascertain its condition, on the probability that it could or would not be transported in the cars, without injury, to New Orleans. The Cairo Short Line Company billed the butter to New Orleans at a rate of freight charges for common cars. It appears that the consignment took the usual course of transaction between defendant and the Cairo Short Line, at Duquoin. It is not shown that plaintiff, or the initial or connecting carrier, made any demand of defendant or the Cairo Short Line Company for a refrig- erator car, or for the protection of the butter from the effects of heat by the use of ice in the common car in which it was transported, and it is not shown that plaintiff, or the initial carrier, or the con- necting companies to St. Louis, had any notice or information in any way, directly or indirectly, of the shipment of the butter with- out protection from the effects of the heat, nor did they have any notice or information of the practice and course of business adopted by defendant and the Cairo Short Line at Duquoin. We are required to determine whether, under the law upon these facts, the defendant is liable. The discxission of this question will dispose of certain objections made by the counsel of defendant to the rulings of the court below upon instructions and admissions of evidence. II. We will proceed to inquire as to the duty of defendant upon receiving the butter in a car from the Cairo Short Line for trans- 158 CARRIERS OF GOODS. portation to New Orleans, without directions or instructions as to the character of the car in which it shoukl be carried. A carrier's duty is not limited to the transportation of goods delivered for car- riage. He must exercise such diligence as is req^uired by law to protect the goods from destruction and injury resulting from condi- tions which, in the exercise of due care, may be averted or counter- acted. He must guard the goods from destruction or injury by the elements; from the effects of delays; indeed, from every source of injury which he may avert, and which, in the exercise of care and ordinary intelligence, may be known or anticipated. Unknown causes, or those which are inherent in the nature of the goods, and cannot be, in the exercise of diligence, averted, will not render the carrier liable. The nature of the goods must be considered in deter- minijig the carrier's dutj . Some metals may be transported in open cars. Many articles of commerce, when transported, must be pro- tected from rain, sunshine, and heat, and must have cars fitted for their safe transportation. Live animals must have food and water, when the distance of transportation demands it. Fruit, and some other perishable articles, must be carried with expedition and pro- tection from frost. So the carrier must attend to tlie character of the goods he transports. He is informed thereof byJuspectioji_of the freight-bills, or by other papers accompanying the shipment. In the case before us the marks on the packages and the way-bill disclosed that the subject of shipment was butter. The employees of defendant were endowed with intelligence which taught them that the season was summer, when warm weather prevailed; that butter, in common cars, would be greatly injured by the ordinary heat of the climate; and that the butter, as it approached its des- tination, would be suljject, by reason of the change of latitude, to greatly increased heat from the weather. All these things are familiarly known to all men. Surely, the law will presume that defendant's employees liad full knowledge thereof. Tlje law re- quired the defendant, having received the i)erishable cargo involved in this suit, to exercise the care and diligence necessary to i)roteet it; and, if improved cars for the transportation of articles of com- merce liable to injury from heat were in use, it was defendant's duty to use such cars in carrying the butter. These views are supported by the following, among other cases: llewett v. Railway Co., (V.i Iowa, nil; Sager V. Kailway Co., 31 Me. L'l'S; Hawkins v. Railway Co., 17 Mich. 02; IS Mieh. 127; Railway Co. r. I'ratt, 22 Wiill. 12;i; Wing V. Railway Co., 1 IFilt. 211; Merchants' Dispatch cV Trans. Co. V. Cornforth, 3 Colo. 2.S(». As to the duty of defen.lant to use cars so constructed and used as to avoid injury from lie.it, see Hutch. Carr., sec. 2'.M; lioscowit/ v. Express Co., *.».'! 111. r.2.~»; Steinway r. Railway Co., 43 N. Y. 123. III. But it is said: (1) That defendant did not liave refrigerator cars which it could liavo used on the day it received tlie butter; carrier's liability. 159 (2) that the cars were sealed; (3) that it was accustomed to haul the cars received from the Cairo Short Line witliout changing the cai'go. We may here assume that defendant will be excused from using refrigerator cars. But it is shown that the butter could have been carried safely by the use of ice in the box cars. It was defend- ant's duty to use it. But, having accepted the butter for transporta- tion, defendant cannot escape liability for not safely transporting it, on the ground that it did not have cars sufficient for that purpose. Railway Co. v. Swift, 12 Wall. 262; Helliwell v. Railway Co., 7 Fed. Rep. 76; Paramore v. Railway Co., 53 Ga. 385. The sealing of the car was not to protect it from defendant, the carrier having it under control. Surely, if it was necessary for the protection of the goods, defendant had full power to enter the car, and failure to exercise^ the power was negligence. Dixon v. Railway Co. , 74 N. C. 538. The custom of the defendant and Cairo Short Line cannot be invoked to protect one or both from negligence causing destruc- tion to goods transported by them. A custom to take cars without changing the goods in them, when their safety demanded it, would be a custom based upon negligence, and cannot be regarded or enforced. Hamilton v. Railway Co., 36 Iowa, 31; Allen v. Railway Co., 64 Iowa, 95. IV. It is said that the rate of charges, as shown by the way-bill, was for common cars, and the defendant, therefore, undertook to furnish no other kind. If the freight charges fixed in the way-bill do not express a contract that the butter may be transported so as to destroy its value, and that the carrier is excused from the exer- cise of the care required of him by law, we think the freight charges in no case will limit the care to be exercised by the carrier, and restrict his liability. The defendant was not restricted, by the rate ■ of freight charges named in the way-bill, from claiming and enfor- cing the payment of a just compensation for charges incurred on account of outlays made in order to safely transport the goods. Sumner v. Railway Association, 7 Baxt. 345. Many of the rulings of the District Court upon the admission of evidence and instruc- tions objected to by defendant, are in accord with the views we have expressed. V. Evidence was admitted, against defendant's objection, tend- ing to show that a custom prevailed among carriers by railroads to put butter into cold storage, when refrigerator cars were not ready to receive it. This evidence was objected to, on the ground that the petition contained no allegation of negligence by reason of the failure of defendant to put the butter into cold storage. But the petition does charge negligence on the part of defendant in not taking proper precautions to preserve the butter. The evidence tends to show what precautions ought to have been taken in this case. Besides, the evidence serves to show that defendant's excuse for sending the butter in the common car, and for not retaining it 160 CARRIERS OF GOODS. until a refrigerator car on defendant's road came along, is not suffi- cient. It is shown that such a car was run on defendant's trains on two or three days each week. VI. The Superior Court, in the seventh instruction given, directed the jury that they could infer that the butter was in good order when received by defendant, from the fact that it was shipped in good condition, in a refrigerator car, for St. Louis. Of this instruction defendant complains. It is correct. The presumption arises that goods shipped in good order continue in that condition when in the hands of a connecting carrier. The burden rests on such carrier to show that they were not in good condition when received by him. Hutch, on Carr., sec. 761; Shriver v. Railway Co., 24 ]\linn. 50G [414]; Leo v. Railway Co., 3(» Minn. 438; Laughlin v. Railway Co., 28 Wis. 204; Dixon v. Railway Co.. 74 N. C. 538; Paramore v. Railway Co., 53 Ga. 385. VII. The defendant, in its answer, set up as a defence that plaintiffs had fully compromised this claim for loss of the butter with preceding connecting carriers, transporting the butter to defendant. The court witlulrew the issue ujion this defence from tlie jury, on the ground that there was no evidence supporting the defence. Of this ruling the defendant now complains. The court, we think, ruled rightly. The evidence totally fails to show a settle- ment. The most that could be said is that the evidence shows l)ropositions for settlements, and agreements to settle. But it is not shown, as is alleged in defendant's answer, that there was in fact a settlement and payment thereon, and a discharge of the claim. The action of the court in this regard is correct. The foregoing discussion disposes of all the questions requiring consideration in this opinion. The judgment of tlie District Court is Ajffinncd. 5. LIMITATION OF LIAinLTTY. a. What valid. Gir.T'.ON V. RAYNTON. King's Bench. 1 T.urr. 220s. 1709. Tins was an action against the R-irmingliain stagecoaclimfin, for £UM) in money sent from Rirmingliam to London by his coaoli, and lost. It was hid in hay, in an old nail-bag, Tlic bag and tin' liay arrived safe; but the money was gone. Tlie coachman had inserted an alishod an advertisemi-nt, in '-.■..■ iiibcT, 180S, which he had sent rouinl to all the silk-traders who th UHcd his wagon, and amongst otlufrs to the ])laintifi". announ- cing that he would not be accountable for any i>ackagc wliatsoever, LIMITATION OF LIABILITY. 165 above the value of £20, unless entered, and an insurance paid, over and above the price charged for carriage, according to their value, and that no such insurance had been paid in tliis case; the plaintiff answered this by proving a former advertisement circulated by the defendant containing special terras for the carriage of silk, viz. , Os. Ad. per cwt. , while for ordinary bulky articles he charged ds. only, and he contended that the higher price of 95. 4d. per cwt. included the premium of insurance. It was admitted that if the goods had been delivered, the plaintiff would have paid for them at the rate of 95. M. per cwt. Some other persons paid a halfpenny per lb. of silk, besides the price of carriage, for insurance. Shejyherd, Sergt. , for the defendant, contended that the claim for insurance meant the same thing as if the defendants had said, if goods are of a certain value, we must receive a halfpenny more in every pound of their value for carrying them; and as the plaintiff had not engaged to pay that, he could not make the defendant in any wise responsible for the loss. Lawrexce, J., thought, that as a specific sum was paid for the carriage, and something was to be paid over and above the carriage for insurance, the word insurance must be applied to those risks against which a carrier is bound by law to insure, qua insurer, as fire, robbers, armed force, and the like, and that the sum required for insurance must be received as the price of guarding against those accidents ; but that without the payment of any such insurance, he was still bound to guard against loss by exposure, carelessness, driving into the river, or the like; otherwise a carrier might receive the price of carrying the goods, and nevertheless be as careless as he pleased : in this case it did not appear that the parcel was not lost through mere negligence ; there was good reason why a carrier should be made acquainted with the value of the goods committed to him, that he might take the greater precaution against fire, or take greater force to resist felons; but here the defendant was satisfied with the price of the carriage, and undertook to carry for that price, but claimed something further for insurance : what does that mean? surely not for insurance against his own default of duty! It was incumbent, therefore, on the defendant to show that he took reasonable care of them, not on the plaintiff to prove a negative, and that the defendant took no care of them. The jury, under his direc- tion, found a verdict for the plaintiff, for £126 damages, with liberty reserved to the defendants to move for a new trial, or nonsuit, as they might be advised. Shepherd, Sergt., having, accordingly, in the present term, obtained a rule nisi to enter a nonsuit, Best and Vaughan, Sergts. , on this day, showed cause; when Lawrence, J., upon reporting the evidence, said, that at the time of the trial he had not read the case of Nicholson v. Willan, 5 East, 507. In that case there was no distinction in the advertisement 1C6 CARRIERS OF GOODS. between the price of carriage, and the price of insurance, but the distinction was tiiken in argument, and relied on; the court, how- ever, held the defendant not liable. Best contended that this differ- ence in the two advertisements materially distinguished the present case from that of Nicholson v. AVillan; here the contract is, that a certain price shall be paid for carriage, and an insurance over and above that: therefore, inasmuch as the contract is to be taken most strongly against the party who words it, the price of carriage is the cumpensation for the labor and diligence to be bestowed, and the price of insurance is the price for covering those risks which are purely accidental. [Lawrexce, J. In Nicholson v. Willan it was very doubtful whether the goods had gone by any carriage.] By the stiitutes 3 & 4 W. & M. c. 12, and 21 G. l\. c. 28, the price of car- riage is to be fixed by the magistrates at their quarter sessions, and the latter statute inflicts a penalty of £5 upon carriers who bring goods to London, for taking a higher price than is allowed by the sessions of the county from which they set out; and this statute is nut, as it has been supposed, repealed by any subsequent act; but if these stiitutes be now in force, it is impossible that a carrier can refuse to carry goods for the price which the sessions fix. [Heath, J. It does not appear that any order of sessions has been made in the present case.] The case of Oppenheim ?». Russell, 3 Bos. & Bull. 42, contradicts the position, that though a carrier cannot get rid of his whole responsibility, he may vary it in any shape that he pleases. All four of the judges there held, that a carrier could not create a lien upon the goods delivered to him for his general balance, because he was bound by the law of the country to receive and carry goods for a reasonable reward. [Lawken'ce, J. That was a lien as against the owner of the goods to whom they were consigned: the court did not say that the carrier could not have a general lien against the party sending the goods, if he were also the owner.] But as the law hinds the carrier equally to insure as to carry, if he cannot jiresrribe the terms on which he will carry, so neither can he pre- scribe the terms on which he will insure j or, if he may, yet it is not competent to him to require payment for an insurance against his own negligence, by which, so far as appeared, this loss was f'rTasioned. Nay, more, it was the effect of his own cupidity; for *' wagon formerly was advertised as going with a light and a guard, : inasmuch as the defendant had never publicly countermanded • advertisement, the plaintiff had a right to supj)Ose that it was still lighted and guarded; he was also bound to have a wagon secure from tiieft, to which he has rendered it more liable by taking off the ' ' without giving any notice of the alteration he continued the same rate of carriage as he did when the bows were . tlie wagon guarded, wliieh is a gross fraud. The non- it of the price of insurance cannot exonerate the carrier from Ihe duty of ordinary diligence and care; if he wishes to avail him- LIMITATION OF LIABILITY. 167 self of his renunciation of the character of insurer, he must show that the loss happened by an insurable accident, and not by tliat degree of negligence against which every man who undertakes to do anything for hire, is bound to guard. The case of Tyly v. Morrice, Carth. 485, and all the old cases, are cases where a deceit is put upon the carrier as to the value of the goods, and he is relieved against it. Lane v. Cotton, Salk. 18, Lord Holt, Ch. J., says, "It is a hard thing to charge a carrier; but if he should not be charged, he might keep a correspondence with thieves, and cheat the owner of his goods, and he should never be able to prove it." This is not only sound law, but excellent sense, as well as great authority. Lyon v. Mells, 5 East, 430. The carrier had given notice "that he would not be liable for any damage which should happen to a cargo, unless it were occasioned by the want of ordinary care in the master or crew of the vessel, and in such case, he would pay £10 per cent upon the loss, provided it did not exceed the value of the vessel and freight; and that persons desirous of having their goods carried free of any risk might have the same so carried by entering into an agreement for the payment of extra freight, proportionable to the accepted responsibility." Yet where a loss happened by the vessel not being seaworthy, the owner was very properly held liable to the whole extent of the loss, though it was not one of the events in which he consented to be in any case nor to any amount liable. Ellis V. Turner, 8 Term Rep. 532. The defendant endeavored to avail himself of a similar notice, but the master of the vessel having car- ried the goods beyond the place where they were to be delivered, and at which she touched and delivered a part, and the ship being lost on the ulterior voyage, it was held that the owner was liable beyond the £10 per cent for the full amount of the loss. It would be carrying the matter much further than the cases have hitherto gone, to say that because a person does not insure, therefore he shall have no remedy for a loss which is not occasioned by insurable perils. The contract in this case is not very explicit, but it is to be expounded with at least as much liberality towards the public as towards the carrier. If, then, it had been expressly worded that the defendant would not be liable for any loss incurred by the neg- ligence of himself or his servants, unless an insurance over and above the charge for carriage were paid, would not the court reject those words, and say that he should not require a premium for insurance against losses which might happen for the want of that care which is paid for in the price of carriage? Shepherd, contra. The cases of Lyon v. IVIells, and Ellis v. Turner, are not applicable ; the first was decided on the ground of gross negligence in the carrier, who had accepted the goods to carry, not upon the ground that he might not limit his responsibility. In the second case the goods were not lost in the course of the carriage which the defendant had undertaken, but he had gone beyond the 168 CAKUIEUS OF GOODS. point where they were to be delivered. If the h\w that carriers may limit their responsibility be wrong, the legislature alone can alter it; but it probably is the wisest policy to leave things to lind their own level; if the law fixed the same price for goods of the highest as of the least value, no one would be a carrier. To show that the law had long been so established, he cited Ken rick /•. Eg-b'^^t.'". Aleyn,93; Tyly r. :Morrice; Gibbon r. Paynton, 4 lUirr. I'Ss [160]; Clay v. Willan, 1 H. Bl. 298; Izet c. Mountain, 4 East, 371. A warehouse-keeper may be answerable for a loss by fire, if the loss happens by his especial gross negligence; but in general, a warehouseman is not answerable for that species of loss. So a car- rier, like any other person, may be liable for gross negligence, but if he makes an esjjecial acceptance of the goods, he is not liable unless the plaintiff shows that he is guilty of this gross negligence. It would be impossible for the defendant ever to prove the negative, that he was not guilty of gross negligence. Rothwell r. Davis, B. R. sittings after the last Easter Term, before Bayley, J., the carrier gave notice that he would not be answerable "unless the goods were entered, and properly paid for." Nothing was paid but tlie booking, and it wiis held that the plaintiff could not recover. So, in this case, the carriers require the goods to be "entered according to their value," which is not done; so that even if all that relates to the insurance be laid out of the question, still the plaintiff cannot recover. [Lawkence, J. No; the words are "will not be answer- able unless entered ; " he does not say " entered according to the value," but that the insurance sliall be according to the value.] Clay r. Willan is in point, where the words were, that he would not be answerable for goods above five pounds' value unless entered as such, and a penny insurance paid for each pound value. If the car- rier were to say lie would not be accountable for any of his acts, commissive or omissive, although they amount to gross negligence, that would be an exception of the very tiling, and the court would not permit such a contract; but that is not this case. Manskikm., Ch. J. These cases, so decided, seem to have decided the present. However we may wish the law to be, we cannot make it different than as we find it. In looking into the book.s, we find thespecixU acceptance much older tlian I had supposed it to be. And it leads to great frauds, for on account of the number of persons ' - ponding about these open wagon-yards and oHices, every - -nding around is apprised that this or that parcel contains or jewels to the amount of many hundred pounds; this is a j(n?at inconvenience, but however inconvenient it is, it seems that from tl of Aloyn down to this hour, the cases have again ami a^xiin (i •' t the liability of a carrier may be .so restrainecnHO of carrying them there. Indeed, besides the risk that he nin.H, his attention ber-omes more anxir)us, and his journey is more .•.■,,.,.. ive, in projxjrtion to the value of his hxid. If he has things kt value contained in such small packages as to be objects of tlieft or embezzlement, a stronger and more vigilant guard is LliMITATION OF LIABILITY. 171 required than when he carries articles not easily removed, and which offer less temptation to dishonesty. He must take what is offered to him to carry to the place to which he undertakes to convey goods, if he has room for it in his carriage. The loss of one single package might ruin him. By means of negotiable bills, immense value is now compressed into a very small compass. Parcels containing these bills are con- tinually sent by common carriers. As the law compels carriers to undertake for the security of what they carry, it would be most unjust if it did not afford them the means of knowing the extent of their risk. Other insurers (whether they divide the risk, which they generally do, amongst several different persons, or one insurer undertakes for the insurance of the whole) always have the amount of what they are to answer for specified in the policy of insurance. If the extent of risk is ascertained in cases in which persons are not obliged to insure, and if they do insure may fix their own rate of premium, there is greater reason for ascertaining it where one is compelled to become an insurer, and can only charge what the magistrates in sessions, if they think proper to settle the rates of carriage, will allow under the statute of William and Mary, and where no such rates are made, what a jury shall think reasonable. It would be inconvenient, perhaps impossible, to have a formal contract made for the carriage of every parcel in which the value of the parcel should be specified, as well as the price to be paid for the carriage. But it would add very little to the labor of the book- keeper if he entered the value of each package, and gave the person who brought it a written memorandum of such entry, like the slips now made on an agreement for a policy of insurance. The giving of such memorandums will entirely put an end to the litigation which the notices of carriers now give occasion to, and would make the practice of carriers, as nearly as circumstances will permit, conformable to that of all other insurers. Perhaps such memoranda might bring the parties within the reach of the stamp laws; and the apprehension of this may have prevented carriers from adopting a practice so effectual for their security, and have driven them to the expedient of giving notices that they will not be answerable beyond a certain sum, unless the parcels are entered and paid for as parcels of value. In Batson v. Donovan, 4 B. <& A. 21, the Court of King's Bench considered a notice of this sort, the knowledge of which was brought home to the party sending goods, as equivalent to a request on the l^art of the carrier to know the value, and that it made it the duty of the owner of the goods to apprise the carrier that the parcel was of value. The legislature would probably think, if its attention were called to the subject, that a stamp duty on contracts relative to inland 172 CAKRIEKS OF GOODS. carriage would be a very heavy and very inconvenient tax. and would remove the objection to written evidence of such contracts. A carrier has a right to know the value and quality of what he is required to carry. If the owner of the goods will not tell him what his gtx)ds are and what they are worth, the carrier may refuse to take charge of thera^ but if he does take charge of them, he waives bis right to know their contents and value. It is the interest of the owner of goods to give a true account of their value to a carrier, as in the event of a loss he cannot recover more than the amount of what he has told the carrier they were worth ; and he cannot recover more than their real worth, whatever value he may have put on them when he delivered them to the carrier. It was decided in Gibbon v. Paynton, 4 Burr. 2208 [160] that any artifice made use of to induce a carrier to think that a parcel of jewelry contained only things of small value, would prevent the owner from recovering for the loss of his parcel. In Kenrig v. Eggleston, Al. 93, it was held that the owner was not rec^uired to state all the contents of the parcel, but it was for the carriers to make a special acceptance. In Tyly and Others v. Morrice, Carth. 4S5. in which the preceding case is recognized and confirmed, it is said that the true principle is, that the carrier is only liable for what he is fairly told of. In Titchburne v. "White, Str. 145, it was determined that a carrier is answerable for money, although he was not told that the box delivered to him contained any money, unless he was told tliat the box did not contain money, or he accepted it on the condition that it did not contain money. It may be collected from these autliorities, that it is the duty of the carrier to inquire of the owner as to the value of his goods, and if he neglects to make such inquiry, or to make a special accei)tance, and cannot prove knowledge of a notice limiting his responsibility, he is responsible for the full value of the goods, however great it may be. This is a convenient rule; it imposes no difficulty on the car'ri«'r. He knows his own business, and the laws relative to it. Many persons, who have occasion to send their goods by carriers, an- entirely ignorant of what they ought to do to insure tlieir goods. Justice and policy require that the carriers should be obliged to tell them what they should do. Although a carrier may i)rove that the owner of poods knew tliat the c:irri<-r had limited liis responsil)ility by a sunU-icnt notice, yet if a loHH \)C occasioiu'd l)y gross m-gligoncc, tiie notice will not i)ro- t^et him. Kvery man that undertakes for a reward to do any ser- vic obliges himself to use '. Snell. iorted his loss; and the defendant offered a reward, and made all proper efforts for the recovery of the iirojierty, but without success. The Telegraph line was established in 1828. A public notice that hagyage sent or carried in the Telegraph line would be at the risk of the oioner thereof, printed on a large sheet, had been uni- formly kept placarded in most of the stage offices and public liouses from Albany to Uuffalo; and particularly such notice had been continually affixed up in the stage office and principal public houses at Utica, where the plaintiff had resided for the last three years before the trunk was lost. It was stipulated that should the court be of opinion that the plaintiff was entitled to recover, judgment should be entered in his favor for $110.75, and interest from July 20, 1S.'3.'J, besides costs. liuoNsox, J. Stagecoach proprietors, and other carriers by land and water, incur a very different responsibility in relation to the pa I- and his baggage. For an injury to the passenger they are Luii iverable only where there has been a want of j)ro]ior care, diligence, or skill; but in relation to baggage they are regarded as insurers, and must answer for any loss not occasioned by inevitable accident or public enemies. As the point, though made, was not discussed by the defendant's counsel, I shall content myself with referring to a few ca-ses to prove that they are liable as common carrier.s, for the loss or injurj' of the i)r(iperty of the passenger. Orange Co. liank v. lirown, i) Wendell, 85 [34]; Camden Company r. Burke, l.'i id. Gil; Brooke r. I'ickwiok, 4 Bing. 218; 4 Esp. R. 177; 2 Kent, 001. The fact that the owner is present, or sends his servant to look after the property, does not alter the case. Bobin- .son r. 7^-'.'. :-••.•, 2 Bos. &. Pull'. 418. Chamltre, J., said: "It has l*een • 1, that if a man travel in a stagecoach and take liis (lortmanteau with him, though he has his eye upon the portmanteau, yet the carrier is not abijolved from his responsil)ility, but will be liabhr if tho portmanteau ])e lost." The liability of a carrier is like that of an innkeeper; and it was said in Cayhi's case, 8 Co. 03, that "it in no cxciise for the innkeejier to say that he delivered the gue»t the key of the chamber in wliich he lodged, and that he left LIMITATION OF LIABILITY. 175 the door open; but he ought to keep the goods and chattels of his guest there in safety." When there is no fraud, the fact that the owner accompanies the property cannot affect the principle on which the carrier is charged in case of loss. The principal question in the cause arises out of the notice given by the coach proprietors, that baggage carried by the Telegraph line would be at the risk of the owner ; and the first inquiry is, whether there was sufficient evidence to charge the plaintiff with a knowl- edge of the notice. If we are to follow the current of modern Eng- lish decisions on this subject, it cannot be denied that there was evidence to be left to a jury, and upon which they might find that the plaintiff had seen the notice. But I think the carrier, if he can by any means restrict his liability, can only do so by proving actual notice to the owner of the property. I agree to the rule laid down by Best, C. J., in Brooke v. Pickwick, 4 Bing. 218, decided in 1827, when the courts of Westminster Hall had commenced retra- cing their steps in relation to the liability of carriers, and were endeavoring to get back on to the firm foundation of the common law. He said: "If coach proprietors wish honestly to limit their responsibility, they ought to announce their terms to every individ- ual who applies at their office, and at the same time to place in his hands a printed paper, specifying the precise extent of their engage- ment. If they omit to do this, they attract customers under the confidence inspired by the extensive liability which the common law imposes upon carriers, and then endeavor to elude that liability by some limitation which they have not been at the pains to make known to the individual who has trusted them." I should be content to place my opinion upon the single ground that if a notice can be of any avail, it must be directly brought home to the owner of the property ; and that there was no evidence in this case which could properly be submitted to a jury to draw the inference that the plaintiff knew on what terms the coach proprietor intended to transact his business. But other questions have been discussed; and there is another case before the court where the judge at the circuit thought the evidence sufficient to charge the plaintiff with notice. It will therefore be proper to consider the other questions which have been made by the counsel. Can a common carrier restrict his liability by a general notice, in any form, brought home to the opposite party? Without intend- ing to go much at large into this vexed question, it will be necessary to state some leading principles relating to the duties and liabilities of the carrier, and the ground upon which his responsibility rests. The rules of the common law in relation to common carriers are simple, well defined, and, what is no less important, well luider- stood. The carrier is liable for all losses except those occasioned by the act of God or the public enemies. He is regarded as an insurer of the property committed to his charge, and neither destruc- 176 CARIIIEKS OF GOODS. tion by fire, nor robbery by armed men, will discharge liim from liability. Holt. C. J., in prouounciug his celebrated judgment in the case of Coggs v. Barnard, - Ld. Kaym. UlS, said: "This is a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their ways of dealing." In Forward v. Pittard, 1 T. K. 27 [97], where the carrier was held liable for a loss by fire. Lord ^Nlansfitdd said, that "to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightnings, and tempests." And in relation to a loss by robbery he said, "The true reason is, for fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil." The rule has been fully recognized in this State. Colty. McMechen, 6 Johns. R.IGO [104]; Elliot y.Rossell, 10 Johns. K. 1; Kemp v. Coughtry, 11 Johns. It. 107. In Roberts v. Turner, 12 Johns. R. 232 [32], Spencer, J., said, the carrier "is held responsible as an insurer of the goods, to prevent combinations, chicanery, and fraud." A common carrier exercises a public employment, and conse- quently has public duties to perform. He cannot, like the trades- man or mechanic, receive or reject a customer at pleasure, or charge any price that he chooses to demand. If he refuse to receive a passenger or carry goods according to the course of his particular employment, without a sufficient excuse, he will be liable to an action; and he can only demand a reasonable compensation for his services and the hazard which he incurs. 2 Ld. Ray. 917; Rac. Ab., Carriers (R.) Skin. 270; 1 Salk. 240, 50; 5 Ring. 217; o Taunt. 272, per Lawrence, .1.; 2 Kent, 509; Story on Bailments, o28; Jeremy on Carriers, 59. It has been said that the carrier is liable in respect of his reward. Lane v. Cotton, 1 Salk. 14.S. T^nrd Coke says, "He hath his hire, and thereby imjdicitly undertaketh tlie safi- delivery of the goods delivered to him." Co. Litt. 89 [a.]. The carrier may no doubt demand a reward proportioned to the services he renders and the risk he incurs; and, having taken it, he is treated as an insurer, and iK.und to the safe delivery of the j.roperty. Rut the extent of his lial)ility does not depend on the terms of liis contract; it is declared by law. His undertaking, when reduced to form, does not dilTer from that of any other person who may agree to carry goods from one place to another; and yet one wlio docs not usually exercise public employment will incur no responsibility beyond that of .111 .c carrier of his reward, they sliould iind for the defend- ant." And the same p(»int was decided in another .actinn against thf ^-iuu- f-arrier. In Gibbon v. Paynton, 4 Burr. 2208 (1601. £100 in wa« hid in hay in an old nail-bag, which fact tlie jjlaintifF LIMITATION OF LIABILITY. 181 concealed from the carrier; and the money having been stolen, the court held that this fraud would discharge the defendant. In the case of the Orange Co. Bank v. Ih-own, Wendell, 85 [34], the agent of the plaintiffs put !i;il,000 in bank bills in his trunk, and delivered it to the captain of the steamboat as his hoggage. The court held that the term baggage would only include money for the expenses of travelling, and not a large sum, as in this case, taken for the mere purpose of transportation; and it was said that tlie conduct of the plaintiff's agent was a virtual concealment as to the money, that "his representation of his trunk and the contents as baggage was not a fair one, and was calculated to deceive the cap- tain." The owner is not bound to disclose the nature or value of the goods; but if he is inquired of by the carrier, he must answer truly. Phillips v. Earle, 8 Pick. 182. Fraud cannot, I think, be imputed to the owner, from the mere fact that he delivers goods after having seen a general notice pub- lished by the earrier, whatever may be its purport. If the carrier wishes to ascertain the extent of his risk, he should inquire at the time the goods are delivered; and then if he is not answered trulv, he will have a defence. See 4 Bing. 218. A different rule prac- tically changes the burden of proof. At the common law it is enough that the owner prove the undertaking of the carrier, and that the goods did not reach their destination. But this doctrine of implying fraud from a notice requires him to go further, and show that he complied with the terms of the advertisement. He may have informed the carrier truly of the value of the goods : there may be no fraud, but still he is required to prove himself innocent before he can recover. Independent of a notice, the onus would rest where, upon general principles, it ought to rest, on him who imputes fraud; and the carrier could not discharge himself without showincr some actual misrepresentation or fraudulent concealment. It does not lie on the employer to show how the loss was occasioned, or that he has acted properly; but the law presumes against the carrier, until he proves that the loss happened by means or under circum- stances for which he is not answerable. 1 T. E. 33; Murphy v. Staton, 3 Munf. (Va.) 239; Story on Bail. 338. But it is enough for this case, that the question of fraud can never arise under such notice as was given by the defendant. He did not say to the public that he would not be answerable for baggage beyond a certain sum, unless the owner disclosed the value; he said he would not be answerable in any event. It was, in effect, a notice that he would not abide the lialsilities which the law, upon prin- ciples of public policy, had attached to his employment. If the notice can aid the defendant in any form, it certainly does not go to the question of fraud. The only remaining ground of argument in favor of the carrier is, that a special contract may be inferred from the notice. Inde- 182 CARRIERS OF GOODS. pendent of the modern English cases, it seems never to have been directly adjudged that the liability of the carrier can be restricted by a special contract. Noy (Maxims), 02, after speaking of a loss by negligence, says: "If a carrier would refuse to carry, unless a promise were made to him that he should not be charged with any such miscarriage, that promise were void," If he cannot stipulate for a partial, it is difficult to see how he can for a total, exemption from liability. In Nicholson v. AVillan, 5 East, 513, Lord Ellen- borough found no direct adjudication in favor of the position that a carrier may limit his responsibility by a special contract; but he relied on the fact that such an exemption had never been "by express decision denied." Although this mode of reasoning is not the most conclusive, I shall not deny that the carrier may, by express contract, restrict his liability; for, thougli the point has never been expressly adjudged, it has often been assumed as good law. Aleyn, 93; 4 Co. 84, note to Southcote's case; 4 Burr. 2301, per Yates, J., 1 Vent. 190, 238; Peake, N. P. Cas. 150; 2 Taunt. 271; 1 Stark. R. 186. If the doctrine be well founded, it must, I think, proceed on the ground that the persun intrusted with the goods, although he usually exercises that employment, does not in the particular case act as a common carrier. The parties agree that in relation to that transaction he shall throw off his public character, and, like other bailees for hire, only be answerable for negligence or misconduct. If he act as a carrier, it is difficult to understand how he can make a valid contract to be discharged from a duty or liability imposed upon him by law. 15ut, conceding that there may be a special contract for restricted liability, siich a contract cannot, I think, be inferred from a general notice brought home to the employer. The argument is. tliat wliere a party delivers goods to be carried after seeing a notice tliat the carrier intends to limit his responsibility, his assent to the terms of the notice may be implied. But this argument entirely overlooks a very important consideration. Notwithstanding the notice, the owner has a riglit to insist that tlie carrier sliall receive the goods subject to all the responsibilities incident to his employment. If the delivery of goods under such circumstances authorizes an impli- cation of any kind, the presumption is as strong, to say the least, that the owner intended to insist on his legal rights, as it is that he was willing to yield to tho wislies of the carrier. If a coat be ordered from a mechanic after he has given the customer notice that he will not furnish tlie article at a less price than one hundred dollars, the lussent of the customer to jjay that sum, though it be double the vahie, may perhaps be implied; but if the median ic liad boon under a h'gal obligation not only to furnisli tlio coat, but to do HO at a reasonabh; j)rife, no sueli implication couhl arise. Now the carri'T is under a legal obligation to receive and convey tlie goods safely, or anHwer for the loss. He has no right to prescril)e any LIMITATION OF LIABILITY. 183 other terms ; and a notice can at the most only amount to a proposal for a special contract, which requires the assent of the other party. Putting the matter in the most favorable light for the carrier, the mere delivery of goods after seeing a notice cannot warrant a stronger presumption that the owner intended to assent to a restricted liabil- ity on the part of the carrier, than it does that he intended to insist on the liabilities imposed by law; and a special contract cannot be implied where there is such an equipoise of probabilities. Making a notice the foundation for presuming a special contract, is. subject to a further objection. It changes the burden of proof, [ndependent of the notice, it would be sufficient for the owner to prove the delivery and loss of the goods; and it would then lie on the carrier to discharge himself by showing a special contract for a restricted liability. But giving effect to the notice makes it neces- sary for the owner to go beyond the delivery and loss of the goods, and prove that he did not assent to the proposal for a limited responsibility. Instead of leaving the omis of showing assent on him who sets *up that affirmative fact, it is thrown upon the other - party, and he is required to prove a negative, that he did not assent. After all that has been or can be said in defence of these notices, whether regarded either as a ground for presuming fraud or imply- ing a special agreement, it is impossible to disguise the fact that they are a mere contrivance to avoid the liability which the law has attached to the employment of the carrier. If the law is too rigid, it should be modified by the legislature, and not by the courts. It has been admitted over and over again by the most eminent English judges, that the effect given to these notices was a departure from the common law; and they have often regretted their inability to get back again to that firm foundation. The doctrine that a carrier may limit his responsibility by a notice was wholly unknown to the common law at the time of our revolution. It has never been received in this, nor, so far as I have observed, in any of the other States. The point has been raised, but not directly decided. Barney V. Prentiss, 4 Har. & Johns. K. 317; Dwight v. Brewster, 1 Pick. 50 [16]. Should it now be received among us, it will be after it has been tried, condemned, and abandoned in that country to which we have been accustomed to look for light on questions of juris- prudence. The Act of Parliament already mentioned enumerates various articles of great value in proportion to the bulk, and others which are peculiarly exposed to damage in transportation, and declares that the carrier shall not be liable for the loss or injury of those articles when the value exceeds £10, unless at the time of delivery the owner shall declare the nature and value of the property, and pay the increased charge which the carrier is allowed to make for his risk and care. If the owner complies with this requirement, 184 CARRIERS OF GOODS. the carrier must give him a receipt for the goods, "acknowledging the same to have been Insureil,'' and if be refuse to give the receiijt, he remains "liable and responsible as at the common lau-.'' The provision extends to the proprietors of stagecoaches as well as all other carriers, and to property which may "accompany the person of any passenger," as well as other goods; and the statute declares that after the tirst day of September, 1830, ^^ no public notice or decla- ration heretofore made, or hereafter to be made, shall be deemed or construed to Ihnit, or in any ivise affect the liability at common law " of any carriers; but that all and every such carrier shall be ''liable as at the common law to answer" for the loss or injury of the prop- erty, "«Hy jiitblic notice or declaration by them made and given contrary thereto, or in any wise limiting such liability, notwith- standing." The only modification of the common-law rule in rela- tion to carriers made by this statute, is that which requires the owner, without a special request, to disclose the nature and value of the package, when it contains articles of a particular description. The premium for care and risk, the carrier might have required before. In relation to all articles not enumerated, and in relation to those also, if the owner comply with the requirements of the act, the carrier is declared liable as an insurer, and must answer "*/5 at the common latv." The whole doctrine which had sprung up under notices is cut up by the roots, and in such language as renders it ai)parent that the legislature deemed it an innovation on the law of the land. If after a trial of thirty years the people of Great Britain, whose interests and jmrsuits are not very dissimilar to our own, have con- demned the whole doctrine of limiting the carrier's liability by a notice; if after a long course of legal controversy they have retraced their steps, and returned to the simplicity and certainty of the com- mon-law rule, — we surely ought to i)rofit by their experience, and should hesitate long before we sanction a i)ractice which not only loads to doubt and uncertainty concerning the rights and duties of the parties, but wliich encourages negligence, and opens a wide door to fraud. If the policy of the law in relation to carriers were more ques- tionable than I think it is, it would be the business of the legis- lature, and not of the courts, to api)ly the jjroju'r remedy. The plaintiff is entitled to judgment in pursuaiiee of the stipulation con- t.'iiii''d in the case.^ > A 1 ■ 11 l)V Cowon, .1., on the same iiucstioii was leiuli'icd iit the snnic t4;mi in < •.ill, ]'J W.'iul. 'Jil. LIMITATION OF LIABILITY. 185 JUDSON V. WESTERN R. CO. 6 Alien (Mass.), 486. 1863. Contract in which the plaintiff seeks to charge the defendants as common carriers, for the loss of a quantity of dressed deer-skins, which were in the defendants' freight depot at East Albany on the evening of the 5th of July, 1861, when it with all its contents was destroyed by an accidental lire. At the second trial in the Superior Court, before Putnam, J., after the decision reported in 4 Allen, 520, there was evidence tending to show, and it was found by the jury, that on the afternoon of the 5th of July, 1861, two boxes, marked "G. C. Judson, Springfield, Mass., by railroad," were delivered by the New York Central Rail- road Company to the defendants at East Albany, for immediate transportation, with the necessary vouchers and expense bills ; and it further appeared that the defendants have for the past ten years issued freight tariffs, which were in force in July, 1861, containing among other provisions the following: "No risk assumed beyond $200 on any one package except by special agreement. All goods and merchandise will be at the risk of the owners while in the cor- poration's storehouses, and no responsibility will be admitted for any loss or injury except such as may arise by fire from the loco- motive engines, or by negligence of the agents of the corporation; nor for a greater amount than $200 on any one package, except by special agreement." These tariffs were posted in all the freight- houses of the corporation, and liberally distributed to the public, and, before the 5th of July, 1861, a large number of these freight tariffs were delivered by the defendants to the freight agents of the New York Central Railroad Company at Albany. A notice similar to that contained in the freight tariffs was, and for many years had been, inserted in the printed receipts given for goods delivered at the several stations of the defendants for transportation, but the defendants did not propose to bring these notices home to the plain- tiff in any other way than as above stated; and the plaintiff himself testified that he had never seen them, and was ignorant of their existence. The New York Central Railroad Company received the boxes from the plaintiff's agent, at Fonda, in the State of New York, and gave for them a shipping receipt which contained the following stipulation, amongst others: "Goods or property consigned to any place off the company's line of road, or to any point or place beyond its termini, will be sent forward with as reasonable despatch as the general business of the corporation at its warehouse within men- tioned will admit, by a carrier or freight man, when there are such 1S6 CARRIERS OF GOODS. known to the station agent at said ■warehouse willing to receive the same, unconditionally, for transportation, the company acting, lor the purpose of delivery to such carrier or freight man, as the agents of the consignor or consignee, and not as carriers." The defendants requested the court to instruct the jury that the limitations and conditions contained in their tariff and freight receipts, brought home to the knowledge of the agents of the New York Central Railroad Company as above stated, would exemjit them from all liability for the loss of the goods, or in any event would exempt them from liability beyond 6200 on each parcel. The judge declined so to rule. The jury returned a verdict for the plaintiff, with $;1020.03 damages, and the case was reported for the consideration of this court. BiGELOw, C. 'T. It would not be profitable to enter upon a cita- tion and discussion of the numerous and conflicting cases bearing on the question of the rights of a common carrier, by a general notice, to absolve himself entirely from his common-law liability tor property intrusted to his care, or to modify and limit his responsibilit}- by a mere constructive notice to those who may have occasion to place goods, wares, and merchandise in his keeping for the purpose of transportation. A careful examination of the autliorities would not lead to any very satisfactory result, or throw mucli light on the real principles on which the respective rights and duties of carriers and the jHiblic mainly depend. A very full and clear statement of the results arrived at in the leading cases on the subject can be found in the elementary writers, especially in Kedfield on Kailways, 264; Angcll on Carriers, §§ 232-245; 1 Parsons on Con. 707. There is, however, one conclusion wliich is fully supported by the weight of authority in the American courts, concerning which no serious doubt can be entertained; that is, that a public carrier may enter into a special contnict with his employer by which he may stipulate for a partial or entire exoneration from his liability at common law as an insurer of jiroperty comniittcil to his custody, and that such contract is not contrary to public l)olicy, or invalid as tran.scending the just limits of the right of i)arties to regulatr tlieir dealing.s by special stipulations. As a necessary corollary of this coiiflusion, it is also lield in the l)est-considered cases and by tlie II!' ♦ ■■'.proved text-writers, that a nf)tice by a carrier that lie will ii iiiie tlie ordinary responsibilities imposed on him by law, il brought home to the owner of goods delivered lor transportation, and assented to clearly and unequivocally by him, will be binding and oldigritory upon him, because it is tantamount to an exju-ess /^...fr-w.f i]i',i\, the goods shall ])e carried on the terms si)ecitied in tiee. To tliis extent, tliC doctrine that a carrier may limit or modify his liability seems to be most just .iini re;isf)nable. Inas- ratjch as the rule of law which holds a e.irrier to the resjKuisiliility LIMITATION OF LIABILITY. 187 of an insurer, except in certain special cases, is founded in a policy ■which is designed solely for the security and benefit of the owner of goods, there can be no sufficient reason for regarding the rule as absolutely inflexible or irrepealable, when the party, in whose favor it will operate, directly or by necessary implication consents to waive it, or agrees to an essential modification of his own rights under it. But it is a very different proposition to assert that a common car- rier may escape his legal liability or materially change it by a general notice to all persons that he will not be responsible for the loss or injury of property intrusted to his custody, or only liable therefor under such conditions and limitations as he may think proper to impose. A common carrier is in a certain sense a public servant, exercising an employment not merely for his own emolument and advantage, but for the convenience and accommodation of the com- munity in which he pursues his calling. The law imposes on him certain duties and responsibilities different from and greater than those which attach to an occupation of a purely private nature, in regard to the conduct of which the public have no interest, and which can be carried on at the option or according to the pleasure of the person who is engaged in it. A common carrier cannot legally refuse to transport property of a kind which comes within the class which he usually carries in the course of his employment, if it is tendered to him at a suitable time and place, with an offer of a reasonable compensation. Like an innkeeper, he is obliged to exercise his calling upon due request under proper circumstances, and is liable to an action for damages if he wrongfully refuses to do so. A legal obligation rests upon him to assume the duty which he holds himself out as ready to perform, and a correlative right belongs to the owner of goods to ask for and require their reception and transportation upon the terms of liability fixed and defined by the established rules of law. The carrier has not the option to accept or refuse the carriage of the goods at his pleasure ; but the person seeking to have them transported can choose whether they shall be carried without any restriction of the carrier's duty as prescribed by law, or whether he will waive a portion of his rights, and consent to a modification of the legal liability which attaches to the carrier. Such being the legal relation which subsists between a common carrier and his employer, it certainly would be inconsis- tent with it to hold that a carrier, by a mere notice brought home to the owner of goods intrusted to his care that he did not intend to assume all the liabilities of his calling, could escape or materially change the responsibility which the law annexes to the contract of the parties. It would in effect put it in the power of the carrier to abrogate the rules of law by which the exercise of his employment is regulated and governed. Certainly such a notice, even if shown to have been within the knowledge of the owner of goods, would, in 18S CARRIERS OF GOODS. the absence of evidence of his direct assent to its terms, afford no sufficient ground for the inference that he had voluntarily agreed without any consideration to relinquish and give u^) the valuable right of having his goods carried at the risk of the carrier. On the contrary, it would be quite as reasonable to infer under such circum- stances that the carrier did not intend to rely upon a notice ui»on which he could not legally insist, as that the owner of goods meant to surrender a right to which he was entitled by law. In such ease, mere silence cannot be said to amount to acquiescence. The leading cases in the American courts in which these doctrines have been recognized and established are New Jersey Steam Navigation Co. /•. Merchants' Bank, G How. (U. S.) 344; Farmers' & :Mechanics' Bank V. Champlain Transportation Co., 2.3 Verm. 18G, 205; Kimball i\ Rutland & Burlington Railroad, 26 Verm. 247; Moses v. Boston & Elaine Railroad, 4 Fost. (X. H.) 71. See also the recent English case of Garton v. Bristol & Exeter Railway, 1 Best & Smith, 112, 161. The application of these principles to the present case is decisive against the right of the defendants to insist on the instructions for which they asked at the trial. It is not contended that the plaintiff had any actual knowledge of the notice issued by the defendants, containing a limitation of their common-law liability as carriers. If he had any knowledge at all, it was at most only constructive, through the New York Central Railroad Company, who received the goods for transmission over their own road, to be delivered to the defendants to be forwarded over a portion of their route. There is no fact in the case from which any assent by the plaintiff to the terms of the notice can be inferre to '^ ►J ;^ o «5" It is mutually agreed, and is part of the consideration of the contract, that Dodd's Express shall not be liable for merchandise or jewelry contained in baggage, nor for loss by fire, nor for an amount exceeding One Hundred Dollars upon any article unless specially agreed for in writing on the re- ceipt and tlie extra risk paid therefor, nor for baggage to railroad, steamboat, or steamship lines after the same has been left at the usual place of delivery to such lines, and the owner hereby agrees that Dodd's Express shall be liable only as above ; and it is further agreed that said express shall not be liable for loss or damage unless the claim therefor be made in writing at their priu- cij^al office, with this receipt annexed, within thirty days thereafter. 13 ~ ~ 194 CAKRIERS OF GOODS. At the time the cars were miming rapidly, the lights were mostly out, and the car in which the plaiiitifl' was, was nearly dark, but there was one light at the end. This light was insuthcieut to enable the plaintiff to read the printed matter at the place where he sat, and he did not read it. The said Dodd's Express received the valise and gun-case from the railroad company, and on the following day delivered the gun-ease, but neglected to deliver the valise or any of its contents to the plaintiff. Evidence tending to show it was stolen, or fell from one of the plaintiff's wagons, was given. The valise and its contents were worth about S2G0. The referee found that the valise was stolen from the defendant's wagon. The answer put in issue the negligence and the value of the prop- erty lost, and set up a special contract restricting the liability of the defendant. The case was tried before a referee, who found, as conclusions of law : — 1. The sai«l baggage was received by the said Dodd's Express, to be transported to plaintiff's residence, under and subject to the con- ditions expressed in said receipt, and not otherwise. 2. That, by delivery to the plaintiff, and his acceptance of the said card or receipt, under the circumstances, he consented and agreed that said Dodd's Exi)ress should not be liable for the loss of the said valise to an amount exceeding one hundred dollars. 3. That the plaintiff is entitled to recover from defendant only the sura of one hundred dollars and interest from October 17, 18GG. To all of which conclusions of law the plaintiff exco])ted. Erom the judgment entered upon this report, an appeal was taken to the General Term, where the judgment was set aside and a new trial ordered; and from such order an appeal was taken to this court. Cin'Rcn, Ch. J. The common-law liability of common carriers cannot ])e limited by a notice, evt-n though such notice be brought to the knowledge of the persons whose projierty they carry. Dorr v. X. J. Steam Navigation Co., 1 Kern. 4sr>. liut such liabilities may be limited by express contract. Id. ; Bissidl r. N. Y. Central l:. R. Co., 442; French v. Buffalo, N. V. cK: Eric K. U. Co., 4 K.-yes, 108. Tlu! principal question in this case is, whether there was a con- tract made between the parties limiting the liability of the defend- ants to a loss of §100 for the valise and its contents, which the plaintiff intrusted to their care. A. facsimile of the card up(»n whioh th«; . " I fontract was jirinted lias been furnished in tlie papers. It «1 ;. appear, on examination, like a contract, ami would not, from its general appearance, be taken for anything more than a token or clieck denoting the numbers of the cheeks received, to be us. -1 for identification upon the delivery of the baggage. The larger LIMITATION OF LIABILITY. 195 portion of the printed matter is an advertisement, in large type. The alleged contract is printed in very small type, and is illegible in the night by the ordinary lights in a railroad car, and is not at all attractive, while other parts of the paper are quite so. Considerable stress is laid upon the fact that the words, "Kead this receipt," were printed on the card in legible type. The receipt reads : " Received of M articles or checks numbered as below: 368—319." "For Dodd's Express." The blank is not filled, nor is the receipt signed by any one. The invitation is not to read the contract, but the receipt. In order to read it, the paper must be turned sideways; and no one, thus reading the receipt, would suspect that it had any connection with the alleged contract, which is printed in different and very small type across the bottom of the paper. It is no part of the receipt, is not connected with it, and is not referred to in any other part of the paper. The defend- ants are dealing with all classes of the community ; and public policy, as well as established principles, demand that the utmost fairness should be observed. This paper is subject to the criticism made by Lord Ellenborough, in Butler v. Heane, Camp. 415, in which he said, that "it called attention to everything that was attractive, and concealed what was calculated to repel customers ; " and added : " If a common carrier is to be allowed to limit his liability, he must take care that any one who deals with him is fully informed of the limits to which he con- fines it." Nor did the nature of the business necessarily convey the idea of a contract to the traveller in such a manner as to raise the presumption that he knew it was a contract, expressive of the terms upon which the property was carried, or limiting the liability of the carrier. Baggage is usually identified by means of checks or tokens. And such a card does not necessarily import anything else. At all events, to have the effect claimed, the limitation should be as conspicuous and legible as other portions of the paper. In Brown V. E. R. R. Co., 11 Cush., 97, where the limitation was printed upon the back of a passenger ticket, the court say: "The party receiving it might well suppose that it was a mere check, signifying that the party had paid his passage to the place indicated on the ticket." In the cases of Prentice v. Decker, 49 Barb. 21, and Limburger v. Wescott, id. 283, limitations were claimed upon the delivery of similar cards of another express company, and the court held, in both cases, that such delivery did not charge the persons receiving them with knowledge that they contained contracts. A different construction was put upon the delivery of a similar card, in Hopkins v. Wescott, 6 Blatchf. R. 64; but I infer that the learned judge who delivered the opinion intended to decide that something short of an express contract will suffice to screen the carrier from his common-law liabilitj^, and that a notice, personally served, which could be read, would have that effect. The attention 196 CAKKIEES OF GOODS. of the court does not seem to have beeu directed to the distinction between such a notice and a contract. The delivery and acceptance of a paper containing the contract may be binding, though not read, provided the business is of such a nature and the delivery is under such circumstances as to raise the presumption that the person receiving it knows that it is a contract, containing the terms and conditions upon which the property is received to be carried. In such a case it is presumed that the person assents to the terms, whatever they may be. This is the utmost extent to which the rule can be carried, without abandoning the principle that a contract is indispensable. The recent case of Grace r. Adams, 100 IMass. 560 [220], relied upon by the defendant's counsel, was decided upon this principle. The i)laintitf delivered a package of money to an express company, and took a receipt containing a provision exempt- ing the company from liability for loss by fire; and the court held that he knew that the paper contained the conditions upon which the money was to be carried, and was therefore presumed to have assented to them, although he did not read the paper. The court say: "It is not claimed that he did not know, when he took it, that it was a shipping contract, or bill of lading." So, in Van Goll r. The S. E. R. Co., 104 Eng. Com. Law 11. 75, the same princijde was decided. Willes, J., said: "Assuming that the plaintiff did not read the terms of the condition, it is evident she knew they were tliere." Keating, J., said: "It was inc\mibent on the company to show that such was the contract." . . . " I think there was evidence that the plaintiff assented to those terms." As to bills of lading and other commercial instruments of like character, it has been held that persons receiving tliem are pre- sumed to know, from their uniform character and the nature of the business, that they contain the terms upon which the pro])erty is to be carried. But checks for baggage are not of that character, nor is such a card as was delivered in this instance. U was, at least, equivocal in its cliaracter. In sucli a case a person is not presumed to know its contents, or to assent to them. The circumstances under which the pai)er was received repel the idea of a contract. No such intimation was made to the ])laintiff. He did not, and could not, if he had tried, read it in his seat. It is found that he might have read it at the end of the car, or liy the lights on the pier or in the ferry-l)oat; and it is claimed that he should have done so, and, if dissatisfied, should have expressed his dissent. If lie had done so, and in the bustle and confusion inci- dent to such occasions, could have found the messenger and demanded iiis baggage, the latter might have claimed, npoii the theory of tliis defence, that the contract was completed at the (hdivery of the paper, and that he had a right to perform it and receive the corapensation. It is impossible to maintain this defence without violating cstab- LIMITATION OF LIABILITY. 197 lished legal principles in relation to contracts. It was suggested on the argument, that the stipulation to charge according to the value of the property is just and proper. This may be true; but the traveller should have something to say about it. The contract cannot be made by one part}'. If the traveller is informed of the charges graduated by value, he can have a voice in the bargain ; but in this case he had none. Whilst the carrier should be protected in his legal right to limit his responsibility, the public should also be protected against imposition and fraud. The carrier must deal •with the public upon terms of equality; and, if he desires to limit his liability, he must secure the assent of those with whom he transacts business. My conclusion is, that no contract was proved. 1. Because it was obscurely printed. 2. Because the nature of the transaction was not such as neces- sarily charged the plaintiff with knowledge that the paper contained the contract. 3. Because the circumstances attending the delivery of the card repel the idea that the plaintiff had such knowledge, or assented in fact to the terms of the alleged contract. The order granting a new trial must be affirmed, and judgment absolute ordered for the plaintiff, with costs. All the judges concurring, upon the ground that no contract limit- ing the liability of defendants was proved. Order affirmed and judgment absolute for the plaintiff ordered. b. In case of negligence. LIVERPOOL STEAM CO. v. PHENIX INS. CO. 129 U. S. 397. 1889. Mr. Justice Gray. This is an appeal by a steamship company from a decree rendered against it upon a libel in admiralt}', " in a cause of action arising from breach of contract," brought by an insur- ance company, claiming to be subrogated to the rights of the owners of goods shipped on board the "Montana," one of the appellant's steamships, at New York, to be carried to Liverpool, and lost or damaged by her stranding, because of the negligence of her master and officers, in Holyhead Bay, on the coast of Wales, before reaching her destination. In behalf of the appellant, it was contended that the loss was caused by perils of the sea, without any negligence on the part of master and officers; that the appellant was not a common carrier; that it was exempt from liability by the terms of the bills of lading; 198 CARRIERS OF GOODS. and that the libellant had not been subrogated to the rights of the owners of the goods. It is to be remembered tliat the jurisdiction of this court to review the decree below is limited to questions of law, and does not extend to questions of fact. Act of February IG, 1875, c. 77, sec. 1; 18 Stat. 315; The Gazelle,. 128 U. S. 474, 484, and cases there cited. "e»n the foregoing facts," the only conclusion of law stated by the Circuit Court (except those affecting the right of subrogation and the amount to be recovered) is in these words : '' The stranding of the 'Montana' and the consequent damage to her cargo having been the direct result of the negligence of the master and officers of the steamer, the respondent is liable therefor." Negligence is not here stated as a conclusion of law, but assumed as a fact already found. The conclusion of law is, in effect, that, such being the fact, the re- spondent is liable, notwithstanding any clause in the bills of lading. We are then brought to the consideration of the principal ques- tion in the case; namely, the validity and effect of that clause in each bill of lading by which the appellant undertook to exempt itself from all responsibility for loss or damage by perils of the sea, arising from negligence of the master and crew of the ship. The question ap})ears to us to be substantially determined by the judgment of this court in Eailroad Co. v. Lockwood, 17 Wall. .'357. That case, indeed, differed in its facts from the case at bar. It was an action brought against a railroad corporation by a drover, who, while being carried with his cattle on one of its trains under an agreement which it had required him to sign, and by which lie was to pay certain rates for the carriage of the cattle, to pass free himself, and to take the risks of all injuries to himself or to them, was injured by the negligence of the defendant or its servants. The judgment for the i)laintiff, however, was not rested upon the form of the agreement, or upon any difference between railroad corporations and other carriers, or between carriers by land and carriers by sea, or between carriers of passengers and carriers of goods, but upon the broad ground that no jiublic carrier is permitted by law to stipulate for an exemption from the consequence of the negligence of himself or his servants. The very question there at issue, defined at the beginning of the oj»inion as "whether a railroad company, carrying iiassengers for hire, can lawfully stipulate not to be answerable for their own or their servants' negligence in rffcrence to such carriage," was stated a little further on in more general terms as "the question before jiroj)Oiind»'d; namoly, whetlicr common carriers may excuse tliem- Holve.H from lialjility for negligence;" and a negative answer to the fjiiestion thus st'itcd was a necessary link in the logical chain of concluHionH announced at the end of the 7 U. S. 102; Carpenter v. ^Washington Ins. Co., IG Pet. 405, oil; Swift v. Tyson, 16 Vet. 1; Kailroad Co. V. National Bank, 1U2 U. S. 14; Burgess r. Seligman, 107 U. S. 20, 33; Smith v. Alabama, 124 U. S. 305, 478; Bucher r. Cheshire liailroad, 125 U. S. 555, 583. The decision of the State courts certainly cannot be allowed any greater weight in tlie Federal courts when exercising the admiralty and maritime jurisdiction exclusively vested in them by the Constitution of the United States. It was also argued in behalf of the appellant that the validity and effect of this contract, to be performed principally upon the high seas, should be governed by the general maritime law, and that by that law such stipulations are valid. To this argument there are two answers. First. There is not shown to be any such general maritime law. The industry of the learned counsel for the appellant has collected articles of codes, decisions of courts, and opinions of commentators in France, Italy, Germany, and Holland, tending to show that, by the law administered in those countries, such a stii»ulation would be valid. But those decisions and opinions do not appear to have been based on general maritime law, but largely, if not wholly, upon provisions or omissions in the codes of the i)articular country; and it has been said by many jurists that the law of France, at least, was otherwise. See 2 I'ardessus Droit Commercial, no. .'542: 4 Goujet & Meyer Diet. Droit Commercial (2d ed.) 2 Voiturier, nos. 1, 81; 2 Tropling Droit Civil, nos. 894. *»10, '.ML', and other books cited in Beninsular & Oriental Co. v. Shand, ;! Moore ]'. C. (s. K.) 272, 278, 28.5, 28G; 25 Laurent Droit Civil Franeais. no. 5.''.2; Mellish, L. .J., in Cohen v. Southeastern Railway, 2 Ex. D. 2.5.3, 2.57. Second. The general maritime law is in force in this country, or in any other, so far only as it has been adopted by the laws or usage thereof; and no rule of the general maritime law (if any exists) concerning the validity of such a stiinilation .as that now before us lui8 ever been adopted in the T'nited Slates or England, or recog- I to Hfrii.ii.s .•(,nsiroi)erty lost or destroyed through its negligence, but that it nuiy absolve itself from responsibility for one-hnlf, tlirce-fourths, seven-eighths, nine-tenths, or ninety-hundrcdths of the loss so occasioned. With great unanimity the aulhoritieH say it cannot do l\n; /urmrr. if allowed to do the hilfrr, it may thereby Kubtitantinlly evade and nullify the law Avhicli wiys it shall not ilo the former, and in t' it wiiy do indirectly what it is forbidden to do directly. We hold that it can do 1 i.'T. The re(|uirenient of the law has ever been, and is now, that the common enrrior Hhall Ijc diligent and careful in the trnnsportation of its freight, and jiublie. jH.li.y forbids that it shall throw olF that obligation, whetlier by stipulation for I x< iiiption in whole or in jmrl from the con.seiiviences of its negligent nets. This view in ituiitaincd by sound reason, and also by the weight of authority. Coward v. MtiW- ' ■ ' -.'25; Moulton v. St. I'., M. and M. Itjiihvay Company. 31 ■ : I ,|)any v. .Simjison, 30 Kan. fi4r) ; IJ.iilroad f'ompany r. Abies, 00 MiM. 1017 ; U. 8. Express Company v. Blackman, *J8 Ohio St. Ut ; I'.lack v. G. LIMITATION OF LIABILITY. 209 McFADDEX v. MISSOURI PACIFIC E. CO. 92 Mo. 343. 1887. xiiAYj • • • • • • • • ■ • , But the stipulation in the contract of shipment, most relied on for a reversal of the judgment, is the one declaring the company should not be liable for more than one hundred dollars per head for the mules. Such a stipulation, it is claimed, is valid and binding, and does not contravene the rule which forbids the carrier to stipulate against his own negligence. Numerous decisions sustain such stipu- lations, when fairly made, and when the parties agree on a fixed valuation of the property, and a special and reduced rate of freight is given and received, based upon the condition that the carrier assumes liability only to the extent of the agreed value of the prop- erty. Hart V. Kailroad, 112 U. S. 331, and cases cited. Other decisions deny the validity of such provisions, and hold them void, as releasing the carrier from the full and j^roj^er liability for the consequences of his negligence. Black ??. Trans. Co., 55 Wis. 319; Moulton v. Railroad, 31 Minn. 85; U. S. Express Co. v. Backman, 28 Ohio St. 144. Hutchinson on Carriers says, in sub- stance, that the cases cited by him as recognizing the right of the carrier to thus limit the liability as to value occur in States in which the law permits the carrier, by special and express contract, to relieve himself of the consequences of his negligence in the carriage of goods, and that these cases must not be considered controlling authority in those States in which such claim to exemption is not permitted to be made. Sees. 247, 250. But, even under the rule declared in the former class of decisions, these provisions, thus employed and resorted to by common carriers to restrict their liability, are to be tested by their fairness, justice, and reasonableness. We will consider the case before us briefly under this view. The answer charges that defendant agreed to transport the mules for plaintiff, between said points, at the rate of T. Company, 55 Wis. 319 ; A. G. S. Eailroad v. Little, 71 Ala. 611. See also Eosenfield v. Railway Company, 103 Ind. 121 ; M. P. Railroad Company v. Fagan, 35 Am. and Eng. Eailroad Cases, 666 ; 97 111. 525 ; s. c. 34 Am. R. 197. The rule is the same now, except that in this day of special contracts it has been relaxed so that the carrier may exonerate itself from responsibility by either showing that the case falls within one of the exceptions of the common law or within one of the stipulations of the special contract. 2 Greenleaf Evi., sec. 219 ; 52 Ala. 606 ; 71 Ala. 611 ; 7 Yer. 340 ; 8 Hum, 498 ; 9 Bax. 188 ; 2 Lea, 296 ; 2 Pickle, 393 ; 63 Pa. St. 14; 36 Minn. 539 ; s. c. 1 Am. St. R. 692 : 60 Miss. 1017 ; 28 Ohio St. 144 ; 55 Wis. 319 ; Lawson on Con. of Car., sees. 245, 246, 247, and 248 ; Hutchin- son on Car. sec. 764 ; Schouler on Bail, and Car., sec. 439 Caldwell, J., in Railway Co. v. Wynn, 88 Tenn. 320. 1889. 14 210 CARRIERS OF GOODS. thirty-one dollars per car, which was charged to be a special and reduced rate, lower than the regular rate. The written contract, read in evidence, recited that the said rate was a reduced rate, made in consideration of agreement, etc The reduced rate, if such it was, was the consideration for the exemption from liability beyond the one hundred dollars, even in case of injury and loss from defendant's negligence, and parol evi- dence in that behalf is, we think, competent and admissible for the purpose indicated. The consideration clause in bills of lading, con- tracts, deeds, and other instruments, ordinarily, has only the force and effect of a receipt, and is open to explanation and contradiction by parol evidence. Hutchinson on Carriers, sees. 122, 123; Fontaine V. Boatman's Sav. Inst., 57 Mo. 552; HoUocher v. HoUocher, 62 Mo. 207; Edwards v. Smith, 63 Uo. 110. If, in the one case, it is competent for the carrier to show that the real value of the property was concealed, and the lower rate thus secured by the fraud or deceit of the shipper, why may not the shipper be permitted to show that the alleged reduced rate, in con- sideration of which he surrendered obligation imposed by law upon the carrier, as an insurer of the property, was false and in fact no reduced rate at all? It may be that plaintiff was not deceived by it, at tlie time, as he did not ask for, or suppose he was getting a reduced rate, but if the pretended lower rate was the usual rate, and known to be such to both parties, it would work a fraud upon the rights of plaintiff, under the law, if the defendant Avere permitted to treat it as a lower rate, and to thus deprive plaintiff of important rights. and thus secure release of part of its liability, by reason thereof. d . Tt'iii r for rhi imin'j d(un ages. EXriJKSS ("(). L-. CALDWELL. •Jl Wall. (U. S.), 2C4. is7i. CAM.wri.i. suod the Southern Exj.ress Company in the court below, as ri .— „„on carrier, for its failure to deliver at New ( Jrleans a pack- ag- •-'d by it on the 23d day of Ai.ril isr,2, at Jackson, Tennes- see,— places the transit between which rerpiires only about one day. The company pleaded that when tho ]K>ckage was received " it was a^rreed between the com])any and tlin ]il:iintiff, and made one of the express conditions upon whieli the paekage was reeeived, that the company should not be held liable for any lo.ss of, or damage to, LIMITATION OF LIABILITY. 211 the package whatever, unless claim should be made therefor within ninety days from its delivery to it." The plea further averred that no claim was made upon the defendant, or upon any of its agents, until the year 18CS, more than ninety days after the delivery of the package to the company, and not until the present suit was brought. To the plea thus made the plaintiff demurred generally, and the Circuit Court sustained the demurrer, giving judgment thereon against the company. Whether this judgment was correct was the question now to be passed on here. Mr. Justice Strong. Notwithstanding the great rigor with which courts of law have always enforced the obligations assumed by com- mon carriers, and notwithstanding the reluctance with which modi- fications of that responsibility, imposed upon them by public policy, have been allowed, it is undoubtedly true that special contracts with their employers limiting their liability are recognized as valid, if in the judgment of the courts they are just and reasonable, — if they are not in conflict with sound legal policy. The contract of a com- mon carrier ordinarily is an assumption by him of the exact duty which the law affixes to the relation into which he enters when he undertakes to carry. That relation the law regards as substantially one of insurance against all loss or damage except such as results from what is denominated as the act of God or of the public enemy. But the severe operation of such a rule in some cases has led to a relaxation of its stringency, when the consignor and the carrier agree to such a relaxation. All the modern authorities concur in holding that, to a certain extent, the extreme liability exacted by the common law originally may be limited by express contract. The difficulty is in determining to what extent, and here the authorities differ. Certainly it ought not to be admitted that a common carrier can be relieved from the full measure of that responsibility which ordinarily attends his occupation without a clear and express stipu- lation to that effect obtained by him from his employer. And even when such a stipulation has been obtained, the court must be able to see that it is not unreasonable. Common carriers do not deal with their employers on equal terms. There is, in a very important sense, a necessity for their employment. In many cases they are corporations chartered for the promotion of the public convenience. They have possession of the railroads, canals, and means of trans- portation on the rivers. They can and they do carry at much cheaper rates than those which private carriers must of necessity demand. They have on all important routes supplanted private carriers. In fact, they are without competition, except as between themselves, and that they are thus is in most cases a consequence of advantages obtained from the public. It is, therefore, just that they are not allowed to take advantage of their powers and of the necessities of the public to exact exemptions from that measure of duty which public policy demands. But that which was public 212 CARKIERS OF GOODS. policy a hundred years ago has undergone changes in the progress of material and social civilization. There is less danger than there was of collusion with highwaymen. Intelligence is more rapidly diffuse 3 Wallace, 107. ^ 1" M- 357. LIMITATION OF LIABILITY. 213 the bailor, or by the consignee, within a specified period, if that period be a reasonable one, is altogether of a different character. It contravenes no public policy. It excuses no negligence. It is per- fectly consistent with holding the carrier to the fullest measure of good faith, of diligence, and of capacity, which the strictest rules of the common law ever required. And it is intrinsically just, as applied to the present case. The defendants are an express com- pany. We cannot close our eyes to the nature of their business. They carry small parcels easily lost or mislaid, and not easily traced. They carry them in great numbers. Express companies are modern conveniences, and notoriously they are very largely employed. They may carry, they often do carry hundreds, even thousands of packages daily. If one be lost, or alleged to be lost, the difficulty of tracing it is increased by the fact that so many are carried, and it becomes greater the longer the search is delayed. If a bailor may delay giving notice to them of a loss, or making a claim indefi- nitely, they may not be able to trace the parcels bailed, and to recover them, if accidentally missent, or if they have in fact been properly delivered. With the bailor the bailment is a single trans- action, of which he has full knowledge; with the bailee, it is one of a multitude. There is no hardship in requiring the bailor to give notice of the loss if any, or make a claim for compensation within a reasonable time after he has delivered the parcel to the carrier. There is great hardship in requiring the carrier to account for the parcel long after that time, when he has had no notice of any failure of duty on his part, and when the lapse of time has made it difficult, if not impossible, to ascertain the actual facts. For these reasons such limitations have been held valid in similar contracts, even when they seem to be less reasonable than in the contracts of common carriers. Policies of fire insurance, it is well known, usually contain stipu- lations that the insured shall give notice of a loss, and furnish proofs thereof within a brief period after the fire, and it is undoubted that if such notice and proofs have not been given in the time desig- nated or have not been waived, the insurers are not liable. Such conditions have always been considered reasonable, because they give the insurers an opportunity of inquiring into the circumstances and amount of the loss, at a time when inquiry may be of service. And, still more, conditions in policies of fire insurance that no action shall be brought for the recovery of a loss unless it shall be com- menced within a specified time, less than the statutory period of limitations, are enforced, as not against any legal policy.^ Telegraph companies, though not common carriers, are engaged in a business that is in its nature almost, if not quite, as important to the public as that of carriers. Like common carriers, they cannot 1 See Eiddlesbarger v. Hartford lusurauce Company, 7 Wallace, 386, aud the numerous cases therein cited. 214 CARRIEKS OF GOODS. contract with their employers for exemption from liability for the consequence of their own negligence. But they may by such con- tracts, or by their rules and regulations brought to the knowledge of their employers, limit the measure of their responsibility to a reasonable extent. NYhether their rules are reasonable or unreason- able must be determined with reference to public policy, precisely as in the case of a carrier. And in Wolf v. The Western Union Telegraph Company,^ a case where one of the conditions of a tele- graph company, jn-inted in their blank forms, was that the company would not be liable for damages in any case where the claim was not presented in writing within sixty days after sending the mes- sage, it was ruled that the condition was binding on an employer of the company who sent his message on the printed form. The con- dition printed in the form was considered a reasonable one, and it was held that the employer must make claim according to the con- dition, before he could maintain an action. Exactly tlie same doc- trine was asserted in Young v. The Western Union Telegraph Company. - In Lewis r. The Great Western Railway Company,' whicli was an action against the company as common carriers, the court sus- tained as reasonable stipulations in a bill of lading, tliat ''no claim for deficiency, damage, or detention would be allowed, unless made within three days after the delivery of the goods, nor for loss, unless made within seven days from the time they should have been delivered." Under the last clause of this condition the onus was imposed upon the sliipper of ascertaining whether the goods had been delivered at tlie time they should have been, and in case they had not, of making his claim within seven days thereafter. In the case we have now in hand the agreement pleaded allowed ninety days from tlie delivery of the parcel to the company, within which the claim might be made, and no claim was made until four years thereafter. I'ossibly such a condition might be regarded as unrea- sonable, if an insutticient time were allowed for the shipper to learn whether the carrier's contract had been performed. Ihit that can- not be claimed here. The parcel was received at Jackson, Ten- nessee, for delivery at New Orleans. The transit required only about one day. W»' think, therefore, the limitation of the defend- ants' common-law liability, to which the parties agreed, as averred in the plea, was a reasonable one, and that the plea set up a sutHcient defence to the action. We have been referred to one case wlii(;h seems to intimate, and perhaps should be regarded as deciding, that a stipulation somewhat like that pleaded here is insuflicient to ])rotect the carrier. It is the Southern Express Company v. Cai)orton.* There the rec('ii)ts for the goods contained a i)rovision that there should be no liability > 02 r.iinnylvaiii.i .SUito, 83. ' 34 N.-w York Sujicrior Court, 390. » :> MurUloDc i. Nonnan, 867. * 4» Alalminn, 101. LIMITATION OF LIABILITY. 215 for any loss uuless the claim therefor should be made in writing, at the oihce of the company at Stevenson, within thirty days from the date of the receipt, in a statement to which the receipt should be annexed. The receipt was signed by the agent of the company alone. It will be observed that it was a much more onerous require- ment of the shipper than that made in the present case, and more than was necessary to give notice of the loss to the carrier. The court, after remarking that a carrier cannot avoid his responsibility by any mere general notice, nor contract for exemption from liabili- ties for his negligence or that of his servants, added that he could not be allowed to make a statute of limitations so short as to be capable of becoming a means of fraud; that it was the duty of the " defendant to deliver the package to the consignee, and that it was more than unreasonable to allow it to appropriate the property of another by a failure to perform a duty, and that too under the pro- tection of a writing signed only by its agent, the assent to which by the other party was only proven by his acceptance of the paper," This case is a very unsatisfactory one. It appears to have regarded the stipulation as a statute of limitations, which it clearly was not, and it leaves us in doubt whether the decision was not rested on the ground that there was no sufl&cient evidence of a contract. The case cited from 36 Georgia, 532, has no relation to the question before us. It has reference to the inquiry, what is sufficient proof of an agreement between the shipper and the carrier, an inquiry that does not arise in the present case, for the demurrer admits an express agreement. Our conclusion, then, founded upon the analogous decisions of courts, as well as upon sound reason, is that the express agreement between the parties averred in the plea was a reasonable one, and hence that it was not against the policy of the law. It purported to relieve the defendants from no part of the obligation of a common carrier. They were bound to the same diligence, fidelity, and care as they would have been required to exercise if no such agreement had been made. All that the stipulation required was that the shipper, in case the package was lost or damaged, should assert his claim in season to enable the defendants to ascertain the facts ; in other words, that he should assert it within ninety days. It follows that the Circuit Court erred in sustaining the plaintiff's demurrer to the plea. Judgment reversed. 216 CARKIEKS OF GOODS. SPRAGUE V. MISSOURI PACIFIC P. CO. 34 Kau. 347. 1S85. AcTiox by Sprague against the Railway Company, to recover §o.rii,:,inted with their condition l)cfore they were taken from the , ion of the railway company. And the jilaintiff, with fjill knowledge of this requirement, paid the freight cliarges agreed upon, after the injury had been done, witliout complaint, and with- out claiming any darnage.s tlierefor; and gave no notice, nor did he make any claim for damages prior to the comniencement of this .vti<»n. LIMITATION OF LIABILITY. 219 The stipulation requiring notice of any claim for damages to be given cannot be regarded as an attempt to exonerate the company from negligence or from the negligence or misfeasance of any of its servants. The company concedes that such an agreement would be in- effectual for that purpose. It is to be regarded rather as a regulation for the protection of the company from fraud and imposition in the adjustment and payment of claims for damages by giving the com- pany a reasonable opportunity to ascertain the nature of the damage and its cause. After the property has been taken from its i)Osses- sion and mingled with other property of a like kind, the dithculty of inquiring into the circumstances and character of the injury would be very greatly increased. That such a provision does not contra- vene public policy, and that it is just and reasonable, has been expressly adjudicated by this court. In Goggin v. K. P. Ely. Co., 12 Kas. -416, a limitation substantially like the one in question was under consideration, and the circumstances of that case were much like those of the present one. It was there, as here, urged in sup- port of the reasonableness and justice of the regulation, that the defendant was, at the time of the alleged injury, engaged in trans- porting great numbers of cattle and horses over its line of road, and which were being shipped to different points thereon, and that it ■would have been impossible for it to have distinguished one car-load from another, unless its attention was called immediately thereto, and that the object of the notice and demand mentioned in the con- tract was to relieve it from any false or fictitious claim, and to give it an opportunity to have an inspection of the stock before they were removed or mingled with others, and the company could thus have an opportunity to ascertain and allow the actual damages suffered. These reasons are said to be cogent; and the agreement is there held to be reasonable, just, and valid. The decision in that case governs the one at bar, and the view which we have taken of the validity of this limitation accords with the decisions of other courts, among which the following may be cited: Eice v. K. P. Ely. Co., 63 Mo. 314; Oxley v. St. Louis, Kans s City & Northern Ely., 65 id. 629; Express Co. v. Caldwell, 21 Wall. 264 [210]; Dawson z-. St. Louis, Kansas City & Northern Ely., 76 Mo. 514; Texas Central Ely. Co. V. Morris, 16 Am. & Eng. Eld. Cases, 259, and cases there cited. The plaintiif makes the further objection to the special agreement, that it was without consideration. It appears tliat the rate to be paid for the car in which the horses were shipped was omitted from the contract, and the plaintiff urges that as the price is not stated, it does not appear that any concession or reduction was made from the established rates, and therefore there was no consideration for the stipulation in question. But that position cannot be main- tained. The contract was in writing, and signed by the parties to be bound thereby, and by virtue of our statute it imports a consid- 220 CARRIERS OF GOODS. eration. Gen. Stat. cli. 21, § 7. If more was needed to show that the objection is not well founded, it might be found in the plain- tiff's petition, where he alleges that the contract was based upon a valuable consideration; and in his testimony, where it appears that SoU was the rate agreed upon and the amount that was paid by him under the contract. "When these things are taken in connection with the statement in the written contract, that the price agreed u}»on was a reduction from the established rates, the consideration for the stipulation in question is surticiently shown. It follows from what has been said, that the judgment of the District Court should be affirmed. e. Consignee hound. GRACE V. ADAMS. 100 Mass. 505. 186S. Contract, against the defendants, who carried on business under the name of the Adams Express Company, to recover the value of a I>ackage of money. In the Superior Court, judgment was- ordered for the plaintiff on agreed facts, and the defendants appealed. The agreed facts were as follows : — "It is agreed that the plaintiff delivered to the Adams Express Company, as common carriers, at Wilmington, in tlie State of North Carolina, Marcli 21, 18G5, a ])ackagt' containing one Imndrod and tifty doHars, directed to I'atrick Corbett, Taunton, Massachusetts, an(l the said Exjiress Company at the same time delivered to the plaintiff a bill of lading, a copy whereof is hereto annexed, and wliich makes part of this statement; that tlie said Ex^iress Comi)any .sliippod said package with other packages from Wilmington by the steamship 'General Lyon,' which ship was acci(k'nt:illy burnt at sea, and said package thereby destroyed. It is further agreed, if evidence of the fact be admissible, that the i)laintiff would tes- tify that when the jdaintiff delivered the package and took the bill of hiding, a copy of whicli is annexed, he did not re;id tin- same." The material parts of the bill of lading, of which the copy was annexed, were as follows: — " Adams Exjjrcss Comjjany. CJreat Eastern. Western t!v Southern T' iiress Forwarders. §150. Ff)rm 5. Wilmington, M.ircli 21, lMl.">. llcc('ived from One 1'., Sealed and said to c(Jiilain onii Innidred and lifty dolls. Addressed, I'atrick Corbett, Taunton, Ma.sa. LIMITATION OF LIABILITY. 221 " Upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destination only, and there to deliver the same to other parties to complete the transportation, — such delivery to terminate all liabil- ity of this company for such package ; and also, that this company is not to be liable in any manner or to any extent for any loss, damage, or detention of such package, or of its contents, or of any portion thereof, . . . occasioned by the dangers of railroad trans- portation, or ocean or river navigation, or by fire or steam. For the Company. Robinson." Colt, J. It is to be received as now settled by the current and weight of authorit}^, that a common carrier may, by special contract, avoid or limit his liability at common law as an insurer of property intrusted to him against loss or damage by fire, occurring without fault on his part. It is not necessary to discuss here, how far in this or other respects he may escape those liabilities which the policy of the law imposes by mere notices brought home to the employer, or whether the effect of such notices may not be held to vary according as it is attempted to avoid those extraordinary respon- sibilities which are peculiar to common carriers, or those other liabilities under which they are held in common with all other bailees for hire. Judson v. Western Railroad Co., 6 Allen, 486 [185]; York Co. v. Central Railroad Co., 3 Wallace, 107; Hooper u. Wells, 27 Calif. 11; and see article by Redtield, with collection of authorities, 5 Am. Law Reg. n. s. 1. It is claimed here that the shipping receipt or bill of lading con- stituted a valid and binding contract between the parties, and that, upon the loss at sea of the plaintiff's package in the course of its transportation under the contract, by an accidental fire, the defend- ants were discharged from any obligation to the plaintiff in regard to it ; and the court are of opinion that this claim must be sustained. The receipt was delivered to the plaintiff as the contract of the defendants; it is in proper form; and the terms and conditions are expressed in the body of it in a way not calculated to escape atten- tion. The acceptance of it by the plaintiff, at tne time of the delivery of his package, without notice of his dissent from its terms, authorized the defendants to infer assent by the plaintiff. It was his only voucher and evidence against the defendants. It is not claimed that he did not know, when .he took it, that it was a ship- ping contract or bill of lading. It was his duty to read it. The law presumes, in the absence of fraud or imposition, that he did read it, or was otherwise informed of its contents, and was willing to assent to its terms without reading it. Any other rule would fail to conform to the experience of all men. Written contracts are intended to preserve the exact terms of the obligations assumed, so that they may not be subject to the chances of a want of recollection or an intentional misstatement. The defendants have a right to tliis 222 CARRIERS OF GOODS. protection and are not to be deprived of it by the wilful or negligent omission of the plaintiff to read the paper. The case of Eice v. Dwight Manufacturing Co., 2 Cush. 80, 87, is an authority in point. In an action to recover for work done, the defence was that the work was performed under a special contract, and a paper of printed regulations was shown to have been given to and accepted by the plaintiff as containing the terms of the contract, but which was not signed by either party. The plaintiff denied knowledge of its con- tents; but it was said by Forbes, J., that where a party enters into a written contract, in the absence of fraud, he is conclusively pre- sumed to understand the terms and legal effect of it, and to consent to them. See also Lewis r. Great Western Kailway Co., 5 H. & X. SG7; Squire v. Xew York Central Railroad Co., 98 Mass. 2o\). This case, then, is brought Avithin the rule which authorizes car- riers to relieve themselves from losses of this description by express contracts with the employer. It differs from the cases of Brown v. Eastern Railroad Co., 11 Cush. 97, and ]\Ialone r. Rostou & Worcester Railroad Co., 12 Gray, 388. The limitation relied on in both those cases was in the form of a notice printed on the back of a passenger ticket, relating to baggage; and it was held that there was no pre- sumption of law that the party, at the time of receiving the ticket, had knowledge of the contents of the notice. It is obvious that in tliose cases the ticket was not designed to be held as the evidence of the contract between the parties. The contract, which was of pas- senger transportation, was not attempted to be set forth. At most, it was but a check, to be used temporarily and then delivered to the conductor as his voucher, with these notices on the back. The presumption that every man knows the terms of a written contract wliicli he enters into, therefore, did not apjdy. Xor was the accept- ance of the ticket conclusive evidence of assent to its terms. The recent case of Buckland r. Adams Express Co., 97 ^Slass. 121, requires notice, because, upon a case in most respects similar to this, a difTerent result was reached by tlie court. ^ The legal prin- 1 [Tin- following panigra])h from the opinion in the case cited shows the view of the court on this point. Tlu; other portion of the case is found on jmge 30 of this volume.] The otlier rjuostion raised by the agreed facts is rather one of fact than of law. It is no longer oi><;n to controversy in this State that a common carrier may limit iiis resjKjnHibility for projKjrty intrusted to liim by a notice containing reasonable an,'nnr.s rcH«-vcs the carrier from liability for loss by fire, while the property is in transit or while in depots, etc. This bill of lading', api)ellant8 insist, was the contract of the parties, by which they are bound, and the ].rovibionH of wliiih are jdainly and easily understood by any business man, and the asMiil of tht- shipjier to the terms contained in it should be presumed. The court, sitting as a Jury, did not find evidence suflTicient to justify it in i>re- Buming absent from the mere acceptance of the reeeijit. The shipiicr had n by them, and signed by the agents of the defendants. They purport to be receipts, and not contracts for carriage. They were in the following form: "Now York, Oct. 2, 1S71. deceived from H. P>. Clatlin & Co., in good order on board the M. D. for the following packages, one case D. G. marked H. S. Shelton, Janesville, Wis.," and were signed "Gleason." In a day or two, but after the packages had been started on their way, the agents of the plaintiff, acting in accordance with the habitual mode of doing this business, sent the receipts to the defendant's office, and procured bills of lading for the goods, the giving of which was entered on the several receipts. These bills of lading expressed the actual contract of carriage between the parties who in fact made the contract, the defendants on the one hand, and H. B. Claflin on the other. When tlie goods were delivered and the ])rimary receipts given, each of the parties was acting in a habitual method, and with a habitual understanding of wliat they were engaged in doing. The receipts were presented and signed with the view and expectation on both sides that bills of lading wore in the usual course to be subsefjuently issued, exjirossing the intentions and engagements of the parties. This was their method of dealing, distinctly in their contemplation from the beginning, reasonable in itself and completely within tlie authority committed by the i)lain- tiffs to his agents, II. 1'.. rhiHin & Co. Any attempt on their part to claim a diffi-rent agreement would have boon an act of bad faith; Ix'cause it would have been a departure from the understamling baHcd upon the previous course of dealing of these parties. In tlie view we take of the relations and acts of these parties, the matters of fact whicli the referee held to be immaterial were jjlainly mate- LIMITATION OF LIABILITY. 227 rial, because they were essential to the disclosure of the actual contract of the parties. The bills of lading were obtained by the plaintiff's agents, in the exercise of their original authority to contract with the defendants for transportation, and these con- trolled the rights of the parties and displaced the common-law relation, which otherwise might have existed between them. The order of time in which the business was actually transacted cannot be allowed to affect the rights of the parties. If H. B. Claflin & Co. were originally authorized to ship on bills of lading limiting the common-law liability of the defendants, the fact that receipts were taken in one stage of the business, intended by neither party as completing their dealing or contract, did not exhaust the authority. It was never so intended and cannot have that effect. The acts of the parties must have operation as they were intended by the parties when they were done. The bills of lading excepted the risk of fire, and as ib was by that danger that the property in question was destroyed, the defendants are free from liability, at least unless the loss was due to their negligence or fault. The only suggestion of fault is that the cars containing these packages were unloaded on Sunday in Chicago. The case does not inform us that by the law of Illinois, where the loss happened, unloading cars on Sunday was unlawful, and we have no means of knowing such to be the fact, in respect to the laws of that State. The common law, at least, teaches no such doctrine. The judgment should be reversed and a new trial ordered, costs to abide the event. f . Available to Connecting Carrier. BABCOCK V. LAKE SHOEE, etc. R. CO. 49 N. y. 491. 1872. Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment for the defendant entered on decision of the court upon trial without a jury. Rep. below, 43 How. Pr. R. 317. The action was brought to recover the value of a quantity of petroleum oil destroyed by fire while in possession of defendant as common carrier. On November 14, 1807, the plaintiff shipped fifty-six barrels of refined petroleum, at Oil City, in the State of Pennsylvania, by the Atlantic and Great Western Railway Company, under an agreement, of which the following is a copy : — 228 CARRIERS OF GOODS. '•Atlantic and Great Western Eailway, 7.35. "Oil City Station, November 14, 1SG7. '* Keceived from Babcock lor shipment by The Atlantic and Great "Western Kailway Company, the following property in good order, except as noted, marked, and consigned as follows : — Mark. Article. J. W. 0. & Co. ) J. W. Osburn & Co. [■ 56 Bbls. R. Oil, Car 1,848. Albany, N. Y. ) { 5 Cent Interaal Rt'venue ) I Stamp, cancelled. \ '*Eate in cents per 100 lbs. S25.00 per car. "Which this company and connecting roads agree to deliver with as reasonable despatch as their general business will permit, delays and accidents excepted, but they do not agree to transj^ort the same by any particular train, nor in any specified time." " Subject to the conditions below : "At Corry station upon payment of freight and charges thereon. "In consideration of the reduced rate given and specified above for the transportation of petroleum, it is understood that the owner or shipper assumes all risk of damage from lire or leakage or from any cause whatever while in transit, or at the depots or stations of any of the companies whose lines of road it may be transported upon or over. "The rates on petroleum, when taken at the companies' risk, or damage from fire or other causes, being double the amount herein specified. 'The owner or shipper of this property, in consideration of having the same transported at such reduced rates, does hereby release this and all other companies over whose lines of roads it may pass, from all claim for loss or damage by fire, leakage, or any other cause whatever, such products of ])etroleum as naphtha, benzine, benzole, etc., etc., being exceedingly hazardous, will not be trans- ported except by special agreement as to time of receiving and rates to be charged; and any party shipping sucli articles, without notify- ing the company and getting their consent, shall not onl}' forfeit all claim against the comitany for damages sustained, but sliall be accountable to the comjiany for loss it niay sustain in consequence thereof. "'The acceptance of this receipt by the owner or shijtper will lie considered as evidence of his assent to all the conditions contained therein.' ''!>. W. (iruNSKv, Jr., Ajfnt." The price stated in tlu! contraet was tlie eustf)marv price for tlin transjiortiition of freight from (»il City to Corry. That company carried the jjetroleum to Corry, and there delivered it to The Buffalo and I'ittsburg IJailroad Company, which company LIMITATION OF LIABILITY. 229 carried it to Brocton, in this State, and delivered it to the Buffalo and Erie Railroad Company, of which company defendant is suc- cessor and liable for its debts and obligations. While in possession of the Buffalo and Erie Railroad Company, the oil was destroyed by fire. Allen, J. To exempt the defendant, the successor in liability to the Buffalo and Erie Railroad Company, from the common-law responsibility of common carriers, extending to all losses except those resulting from the act of God or the public enemies, it must appear that the oil of the plaintiff was, at the time of its destruc- tion, in the possession of the Buffalo and Erie Railroad Company, for transportation under a special contract, restricting the liability of the carrier, made by and with the plaintiff, or some one author- ized to act in his behalf. The contract with the Atlantic and Great Western Railway Company was special in its terms, and by it the liabilities of the carrier were greatly restricted, and a loss by fire was excepted from the risk of the carrier, and if that was a through contract, — that is, a contract for the carriage of the property to and a delivery of it at Albany, its ultimate destination, — each carrier in the course of its transit, including the Buffalo and Erie Railroad Company, was entitled to the benefit of the exemptions from liabil- ity secured by it. It would be regarded as made for the benefit of all who undertake the carriage of the goods upon the terms and conditions prescribed by it. If it was not a through contract, then the Buffalo and Erie Railroad Company received the goods as common carriers, and are liable as such for all losses not within the recognized exceptions; that is, except those which were inevitable or occasioned by public enemies. If the first carrier, the Atlantic and Great Western Railway Company, only undertook for the carriage of the oil to Corry for an agreed compensation, and the delivery at that place to another carrier, there was no authority resulting from the relation, or the contract between that company and the plaintiff, to enter into a special contract, in behalf of the plaintiff, with the next carrier at Corry, to limit and restrict the liability of such carrier in any respect. There was no agency created; the whole duty of the Atlantic and Great Western Railway Company was that of carrier, and terminated with the delivery of the goods to the next carrier, and the common-law liability of the carrier receiving the goods attached at once and by necessary implication upon their receipt. The goods were received by the Atlantic and Great Western Rail- way Company at Oil City, in Pennsylvania, addressed to J. W. 0. & Co., Albany, New York, and, had they been received without special contract, a contract would not have been implied on the part of the railway company to carry the goods or provide for their carriage beyond the terminus of its road. Its whole duty would have been 230 CAKKIERS OF GOODS. performed by transporting them to the extent of its own route and delivering them to the next connecting carrier; that is. the raihvay company woukl have been liable as a carrier over its own road and as a forwarder from the terminus of its line. This is the recognized rule in this and other States, although it is otherwise in England. Root V. Great Western Railway Co., 45 X. Y. 524, and cases cited by Rapallo, J., Redfield on Carriers. § ISl, and cases cited in note 9. l^ut the goods were received by tlie Atlantic and Great Western Railway Company under special contract, aud ui)on the interpreta- tion of that contract and the effect to be given to it the decision of this case hinges. In the agreement the goods were described as *'56bbls. R. Oil, Car 1,848," and in the margin "mark, J. W. 0. & Co., J. W. Osborne & Co., Albany. N. Y." The mark or direc- tion of the property was given to identify and distinguish it from other property of the same character, and was not inserted as a part of the agreement, and from it a contract to carry to Albany would not be implied. The agreement was by "this (The A. & G. W. R.) company and connecting roads,'' to deliver the property at Corry station, which was the terminus of the road of that company, upon payment of freiglit and charges thereon. T^e_J[reight was specified at twenty-five dollars per car. This was tTie freight to Corry, and no rate was agreed upon or specified for transportation beyond that place. By the agreement the plaintiff, "in considera- tion of the reduced rates given and specified above for the trans})or- tation of petroleum," assumed certain risks, including that by which the projierty was destroyed, "while in transit, or the depots or station of any of the companies whose lines of road it may be trans- ported upon or over." The ])laintiff did, "in consideration of having the petroleum transi»orted at such reduced rates," release the A. & G. W. R. Co. and all other companies over whose lines of roads it may pass, from "all claim from loss or damage by fire," etc. The agreement was made Ijy tilling up a printed form adajjted to a contract for the transportation of goods beyond the route of the contracting carrier, and over the lines of otlier and connecting roads to distant places. The parties merely inserted in writing tlie date and place of ship- ment, the name of the owner, tlu- description nf tin- property, the freight and tlie place of delivery (Corry station). Tlu' commence- ment and termination of the res])onsibility of tlic carrier (The A. & G. W. R. Co.) were expressed clearly ami distinctly in the written parts of the contract. The good.s were not lost or destroyed between the jilace of their receipt and Corry, nor until after they had left Corry in charge of other carriers and had come into the possession of the RulTalo and Krie liailway Company, in the cour.se of their transit to Albany. The contract was for the carriage of the oil to Corry, and only .so much of the printed matter of tlie blank form used as is consistent LIMITATION OF LIABILITY. 231 with and appropriate to that contract is of any effect. The intent of the contracting parties is to be gathered from the entire instru- ment, the written part controlling where that and the printed are in conflict, and the latter to be rejected when incompatible with or inappropriate to the intent of the parties, as clearly indicated by the written portion. The printed form is very general, and contains provisions adapted to contracts differing essentially from this, some of which are not adapted to a contract for the carriage of goods wholly within the limits of the contracting carriers' line of road, and such parts as are inapplicable must be rejected as surplusage, and the written portion of the agreement prevail. Leeds v. Mechanics' Ins. Co., 4 Seld. 351; Harper v. Albany Mutual Ins. Co., 17 N. Y. 194. The limitation of the carrier's liability by the contract is necessarily confined to the service contracted for, and the carriers who were parties to it. Carriers who are not named in a contract for the carriage of goods, and who are not formal parties to it, may, under certain cir- cumstances, have the benefit of it. Such is the case when a contract is made by one of several carriers upon connecting lines or routes for the carriage of property over the several routes for an agreed price by authority, express or implied, of all the carriers. So, too, in the absence of any authority in advance, or any usage from which an authority might be inferred, a contract by one carrier for the transportation of goods over his own and connecting lines, adopted and acted upon by the other carriers, would enure to the benefit of all thus ratifying it, and performing service under it. But in such and the like cases the contract has respect to and provides for the services of the carriers upon the connecting routes. Maghee v. The Camden & Amboy R. Trans. Co., 45 N. Y. 514, and Lamb v. Same, 46 X. Y. 272, are in point, and illustrate the rule. There was no agreement here for the carriage of the oil beyond Corry, no rate of freight agreed upon to any other point, and the carrier was entitled to receive the freight earned, twenty-five dollars per car, on delivery of the oil at that place. There was no consid- eration for an agreement by the plaintiff to relieve the carriers who should thereafter receive the property for transportation from the common-law liabilities, and no such an agreement was made. It is claimed that the finding of the judge by whom the cause was tried, that the Buffalo and Erie Railroad Company received the property, " under and in pursuance of said agreement, upon its said railroad from Brocton to Buffalo," is conclusive as a finding of fact, and entitles the defendant absolutely to the benefit of the stipulations of that contract. The answer is that the transportation from Brocton to Buffalo is not within tlie limits of the contract, and it was simply impossible that goods could be carried between those places in pur- suance of a contract expressly providing for an entirely different transportation, or a transportation between two other places on a 232 CARRIERS OF GOODS. different route. While twenty-five dollars per ear freight might have been a reasonable or a reduced rate for transportation from Oil City to Corry, it may have been an entirely inadequate or an exorbi- tant rate for transporting tlie same property from Corry to Broeton, from Broeton to Buffalo, or Buffalo to Albany. It is certainly improbable that the same freight was to be the compensation to each of the railroad companies by whom the oil should be carried in its transit to Albany. The contract was not intended as a through contract. The plain- tiff has no claim under it either against the Atlantic and Great Western Railway Company or any of the connecting roads for the "carriage of the goods beyond Corry, and it necessarily follows that its stipulations did not extend to or affect the carriage beyond that place. The Camden and Amboy R. & T. Co. were held liable as common carriers under a contract somewhat like this, made with the Penn- sylvania Railroad Company, under which the goods were transported by the latter company to Pliiladelphia and there delivered to the former company. C. & A. R. & T. Co. v. Forsythe, Gl Penn. R. 81. Bristol & Exeter Railway Co. v. Cummings, 5 H. and X. 909, merely held, carrying out the doctrine of Muschamp v. The Lancaster & Preston Junction Railway Co., 8 M. and W. 421, which has not been followed in this State, that the contract of carriage in that case was a through contract made by the Great Western Railway Co. for the carriage of the goods to their ultimate destination, and that the contracting carrier was solely liable for the loss of the goods in transit, although they were lost while in course of transportation by the defendant who received them from the first carrier at the terminus of its road for trans])ortation to the place to wliich they were directed. Tliis case would not be followed with us, but each carrier would be held resjxinsible for a loss or damage to the goods while in his custody, and the only question would be as to the extent of his liability, and whether he was entitled to the benefit of any 8tij)ulations in the contract made with the first carrier. The defendant, upon the case made ami facts found by the judge at tlie trial, was subject to all tlie conunon-law liabilities of carriers, and the stipulations of tlie contract with the Atlantic and G. W. It. Co. did not extend to the transportation of the goods by the defend- ant. It is not necessary to consider at this time the lial)ility of the parties, in case it should appear that the oil was being carried at a reduced rate of freight. Judgment must be reversed anil a ih-w trial grant tdJ » KIFF r. ATCHI.SOX, TOI'KKA & .SANTA FE K. < 0. 32 Kim. 203. 1884. ntr.n, .1 'I ill .viilcnro shown tlmt on April 2Sth. IS'^S. tho Clcvclaiul Co-operative Stove THE BILL OF LADING. 233 6. THE BILL OF LADING, a. As a Contract. THE DELAWAKE. 14 Wall. (U. S.) 579. 1871. Appeal from the Circuit Court of the District of California, the case being thus : — The Oregon Iron Company, on the 8th day of May, 1868, shipped on board the bark "Delaware," then at Portland, Oregon, 76 tons of pig-iron, to be carried to San Francisco, at a freight of $4.50 a ton. The bill of lading was in these words : — " Shipped, in good order and condition, by Oregon Iron Company, on board the good bark 'Delaware,' Shillaber, master, now lying in the port of Portland, and bonnd to San Francisco, to say seventy-five tons pig-iron, more Company, of St. Louis, delivered to the Missouri Pacific Railway Company, in St. Louis, the stoves in question, to be by it transjTOrted to Hutchinson, Kansas, and there delivered to plaintiff. The railroad company, on delivery of the stoves, delivered to the shippers a duplicate receipt, of which the following is a copy : — ' " St. Louis, April 28th, 1883. " Received from the Cleveland Co-operative Stove Company, St. Louis Branch, 2900 Eleventh Street, by Mo. Pac. R. R., the following property, to be delivered in like good order, as addressed, without delay, at consignor's risk : FOR G. B. KIFF, ESQ., HUTCHINSON, KANSAS. Articles. 3 cooking stoves. 3 stove sections, weight 690, TV. Marks. K. Owner's risk. "This duplicate dray ticket is sent you as a memorandum by which to check oflF goods. If the stoves, bundles, pieces, etc., do not agree with this, or the freight bill is overcharged, please return to us your freight bill at once, with this, noting thereon the charges, and we will attend to the matter witli pleasure promi)tly." This receipt is the only contract for transportation of the stoves shown by the evidence, and under it they were transported, and on their arrival in Hutchinson were found to be broken and damaged. The evidence shows that the stoves were carried by the Missouri Pacific Railway Company over a ]iortion of its line and delivered to the San Francisco Railroad Company, which carried them to Emporia, and there delivered them to defendant, which carried them to Hutchinson. Flach of these connecting lines of transportation is entitled to the benefit of the special contract between the shippers and the Missouri Pacific Railway Company, and either of them, when sued, may claim the exemption of the contract. Wliitworth et al. v. Erie Railway Co., 87 N. Y. 414. o 234 CARRIERS OF GOODS. or less (contents, quality, and weight unknown), being marked as in the margin, and are to be delivered in like good order and condition at the aforesaid port of San Francisco, at ship's tackles (the dangers of the seas, fire, and collision excepted) unto , or assigns, he or they paying freight for the said goods in United Stiites gold coin (before delivery, if required) as per margin, with 5 per cent, primage and average accustomed. " In witness wliereof the master or agent of said vessel hath affirmed to three bills of lading, all of this tenor and date ; one of which being accom- plished, the others to stand void. Vessel not accountable for breakage, leakage, or rust. '* C. E. Shillaber, " Portland, May 8th, 1868. For the Captain." The iron was not delivered at San Francisco; and on a libel filed by the Iron Company, the defence set up was that by a verbal agree- ment made between the Iron Company and the master of the ship before the shipment or the signing of the bill of lading, the iron was stowed on deck, and that the whole of it, with the exception of 6 tons and 90 lbs. , had been jettisoned in a storm. On the trial, the owners of the vessel offered proof of this parol agreement. The libellants objected, and the court excluded the evidence on the ground that parol proof was inadmissible to vary the bill of lading ; and decreed in favor of the libellants for the iron that was thrown overboard. On appeal the case was disposed of in the same way in the Circuit Co\irt. It was now here; the question being, as in the two courts below, whether in a suit upon a bill of lading like the one here, for non-delivery of goods stowed on deck, and jettisoned at sea, it is competent, in the absence of a custom to stow such goods on deck, to prove by parol a verbal agreement for such stowage. Mr. .Justice Clifford. ....... Seventy-five tons of pig-iron were shipped by the libellants, on the 8th day of May, 1S6H, on board the bark "Delaware," then lying in the port of Portland, (Jregon, to be transported from tliat port to the port of San Francisco, for the freight of four dollars and fifty cents pfr ton, to be delivered to tlie shiiipers or their assigns at the port of destination, they paying freight as therein stipulated, before delivery if required, with five per cent primage and average accustomed. Dangers of the seas, fire, and collision were excepted in the bill of lading, and the statement at the close of the instru- ment was, "vessel not accountable for breakage, leakage, or rust." Process was served, and the claimant appeared and iilcd an answer in wliich lie admits the shipment of the iron and tlje execution of the bill of lading exhibited in the record. Sufficient also appears in the record to show that the voyage was jierfoniu-d and that but a small portion of the iron Hhip])od — to wit, some tliirteen or fourteen thousand pounds — was ever delivered to tlu^ cctnsignees, aiiy the master, that he has received tlie goods therein (lescril)ed from the slupper, to be transported on tlic terms therein expressed, to the described place of destination, and there to be delivered to the consignee or parties therein designated.'' Regularly tlio goods • Angell on Carriers. § 212 : R.-dfielrl on Carriir«, §§ 2J7 t<. 209 ; The St. Clouort of a bill of lading free of ambiguity; and it was accord- ingly held in that case that a clean bill of lading imports that the goods are stowed under deck, and that parol evidence that the vendor agret'd that the goods should be stowed on deck could not legally be received even in an action by the vendor against the purcliaser for the price of the goods which were lost in consequence of the stowage of the goods in that manner by the carrier. Even where it appeared that the shipper, or his agent who delivered the goods to the carrier, repeatedly saw them as they were stowed in that way and made no objection to their being so stowed, the Supreme Court of Maine held that the evidence of tliose facts was not admissible to vary the legal injport of the contract of shipment; that the bill of lading being what is called a clean bill of lading, it bound the owners of the vessel to carry the goods under deck, but the court admitted that where there is a well-known usage in roferenoe to a jiarticular trade to carry the goods as convenience may require, eitluT ui)on or under deck, the bill of lading may imi)ort no more than that the cargo shall be carried in the usual manner.* Testimony to i)rove a verbal agreement that the goods might be stowed on deck was offered by the defence in the ca.se of liarbcr v. Brace;* but tlie court rejected the testimony, holding that the wlnde conversation, both before and at the timt! tl»e writing was given, was merged in t\u; written instru- ment, which undoubtt'dly is the correct rule upon the subject. 1 Tin: Wiil.lo, Diivi.M, IG'2 ; l'.la< ko p. h ...k, 4 I>»iii^i:iii >, "212 ; 1 Arnoiild on Ins\iranrf, 7e liable except as warehousemen. It is agreed, and is a part of the consideration of this ai^recment, that the company will not be resiM)nsible for the leakage of liquors or liquids of any kind ; breakage of gla.ss or (pieensware; the injury or breakape of castings, carriages, furniture, gla.ss show-cases, hollow-waro anil IfKjkiiiKglas.ses, machinery, nmsical instruments of any kind, ]»:i ' 'or picture frames ; Kms of wei^jht of coffee, or grain in bai,'s, or ; or for any decay of perishable articles ; nor for damage arising from effcct« of beat or cold ; nor for loss of nuts in b.ags, lemons or ornni^es in Intxes, unless covenMl with canvas ; nor for loss or tlamage of hay, hemp, cotton, or any article the bulk of which renrlers it necessary to trans- port it in o{M.'U cars, unless it can be shown that such loss or damage occurred THE BILL OF LADING. 243 through negligence or default of the agents of this company. Goods in bond subject to custom-house regulations and expenses. The company is not responsible for accidents or delays from unavoidable cause ; the responsibility of this company, as carriers, to terminate on the delivery or tender of the freight as per this bill of lading to the company whose line may be considered a part of the route to the place of the destination of said goods or packages. In the event of loss of any property for which the carriers may be responsible under this bill of lading, the value or cost of the same at the point and time of shipment is to govern the settlement for the same, except the value of the article has been agreed upon with the shipper, or is determined by the classi- fication upon which the rates are based. And in case of loss or damage of any of the goods named in this bill of lading for which the company may be liable, it is agreed and understood that this company may have the benefit of any insurance effected by or on account of the owner of said goods. This receipt to be presented without erasure or alteration. Marks and consignees. Car No. 560 A. & N 1006K.S. J.&C. B. 9450 S Description of Ar- ticles given by Con- signee. Walnut lumber Weight, subject to Correction. 22,000 22,000 22,000 " Freight to be paid upon the weight by the company's scales, but no single shipment to be rated at less than 100 lbs. Car-load freight subject to the current rules as to the minimum and maximum weights. Charges advanced (if any). This hill of lading to he surrendered before prop- erty is delivered. " S. O. Campbell, Freight Agent." The bill of lading was issued and delivered on the evening of the twenty-third day of August. On the next morning Wells Bros, and Zohn appeared at the Garden Grove Bank, and requested the cashier to advance them ^550 on said bill of lading. He consented to do so. Thereupon Wells Bros, assigned the bill of lading to Zohn, and he assigned the same to C. S. Stearns, cashier of the bank, and at the same time Zohn executed a draft of f 550 in favor of said cashier to one J. H. Wallace, of Chicago, and the bill of lading, and draft attached thereto, were delivered to the cashier in consideration whereof he advanced and paid for said bank to Wells Bros, the sum of $550. It will be observed that there is no person named as consignee in the bill of lading. The space under the head of "Marks and Con- signees " is left blank. The defendant introduced parol evidence by which it was shown that, when the bill of lading was issued, the name of the consignee was intentionally omitted, because Zohn had not then determined to whom he would ship the lumber. He did not intend to return to Van Wert, and he directed the station agent to ship to Stokes & Son, of Chicago, unless he received other instructions from him by telegraph. No such instructions were 244 CARRIERS OF GOODS. received, and, on the next day, being the same day the plaintiff advanced the money on the bill of lading, the agent of the railroad company shipped the lumber consigned to Stokes & Son, to whom the same was delivered, and it was shipped immediately to Canada. The plaintiff forwarded the bill of lading and draft to Chicago, and demanded the lumber of the C. B. & Q. R. Co., the railroad con- necting with defendant, and delivery was refused, because a delivery had already been made to Stokes & Son. Wells Bros, knew of the arrangement between the station agent and Zohn, that the lumber was to be consigned to Stokes & Son unless Zohn should name another consignee; but this arrangement was wholly unknown to the plaintiff until it was too late to prevent the tlelivery of the lumber to Stokes & Son. The plaintiff objected to the parol evidence on the ground that it contradicted the written contract as evidenced by the bill of lading. The objection was overruled and the evidence received, and the court instructi'd the jury as follows: "(4) You are instructed that the bill of lading, as shown upon its face, does not name a con- signee, and does not express the full agreement between the parties; and you are instructed that if Zohn and Wells Bros, consented that at the time the way-bills should be made to Stokes & Son, unless the agent should be advised to the contrary, then it was proper for the said agent to ship said lumber to Stokes & Son, and your verdict should be for the defendant. But if there was no such agreement, then the bill of lading is a contract between the parties thereto, whereVjy said defendant agreed to transfer said lumber to Chicago to Wells Bros, or their assignee. The burden of proof is upon the defendant to estal)lish said agreement. (5) If you find that Wells Bros, and Zohn went to tlie bank of plaintiff, in order to get money so that Wells Bros.' claim could be satisfied, and you further find that Wells Bros, assigned their interest to said Henry Zohn, that then Zohn drew a draft on Chicago upon said Wallace, which said draft was cashed by the plaintiff, and Zohn then assigned and delivered the bill of lading to tlie plaintiff, tlien you are instructed that it was the duty of j)laintiirs, in order to protect their rights, to notify the defendant that they were the owners of said bill of lad- ing; and if you find that the defendant shipped said lumber to St<^»ke.s & Son, and said consignment was with the consent of Zohn, and he was satisfied with such assignment, and you further find that the defendant did not know that said bill of lading liad been assigned to ydaintiff, and had no knowledge of ])laintiff's rights, then the jdaintiff cannot recover in this action, and your verdict sh' ' ' ' . for the deft-ndant.'' '1 •' ♦""•tions are complained of by counsel for api)cllant, and, in c< -on with the admission of the parol evidence, they present the questions wliich, in our o])inion, are decisive of the rights of the parties. A l)ill of lading is both a receipt and a con- THE BILL OF LADING. 245 tract, and in its character as a contract it is no more open to expla- nation or alteration by parol than other written contracts. This proposition seems to be conceded by counsel for appellee ; and the court below, in the fourth instruction cited above, appears to have been of the opinion that, as the contract did not name any one as consignee, it shows upon its face that it does not express the full agreement between the parties, and the parol evidence was doubtless admitted upon the ground that the contract was partly in writing and partly in parol. It is, however, conceded in the same instruc- tion that if it was not agreed by parol that Zohn should designate the consignee, then the bill of lading is a contract whereby the defendant agreed to transfer the lumber to Chicago to Wells Bros, or their assignees. We think the proposition that the bill of lading shows on its face that it is an obligation to convey the property to Chicago and deliver to Wells Bros., or their assignees, is correct, and that it is a complete and valid contract not susceptible of expla- nation by parol, notwithstanding the space left in the instrument for the name of a consignee does not contain the name of any person. It was an obligation to deliver the goods to Chicago to the ''consignee or owner." Wells & Co., according to the contract, were consignors, consignees, and owners. In Chandler v. Sprague, 5 Mete. 306, it is said: "Ordinarily the name of a consignee is inserted, and then such consignee or his indorsee may receive the goods and acquire a special property in them. Sometimes the shipper or consignor is himself named as consignee, and then the engagement of the shipowner or master is to deliver them to him or his assigns. Sometimes no person is named; the name of the con- signee being left blank, which is understood to import an engage- ment on the part of the master to deliver the goods to the person to whom the shipper shall order the delivery, or to the assignee of such person;" citing Abb. Shipp., 4th Amer. ed. 215. See, also, City Bank v. Eailroad Co., 44 N. Y. 136; Low v. De Wolf, 8 Pick. 101; Gliddenv. Lucas, 7 Cal. 26. In Hutchinson on Carriers, § 134, it is said : " When there has been no agreement to ship the goods which will make the delivery of them to the carrier a delivery to the consignee, and vest the property in him, the shipper may, even after the delivery to the carrier, and after the bill of lading has been signed and delivered, alter their destination, and direct their delivery to another consignee, unless the bill of lading has been forwarded to the consignee first named, or to some one for his use. [Citing Blanchard v. Page, 8 Gray, 285; Mitchel v. Ede, 11 Adol. 6 E. 888; and other cases.] But, after the carrier or his agent has given one bill of lading or receipt for the goods, he cannot give another, unless the first and all duplicates of the same have been returned to him." The reason of this rule is obvious. An assignment of a bill of lading operates as a transfer of a title to the property therein 246 CARKIERS OF GOODS. described. As is said in Meyerstein i'. Barber, L. K. 2 C. P. 45: "While the goods are afloat it is common knowledge, and I would not think of citing authorities to prove it, that the bill of lading represents themj and this indorsement and deliveiy of the bill of lading, while the ship is at sea, operates exactly the same as the delivery of the goods themselves to the assignee after the ship's arrival would do." Now, it is perfectly manifest tliat if a carrier may issue a second bill of lading without requiring the return of the first, no reliance can be placed upon any such an instrument by those dealing with the consignor witli reference to tlie property. And the same consequences would ensue if he shouhl be permitted, without the surrender of a bill of lading, to ship the property to any one other than that named in the instrument. In view of the well-known fact that the livestock, grain, and other products of this country are paid for upon advancements made upon bills of lading, just as was done in this case, the interests of commerce seem to require that the rule that no alteration shall be made in contracts of this character without the production of the original should be strictly enforced. The defendant appears to have had due regard to this rule when preparing its blank bills of lading. The last j>rovision therein contained — to Avit, "Tliis bill of lading to be surrendered before property is delivered'' — was printed across the face of the instrument. It is claimed by counsel that this part of the contract was no part of the mutual obligation, but that it was a j)rovision for the protection of the defendant which it might well waive. It is true, it could, as it did in this case, deliver the ])rop- erty without the surrender of the bill of lading. l>ut it did so at its peril. This bill of lading was issued with a full knowledge that it was intended to procure an advancement of money upon it; but whether the agent had such knowledge or not, third ])ersc)ns dealing with Wfdls ct Co. were justified in believing tliat their assignee would receive the property upon the surrender of the instrument. It is claimed, however, and the court below seems to have been of the opinion, that because a Ijill of lading is not negotiable the defendant had the right to ship tlie property to Stokes & Co. by the direction of Zoliii, and is not lial)le to the plaiiitilT because it had no notice that tlie lull of lading had been assigm-d to plaintiff. It is true that a bill of lading is not negotiable. It is, however, HBsignaVde, and the assignor may maintain an aetion thereon in his own name. It possesses attrilnites not common to the ordinary non-negotiable instruments enumerated in section 2ill of lading may be exi)l;iine(l so far as it is a receipt; that is, as to the ()u;intity of goods shipped and tlie like; but as between the owner of the vessel and an assignee for a valuable consideration j)aid on the strength of a bill of lading, it i: ' ' ' inod." What may l)e tlie rights of an assignee nn'i Lances it is not necessary to consider or determine here, as that question does not arise in the present case. THE BILL OF LADING. 249 In Way land v. Moseley, 5 Ala. 430, the court say, "that a bill of lading in its character is twofold, viz. : a receipt and a contract to carry and deliver goods. So far as it acknowledges the receipt of goods and states their condition, etc., it may be contradicted, but in other respects it is treated like other written contracts." In May v. Babcock, 4 Ohio, 334, the language of the court is, that " a bill of lading is a contract including a receipt." The same doctrine in New York is likewise fully affirmed in Walfe v. Myers, 3 Sand. 7. The best elementary writers also concur in this view of the law. 1 Greenl. Ev. § 305; Abbott on Shipping, 324. The evidence, so far as relates to this question, was legally admissible, and the instruc- tions of the court in relation thereto were in conformity with well- established principles. The evidence offered by way of giving a construction to the mean- ing of the words "more or less" in the bill of lading, was most clearly inadmissible. The court, however, directed the jury entirely to disregard all evidence, which was designed to control the legal construction of the instrument, and it is to be presumed that the jury in rendering their verdict followed the instructions of the court. At the same time, the construction of these words, as given in the charge of the judge, was most favorable to the plaintiff. Exceptions overruled. Judgment on the verdict. RELYEA V. NEW HAVEN EOLLING MILL CO. 42 Conn. (U. S. D. C.) 579. 1873. Libel for freight-money; tried in the United States District Court for the District of Connecticut, August Term, 1873. The facts of the case are sufficiently stated in the opinion. Shipman, J. This is a libel in personam in favor of the owner and master of the sloop " Carver " to recover freight-money from the respondents. On or about the 8th day of August, 1872, Pettee & Mann engaged the libellant to transport in his sloop a cargo of scrap iron from New York to New Haven. The iron was weighed upon the wharf at New York, and delivered on board the vessel by Pettee & Mann. The captain, on August 8th, 1872, signed three bills of lading, whereby he acknowledged to have received on board the sloop one hundred and nine tons and a specified fraction of a ton, and agreed to deliver the same to the respondents at New Haven, or to their assigns, he or they paying freight at the rate of $2.25 per ton of 2,240 pounds. The captain demurred to signing the bills of lading, as he had not seen the iron weighed, but finally signed them upon the assurance of Pettee «& Mann that the quantity was correctly stated. 250 CARRIERS OF GOODS. On the saine day the consignors sent by mail to the respondents one of the three bills of lading, and a bill of the iron at §02.50 per ton. This letter was received before the vessel arrived. The vessel and cargo reached New Haven about the 10th of August. There was a delay of three or four days in discharging, in consequence of tlie respondents' dock being preoccupied, but the vessel was discharged on the 17th. On the IGtli the respondents paid Pettee & Mann in accordance with the quantity stated in the invoice and the bill of lading. On the 17th, when the iron was entirely discharged, the respondents discovered a deficiency of about six tons, and refused to pay for the freight. The libellant delivered all the iron that was put on board his vessel, and which amounted to one hundred and three tons. It is fairly to be inferred that the consignees would not have paid Pettee & ]\[ann until the weight of the iron had been ascertained, had they not relied upon the posi- tive statement of the bill of lading. Tlie question of law in tlie case is, whetlier the consignees, who have advanced money on the faith of a clean bill of lading signed by the master and owner of a vessel, and have been injured thereby, can recoup, in an action for freight-money brouglit by such master, so much of their loss as does not exceed tlie libellant's claim for freight. It is well settled that as between the shipper and the shipowner the receipt in the bill of lading is open to explanation. But the point here is, whether the master and owner are concluded by posi- tive representations as to third i)ersons who have relied upon such statements and have suffered loss thereby? Since the case of Lickbarrow v. Mason, 2 T, R. 63, it has generally been considered as settled law, that a bill of lading is a quasi negotiable instrument, and when goods are sold by the consignees " to arrive," and the bill of lading is indorsed to the jiurfliaser, who receives the same in good faith, that the consignor's right of stoj)page in transitu is lost. The custom of merchants upon a sale of goods which have not arrived is, to deliver the bills of lading to the jjurchaser, which pass from successive vendor to vendee, and thus l)ecome a muniment of title of great value. lu siicli case, the only evidence wliidi the purchaser has (jf the quantity of goods which he has bought, may be the stJitement of the master in the bill of lading. This declara- tion is oftentimes the only source of information upon wliich the purch.'user can safely rely. It then becomes the duty of the master to see to it that iniuicent '"-■''■ isers are not deceived Ijy his iiiff)rrect or uncertain rt'jiresen- In case jmrchasers are deceived, a corresj)oii(ling legal liability sliould hn imposed upon him to m.ike good the loss which he hiiR caused. Hail the New Haven Rolling Mill Company sold thn iron while in transit, and had the purchasiT. relying upon the rcprescntationH of the liill of l.-iding, jiaid for thi' lull anumnt therein THE BILL OF LADING. 251 stated, there can be little doubt that the master, being also the owner, would have been considered bound by his statements, at least to the extent of his freight-money. I see no reason why his liability should be diminished when the person who is deceived is the consignee named in the bill of lading. If the consignee has not been misled, and has not suffered loss, in consequence of the bill of lading, he has no cause of complaint. But if it is found that a loss has been suffered, and that such loss happened through a reliance upon an erroneous bill of lading, there is no just reason why the person whose negligence has immediately caused the injury should not also bear the loss. To this effect is the decision of Judge Nelson, in Bradstreet v. Heran, 2 Blatchf. C. C. K. 116. This was a libel in personam by the master to recover freight on cotton shipped from New Orleans to New York and consigned to the respondents. The court sa}': *' The consignees made large advances upon the cotton on the faith of the representation in the bill of lading that it was shipped in good order. They are justified in doing so, and their security should not be lessened or impaired by permitting the master to contradict his own representation in that instrument. It might be otherwise if the question arose between the master and the owner of the cotton. The question of damage might in that case be well limited to that accruing in the course of the voyage, notwithstand- ing the bill of lading. But the respondents stand in the light of bona fide purchasers, who became such on the faith of the represen- tation of the master." In case of Sears v. Wingate, 3 Allen, 103, the court hold that the master and owner is bound by the representations in the bill of lading, when the consignee is deceived thereby, provided the state- ments are those which the master knew or ought to have known were erroneous, and the incorrectness of which he had the means of discovering. Here the cargo was weighed upon the dock at New York. It is not probable that the master, unless exceedingly diligent, could have verified the accuracy of the weights, or have ascertained the truth or incorrectness of the representations made to him by the consignors. But in my opinion it was his duty either to have ascertained the true weight, or to have refused to sign a clean bill. The master, when he ignorantly signs a bill of lading, whereby he undertakes to deliver a specified quantity, is always in danger of misleading a third person. It is incumbent upon him to avoid tliat danger, by refusing to sign a bill unless he is satisfied of the accuracy of its contents. It is claimed by the libellant that the hundred and three tons were accepted, and that the freight-money is therefore to be paid. It is true that there was an acceptance, and that the respondents are liable for the freight-money. But they have nevertheless a right to 252 CARRIERS OF GOODS. recoup against this claim for freight, the damage which they have sustAined in consequence of the fault of the master in the same transaction which is the subject of the suit; but such recoupment cannot be to an extent beyond the amount claimed for freight. The respondents can prosecute this claim for damage, either by an independent suit or libel, or the}' can by recoupment, "seek to diminish or extinguish the libellant's just claim." Kennedy v. Dodge, 1 Benedict, 315; Nichols v. Tremlett, 1 Sprague's Decis. 3G7. The libellant was also entitled to a small sum for demurrage, but as the price of the six tons of iron was greater than the amount of the freight-money and demurrage, the libel must be dismissed. POLLARD V. TTXTOX. 105 U. S. 7. 18S1. Ehijok to the Circuit Court of the United States for the District of Kentucky. The facts are stated in the opinion of the court. IVIr. Justice Millek. The defendant in error, who was also defendant below, was the owner of a steamboat running between the cities of ^lemphis, on the !Mississi]tpi Kiver, and Cincinnati, on the Ohio Itiver, and is sued on a bill of lading for the non-delivery at Cincinnati of one hundred and fifty bales of cotton, according to its terms. The bill of lading was in the usual form, and signed by E. D. Cobb & Co., who were the general agents of Vinton for shipping purposes at Memphis, and was delivered to Dickinson, Williams & Co. at that place. They immediately drew a draft on tlie i)laintifFs in New York, i)ayable at sight, for $5,0(10, to which they attached the bill of lading, which draft was duly accejjted and paid. No cotton was shipi)ed on the steamboat, or delivered at its wharf, or to its agent for shipment, as stated in the bill of lading, the statement to that cfFoct being untrue. These facts being undisputed, as tliey are found in tlie bill of exceptions, the court instructed tlie jury to find a verdict for the defendant, which was done, and judgment rendered accordingly. This instruction is the error complained of by the plaintifTs, who sued out the j)resent writ. A bill of lading is an instrument well known in commercial tran.sactions, and its character and efTect have been defined by judi- cial decisiouH. In the liands of the holder it is evidence of owner- ship, sfKjcial or general, of the pro])erty mentioned in it, and of the right to receive said i)roperty at the j)lace of delivery. Notwith- THE BILL OF LADING. 253 standing it is designed to pass from hand to hand, with or without indorsement, and it is efficacious for its ordinary purposes in the hands of the holder, it is not a negotiable instrument or obligation in a sense that a bill of exchange or a promissory note is. Its transfer does not preclude, as in those eases, all inquiry into the transaction in which it originated, because it has come into hands of persons who have innocently paid value for it. The doctrine of bona fide purchasers only applies to it in a limited sense. It is an instrument of a twofold character. It is at once a receipt and a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter it is a contract to carry safely and deliver. The receipt of goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver. To these elementary truths the reply is that the agent of defendant has acknowledged in writing the receipt of the goods, and promised for him that they should be safely delivered, and that the principal cannot repudiate the act of his agent in this matter, because it was within the scope of his employment. It will probably be conceded that the effect of the bill of lading and its binding force on the defendant is no stronger than if signed by himself as master of his own vessel. In such case we think the proposition cannot be successfully disputed that the person to whom such a bill of lading was first delivered cannot hold the signer responsible for goods not received by the carrier. Counsel for plaintiffs, however, say that in the hands of subse- quent holders of such a bill of lading, who have paid value for it in good faith, the owner of the vessel is estopped by the policy of the law from denying what he has signed his name to and set afloat in the public market. However this may be, the plaintiffs' counsel rest their case on the doctrine of agency,- holding that defendant is absolutely responsible for the false representations of his agent in the bill of lading. But if we can suppose there was testimony from which the jury might have inferred either mistake or bad faith on the part of Cobb & Co., we are of opinion that Vinton, the shipowner, is not liable for the false statement in the bill of lading, because the transaction was not within the scope of their authority. If we look to the evidence of the extent of their authority, as found in the bill of exceptions, it is this short sentence: — " During the month of December, 1873 " (the date of the bill of lading), "the firm of E. D. Cobb & Co., of Memphis, Tennessee, were authorized agents of the defendant at Memphis, with poiver to solicit freights and to execute and deliver to sliijypers bills of lading for freight shipped on defendant s steamboat, ' Ben Franhlln.' " This authority to execute and deliver bills of lading has two limi- 254 CARKIERS OF GOODS. tations; namely, they could only be delivered to shippers, and they could only be delivered for freight shipped on the steamboat. Before the power to make and deliver a bill of lading could arise, some person must have shipped goods on the vessel. Only then could there be a shipper, and only then could there be goods shipped. Iq saying this, we do not mean that the goods must have been actually placed on the deck of the vessel. If they came within the control and custody of the officers of the boat for the purpose of shipment, the contract of carriage had commenced, and the evidence of it in the form of a bill of lading would be binding. But without such a delivery there was no contract of carrying, and the agents of defendant had no authority to make one. They had no authority to sell cotton and contract for delivery. They had no authority to sell bills of lading. They had no power to execute these instruments and go out and sell them to purchasers. No man had a right to buy such a bill of lading of them who had not delivered them the goods to be shipped. Such is not only the necessary inference from the definition of the authority under which they acted, as found in the bill of excep- tions, but such would be the legal implication if their relation to defendant had been stated in more general terms. The result would have been the same if it had been merely stated tliat they were the shipping agents of the owner of the vessel at that point. It appears to us that tliis proposition was distinctly adjudged by this court in the case of Schooner Freeman v. Buckingham, 18 How. 1S2. In that case the schooner was libelled in admiralty for failing to deliver flour for which the master had given two bills of lading, certifying that it had been delivered on board the vessel at Cleve- land, to be carried to Ihiffalo and safely delivered. The libellants, who reside in the city of New York, had advanced money to the consignee on these bills of lading, which were delivered to them. It turned out that no such flour liad ever l)een shipped, and that the master had been imlucod, by the frauduh'ut orders of a person in control of the vessel at tlie time, to make and deliver the bills of lading to him, and that he had sold the drafts on which libellants had paid the money and received the bills of lading in good faith. A question arose how far the claimant, who was the real owner, or general owner, of the vessel could be ])ound by the acts of the ma.ster upi)ointed by one to whom he had confided the (-(jntrol of the vessel; and the court lield that, having consented to this delivery of the vessel, he was bound by all the acts by whicli a master could lawfully Ijind a vessel or its owner. The court, in further discussing the question, says: ''Even if tlie nia.Ht.". Y. Ill, the defendant's agent, having authority to issue bills of lading, upou delivery to him by M. of a forged warehouse receipt, issued to M. two bills of lading, each stating the receipt of a quantity of lard consigned to plaintiffs at New York, and to be transported and delivered to them. M. drew sight drafts on tlie plaintiffs, to which he attachetl the bills of lading; these were delivered to a bank and were forwarded to New Y'ork, and the drafts were paid by plaint ill" upon the faith and credit of the bills of lading. It was held that the defendant was bound by the acts of its agent, the same being within the apparent scope of his authority, and was estopped from denying the receipt of the lard. In the case of the Savings Bank v. A. T. & S. F. K. K. Co., 20 Kansas, 519, the court held that where the agent of a railroad company has authority to receive grain for shipment over its road, and issues in the name of the corporation a bill of lading for each consignment received, and issues two original bills of lading for a single consignment, the two bills of lading liaving been assigned to the bank, which advanced money thereon in good faith, and the shipper being insolvent and having absconded, that the railroad company was estopped by its statement and promise in the bill of lading to deny that it has received tlie grain mentioned therein. The court say: "The custom of grain-dealers is to buy of the producer his wheat, corn, barley, etc., then deliver the same to the railroad company for shipment to market. The railroad com- pany issues to the shipper its bill of lading. The shipper takes his bill of lading to a bank, draws a draft upon his commission mer- chant or consignee against the shipment, and attaches his bill of lading to the draft. Upon the faith of the bill of lading and with- out further inquiry the bank cashes the draft, and the money is thus obtained to pay for the grain purchased, or to repurchase other ship- ments. In this way the dealer realizes at once tlie greater value of his consignments, and need not wait for the returns of the sale of his grain to obtain money to make other purchases. In this way the dealer with a small capital may buy and ship extensively; and while having a cai)ital of a few hundred dollars only, may buy for cash and shij) grain valued at many thousands. This mode of trans- acting business is greatly advantageous l)oth to the sliii)per and the proihicer. It gives the sliipper wlio is prudent and ])osted as to the markets almost unlimited ojtportunities for the purchase and ship- ment of grain, and furnishes a cash market for the producer at his own door. It enaldes the capitalist and banker to ol)tain fair rates of interest for tl>e money he lias to loan, and insures him, in lh(! way of bills of lading, excellent security. It also furnishes addi- tional business to railroad companies, as it facilitates and increases THE BILL OF LADING. 259 shipments to the markets. A mode of doing business so beneficial to so many classes ought to receive the favoring recognition of the courts to aid its continuance." The question whether or not bills of lading are negotiable does not enter into the case. All the testi- mony shows that the bills of lading in controversy were issued by an authorized agent of the railroad company, and that he not only had authority to issue such bills, but it was one of the duties imposed upon him. As against an innocent purchaser of the bills it will not do to say that the agent had authority to issue bills of lading duly signed, only in cases where shipments were made, and no authority where shipments were not made. The company itself has invested its own agent with the authority to issue bills of lading, and when duly issued they are not the bills of the agent, but of the railroad company. The representations, therefore, thus made in the bills that the company has received a certain quantity of grain for ship- ment, is a rejDresentation to any one who, in good faith relying thereon, sees fit to make advances on the same. If these repre- sentations are false, Avho should bear the loss? The party who appointed, placed confidence in, and gave authority to make the bills, or the one that in good faith, relying thereon, purchased or advanced money on the same? In Lickbarrow v. Mason, 2 T. E. 63, 1 Smith's Leading Cases, 6 Am. ed., 1044, Ashhurst, J., says: "We may lay it down as a broad, general principle, that whenever one of two innocent persons must suffer by the acts of a third, he who has enabled said third person to occasion the loss must sustain it." This case presents every element necessary to constitute an estoppel in pais, a representation made with full knowledge that it might be acted upon, and subsequent action in reliance thereon, by which the defendants in error would lose the amount advanced if the representation is not made good. This principle was entirely overlooked in Grant v. Norway, and the cases following it. The defendant in the court below is therefore liable to the bank to the extent of the amount advanced on faith of these bills, not exceeding the value of the grain certified to as having been shipped. Objec- tions are made to the proof of the price of wheat at Scribner at the time stated in the bills, to proof in reference to the grade of wheat shipped from that place, and to the weight of an ordinary car-load, but as the verdict is for several hundred dollars less than the amount advanced by the bank on the bills of lading in question, and much less than it should have recovered, it is unnecessary to con- sider them. There is no error in the record of which the plaintiff in error can complain, and the judgment must be affirmed. Judgment affirmed. 260 CARRIERS OF GOODS. 7. DELIVERY BY CARRIER. A. To TERSCIXATE EXCEPTIONAL LIABILITY. HYDE V. XAVIGATIUX COMPANY. King's Bench. 5 Term R. .389. 1793. This was an action on the case against the defendants as common carriers. The declaration stated that the defendants were common carriers of goods for liire from Gainsborough, in the county of Lincoln, to >Lanchester, in the county of Lancaster. That the plain- tififs on the 2Sth September, 1789, delivered the defendants eighteen bags of cotton, to be safely carried by the defendants from Gains- borough to Manchester, and there to be delivered to the plaintitfs, etc., and that the defendants undertook to carry and convey, etc., and there deliver them, which they neglected, etc. The second count was upon a delivery of fourteen other bags of cotton, to be carried by the defendants from Bromley Common, in the county of Stafford, to Manchester, and there to be delivered to the plaintiffs; that the defendants undertook, etc., and that the goods were lost through their negligence. It ap])eared at the trial that the goods were put on board the defendant's barges at the respective places mentioned in the decla- ration, and conveyed therein along the defendant's navigation and the Duke of Bridgewater's canal to Manchester, where they were landed upon the quay, and lodged there in the Duke of Bridgewater's warehouse, in whicli places they were consumed by an accidental fire the same niglit. In the bills made out by the defen(hints, tliere were charges of so much for tonnage on the river Trent, so nnich for tonnage on tlie Trent and Mersey Navigation, so much for the Duke of liridgcwater's canal, so much for warehouse room for the Duke of Bridgewater; besides which, in the bill fur tlie fourteen bags was a charge for cartage, wliieh was intended for the cartage from the Duke of Bridgewater's warehouse to the i)laintiff's own warehouse in Manchester, and whicli was i)aid by the plaintiffs when the goods were put on board the defendant's barges; but the charge for warehouse room was merely received by the defendants as agents to the duke, and they had no sliare of tlio i)r(jf)t. It apjieared also to be the practice of many persons in Manchester, for wliom goods were brought by the defendants, to send th' ell Inn was misconceived; it should have been brought against tlie carrier, and not the innkeeper; and yet it did not occur to the defendants* counsel, in that case, to make such an objection. When goods are sent by a coach, a letter of advice should also be sent to the person to whom they are directed that he may send for them : or the i)rico which the porter expects to receive for delivering them will induce Huch porter to carry them; but the carriage and jjorteragc constitute distinct charges. In this case, however, there is one peculiar circumstance, whicli makes it unnecessary to doeide the general question, and that is the chrir '.• Tii.i.lf by tlic defenda)its in one of their bills for the cartage at ; i-r; for tliat charge the defendants undertook tf) deliver DELIVERY BY CARRIER. 263 the goods. Therefore, without deciding the general question, I think the plaintiffs are entitled to the verdict which they have obtained. On the general point, I have great doubts; the leaning of my mind at present is, that carriers are not liable to the extent contended for. AsHHUKST, J. I am glad to find one circumstance which puts the case out of all doubt ; namely, that one of the bills contains a charge for the wharfage and cartage; wliich is decisive to show that in this case the liability of the defendants continued until the goods were delivered. Had it not been for this circumstance, I should have desired further time to consider the case. The inclination of my opinion on the general question is, that a carrier is bound to deliver the goods to the person to whom they are directed. A contrary decision would be highly inconvenient, and would open the door to fraud; for if the liability of a carrier were to cease when he had brought the goods to any inn where he might choose to put up his coach, and a parcel containing plate or jewels, brought by him, were lost before it was delivered to the owner, the latter would only have a remedy against a common porter. It has been said, however, that it is the practice of many persons to send to the inn for their goods; but that does not prove that the carrier is not bound to deliver them, if they do not send. If the owner choose to send for his goods, that merely discharges the carrier from his liability in that case; it only dispenses with the general obligation thrown by the law upon the carrier; but it does not apply to the other cases where that obligation is not dispensed with. But on this question I do not mean to give any decided opinion. BuLLER, J. Upon the general question my opinion coincides with that given by my brother Ashhurst; and according to the defendants' own argument great inconveniences would result to the public from adopting any other rule. According to their argument, there must be two contracts in all cases where goods are sent by a coach or a wagon ; but I think the same argument tends to establish the neces- sity of three, — one with the carrier, another with the innkeeper, and a third with the porter. But in fact there is but one contract: there is nothing like any contract or even communication between any other person than the owner of the goods and the carrier; the carrier is bound to deliver the goods, and the person who actually delivers them acts as the servant of the carrier. This does not militate against the decision in the action alluded to against the innkeeper. In general it happens that the innkeeper in London has some interest or concern in the coaches and wagons that put up at his house ; in those cases he is liable as carrier; but even if this fact were not proved in that case, the porter was considered as the servant of the innkeeper; and if the latter insisted, by his servant, that he would not part with the game until he had received more than he was entitled to, he was a wrong-doer and liable to an action of trover. 264 CARRIERS OF GOODS. It has been said too, that the place of a porter is valuable, and is the subject of a purchase ; but who sells the place ? Who agrees with him that he shall be the porter ? Xot the person to whom the goods are sent, but the carrier and the innkeeper, whom I consider as the same person. But if the innkeeper have no share in the profits of the carriage, and receives the goods for the purpose of delivering them to the owners, then the innkeeper is the servant of the carrier as well as the porter. Therefore, whether there be the innkeeper and the porter, or the porter only, the carrier is liable in all cases where the goods are lost after they get into the hands of the innkeeper or jjorter, because they are delivered to those persons with the consent, and as the servants, of the carrier. It does not appear to me that the difficulties suggested respecting foreign sliips exist. When goods are brought here from foreign countries, they are brought under a bill of lading, which is merely an undertaking to carry from port to port. A ship trading from one port to another has not the means of carrying the goods on land; and, according to the estab- lished course of trade, a delivery on the usual wharf is such a delivery as will discharge the carrier. In this case, however, I have not the least doubt. The expres- sion in the card, circulated by the defendants, "carriers by land and navigation," cannot indeed have much weight for the reason given; hxit I rely on the charge which the defendants compelled the plaintiffs to pay before they would engage to deliver the goods. Hibljert was originally a servant to the defendants; and though he has since, by agreement with them, undertaken the cartage on his own account, and received the whole profits of it himself, that can- not affect third persons. The different i»ro])rietors may divide the jjrofits among themselves in any way they choose, but thoy cannot by tlieir own agreement with eacli other exonerate themselves from their liability to the owner of the goods. The carriers have the direction of the goods, and are responsible for them until they are delivered to the owner; and here the defendants insisted on receiv- ing a certain sum of money for the whole ex])onse of carrying and delivering, including tht,* identical charge of cartage, bdore they would take the goods into their vessel. If the carrier and porter were to make separate contracts with the owner of the goods, the latter would at least have the option of sending his own carts to liring away his goods; whereas here the defendants put the goods into tin; I)ukc of Iiriut this exemption does not extend to expre ss companies, althougli availing the mselves of carriage by rail. R ed- field on Railways, § 127. These were established for tlie pur i)Ose of extending to the public the advantages of personal delivery enjoyed in all cases of land carriage prior to the introduction of tran sj^orta: tion by rail. It appeared in the present case tliat the defendant had its vehicles by which they carried articles to the consignee in tiie city of Schenectady, which had arrived there by rail under contracts with the company for the transjiortation. This is the usual course of transacting business by such companies; were it otherwise, the 1 ^ done by these comj»anies would be greatly diminished, as i; I be equally advantageous in many cases to have the property transported by the railroad company. When the defendant received the package from the Adam.s Comjjany at New York, consigned to Martin Witbcck, Schenectady, it became liable as carrier lor its DELIVERY BY CARRIER. 273 carriage to Schenectady and its delivery to Witbeck there, if with reasonable diligence he could be found. The performance of this entire service was contracted for by its receipt so addressed, and had the defendant received it from the plaintiff at New York and given him a receipt for its transportation, the obligation to make personal delivery at Schenectady would have been incurred. The only rem aining^uestio n arises upon the exception taken to the JjniL: rn g^by thp. rf^fp.rp.P!, n.s a fact, that the defendant did not make due effort, nor use due diligence to find said Martin Witbeck, the con- signee of said package . It is insisted by the counsel for the appel- Tant, that the question, what is reasonable diligence, is one of law. That may be so, when there is no conflict in the evidence, or con- troversy as to the facts to be inferred therefrom. But that is not this case, nor will most cases of this class be of that description. In most, if not all, the question will be mixed, both of fact and law. In the present case the finding of the referee is clearly cor- rect. The diligence, which the law required of the defendant, was such as a prvident man would have used in an important bu siness affair of his own. The evidence shows that the defendan t was so inat tentive as to mist ake the surname of the consignee. Although the package was addressed to Witbeck, all its inquiries were made for Whitbeck. This may have prevented their finding him. It further appeared that its inquiries were confined to a few persons in the vicinity of its place of business, and that by these it obtained information of other persons of a like surname, one of whom was the father of the consignee. Surely inquiry should have been made of these persons, and had it been so made, delivery would have been made and the loss would never have occurred. There is nothins: in the point that the negligence of the plaintiff in not giving further information as to the residence of the consignee contributed to the loss. The defendant accepted the package, addressed as it was, and failed in the performance of the duty imposed thereby. For such failure it is responsible, irrespective of the right of the plaintiff to give additional information. I have examined the various excep- tions taken by the appellant to the rulings of the referee as to the competency of evidence. The question whether the consignee was well known in Schenectady was proper. The plaintiff had the right to prove this fact if he could. But the testimony given in answer was not material. None of the testimony excepted to could have prejudiced the defendant. The judgment appealed from must be affirmed. All the judges concurring, judgment affirmed. 18 274 C.UIKIEKS OF GOODS. ^-OKWAY PLAINS CO. r. BOSTON AND MAINE E. K. 1 Gray (Mass.) 263. 1854. Action of contract u])OU the agreement of the defendants to transport certain goods from Kochester, N. II., to Boston.^ Shaw, C. J. The liability of carriers of goods by railroads, the grounds and precise extent and limits of their responsibility, are coming to be subjects of great interest and importance to the com- munity. It is a new mode of transportation, in some respects like the transportation by ships, lighters, and canal-boats on water, and in others like that by wagons on land ; but in some respects it differs from both. Though the practice is new, the law, by which the rights and obligations of owners, consignees, and of the carriers themselves are to be governed, is old and well established. It is one of the great merits and advantages of the common law, that, instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive prineijiU'S, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it. These general principles of equity and policy are rendered precise, specific, and adapted to practical use, by usage, which is the proof of their general fitness and common convenience, but still more by judicial exposition; so that when, in a course of judicial proceeding, by tribunals of the highest authority, the general rule has been modified, limited, and applied, according to particular cases, such judicial exposition, when w(dl settled and acquiesced in, becomes itself a precedent, and forms a rule of law for future cases, under like circumstances. The effect of this expansive and compre- liensive character of the common law is, that whilst it has its foun- dations in the ])rinciples of e<[uity, natural justice, and that general convenience which is public policy; although these general consider- ations would be too vague and uncertain for practieal purjioses, in the various and complicated cases, of daily occurrence, in the busi- ness of an active community, — yet the rules of the common law, so far as cases have arisen and jiractices actually grown uji, are ren- dered, in a good degree, j)recise and certain, for practical purposes, by ■ -•'• and judicial ])recedent. Another eouscfiuenci' of this exp i, • character of the common law is, that when new practices spring up, new combinations of facts arise, and cases are presented for which there is no precedent in judicial decision, they must be DELIVERY BY CARRIER. 275 governed by the general principle, applicable to cases most nearly analogous, but modified and adapted to new circumstances by con- siderations of fitness and propriety, of reason and justice, which grow out of those circumstances. The consequence of this state of the law is that when a new practice or new course of business arises, the rights and duties of parties are not without a law to govern them ; the general considerations of reason, justice, and policy, which underlie the particular rules of the common law, will still apply, modified and adapted, by the same considerations, to the new cir- cumstances. If these are such as give rise to controversy and liti- gation, they soon, like previous cases, come to be settled by judicial exposition, and the principles thus settled soon come to have the effect of precise and practical rules. Therefore, although steam- boats and railroads are but of yesterday, yet the principles which govern the rights and duties of carriers of passengers, and also those which regulate the rights and duties of carriers of goods, and of the owners of goods carried, have a deep and established foundation in the common law, subject only to such modifications as new circum- stances may render necessary and mutually beneficial. The present is an action brought to recover the value of two par- cels of merchandise, forwarded by the plaintiffs to Boston, in the cars of the defendants. These goods were described in two receipts of the defendants, dated at Eochester, N. H., the one October 31st, 1850, and the other November 2d, 1850. By the facts agreed it appears that the goods specified in the first receipt were delivered at Rochester, and received into the cars, and arrived in Boston seasonably on Saturday, the 2d of November, and were then taken from the cars, and placed in the depot or warehouse of the defendants; that no special notice of their arrival was given to the plaintiffs or their agent; but that the fact was known to Ames, a truckman, who was their authorized agent, employed to receive and remove the goods, that they were ready for delivery, at least as early as Monday morning, the 4th of November, and that he might then have received them. The goods specified in the other receipt were forwarded to Boston on Monday, the 4th of November; the cars arrived late; Ames, the truckman, knew from inspection of the waybill tliat the goods were on the train, and waited for them some time, but could not con- veniently receive them that afternoon, in season to deliver them at the places to which they were directed, and for that reason did not take them ; in the course of the afternoon they were taken from the cars and placed on the platform within the depot; at the usual time at that season of the year, the doors were closed. In the course of the night the depot accidentally took fire and was burnt down, and the goods were destroyed. The fire was not caused by lightning; nor was it attributable to any default, negligence, or want of due care on the part of the railroad corporation, or their agents or servants. 276 CAKRIEKS OF GOODS. We understand the merchandise depot to be a warehouse, suitably- enclosed and secured against the weather, thieves, and other like ordinary dangers, with suitable persons to attend it, with doors to be closed and locked during the night, like other warehouses, used for the storage of merchandise; that it is furnished with tracks, on which the loaded, cars run directly into the depot to be unloaded; that there are platforms on the sides of the track, on which the goods are tirst placed; that if not immediately called for and taken by the consignees, they are separated according to their marks and direc- tions, and placed by themselves in suitable situations within the depot, there to remain a reasonable and convenient time, without additional charge, until called for by parties entitled to receive them. The question is whether, under these circumstances, the defendants are liable. That railroad companies are authorized by law to make roads as public highways, to lay doAvn tracks, place cars upon them, and carry goods for hire, are circumstances which bring tliem within all the rules of the common law, and make them eminently common car- riers. Their iron roads, though built, in the first instance, by indi- vidual capital, are yet regarded as public roads, required by common convenience and necessity, and their allowance by public authority can be only justified on that ground. The general principle has been uniformly so decided in England and in this country; and the point is, to ascertain the precise limits of their liability. This was done to a certain extent in this court, in a recent case, with which, as far as it goes, we are entirely satisfied. Thomas v. Boston & Providence Railroad, 10 Met. 472. Being lialde as common carriers, the rule of the common law attaches to them, that they are liable for losses occurring from any accident which may befall the goods, during the transit, except those arising from the act of God or a jmblic enemy. It is not necessary now to inquire into the weight of tliose considerations of reason and policy, on which the rule is founded, nor to consider what casualty may l)e held to result from an act of (iod, or a jjublic enemy; because the present case does not turn on any sucli distinc- tion. It is sufficient, therefore, to state and atfirm tlie general rule. In the present case, the loss resulted from a fire, ol' wliich there is no ground to suggest that it was an act of God; and it is equally clear tliiit it did not result from any default or negligence on the ])art of the company, tliougli the goods remained in their custody. If, at the time of the loss, they were liable as common carriers, they must abide by the loss; because, as common carriers, they were bound as insurers to take the risk of lir(>, not eiiused liy the act of God, and in siieh case no fjuestion of ilel.nilt or negligence can arise. Proof that it was from a cause for wliich they, neither by tliemselveH nor their servants, were in any degree chargeable, could DELIVERY BY CARRIER. 277 amount to no defence, and would therefore be inadmissible in evi- dence. If, on the contrary, the transit was at an end, if the defend- ants had ceased to have possession of the goods as common carriers, and held them in another capacity, as warehousemen, then they were responsible only for the care and diligence which the law attaches to that relation ; and this does not extend to a loss by acci- dental fire, not caused by the default or negligence of themselves, or of servants, agents, or others, for whom they are responsible. The questi on th en is, when and by what act the transit of the goods terminated . It was contended, in the present case, that, in the absence of express proof of contract or usage to the contrary, I <^ the carrier of goods by land is bound to deliver them to the con- 1 *■ signee, and that his olaligation as carrier does not cease till such | delivery. This rule applies, and may very properly apply, to the case of goods transported by wagon and other vehicles, traversing the com- m on highways and streets, and which therefore can deliver the goods at the houses of the respective consignees. But it canno t ap ply to railroads, whose line of movement and point of termination are locally fixed. The nature of the transportation, though on land, is much more like that by seaTin this respect, that from the very natufe~ot the case, th e merchandise ca n only be tr ansported_ along one line, and delivered at its termination, or at some fixed place by its side, at some intermediate point. The rule in regard to ships is very exactly stated in the opinion of Buller, J., in Hyde v. Trent & Mersey Navigation, 5 T. R. 397. "A ship trading from one port to another has not the means of carrying the goods on land; and, according to the established course of trade, a delivery on the usual wharf is such a delivery as will discharge the carrier." Another peculiarity of transportation by railroad is that the car cannot leave the track, or line of rails, on which it moves; a freight train moves with rapidity, and makes very frequent journeys, and a loaded car, whilst it stands on the track, necessarily prevents other trains from passing or coming to the same place; of course, it is essential to the accommodation and convenience of all persons interested, that a loaded car, on its arrival at its destination, should be unloaded, and that all the goods carried on it, to whomsoever they may belong, or whatever may be their destination, should be discharged as soon and as rapidly as it can be done with safety. The car may then pass on to give place to others, to be discharged in like manner. From this necessary condition of the business, and from the practice of these transportation companies to have plat- forms on which to place goods from the cars, in the first instance, and warehouse accommodation by which they may be securely stored, the goods of each consignment by themselves, in accessible places, ready to be delivered, the court are of opinion that the duty assumed by the railroad corporation is — and this, being known to owners of -Cc 273 CAKKIEKS OF GOODS. n^ goocl s forwarded, must, in the absence of proof to the contrary, be • ^ p res umed to be assented to by them, so as to constitute the iiu]^lied "^ co ntract between them — that they will carry the goods safely to the ]ilace of destination, anil there disohari;e them on the platfom i. and then and there dtdiyer them to the consignee or party entitled to receiye them, if he is there ready to take tliom fo rtliwith; or if the consignee is not there ready to take them, then to place them securely and keep them safely a reasonable time, ready to be deliyered when called fo r. This, it appears to us, is the spirit and legal effect of the public duty of the carriers, and of the contract between the parties when not altered or moditied by special agree- ment, the effect and operation of which need not here be considered. This we consider to be one entire contract for hire; and although there is no separate charge for storage, yet the freight to be paid, fixed by the company as a compensation for the whole service, is paid as well for the temporary storage as for the carriage. This renders both the services, as well the absolute undertaking for the carriage, as the contingent undertaking for the storage, to be ser- vices undertaken to be done for hire and reward. From this view of the duty and implied contract of the carriers by railroad, we think ^ there result two distinct liabilities: first, that of common carriers , an d afterwards that of keepers for hire , or ware house keepers; the obli gations of each of which are regulated by law . We may then say, in the case of goods transported by railroad, either that it is not the duty of the company as common carriers, to deliver the goods to the consignee, which is more strictly con- formable to the truth of the facts; or, in analogy to the old rule that delivery is necessary, it may be said that delivery by themselves as common carriers, to themselves as keepers for hire, conformably to the agreement of both parties, is a delivery which discharges their responsibility as common carriers. If they are chargeable after the goods have been landed and stored, the liability is one of a very different character, — one which binds them only to stand to losses occasioned by their fault or negligence. Indeed, the same doctrine is distinctly laid down in Thomas r. lioston & Providence Kailroad, 10 Met. 472, with the same limitation. The i)oint that the same company, under one and the same contract, may be subject to dis- tinct duties, for a failure in which they may be liable to different degrees of responsibility, will result from a comjjarison of the two cases of Garside i'. Trent & Mersey Navigation, 4 T. R. 581, and Hyde v. Trent & Mersey Navigation, .^> T. R. 389 [260]. See also Van Santvoord v. St. John, 6 Hill, 157, and Mcllenry v. I'hiladel- phia, Wilmington & Baltimore llailmad, 4 Harriiig. 41S. The comjtany, having received an adccpiate comjjens.ation for the entire service, if they store the goods, are paid for that service; they are depositaries for liire, and of course responsible for the security and fitness of the place, and all precautions necessary to DELIVERY BY CARRIER. 279 the safety of the goods, and for ordinary care and attention of their servants and agents, in keeping and delivering them when called for. This enforces the liability of common carriers to the extent to which it has been uniformly carried by the common law, so far as the reason and principle of the rule rendered it fit and applicable, that is, during the transit; and affords a reasonable security to the owner of goods for their safety, until actually taken into his own custody. The principle, thus adopted, is not new; many cases might be cited; one or two will be sufficient. Where a consignee of goods, sent by a common carrier to London, had no warehouse of his own, but was accustomed to leave the goods in the wagon office, or ware- house of the common carrier, it was held, that the transit was at an end, when the goods were received and placed in the warehouse. Row V. Pickford, 8 Taunt. 83. Though this was a case of stopimge i7i transitu, it decides the principle. But another case in the same volume is more in point. In re Webb, 8 Taunt. 443. Common car- riers agreed to carry wool from London to Frome, under a stipula- tion that when the consignees had not room in their own store to receive it, the carriers, without additional charge, would retain it in their own warehouse, until the consignor was ready to receive it. Wool thus carried, and placed in the carriers' warehouse, was destroyed by an accidental fire; it was held that the carriers were not liable. The court say that this was a loss which would fall on them, as carriers, if they were acting in that character, but would not fall on them as warehousemen. This view of the law , applicable to railroad companies, as com- mon carriers of merchandise, affords a plain, precise, and practical rule of duty, of easy application, well adapted to the security of all persons interested; it determines that they are responsible as com - mon carriers until the goods are removed from the cars and placed o n^the platform ; that if, on account of their arrival in the night, or at any other time, when, by the usage and course of business, the doors of the merchandise depot or warehouse are closed, or for any other cause, they cannot then be delivered; or i f, for any reason^ the consignee is not there ready to receive them, — it is the duty of the company to store them and p res erve them safely, under the charge ofcompetent and careful servants , ready to be d elivered, and actually deliver them when duly called for by parties authorized and entitled to receive them; and for the performance of these duties after the goods are deliv er£d^JimiLJ±L£.cars ^e company are ~ liable, as warehousemen, or keepers of goods fo r hire. It was argued in the present case, that the railroad company are responsible as common carriers of goods, until they have given / notice to consignees of the arrival of goods. The court are strongly inclined to the opinion, that in regard to the transportation of goods by railroad, as the business is generally conducted in this country, 280 CAERIERS OF GOODS. this rule does not apply. The immediate and safe storage of the goods on arrival, in warehouses provided by the railroad company, and without additional expense, seems to be a substitute better adapted to the convenience of both parties. The arrivals of goods, at the larger places to which goods are thus sent, are so numerous, frequent, and various in kind, that it would be nearly impossible to send special notice to each consignee of each parcel of goods or single article forwarded by the trains. We doubt whether this is conformable to usage; but perhaps we have not facts enough dis- closed in this case to warrant an opinion on that question. As far as the facts on this point do appear, it would seem probable that persons frequently forwarding goods have a general agent who is permitted to inspect the way-bills, ascertain wliat goods are received for his employers, and take tliem as soon as convenient after their arrival. It also seems to be the practice for persons forwarding goods to give notice by letter and enclose the railroad receipt, in tlie nature of a bill of lading, to a consignee or agent, to warn him to be ready to receive them. From the two specimens of the form of receipt given by these companies, produced in the present case, we should doubt whether the name of any consignee or agent is usually specified in the receipt and on the way-bill. The course seems to be to specify the marks and numbers, so that the goods may be identified by inspection and comparison with the way-bill. If it is not usual to specify the name of a consignee in the way-bill, as well as on the receipt, it would be impossible for the corporation to give notice of the arrival of each article and parcel of goods. In the two receipts produced in this case, which are printed forms, a blank is left for the name of a consignee, but it is not filled, and no con- signee in either case is named. The legal effect of such a receipt and promise to deliver no doubt is to deliver to the consignor or his order. If this is the usual or I'rc^quent course, it is manifest that it would be impossible to give notice to any consignee; the consignor is prima fnciti tlie party to receive, and he has all the notice lie can have. ]jut we have thouglit it unnecessary to give a more decisive opinion on this point, for tin; reason, already apparent, that in these receipts no consignee was named; and for another, equally con- clusive, that Ames, the plaintiffs' autliorized agent, liad actual notice of the arrival of both ])arcels of goods. In applying these rules to the present case it is manifest llial tlie defendants are not liable for the loss of the goods. 'I'liose wliich were forwarded on Saturday arrived in the course of that day, lay there on Sunday and ^Fonday, ami were destroyed in the night between Monday and Tuesday. r>ut the length of time makes no difTerencc. The goods forwarded on ^londay were unladen from the cars, and placed in the dejiot, be] ore the fire. Several cireuin- Ktances are stated in the case, a.s to the agent's calling for them, waiting, and at last leaving the depot before tlii'y were ready. I'ut DELIVERY BY CARRIER. 281 we consider them all immaterial. The argument strongly urged was, that the responsibility of common carriers remained until the agent of the consignee had an opportunity to take them and remove them. But we think the rule is otherwise. It is stated, as a cir- cumstance, that the train arrived that day at a later hour than usual. This we think immaterial ; the corporation do not stipulate that the goods shall arrive at any particular time. Further, from the very necessity of the case and the exigencies of the railroad, the corpora, tion must often avail themselves of the night, when the road is less occupied, for passenger cars ; so that goods may arrive and be un- laden at an unsuitable hour of the night to have the depot open for the delivery of the goods. We think, therefore, that it would be alike contrary to the contract of the parties and the nature of the carriers' duty, to hold that they shall be responsible as common carriers, until the owner has practically an opportunity to come with his wagon and take the goods ; and it would greatly mar the sim- plicity and efficacy of the rule, that delivery from the cars into the depot terminates the transit. If, therefore, for any cause, the con- signee is not at the place to receive his goods from the car as unladen, and in consequence of this they are placed in the depot, the transit ceases. In point of fact, the agent might have received the second parcel of goods in the course of the afternoon on Monday, but not early enough to be carried to the warehouses at which he was to deliver them; that is, not early enough to suit his conven- ience. But, for the reasons stated, we have thought this circum- stance immaterial, and do not place our decision for the defendants, in regard to this second parcel, on that ground. Judgment for the defendants. THE L. L. & G. EAILROAD CO. v. MARIS. 16 Kan. 333. 1876. The opinion contains a full statement of the facts and questions in this case. Maris, as ^plaintiff, recovered judgment at the April Term, 1874, of the District Court against the Railroad Company, for $208.25 and costs, and the Railroad Company brings the case here on error. Brewer, J. This w^as an action brought by defendant in error to recover for goods destroyed by fire in a depot belonging to the plain- tiff in error, and the question is, whether the company at the time of the fire occupied toward the goods the position of carrier, or that of warehouseman. The case was tried upon an agreed statement of facts. It is not contended that the fire was caused by the negli- 282 CARRIERS OF GOODS. gence of the company, or that if its liability as carrier had termi- nated, it was responsible for the loss. The material facts are these: Maris was a merchant at Wintield, a place about ninety miles west of Independence, a point on the company's road. Goods were shipped to him over the company's road, to be delivered to him at Independence. The goods in question reached Independence on the 4th and 7th days of January, 1872, and were placed in the depot building, and there remained eight days (until the 15th of January), and were then consumed by fire. Immediatel}- after the arrival of each consignment of goods at Independence, notice thereof was for- warded by mail to Maris at Wintield, but did not reach liim until the 20th of January, and after the fire. A tri-weekly mail ran between the two places. ( h-dinarily, -only two days were occupied in transmitting the mail. During that month the epizooty was pre- vailing among the horses in that section of the countr}^, and, owing to that or some other cause over which neither party had any control, the notice did not reach Maris until the 20th. He called every day at the post-office in Winfield for his mail. The only means of con- veying goods from Independence to Winfield was by wagon, and under favorable circumstances the trip from Winfield to Indepen- dence took from three to five days, and the round trip six to ten days. By special agreement between the parties, notice was to be given Maris by mail of the arrival of the goods at Independence. The form of the notice given (and ]\raris had, prior to the 1st of January, 1872, received similar notices of the arrival of other goods) wa^ as follows: — Freight Office, L. L. & G. It. R. Line, Independence, , 1S7 — . M : There this day arrived at our depot at , consigned to you, the following articles : iVo. I Articles. \\ No. | Articles. ExniniT A. Weight, Charfje, § which are ready for delivery to you on payment of freight autl charges. X. B. — No grRxls delivered until all charges thereon are paid. Storage will be charged in all cases where goods are not removed within the pre- BcriV»ed time. The ciintrnrt of this covipani/ as rommon rarrirrs eti(h upon thr arrival of gomh at our ilcpot.t, and the company will not be responsible for d.iinage from ordi- nary leakage, breakage, or insufficient cooperage ; and no claim for damages will be allowed after the goods have left the dejot, unless by consent of the agent. (iooda will be delivered only to the owner, or his written order. A receipt for goods will, in all cases, be required, and no claim will be entertained for goods lost after such receipt has been taken. Agnit. Upon these facts some questions of importance are i)re8Pntod. It is insisted on behalf of the company, in the first place, "tli;it a com- DELIVERY BY CARRIER. 283 mon carrier is relieved of its extraordinary liability as an insurer whenever it has carried the goods intrusted to its safety, and depos- ited them in a safe warehouse." This question as to the period at which the carrier's extraordinary liability terminates, comes to us borne upon two opposing lines of decision. At the head of one line stands the case of the Norway Plains Company v. B. & M. Bid. Co., 1 Gray, 263, in which the great jurist of Massachusetts, C. J. Shaw, holds that this liability of the carrier terminates when the goods arej unloaded at their place of destination, and are ready for removal byi the consignee; that if the latter be not present to receive them, and they are kept by the company in its depot or warehouse, its liability is that of a warehouseman. In other words, this liability continues i only during the actual transit, and that when this is ended, if the consignee does not immediately receive them, the company, as car- rier, delivers them to the company as warehouseman, and thereafter the company is liable only for loss resulting from actual negligence. At the head of the other line is the case of Moses v. B. & M. Ely . Co., 32 Xew Hamp., 523, in which the court decides that the car- rier's liability continues after the termination of the actual transit, and until the consignee has a reasonable time to remove the goods ; that, as the carrier's liability commences, not with the actual transit of goods, but from the time of receipt from consignor, so it con- tinues until actual delivery to the consignee, or, what is equivalent to a delivery, until the consignee has had reasonable time after their arrival to inspect and take them away in the common course of busi- ness. The mere fact that either before or after the actual transit they are placed by the company in its depot or warehouse does not change the character of its liability. The following cases support' the Massachusetts doctrine: McCarty v. N. Y. & Erie Rid. Co., 30 Penn. St. 253; Francis v. Dubuque & S. C. Rid. Co., 25 Iowa, 60; Bauserman v. T. W. & W. Rly. Co., 25 Ind. 434; C. & C. Air Line Rid. Co. V. McCool, 26 Ind. 140; C. & A. Rid. Co. v. Scott, 42 111. 133. The other doctrine is adopted in the following cases : Fenner v. B. & St. L. Rid. Co., 44 N. Y. 505; Zum v. New Jersey St. Co., 49 X. Y. 442; Wood v. Crocker, 18 Wis. 345; Derosia v. St. P. & W. Rid. Co., 18 Minn. 1.33; Morris & Essex Rid. Co. v. Ayres, 5 Dutch. 393; Blumenthall v. Brainard, 38 Vt. 413; McMillan v. M. S. & X. J. Rid. Co., 16 Mich. 79; Jeffersonville Rid. Co. v. Cleveland, 2 Bush, 468; Hilliard v. Wilmington & C. Rid. Co., 6 Jones (Law), 343. The question is a new one in this State, and one of no small importance both to carriers and shippers. Notwithstanding there is a technical precision in the Massachusetts doctrine which makes \ Kw it both capable of exact statement and easy of application, we think \ ' the other doctrine more just and reasonable in its application to the ordinary transactions of business, protecting both the shipper and .1 the carrier. It extends a little the duration of the carrier's obliga- tion, but only so far as it seems necessary to protect the shipper. 284 CARRIERS OF GOODS. The goods remain in the custody of the carrier, and subject to his control. The exact moment of arrival can seldom be known to the consignee, even if he have notice of the shipment. It is unreason- able to compel him to remain at ths depot of the carrier, waiting the arrival of the goods, or assume all the risks of the uncertainties in the delay of transportation and time of arrival. W e therefore ^old that the carrier's liability continues until the consignee ha s had a reasonable time to call for, examine, an d remove the goods. What is a reasonable time? This is not a time varying with the distance, convenience, or necessities of the consignee, but it is such time as will enable one living in the vicinity of the place of delivery, in the ordinary course of business, and in the usual hours of busi- ness, to inspect and remove the goods. It is well said by the court in the case from 18 Minn. 133, that, "What would be, under the cir- cumstances of the case, such reasonable time for the removal of the goods, is not to be measured by any peculiar circumstances in the condition or situation of the consignee, or plaintiff, which render i it necessary for his convenience or accommodation that he sliould ' have longer time or better opportunity than if he resided in the vicinity of the depot, and was prepared with means and facilities \ of removing them; but what is meant by reasonable time is such as 1 would give a person residin*; in the vicinity o j the place of delivery ^ informed of the usual course of business on the part of the com pany^ a suita ble 0])portunity, within the usual business hours, after th e goods ^e ready for delivery, to come to the p lace of d elivery, insj> ect the goods, and take them away ." Tried by this rule, it is plain that the goods had remained in the depot at Independence more than a reasonable time for their inspection and removal. Tliey should have been removed on the day of their arrival, or, at the furtherest, during the business hours of the succeeding day. It is insisted, however, that notice was required of their arrival, and that no notice was received until after the destruction. ^Vlje^ther, independent of the special contract, any notice was r equisite may be doubted. The consignee did not live at or near tlie place of delivery, and the authorities are conflicting upon the question whether notice is requisite even wlien the consignee lives at the place of delivery. See upon the question of notice, ^IcDonald r. W. KM. Co., 34 N. Y. 197; Fenner v. I^nffalo & St. L. Kid. Co., 44 N. y. nor,- I'rice v. Powell, 3 N. V. 3L'2; C. & A. Kid. Co. v. Scott, 42 111. 133; Derosia v. St. 1'. .^ W. lUd. Co., IS Minn. 133; McMillan v. M. S. & N. J. Kid. Co., 10 Mich. 7!>; Ililliard v. W. & C. Rid. Co., C) Jones (Law), .34.3. But whctlicr notice independ- ent of any special contract would have been requisite, ne«.'d n(jt be df'tfnnined, for hr-n! the parties had stipulated for notice. And the question is, what elTeet did this notice have ujjon tlie company's liability? On the one hand, it is claimed that the reasonable time in which to remove tlie goods dates from the receipt of the notice DELIVERY BY CAKRIER. 285 instead of the arrival of the goods ; on the other, that the notice was purely a favor to the consignee, and that specifying the time at which the carrier's liability was to cease, it cannot be construed as enlarging that time. The question is one of difficulty. In those States where notice of the arrival of the goods is required to ter- minate the carrier's liability, it is held that the reasonable time for removal dates from the giving of the notice. This seems necessary to make the notice of any value, for if the reasonable time com- mences with the arrival of the goods it might often expire before the receipt of notice. It would almost invariably so expire if the consignee lived elsewhere than at the place of delivery. Hence, the notice would be meaningless, as affecting the rights and liabilities of either party. On the other hand, the form of notice used by the company, and of which Maris had information by the receipt of such notices, attempts to limit the effect thereof, and plainly states that the company's liability as carrier is to terminate upon the arrival of the goods. Hence, Maris had knowledge that while the company had agreed to give and would give notice of the arrival, it did so only as a favor to him, and without extending the duration of its extraordinary liability. If Maris was unwilling to continue the shipment of goods under such conditions, he was at liberty to stop. Continuing, he accepts the conditions. To this he replied that, con- tracting for notice without any stipulation as to the forms and con- ditions of notice carries with it all the rights which flow from the mere fact of notice, and that the company cannot thereafter limit those rights by attaching conditions to that notice. This would doubtless be a satisfactory reply if this were the first consignment and the first notice. But having received notices with similar con- ditions, and making no objection thereto, or seeking a new arrange- ment, it seems to us that he cannot insist upon rights other than those given by the form of notice actually used. It must be borne in mind that this is not an attempt by the company to restrict its liability, but an attempt by special contract to enlarge it; and before the company could be bound by such special contract it should be made clear that it had assented to it in full, as claimed. It is not pretended that the company had ever given any notice otherwise than with the conditions attached to this; nor is it claimed the company would not be liable for any injuries resulting from its own negligence; so that its interpretation of its contract for notice — an interpretation accepted by Maris without objection — was that of an agreement to give information of the arrival of the goods without, in the mean time, assuming any additional liability. We are aware that the agreed statement shows that the first notice was only received Dec. 23d, 1871, and that, OAving to the sickness of one party employed, as well as the prevalence of the epizooty. Maris failed to get a team to Independence before the destruction of all the goods of the various consignments by fire on January 286 CARRIERS OF GOODS. 15th, 1872. But we fail to see anything which shows that Claris was unable to communicate by mail with the company, or to go him- self, or send some one to Independence to make a new arrangement, or stop the shipment, or receive and store the goods. Under these facts, thouf'h with some doubts, we are constrained to hold that the company's liability as carrier had terminated before the tire, and that therefore it was not responsible for the destruction of the goods. The case having been tried upon an agreed statement of facts, the judgment will be reversed, and the case remanded with instructions to enter judgment in favor of the plaintiff in error, defendant below. FAULKNER v. HAKT. 82 N. Y. U:). 1S80. Appeal from judgment of the General Term of the Superior Court of the city of New York, in favor of defendants, entered upon a case submitted under 1279 of the Code of Civil Procedure. (Reported below, 12 J. & S. 471.) The question submitted was as to the liability of defendants, common carriers, for the loss of certain goods. Miller, J. The goods, for the value of which the plaintiffs claim to recover in this action, were shipped at New York, to be transported to and were consigned to them at Boston; and they were called for on the day of their arrival, but a delivery was refused until the next day, because it was not convenient for the defendant to deliver them. They were unloaded from the cars the same afternoon, but too late for delivery, and were placed during the night of that day in the defendant's warehouse, and before the plaintiffs had an opportunity to make another demand the ware- house, together with the goods, was destroyed by fire. The jdain- tiffs were doing business both in New York and lioston, and all resided in Boston except one of them, who lived in New Jersey. The contract for transportation of the goods was made in New York, witli tlie Norwich and New York Transportation Company, in be- lialf of itself and the connecting carriers to Boston, and they were to be conveyed to Boston. Tlie last part of the route they were placed in cars upon the road, operated by the defendants. The rule as to the liability of carriers under the facts stated is well establi.shed by the law mercliant, and the authorities are numer- ous which sustain the position that tlie carrier is bound to pay for the loss of the goods destroyed. It is his duty nni only t<> transport the K'O'^'l-S ^^ut he }>a8 not i)erf m-njied_ his entire coutractas acorn - DELIVERY BY CARRIER. 287 mon carrier until Ji e has deliv ered the goods, or offered to_deliver them to the consignee, or has done what is equiv alen t, by giving t o the consignee, if he can be found, due notice after their a rrival, and by furnishing him a reasonable time thereafte r to take~cF arge of^r to remove the same. Gatliffe ?;. Bourne. 4 Bing. N. C. ,S14: s. c, 11 Clarke & Fin. 45; Price v. Powell, 3 Comst. 322; Zinn v. N. J. St. Co., 49 N. Y. 442; Sherman v. Hudson River R. R. Co., 64 id. 254; The Sultana v. Chapman, 5 Wis. 454; Sleade v. Payne, 14 La. Ann. 453; Graves v. H. & N. Y. St. Co., 38 Conn. 143; C. & R. I. R. R. V. Warren, 16 111. 502; Moses v. B. & M. R. R., 32 N. H. 523; The Tangier, 1 Clifford, 396. In view of the rule laid down in the authorities cited, there would appear to be no serious question as to the plaintiffs' claim to recover for the value of the goods actually destroyed. The right of the plaintiffs to recover is resisted, and exemption for liability is claimed by reason of the decisions of the courts of the State of Massachusetts, holding adversely to the rule which is established at common law, and which, as we have seen, has been generally adopted and sustained in this country and in England. The deci- sions of that State established that the proprietors of a railroad, who transport goods for hire and deposit them in a warehouse until the owner or consignee has a reasonable time to take them away, are not liable as common carriers for their loss by fire without neg- ligence or default on their part; that the railroad corporation ceases to be a common carrier, and becomes a warehouseman, as a matter of law, when it has completed the duty of transportation, and has assumed the position of a warehouseman, as a matter of fact, and according to the usages and necessities of the business in which it is engaged. Norway Plains Co. v. B. & M. R. R. Co., 1 Gray, 263 [274J ; Rice V. Hart, 118 Mass. 201. These decisions are entitled to the highest respect; but, like all other adjudications, are the subject of revisal, limitation, and even to be overruled in the court in which they originated. The same right exists in other courts to consider and pass upon the same question; and how far they should be allowed to control their decisions in a cause of action where the con- tract was made in one State, and performed in part in another State where the law has been decided differently, is the question now to be determined. It was _long since held in this Stntp. thnt. we could not break in \\]w n the settled principles of nnr pnmmercial law to^ accommodate them to those of any country. Aymar v. Sheldon, 12 Wend. 439. This principle is well established in regard to all contracts of a commercial character; and so far as may be practicable, it is of no little importance that the rule should be harmonious and uniform. Contracts of this description have been the subject of frequent consideration in the Federal courts, and the decisions have been direct and clear, that while the decisions of local courts in reference to matters purely local in the 28S CAKKIERS OF GOODS. States are obligatory throughout the country, they are not con- clusive and final as to questions of commercial law. In Swift v. Tyson, IG Peters, 19, the court say: "The true interpretation and effect of contracts and other instruments of a commercial nature are to be sought, not in the decisions of local tribunals, but in the general principles and doctrines of commercial jurispru- dence. Undoubtedly the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate atten- tion and respect of this court; but they cannot furnish positive rules or conclusive authority by which our own judgments are to be bound up and governed." In a recent case, Gates r. Nat. Bank, 100 U. S. 239, the State court in Alabama lield that by the rules of the commercial law, one who receives a promissory note as collateral security for a pre-existing debt does not become a purchaser for value in the course of business, so as to cut off equities which the maker may have against the payee; and on a])peal it was held that the courts of the United States are not bound by the decisions of the State courts upon questions of commercial law. This prineijile has been repeatedly upht'ld in other cases. ^leade v. IJeale, Taney, 339, 360; Austen r. Miller, 5 McLean, 153; The Sliip George, Olcott, 89; Pine Grove v. Talcott, 19 Wall. GOG; Kobinson v. Com. Ins. Co., 3 Sumn. 220. In Meade r. Beale (snj/ra) it is said : "Where tlie State court does not decide a case upon the particular law of tlie State or estal)lished usage, but upon general principles of com- mercial law, if it falls into error, that erroneous decision is not regarded as conclusive." From the authorities cited it follows that if the higher court in the State of Massachusetts has made an erroneous decision, wrong in principle and contrary to a well-settled rule of commercial law in the English courts, in the Supreme Court of the United States, and many of the State courts, and especially adverse to the decisions of this court, it sliould not be followed here; and it is not only the right, but tlie duty of this court to adhere to its own decisions. Any other rule would lead to confusion in regard to a i)rinci])le of general application; for if tlie doctrine of the Massachusetts Court is to prevail, the riglit of the aggrieved party might dejjend upon the faet whether tlie action was brought in the Federal or State court; and if the action in tliis case had been brouglit in the Circuit Court of the United States for the State of Massachusetts, tlie ])l;iintiffs would be entitled to recover, while in tlie State court a different result would ])rev:iil. Ivichardson r. Goddard, L'3 How. (U. S.] .'IS; The Tangier, 1 Clifford, 39G; Moses /•. 1'.. .^ M. 1.'. i:., 3L' X. H. ri23. This court has the same authority to disregard tlu; Massachusetts 'I'-'-isions, in a case involving a commercial rpiestion, as that court ii I'l to (establish a rule adverse to the decisions of this court, as was done, virtually, in the oases cited. Nor is it important to determine whether, \ij)r.n a reconsideration, any different rule would have DELIVERY BY CARRIER. 289 been adopted. It is sufficient to say that in reference to a law not of a single State, but affecting the commerce of the world, the deci- sions of the courts of such State are not obligatory upon the courts of other States or countries. Tlie learned counsel for the respondents argues that, as the delivery of the goods was to be made in Boston, where they were destroyed, the law of Massachusetts should control in respect to such delivery; and we are referred to several decisions which, it is claimed, sustain this doctrine. Barter v. Wheeler, 49 X. H. 9; Gray v. Jackson, 51 id. 9; Knowlton v. Erie Railway Co., 19 Ohio St. 260; M. & St. P. R. Co. V. Smith, 7 Chicago Leg. News, 174. While these cases uphold the general principle, that where t he con- tract is to be performed jmrtly in one country and partly in~anothe r country, each portion is to be interpreted according to the l aws of the country where it is to b e performed, — a rule which is fuTly~ sustained by authority (see Story on Cont., § 655; Pope v. Nicker- son, 3 Story, 474, 485; Scudder v. Union Nat. Bank, 1 Otto, 413; Pomeroy v. Ainsworth, 22 Barb. 118), none of them hold that where a great principle of commercial law has been established, which is universally acknowledged and acquiesced in, that the law announced by the courts of a single State can overturn that principle and co n- trol the decisions of the courts of another and a distant State. No such question arose in any of the cases cited ; and the answer to the position taken, that the decision of the local courts should control, is that such decisions are not, under the circumstances, a correct interpretation of the rule of law in such a case, and are not the accepted law of the land. It is erroneous and must fall, for the reason that it cannot be upheld, either upon principle or authority. Nor are any of the authorities cited applicable to the case con- sidered. As to those cited from the State of New Hampshire, it may be remarked that the precise question was presented in Moses V. B. & M. R. R. Co., 32 N. H. 523, where the goods were trans- ported to Boston and burned before the consignee had an opportunity to remove them ; and the authority of the Massachusetts cases was repudiated, and it was said that by the rule there laid down the salutary principles of the common law are sacrificed to considera- tions of convenience and expediency, in the simplicity and precise and practical character of the rule which it established. The case of Curtis V. D., L. & W. R. R. Co., 74 N. Y. 116, involved a ques- tion as to the effect of a local statute of Pennsylvania, limiting the defendant's liability, upon the law applicable to such a case in the State of New York. It was held that the lex loci contractus did not control, the place of delivery being a material and important part of the contract and in contemplation of the parties at the time. It was said that it was a reasonable inference that it was entered into with reference to the laws of the place where delivered. The case last cited did not involve any such question as is here presented, as there 19 290 CARRIERS OF GOODS. was no conflict in reference to the decisions of the courts, and no question made as to any general rule of commercial \a\v being involved, as is the case here. If there had been a positive statute of the State of Massachusetts providing that the carrier's liability should cease when the goods had been deposited at the end of the route in a suitable warehouse, a different question would arise, and it might well be contended that, as the question arose under the statute of that State, the ques- tion of liability would depend upon the construction placed upon such statute by the court in Massachusetts, in accordance with the decisions of the court of this State and the Supreme Court of the United States. Jessup r. Carnegie, 80 X. Y. 441; Mills v. M. C. E. R. Co., 45 id. 626: Whitford v. Panama R. R. Co., 23 id. 465; Elmendorf v. Taylor, 10 Wheat. 152; Shelby v. Guy, 11 id. 367; Town of Ottawa v. Perkins, 94 U. S. 260; Fairfield v. County of Gallatin, MS. Op. U. S. Sup. Ct. But no such question arises in the case at bar. So, also, if the Massachusetts cases were decisive as to the law upon the question considered, it might well be urged that the plaintiff entered into the contract having them in view. But, as we have seen, they are not conclusive, and the real point is, what is the common-law rule? And the courts of IVIassachusetts having decided one way, and the courts of the United States and of this State, as well as those of other States and countries, differentlj-, it is open, in a case arising in the courts of this State, to determine the true rule. It is the same subject, and involves the precise point, whether the common law shall prevail, and whether the decision of the State court is erroneous. The question is not as to the applica- tion of a local statute or a local law, but one of a compreliensive character, affecting a general rule applicable to all contracts of the nature of the one now involved. The fact that the defendants were not carriers between New York and Boston, but only for a portion of the route, and that they made no contract directly with the idaiutiffs, cannot affect tlic question as to the liability upon the contract made on their behalf for transpor- tation over their ])ortion of tlic route. As the original contract was made in New York for a through transiiortation, tlie connecting car- ri'T was entith-d to all tlic bt-nctits of tlie contract, as well as to any special excinDtJons it contained. ]\laghee v. C. Sc A. \l. R, Co., 45 N. Y. 514, 521 ; Laml) r. The Same, 16 id. 271. I'or the same rea.son they wouhl be subject to all tlie obligations incurn-d tliereby. The contract l)etwoen tlie first carrier and the connecting carrier i.s deemed to have been made for the shipper's benefit, and is ratified by Ijringing the suit. Green v. Clark, 2 Kern. 343. And each of the connecting lines is responsible for injuries on its own line, exco])t where there is an exjiress contract ff)r carriage beyond the terminus. Condict v. G. T. K. K. Co., 51 N. Y. 500; Root v. G. W. K. li. Co., 45 id. 524; Sherman i\ II. K. l:. !;. ("-.. r>\ id. 260. DELIVERY BY CAKRIER. 291 The contract, being made in New York, is binding upon the plain- tiffs, the shippers, and the defendants, the connecting carriers, so far as they undertook to perform it; and although their liability- arose at the end of their route, yet it was under the contract as made in New York. We are referred to a number of cases by the learned counsel for the respondents, to sustain the proposition that the general obliga- tion created by the law of the place of delivery, in respect to the mode of delivery by a carrier, controls; and it is urged that when by the law of the place of delivery the carrier had a right to store the goods, the nature of the bailment is changed, and the carrier is relieved from the responsibility originally assumed, and the liability of a warehouseman is substituted. We do not deem it necessary to controvert the correctness of the rule laid down, where it does not interfere with the general principles and doctrines of commercial jurisprudence ; but there is no case cited which holds that the court of another State, where an action is pending, may not adhere to its own rules and disregard the decision of a State which overrules a great principle. As we have seen, the United States Supreme Court have refused to sustain the decisions of the State court when vio- lating a great principle ; and the rule is a sound one which upholds the position that the decisions of the State court should not be fol- lowed to such an extent as to make a sacrifice of truth, justice, and law, Gelpcke v. Dubuque, 1 Wall. 175, 205; Olcott v. Supervisors, 16 id. 678. It is upon a principle of comity, that one State recog- nizes and admits the operation of the laws of another State within its own jurisdiction, where such law is not contrary to its own rules of policy, or to abstract right, or the promotion of justice and morality; but this principle should never be carried to the extent of holding that a suitor in its courts is debarred from the maintenance of his just rights according to its well-established decisions and laws, and the general principles of the common law which it has fully recognized and which are almost universally regarded and accepted, in reference to the question presented, wherever the com- mon law prevails. No rule of comity demands any such sacrifice in the business intercourse between the people of the different States, and great injustice might follow by yielding to such a principle, and in sustaining a rule of law which was wrong in itself, hostile to the policy and law of the State where the contract was made, and adverse to the general current of authority elsewhere. King v. Sarria, 69 N. Y. 24. In the consideration and determination of the case before' us, it is worthy of notice that the contract made in New York, as the record shows, was, in effect, in conformity with the usual course of busi- ness, that the goods were to be delivered to the consignees. In Rice V. Hart, supra, the contract was merely to transport to Boston, and was silent as to delivery. It may, perhaps, be doubted whether the 292 CARRIERS OF GOODS. agreement to deliver to the plaintiffs as consignees was satisfied by a delivery to the defendants, especially after a demand by the plain- tiffs and a refusal to deliver to them. If the shipper was entitled to the benefit of a contract to deliver the goods to the consignees without any restriction, it is not entirely clear that the rule laid down in the ^Massachusetts decisions is applicable. AVithout, however, expressing a decisive opinion upon the question last discussed, for the reasons already apparent, tlie rule adopted in the Massachusetts cases cannot be sustained. It should not be ovei'looked that the point presented does not involve solely a question as to a local law, but part of a system of general commercial law. That the court in Massachusetts had decided the law contrary to what it was is not controlling; for it maybe assumed, even if the parties had knowledge of the decision, tliat they knew it was contrary to the current of authority in similar cases, and con- tracted, having in view the law as it actually existed. Like an unconstitutional law, void of itself, the decision was not the law, and is not to be regarded as authority for that reason. Tlie judgment should be reversed, and judgment should be ren- dered in favor of the plaintiffs for $G,15G.95, with interest from !November 7, 1872, with costs. ^ OUIMIT V. HEXSHAW. 35 Vt. 005. 1863. Alois, tj. ....••••• • AVe think it is the true rule of the law as to baggage that h as reached its final destination, that the railroad com ])any must, upon i ts arrival, have it roady for delivery upon tlie ]tlatform at tiie usual iilace of dL'liver y^_until the (jwnor can, in the use of due ilili'.,^fnce, call for and receive it; and that the owner nuis t call for it witliin a reasonable time, and must use diligence in calling for and removing it. If the owner does not within a r easonable time, ami in the exe rcise of diligenc e, call for the bag - gage , thi;n the coin]iaiiy sl iould j mt it in tlic^ irbagt^age- room and Ir.-r-i, it fo r liim, and tlifir rnstndv ()| it then is only tliat of ware- ; and tliey ai ' ijiciiiiiabilll} i ricrs as soon i vc kept it ready for delivery a reasonable tim e, an d it lias calh-'d for . Where trains arrive at such liours that it is li.'- uau;il course of business at the station to immediately deliver thf l.ri'Mt^ft, and for j)a8senger8 to immediatoly receive it, there the re;i . • time for wliich the company shouhl have it ready for » Ace.: Lake Eric & W. It, Co. v. Hatch (Ohio), 39 N. E. R. 1042. DELIVERY BY CARRIER. 293 delivery, must be limited and governed by the practice and custom of immediate delivery ; and in such cases reasonable time and imme- diate delivery go hand in hand, and " reasonable time " cannot extend the delivery to another day or another occasion. ' We believe it to be the usual custom to deliver and receive baggage not only during what is called the business hours of the day, but upon the arrival of trains in the night, and at almost any hour of the night. The traveller is rarely willing, after arriving at his destination, to leave his baggage at a railroad depot, and the railroad companies are usually desirous to despatch business, and be relieved from their responsibility. Hence immediate delivery is the rule as to the bag- gage; and the rule that has been applied to the receipt of freight, that it should arrive during the usual hours of business, and so that the consignee may have an opportunity during the hours of business to see and receive it, does not apply to baggage, which usually accompanies the traveller, and is required by him on arrival. The rule is thus expressed by Mr. Angell, in his work on the law of carriers, sec. 114: "The arrival with the baggage in safety at the place of destination will not discharge the carrier until its delivery to the owner; although, unless demanded in a reasonable time, the liability of the carrier, in his strict character of a common carrier, will not continue. No passenger is required, however, to expose his person in a crowd, or endanger his safety in the attempt to designate and claim his baggage." In Pierce on Railroad Law, p. 499, it is said: "The liability of the company as a common carrier ceases when the passenger has had a reasonable opportunity after the arrival to receive his baggage; and if it remains in its custody after that, the company will be liable only as bailee for hire or gratuitously, according to circum- stances." Redfield on Railways, speaking of the liability of railroad com- panies for the baggage of travellers, says : " They remain liable until a full and unequivocal re-delivery to the owner, and ordinarily to the end of the route ; " and in a note, citing Powell v. Myers, says : " If baggage be not called for in a reasonable time, the liability of the company as carrier ceases , and they are holden only for ordinary care as bailees for hire." 294 CARRIEKS OF GOODS. B. Tekmixatiox of Liarility as Bailee. a. Delivery to Connectinrj Carrier. EAILROAD CO. v. MAXUFACTCRIXG CO. 16 Wall. (U. S.), 31S. 1S72. In error to the Circuit Court for the District of Connecticut; the case being thus : — In October, 18G5, at Jackson, a station on the Michigan Central Railroad, about seventy-five miles west of Detroit, one Bostwick delivered to the agent of the Michigan Central Railroad Company, for transportation, a quantity of wool consigned to the IMineral Springs ^lanufacturing Company, at Stafford, Connecticut, and took a receipt for its carriage, on the back of which was a notice that all goods and merchandise are at the risk of the owners while in the warehouses of the company, unless the loss or injury to them should happen through the negligence of the agents of the company. The receipt and notice were as follows : — "MicuiGAN Central Railroad Company, "Jackson, October nth, 1865. " Received from V. M. Bostwick, as consignor, the articles marked, numbered, and weighing as follows : — [ Wool described. ] " To be transported over said railroad to the depot in Detroit, and there to be delivered to , agent, or order, upon the payment of charges theri'on, and subject to the rules and regulations established by the company, a part of which notice is given on the back hereof. This receipt is not transferable. " Hastings, " Friiyht Agent.'* The notice on the back was thus : — " The company will not be responsible for dnmnrffs occasioned Inj dchii/s from storms, accidents, or other causes . . . and all goods and merchandise will be at the risk of the owners thereof while in the compamfs warehouses, except Much loss or injury as may arise from the negligence of the agents of the company/' Verbal instructions were given by P.ostwick that the wool should be sent from Detroit to Buffalo, by bike, in steamboats, whidi instructions were embodied in a bill of lading sent with the wool. Although thnre were several linos of transjjortation from Detroit east- ward by whieh the wool fouhl have been sent, there was only one transportation line propidled by sti*am on the lakes, and this line was, and had been for some time, unable, in their regular course of business, to receive and transport the freight wliicli had accnmulated DELIVERY BY CAIIRIEK. 295 in large quantities at the railroad depot in Detroit. This accumula- tion of freight there, and the limited ability of the line of propellers to receive and transport it, were "well knowii to the officers of the road, but neither the consignor, consignee, nor the station-master at Jackson were informed on this subject. The wool was carried over the road to the depot in Detroit, and remained there for a period of six days, when it was destroyed by an accidental fire, not the result of any negligence on the company's part. During all the time the wool was in the depot it was ready to he delivered for further trans- portation to the carrier upon the route indicated. In consequence of the loss the manufacturing company sued the railroad company. The charter of the company, which was pleaded and offered in evidence, contained a section thus : — "The said company may charge and collect a reasonable sum for\ storage upon all property which shall have been transported by them upon delivery thereof at any of their depots, and which shall have remained at any of their depots more than four days ; Provided, that elsewhere than at their Detroit depot, the consignee shall have been notified if known, either personally or by notice left at his place of business or residence, or by notice sent by mail, of the receipt of such property at least four days before any storage shall y be charged, and at the Detroit depot such notice shall be given twenty-four hours (Sunday excepted) before any storage shall be charged; but such storage may be charged after the expiration of said twenty-four hours upon goods not taken away, Provided, that in all cases the said company shall be responsible for goods on deposit in any of their depots aivaiting delivery, delivery as ware- housemen, and not as common carriers." The controversy, of course, was as to the nature of the bailment when the fire took place. If the railroad company were to be con- sidered as warehousemen at the time the wool was burned, they were not liable in the action, as the tire which caused its destruction was not the result of any negligence on their part. If, on the contrary, their duty as carriers had not ceased at the time of the accident, and there were no circumstances connected with the transaction which lessened the rigor of the rule applicable to that employment, they were responsible ; carriers being substantially insurers of the prop- erty intrusted to their care. The court was asked by the railroad company to charge the jury that its liability was the limited one of a warehouseman, importing only ordinary care. The court refused so to charge, and, on the contrary, charged that the railroad company were liable for the wool as common carriers, during its transportation from Jackson to Detroit, and after its arrival there, for such reasonable time as, according to their usual covirse of business, under the actual circum- stances in which they held the wool, would enable them to deliver it to the next carrier in the line, but that the manufacturing com- 296 CARRIERS OF GOODS. pany took the risk of the next carrier line not being ready and will, ing to take said wool, and submitted it to the jurj' to say whether under all the circumstances of the case in evidence before them such reasonable time had elapsed before the occurrence of the fire. The jury, under the instructions of the court, found that the railroad company were chargeable as carriers, and this writ of error was prosecuted to reverse the decision. Mr. Justice Davis. It is not necessary in the state of this record to go into the general subject of the duty of carriers in respect to goods in their custody which have arrived at thoir final destina- tion. Different views have been entertained by different iurists of wliat the currier is required to do when the transit is ended, in orde r to terminate his liability; but there is not this difference of opinion in relation to the rule which is a])])licable while the proj^erty is in progress of transportation from the place of its receipt to the pla ce of its destinatioi v. In such cases it is the duty of the carrier, in the absence of any- special contract, to carrv safely to the end of his line and deliver to the next carrier in the route beyond . This rule of liability is adopted generally by the courts in this country, altliough in England, at the present time, and in some of the States of the Union, tlie dis- position is to treat the obligation of the carrier who lirst receives the goods as continuing throughout the entire route. It is unfortu- nate for the interests of commerce that there is any diversity of opinion on such a subject, especially in this country; but the rule that holds the carrier only liable to the extent of his own route, and for the safe storage and delivery to the next carrier, is in itself so just and reasonable that we do not hesitate to give it our sanction. Public policy, however, requires that the rule should be enforced, and will not allow the carrier to escape responsibility on storing the goods at the end of his route, without delivery or an attempt to deliver to the connecting carrier. If there be a necessity for storage, it will be considered a mere accessory to the transportatio n, and not as changing tlic nature of the bail ment. It is very clear that the simjtie dejjosit of the goods by the carrier in his depot, unaccom- panied by any act indicating an intention to renounce the obligation of a carrier, will not change or modify even his lial)ility. ]t max be that circumstances may arise after the goods have reaclu'd the depot which would justify the carrier in ^ vareh.o^ sin g them ; b ut if }i. ' ' ' ]>'. grounds to anticii>ate tlie occurrence of those a' . ■ ■ .. «: ...... .. '■'•'• s when he received the_gufliLi>- iiu fannot by Btoni ig them < ■ his relation towards theni. Testing the case iiTTiamrT)y these well-settled ])rinciples, it is Hji])arent that the ])laintift's in error are not relieved of their proper r- ;l)ility, iinless tlirougli the ])rovision3 of tlieir charter, or by ti.' .-.iiis of the receipt wliich was given wlien they received tlie wool. They neither delivered nor offered to deliver tlie wool to tho DELIVERY BY CAERIER. 297 propeller company. Kor did they do any act manifesting an inten- tion to divest themselves of the character of carrier and assume that of forwarder. It is insisted that the offer to deliver would have been a useless act, because of the inability of the line of propellers, with their means of transportation, to receive and transport the freight which had already accumulated at the Michigan Central Depot for shipment by lake. One answer to this proposition is, that the company had no right to assume, in discharge of its obligation to this defendant, that an offer to deliver this particular shipment would have been met by a refusal to receive. Apart from this, how can the company set up, by way of defence, this limited ability of the propeller line when the officers of the road knew of it at the time the contract of carriage was entered into, and the other party to the contract had no information on the subject? It is said, in reply to this objection, that the company could not have refused to receive the wool, having ample means of carriage, although it knew the line beyond Detroit selected by the shipper was not at the time in a situation to receive and transport it. It is true the company were obliged to carry for all persons, without favor, in the regular course of business, but this obligation did not dispense with a corresponding obligation on its part to inform the shipper of any unavoidable circumstances existing at the termina- tion of its own route in the way of a prompt delivery to the carrier next in line. This is especially so when, as in this case, there were other lines of transportation from Detroit eastward by which the wool, without delay, could have been forwarded to its place of des- tination. Had the shipper at Jackson been informed, at the time, of the serious hindrances at Detroit to the speedy transit of goods by the lake, it is fair to infer, as a reasonable man, he would have given a different direction to his property. Common fairness re- quires that at least he should have been told of the condition of things there, and thus left free to choose, if he saw fit, another mode of conveyance. If this had been done there would be some plausi- bility in the position that six days was an unreasonable time to require the railroad company to hold the avooI as a common carrier for delivery. But under the circumstances of this case the company had no right to expect an earlier period for delivery, and cannot, therefore, complain of the response of the jury to the inquiry on this subject submitted to them by the Circuit "^Court. It is earnestly argued that the plaintiffs in error are relieved from liability under a provision contained in one section of their charter,* if not by the rules of the common law. But it IS quite clear, on reading the whole section, that it rpfers to property which has reached its final destination, and is there 1 See the section, supra, pp. 320-321 [295] — Rf.p. 29S CAKKIEKS OF GOODS. awaiting delivery to its owner. If so, how can the proviso in ques- tion be made to apply to another and distinct class of property? To perform this office it must act independently of the rest of the section, and enlarge, rather than limit, the operation of it. This it cannot do, unless words are used which leave no doubt the legisla- ture intended such an effect to be given to it. It is argued, however, that there is no difference between goods to be delivered to the owner at their final destination, and goods delivered to the owner, or his agent, for further carriage. That in both cases, as soon as they are " ready to be delivered " over, they are "awaiting delivery." This position, although plausible, is not sound. Tliere is a clear distinction, in our opinion, between property in a situation to be delivered over to the consignee on demand, and property on its way to a distant point to be taken thence by a connecting carrier. In the former case it may be said to be awaiting delivery; in the latter to be awaiting transporta- tion. And this distinction is recognized by the Supreme Court of Michigan in the case of the present plaintiffs in error against Hale.^ The court in speaking on this subject say, "that goods are on deposit in the depots of the company, either awaiting transportation or awaiting delivery, and that the section (now under consideration) has reference only to goods which have been transported and placed in the company's depots for delivery to the consignee." To the same effect is a recent decision of the Court of Appeals of New York,'' in a suit brought to recover for the loss of goods by the same fire that consumed the wool in this case, and which were marked for conveyance by the same line of propellers on Lake Erie. Judgment affirmed. MUSCHA:^ri» V. Tin-: LA^x^vsTER and pkeston JUNiCTluN li. CO. Exchequer of Plea.s. 8 M. & W. 121. 1811. (Jask. — Tlie declaration stated, that, after the ]>assing of a cer- tain Act of I'arliament, intituled "An Act for making and maintain- ing a Railway from the Town of Lancaster to tlie Town of Preston, in the county Palatine of Lancaster," the defendants were the j.ro- jirietors of a certain railway, to wit, etc., and of certain engines and carriages used thon-on; and the plaintiff, on, etc., caused to be (ifftTcd and d(divf'r('d to the defendants, to wit, as common carriers, and the defendants received as such carriers, a certain box, and a Jin. in Ccntml Kuilroad Co., 15 Ntw York, C2fl. DELIVERY BY CARRIER. 299 divers goods and chattels contained therein, of the plaintiff, to be safely and securely carried and conveyed for the plaintiff by the defendants, from Lancaster aforesaid, upon the said railway, and upon other railways, and to be caused by the defendants to be left at a certain other place, to wit, at a certain place called the Wheat- sheaf, Bartlow, near Bakewell, Derbyshire, for the plaintiff, for certain reward to be therefore paid by the plaintiff to the defend- ants; yet the defendants contriving, etc., did not nor would convey the said box, etc., upon their said railway, nor upon other railways, or cause the same to be left at the said Wheatsheaf, etc., for the plaintiff; but through the negligence, carelessness, etc., of the defendants, the said box, goods, and chattels were wholly lost to the plaintiff. Pleas, first, not guilty; secondly, that the plaintiff did not cause to be delivered to the defendants, nor did the defendants accept and receive the said box, etc., for the purpose and in tJie manner and form as the plaintiff has in his declaration alleged : — on which issues were joined. At the trial before Kolfe, B., at the last assizes at Liverpool, the following facts appeared in evidence : — The defendants are the pro- prietors of the Lancaster and Preston Junction Railway, and carry on business on their line between Lancaster and Preston, as common carriers. At Preston the line joins the North Union Railway, which afterwards unites with the Liverpool and Manchester Railway at Parkside, and that with the Grand Junction Railway. The plain- tiff, a stone-mason living at Lancaster, had gone into Derbyshire in search of work, leaving his box of tools to be sent after him. His mother accordingly took the box to the railway station at Lancaster, directed to the plaintiff, "to be left at the Wheatsheaf, Bartlow, near Bakewell, Derbyshire" (ci place about eight miles wide of the Birmingham and Derby Junction Railway), and requested the clerk at the station to book it. In answer to her inquiries, he told her that the box would go in two or three days; and on her asking whether it would go sooner if the carriage was paid in advance, he inquired whether any one was going with it; on her answering in the negative, and that the person for whom it was intended would be ready at the other end to receive it, he said the carriage had better be paid for by that person on receipt of it. It appeared that the box arrived safely at Preston, but was lost after it was despatched from thence by the North Union Railway. Upon these facts the learned judge stated to t he jury, in summing up, that where a common carrier takes into his care a parcel directed to a particular place, and does not by positive agreement limit his responsibility to a part only of the distance, that is prima facie evi - dence of an undertaking on his_p art to carry^ th e parcel to the pla ce to_ which it is directed ; and the same rule applied, although that place were beyond the limits within which he in general professed 300 CARRIERS OF GOODS. t o carr}' on his trade of a carrier . The jury found a verdict for the plaintiff, damages £'16 Is. In Easter Term, Cresswell obtained a rule nisi for a new trial, on the ground of misdirection. Martin now showed cause, and contended that there was no mis- direction; that there was aVmndant evidence for the jury of an undertaking by the defendants, through their agent, to carry the box and its contents to the place of its ultimate destination ; that if the carriage had been paid in advance, according to the offer made by the plaintiff's mother, the sum demanded would clearly have been the carriage for the whole distance; and that to suppose as many different contracts as there were carriers on a continuous line of rail- way, would be against all principle and convenience. — The court then called on Cresswell, Baines, and Biirrell, in support of the rule. This is not the case of a conveyance travelling throughout a continuous line, like a coach, for instance, which professes to run from London to York; in such a case parties are not bound to look out for the par- ticular i^roprietors interested in the different parts of the line. But there it is held out to the public as one line; this is the case of a company known as the Lancaster and Preston Junction Railway, and holding themselves out to the world as the i)roprietors of and carriers upon that distinct line of railway only. To hold them liable for the loss of a parcel beyond the limits of their own line would therefore be very unjust. Suppose the case of a known coach from London to Stamford, and a party delivers to the book-keejier a jiarcel directed to York, does that prove a contract to carry it to York? [Lord Abixgkr, C. B. What would be the undertaking of the carrier in that case?] To carry to Stamford, and forward thence to York. Parties must be assumed to contract in reference to the known mode in which the carrier carries on his business. Sujipose it had been alleged in this case that the defendants were cuuinion carriers from Lancaster to Derby, and that had been traversed; would evidence of the kind given on the part of the plaintiff have jjroved that they were? If the defendants are held liable in this case, it would follow, tliat a carrier wlio professed on his jiart to carry parcels one stage only from Lonthm, would be liable for the loss of a parcel at any place between London and the Land's End; or the owners of a steam-vessel i)lying between Liverpool and Belfast, by receiving a Ijox directed to an inland town in Ireland, would be responsilde for its safe delivery at that place. If it be so, the same ])rinciple must hold as to imitutod negligence to j>rrs<>ns as to goods. Now, supjiose a i)assenger bf)oked at Lancaster for Lon- don, and injured on the North Union Bailway: could tlic jiroiirii'- tors of the Lancaster and Preston line be held responsible? The true iftion of the defendant's contract is, that they engage to cari) ii'- goods safely as far as Preston — i.e., as fnr ns tliey hold DELIVERY BY CARRIER. 301 themselves out, and are empowered by their Act of Parliament to trade, as carriers — and then to put them in a course of carriage onward, by transferring them to another carrier, so as to give the owner, in the event of their loss, a right of action against the new bailees. Garside v. Trent and Mersey Navigation Company, 4 T. R. 581. [Lord Abinger, C. B. The defendants refuse to receive the money for the carnage at the time: does that not show that they treat the carriers forward as their agents, from whom they are to get their remuneration?] A contrary inference rather arises, — that they could not tell what the whole amount of the carriage would be, and therefore declined to receive it. If this be in law a contract to carry the whole distance, it must be so also, although the other party be fully cognizant of the terms on which the defendants carry on their business. [Lord Abixger, C. B. Do you say the succes- sive carriers are agents of the original customer?] Yes, if the suc- cessive companies be known to him. [Rolfe, B. How is he to discover on which line the goods were lost?] In Upston v. Slark, 2 Car. & P. 598, the name of the defendant was over the door of a booking-house for coaches and wagons in Piccadilly, with the words "Conveyances to all parts of the world," followed by a list of places, amongst which was Windsor: yet it was held, that proof of the booking at that office of a box directed to Windsor, which did not reach its destination, was not sufficient to make the defendant responsible for its loss. So, in Gilbert v. Dale, 5 Ad. & Ell. 543, 1 Nev. & P. 22, which was an action brought for negligence in the loss of goods, against the proprietor of a general booking-office for the transmission of parcels by coach, it was held insufficient to prove that the goods never reached their destination. Coleridge, J., there says, "Suppose goods were left with carrier, to be taken by him to York, and from thence forwarded to Edinburgh, would it be suffi- cient, in an action against him for negligence, to show that the goods did not reach Edinburgh? " The same hardship which is recited in the preamble to the Carriers' Act, 1 Will. 4, c. 68, from the great increase of the responsibility and risk of common carriers, will occur again, if a carrier is to be held liable under such circum- stances as these. Lord Abinger, C. B. The simple question in this case is, whether the learned judge misdirected the jury in telling them that if the case were stripped of all other circumstances beyond the mere fact of knowledge by the party that the defendants were carriers only from Lancaster to Preston, and if, under such circumstances, they accepted a parcel to be carried on to a more distant place, they are liable for the loss of it, this being evidence whence the jury might infer that they undertook to carry it in safety to that place. I think that in this proposition there was no misdirection. It is admitted by the defendants' counsel that the defendants contract to do something more with the parcel than merely to carry it to 302 CARRIERS OF GOODS. Preston ; they say the engagement is to carry to Preston, and there to deliver it to an agent, who is to carry it further, who is aiterwards to be replaced by another, and so on until the end of the journey. Xow that is a very elaborate kind of contract; it is in substance giving to the carriers a general power, along the whole line of route, to make at their pl-easure fresh contracts, which shall be binding upon the principal who employed them. But if, as admitted on both sides, it is clear that something more was meant to be done by the defendants than carry as far as Preston, is it not for the jury to say what is tlie contract, and how much more was undertaken to be done by them? Now it certainly might be true that the contract between these parties was such as that suggested by the counsel for the defendants ; but other views of the case may be suggested quite as probable; such, for instance, as that these railway companies, though separate in themselves, are in the habit, for their own advan- tage, of making contracts, of which this was one, to convey goods along the whole line, to the ultimate terminus, each of them being agents of the other to carry them forward, and each receiving their share of the profits from tlie last. The fact tliat, according to the agreement proved, the carriage was to be paid at the end of the journey, rather confirms the notion that the persons who were to carry the goods from Preston to their limil destination were under the control of the defendants, who consequently exercised some influence and agency beyond the immediate terminus of their own railway. Is it not then a question for the jury to say what the nature of this contract was; and is it not as reasonable an inference for them to draw, that the whole was one contract, as the contrary? I hardly think they would be likely to infer so elaborate a contract as that which the defendants' counsel suggests; naimdy, that as the line of the defendants' railway terminates at Preston, it is to bo presumed that the plaintiff, who intrusted the goods to them, made it part of his bargain that they should employ for him a fresh agent both at that jtlace and at every subsequent cliange of railway or con- veyance, and on each shifting of the goods give such a dooumont to the new agent as should rench-r him responsible. Suppose the owner of goods sent under such circumstances, when he finds they do not come to hand, comes to the railway office and makes a com- jdaint, then, if the defendants' argument in this case bo well founded, unless the railway company refuses to supply him with the name of the new agent, they break tlicir contract. It is true that, practically, it might make no grcut dilTerence to tlie ju-oiirietor of tlie goods whicli was tlie real contract, if their not immediately fnrni.shing him witli tlie name would entitle him to bring an action •isf, fhrm. I'.ut the question is, why sliould the jury infer one id tiufHo contracts rather than the otlicr? which of the t\v(j is the most nntural, the most usual, the most j.robable? liesides, tlie car- riage-money being in this case one undivided sum rather supports DELIVERY BY CARRIER. 303 the inference, that although these carriers carry only a certain dis- tance with their own vehicles, they make subordinate contracts with the other carriers, and are partners inter se as to the carriage- money, — a fact of which the owner of the goods could know nothing; as he only pays the one entire sum at the end of the journey, which they afterwards divide as they please. Not only, therefore, is there some evidence of this being the nature of the contract, but it is the most likely contract under the circumstances ; for it is admitted that the defendants undertook to do more than simply to carry the goods from Lancaster to Preston. The whole matter is therefore a ques- tion for the jury, to determine whether the contract was on the evi- dence before them. With respect to the case referred to, of the booking-office in London, it only goes to show that when persons take charge of parcels at such an office they merely make themselves agents to book for the stage-coaches. You go to the office and book a parcel ; the effect of this is to make the booker your agent, instead of going to the coach-office yourself; and so that he sends the parcel to the proper coach-office, and once delivers it there, he has dis- charged himself; he has nothing to do with the carriage of the goods. In cases like the present, particular circumstances might no doubt be adduced to rebut the inference which, prima facie, must be made, of the defendants having undertaken to carry the goods the whole way. The taking charge of the parcel is not put as con- clusive evidence of the contract sued on by the plaintiff; it is only prima facie evidence of it; and it is useful and reasonable for the benefit of the public that it should be so considered. It is better that those who undertake the carriage of parcels, for their mutual benefit, should arrange matters of this kind inter se, and should be taken each to have made the others their agents to carry forward. GuRNEY, B. I think there is no misdirection in the case, and that the jury might fairly infer that the contract was such as was stated by the learned judge. If the goods were to be carried only in the narrow sense contended for by the defendants, then, if the place of their destination were but three miles beyond Preston, and they were lost on the other side of the railway terminus, the defend- ants are not to be liable, but the plaintiff is to find out somebody or other who is to be liable in respect of the carriage for those three miles. KoLFE, B. I am of the same opinion, and think the construc- tion we are putting on the agreement is not only consistent with law, but is the only one consistent with common-sense and the con- venience of mankind. What I told the jury was only this, that if a party brings a parcel to a railway station, which in this respect is just the same as a coach-office, known at the time that the company only carry to a particular place, and if the railway company receive and book it to another place to which it is directed, prima facie they undertake to carry it to that other place. That was my view at the 304 CAKRIERS OF GOODS. trial, and nothing has occurred to alter my opinion. As to the case which has been put, of a passenger injured on the line of railway beyond that where he was originally booked, I suppose it is put as a reduct'to ad aisunbimj but I do not see the absurdity. If I book my place at Euston Square, and pay to be carried to York, and am injured by negligence of somebody between Euston Square and York, I do not know why I am not to have my remedy against the party who so contracted to carry me to Y^ork. But, at all events, in the case of a parcel, any other construction would open the door to incalculable inconveniences. You book a parcel, and on its being lost, you are told that the carrier is responsible only for one portion of the line of road. What would be the answer of the owner of the goods? — ''I know that I booked that parcel at the Golden Cross for Liverpool, and my contract with the carrier was to take it to Liver- pool." All convenience is oneway, and there is no authority the other way. Mule dischai'ged.^ ^'UTTING V. CONNECTICUT EIVER R. CO. 1 Gray (Mass.), 502. 185i. AcTiox of contract to recover the value of two of the boxes described in the following receipt, signed by the defendants' agent: "Northampton, Mass., Feb. 27th, 1851. Received of E. Nutting, for transportation to New York, 9 boxes planes, marked R. & F. 21 riatt St., New York; 4 boxes planes and handles, marked G. T. Hewlett, 14G Bowery Street, New Y^ork. "Fred W. Clakkk." The fijllowing facts were agreed by the parties: All the boxes named in this receipt were delivered by the defendants, witliin a reasonable time, at Springfield, the southern terminus of their road, 1 The mere acccntnin'' of goods by a common carriiT niarki-d to a dosii^'natiun beyond the tt-rminiis of its line as a matter of law imports no absolute undertaking upon the part of the carrier beyond the end of its road, but is a matter of evidence to >« Hubmittfd to the jurv, from which, in connection with other evidence produced, thev are to determine, as a question of/"'/, tlie real enf,'u-ement entered into. This position was very ably maintained in a recent and elaborate opinion of the Supreme fourt of N.-w Tlami-shire. reviewing almost the whole current of decisions from MuHchamp v. The Lancaster Railway f.,., S M. & W. 121, down to the i.rcsent perio.! S<-e fJray v. .lackson, 51 N. H. 9. The question is not an open one in this State In Angle v. The M. M. IC'v Co., P Iowa. .|S7, the rule was s.-ttled as it is .... ■ ..,,,1 to exist in England, and it was h-ld that the neceptanre by a carrier of iked to a ilestinntion beyond the tenninus of its road, creates a prima facir ;tv to tranHi>ort to and deliver at that j.oiiit. whirh may be modified by proof of a .'. ...,.„. )(nown to the shijiper at the tinw of making the ronsignmont. Per I-.., I . Mulligan r. Illinois Central R. Co., 38 Iowa, 181. DELIVERY BY CARRIER. 305 to the New Haven, Hartford, and Springfield Railroad Company, with whose road the defendants' road there connects. The New Haven, Hartford, and Springfield Railroad extends from Springfield to New Haven, and there connects with the New York and New Haven Railroad, which extends to the city of New York. The defendants took a receipt for these boxes from the New Haven, Hartford, and Springfield Railroad Company; and all the boxes were dnly delivered in New York, except two, which were lost between Springfield and New Haven. It is the practice of the defendants, who are common carriers, to convey goods, received at places on the line of their road for trans- portation to New York, in their own cars to Springfield, and there to deliver them to the New Haven, Hartford, and Springfield Rail- road Company, by whose agents the goods are overhauled and checked. Such goods are sometimes carried over the New Haven, Hartford, and Springfield Railroad without change of cars, and are sometimes shifted into the cars of that company. But the defend- ants receive pay only as far as Springfield. When goods are brought from New York to places on the line of the defendants' road, they are brought either in the freight cars of the defendants,, or of one of the two corporations above mentioned, or of the Vermont Valley Railroad Company, whose road extends from the northern terminus of the defendants' road into the State of Vermont. The parties agreed that if the defendants were not liable to the plaintiff judgment should be entered for them ; otherwise, that the plaintiff should have judgment for !g25.o0, the value of the lost boxes and their contents. Metcalf, J. On the facts of this case, we are of opinion that there must be judgment for the defendants. Springfield is the southern terminus of their road; and no connection in business is shown between them and any other railroad company. When they carry goods that are destined beyond that terminus, they take pay only for the transportation over their own road. What, then, is the obligation imposed on them by law, in the absence of any special contract by them, when they receive goods at their depot in North- ampton, which are marked with the names of the consignees in the city of New York? In our judgment that obligation is nothing more than to transport the goods safelv to tliP) end of their road, an d there deliver them to the ijroper carriers, to be forwarded towards their ultimate destination. This the defendants did, in the present case, and in so doing performed their full legal duty. If they can be held liable for a loss that happens on any railroad besides their own, we know not what is the limit of their liability. If they are liable in this case, we do not see why they would not also be liable if the boxes had been marked for consignees in Chicago, and had been lost between that place and Detroit, on a road with which they had no more connection than they have with any railway in Europe. 20 306 CARRIERS OF GOODS. But the plaintiff seeks to charge the defendants on the receipt given by Clarke, their agent, as on a special contract that the boxes should be safely carried the whole distance between Northampton and New York. We cannot so construe the receipt. It merely states the fact that the boxes had been received " for transportation to Xew York." And the plaintiff might have proved that fact, with the same legal consequences to the defendants, bj oral testimony, if he had not taken a receipt. That receipt, in our opinion, imposed on the defendants no further obligation than the law imposed without it. The ]dain ti ff's counsel relied on the case of i\Iuschamp v. Lancas- ter & Preston Junction Kailway . 8 M. & W. 421, in which it wa^ decided by the Court of Exchequer, that when a railway company take into their care a parcel directed to a particular place, and do not by positive agreement limit their responsibility to a part only of the distance, that is jn'ima facie evidence of an undertaking to carry the parcel to the place to which it is directed, although that place be beyond the limits within which the comi)any, in general, profess to carry on their business of carriers. And two justices of the Queen's Bench subsequently made a like decision. Watson r. Ambergate, Nottingham & Boston Railway, 3 Eng. Law & Eq. 11. 407. We cannot co ncur in that view of the law; and we are sus - • tained, i n our dissent from it, by the Cour t of Errors in New Y^ork . .^jjr aiuT by the Sujjreme Courts o f Vermont and CoiiuecticiLt. Van ^v^ Santvoord v. St. John, C Hill, 15 7. Farmers' «& IMechanics' Bank ^y^ r. Champlain Transportation Company, 18 Verm. 140, and 23 Verm. '^'"'^^ 209. Hood V. New York & New Haven Railroad, 22 Conn. 1. In tliese cases, the decision in Weed v. Saratoga & Schenectady Rail- road, 10 Wend. 534 (which was cited by the present i)laintiff's coun- sel), was said to be distinguishable from such a case as tliis, and to be reconcilalile with the rule that each carrier is bound only to the end of his route, unless he makes a special contract that binds him further. Judfjvicnt for tlic diftmhnxts} THE ATC1IIS(jN, Tul'KKA v^ SANTA Vt \\. CO. v. RUACH. 35 Kan. 740. 1880. Action brought by Roacli against Tlic Ixailroad Company, to recover the value of certain baggage. Trial at tlie September Term, 1884, and judgment for j.laintiff for §227.32. The defendant com- » Ate. : Myrick v. Michiffnu Ontml R. Co., 107 U. 8. 102. DELIVERY BY CARRIER. 307 pany brings the case to this court. The opinion states the material facts. JoiixsTox, J. This action was brought by Michael Roach against the Atchison, Topeka & Santa Fe Eailroacl Company, to recover for baggage alleged to have been lost and injured while in transit from New York City to Hutchinson, Kansas. A verdict was given in favor of Eoach for $227.32, and judgment rendered accordingly. The railroad company brings the case here, and complains of the charge of the court and of the insuihcieucy of the evidence. The essential facts of the case maybe briefly stated: On February 28, 1881, Roach purchased eight coupon tickets for the passage of him- self and family from the city of New York to Hutchinson, Kansas, over the New York, Lake Erie & Western Railroad, Grand Trunk Railway, Michigan Central Railroad, Chicago, Burlington & Quiucy Railroad, Hannibal & St. Joseph Railroad, and Atchison, Topeka & Santa Fe Railroad. The tickets were purchased from one Henry Opperman, who had an office in New York, and who at the same time caused several pieces of baggage to be checked through to Hutchinson, using checks on which the names of the roads men- tioned were stamped. As there was more baggage than could be carried on the tickets purchased. Roach was required to and did pay $62.15 for extra baggage, and Opperman gave him duplicates of the checks, which he retained. The defendant in error and his family made the journey over the roads mentioned, and the tickets were honored and accepted for their passage, and the servants of the several companies detached the coupons or portions of the ticket that represented the passage-money over the different roads. When the passengers reached Hutchinson application was made for the baggage, and it was found that some of it had been lost, and por- tions of it badly injured. The testimony tended to show that the baggage was delivered to the first carrier in good condition, but on what road or roads the loss or injury occurred was not shown. The plaintiff belo\v _soiLght to recoye_ r upon_ ^two__theories : on_e that ^ v 0]2]3en^an^jyJK>_joklt^^ T." & S.~R y \^ Rld._Co^ and that that company undertook to carry the passengers ^ ^^ and baggage over the entire route, and that, being the contracting 'Jj^' carrier, it was liable for the loss and injury regardless of where and ^^ -^^ upon what road it occurred. The otlL ei;_theory is, that the several ^ roads constitute a connected and united line, and that the combina- tion and running arrangements existing among the owners of the roads were such as amounted in effect to a p artnership , and there- fore the injury and loss was a common liability, and each and all of the companies are liable, no matter upon what part of the line the loss occurred. No recovery can be had upon the first theory, for the reason that the testimony wholly fails to establish that Opper- man was the agent of the defendant company. Some of the wit- nesses for Roach spoke of Opperman as the agent of that company, 3US CARKIEKS OF GOODS. while others stated that he was ageut of the Xew York, Lake Erie & Western liailroad Company. It was however develoijed upon cross-examination, that the}' had no knowledge of his authority or agency beyond his action in the sale of the tickets and the check- ing of the baggage, Opperman testified that he was the authorized agent of the New- York, Lake Erie & Western Railroad Company, and sold tickets for and as the agent of that company, and that he did not represent and was not the agent of the defendant company. There was other testimony to the same effect, and also that when Roach purchased his tickets the defendant company had no tickets on sale in or about the city of New York. The theory that the defendant company was the original contracting carrier finds no support in the testimony, and no liability arist^s against the com- pany on that ground. Where then is the liability? It is contended by the railroad company that the New York, Lake Erie & Western Railroad Company, being the first carrier, is alone liable. While a railroad company cannot be compelled to transport to a point beyond its own line, it is well settled that it may lawfully contract to carry persons and property over its own and other lines to a des- tination beyond its own route; and when such a contract is made, it assumes^ll the obligations of a carrier over the connecting lines as well as its own. In such cases the connecting carriers engaged in completing the carriage are deemed to be agents of the first carrier, for whose negligence and default the contracting carrier becomes liable. Berg v. A. T. & S. F. Rid. Co., oO Kas. 5G1 ; Lawson's Con- tracts of Carriers, § 235; Hutchinson on Carriers, § 145; Thompson's Carriers of Passengers, p. 431; 2 Rorer on Railroads, p. 1234. Of course a railroad company or other common carrier may limit its liability to the loss or injury occurring on its own line, and tlie understanding or contract between the parties is to be determined from the facts of each case. Some of the courts have held that the mere acceptance of the property marked for transi)ortation to a place beyond the terminus of the road of the accepting carrier, amounts to an undertaking to carry to the ultimate destination, whatever that may be; and in the absence of any conditions or limi- tations to the contrary, will make it liable for a loss occurring ui)on the connecting lines as well as its own; while others hold that in such a case the carrier is only bound to safely carry to the end of its own route, and there to deliver to the connecting carrier for the completion of the carriage, Lawson's Contracts of (Carriers, §§ 238, 2.''/.), 240. l'»ut where a railroad com^tany sells a througli ticket for a single fare over its own and other roads, and checks tlie baggage of the pa-ssenger over tlie entire route, more is im])lied, it seems to us, than the mere aceejttanfe of the i»ropcrty marked for a destina- tion beyond the terminus of its own line. The sale of a through tieket and the cliecking of the baggage for tlie whole distance is some evidence of an undertaking to carry the passenger and baggage DELIVERY BY CARRIER. 309 to the end of the journey. The contract need not be an express one, but may arise by implication and may be established by circum- stances the same as other contracts. In Wisconsin a passenger pur- chased a through ticket from the Chicago & Milwaukee Kailway Company from Milwaukee to New York City, and at the same time delivered her trunk to that company, and received therefor a through check to New York City. Upon arrival at New York the trunk was found to have been opened and some of the articles taken therefrom. The Supreme Court, in ruling upon the effect of the railway company issuing the through ticket and check, stated that : — " The ticket and check given by the Chicago & Milwaukee Rail- way Company implied a special undertaking by that company to safely transport and carry, or cause to be safely transported and carried, the plaintiff and her baggage over the roads mentioned in the complaint, from Milwaukee to the city of New York. This we think must in legal contemplation be the nature and extent of the contract entered into and assumed by that company when it sold the plaintiff the through ticket and gave a through check for the trunk, and received the fare for the entire route." Candee v. Pennsylvania Eld. Co., 21 Wis. 582; 111. Cent. Eld. Co, v. Copeland, 24 111. 332; Carter v. Peck, 4 Sneed [Tenn.], 203; Eailroad v. Weaver, 9 Lea, 38; B. & 0. Eld. Co. v. Campbell, 36 Ohio St. 647; same case, 3 Am. & Eng. Eld. Cases, 246; 2 Eorer on Eailroads, p. 1001. From the authorities we conclude that the sale of a through ticket for a single fare by a railroad company to a point on a connecting line, together with the checking of the baggage through to the des- tination, is evidence tending to show an undertaking to carry the ^-^'^ i passenger and baggage the whole distance, and which in the absence ^ •* \ of other conditions or limitations and of all other circumstances ^v* u,^ will make such carrier liable for faithful performance, and for all ^..^/^ loss on connecting lines, the same as on its own. The liability of" the first carrier does not necessarily relieve the defendant company from responsibility. Each carrier is liable for the result of its own negligence, and although the first carrier may have assumed the responsibility for the transportation to a point beyond its own route, any of the subsequent or connecting carriers to whose default it can be traced will be liable to the owner for the loss of his baggage. Hutchinson on Carriers, § 715; Aigen v. Boston & Maine Eld. Co., 132 Mass. 423; Eailroad v. Weaver, 9 Lea, 39. The defendant company cannot, however, be held liable upon that ground, because there is no evidence that the baggage was injured or lost while in the custody of that company, nor was it in fact shown upon what part of the route the injury or loss occurred. The other theory upon which a recovery is sought is, that the several connecting lines over which the baggage was to be carried should be treated as a continuous and united line, and that the y. 310 CARRIERS OF GOODS. arrangements made by the several lines for through traffic was such as to constitute them a partnership. There is a singular lack of testimony in the case, not only respecting the terms of the contract with the passenger, but also in regard to the relations existing among the several carriers. Not a word of testimony was intro- duced as to the running arrangements between the companies, nor the basis upon which through business was done. The practice or custom of the companies in the past was not shown, neither was there any proof that they had ever co-operated, or had done any through business beyond the transaction in question. It was not even shown what the form of the ticket was, nor what were the stipulations, if any, printed on them. There was in fact no evi- dence upon which to predicate a theory of partnership, or that each of the companies was the agent of all the others, except the single transaction of selling the tickets and checking the baggage. It is doubtless true that arrangements are frequently made among rail- road companies whose lines connect, for through traffic, which con- stitute them partners. Such an arrangement is greatly to the advantage of the companies; the convenience which it affords the jjublic invites business, and swells the traffic of the companies engaged in the joint enterprise. These arrangements among asso- ciated lines render it difficult for the passenger or shipper, in case of loss or injury of his property, to ascertain where the loss occurred; but no such difficulty lies in the way of the railroad companies; they have the facilities and can easily trace the projjcrty to the company which caused the injury or loss. In interjireting the agreements and conduct of associated lines engaged in a through traffic, public policy and the inconvenience mentioned should be considered, and they should be fairly and liberally interpreted towards the patrons of the lines holding the companies, wlio-re it is admissil)lo \indor the rules of the law, to a common liability as jiartners. lUit sucli arrangements for through traffic cannot be held to be a partnershi]>, unless there is a community of interest among the companies, ;iiid under which each shares the profits and losses of the enti'rjjrisc. The mere sale of a through coupon ticket over the connecting lines of several companies, and the checking of the baggage to the end of the route does not show such a community of interest as would make them partners Inter sese, or as to third persons. This question has been directly adjudged. A through ticket was purcliased for i)as- sage from S"ew York to Washington over throe lines of railroad which constituted a througli line for the transjiortation of ])asscn- gors and Iroight, and the i)assenger jjurchasing the ticket received a through check for her baggage. It appeared that tlie fare received for througlt tickets was accounted for liy tlie company selling tlie ♦ ' to the otlier linos according to certain estal)lislied rates, liut t.,. .• ..as no ilivision of losses; and it was lield in aJi action against the last carrier to recover for lost baggage, that tlie first carrier was DELIVERY BY CARRIER. 311 liable for losses occurring on its own line, as well as any other con- necting line throughout the whole distance, but that the arrange- ment of the three companies for the sale of through tickets and the issuance of through checks, while it resembled a partnership, did not constitute one, nor make any of the connecting carriers liable for a loss not occurring on its own line. Croft v. B. & 0. Rid. Co., 1 Mc Arthur, 492. In Hartan v. Eastern Railroad Co., 114 Mass. 44, it was ruled that arrangements between connecting roads forming a continuous line for the sale of through coupon tickets, which enabled passen- gers to pass over all the roads without change of cars, did not imply joint interest or joint liability. In another case, where several car- riers whose lines connected made an agreement among themselves to appoint a common agent at each end of a continuous line to sell through tickets and receive fare, it was held that this arrangement did not constitute them partners as to passengers who purchased through tickets, so as to render each of the companies liable for losses occurring^on any portion of the line. Ellsworth v. Tartt, 26 Ala. 733. A somewhat similar case was decided in New York. There a passenger purchased a through ticket from Xew York to Montreal over several connecting lines of railroad, owned by several companies. The ticket was a strip of paper divided into coupons, whereof one was to be detached and surrendered to the conductor of each line on the route. The passenger, instead of giving his valise into the charge of the agent of the company and receiving a check therefor, kept it in his own charge to the terminus of the line of the first carrier, where he delivered it to the agent of the connecting line, Avho checked it through to another point on the road. It appeared that an arrangement had been entered into between the various lines from New York to Montreal to connect regularly. Tickets were sold in New York for the entire route or intermediate places, under the direction of a general agent, who was paid by the several companies. The rate of fare Avas different on the different roads, and each company received its own proportion of the whole fare or passage-money at the close or at the beginning of every month, according to the established rates of fare. It was held that there was nothing in an arrangement like this to constitute the different companies partners for the transportation of passengers or baggage, so as to make one of them liable in common with the others for the loss of the valise. It Avas decided that "the arrangement may be beneficial to them as well as to the public, inasmuch as by facilitating travel, it may tend to increase it, but that would not create that joint interest, that community in profit and loss which is essential to the existence of a partnership." Straiton v. New York & New Haven Rid. Co., 2 E. D. Smith, 184; Hot Springs Rid. Co. V. Tripple & Co., 42 Ark. 465; same case, 18 Am. & Eng. Rid. Cas. 562; Aigen v. Boston & Maine Rid. Co., 132 ^Nlass. 423; same 312 CAKRIERS OF GOODS. case, 6 Am. & Eng. Rid. Cas. 426; Darling r. Boston & Worcester Kid. Co., 11 Allen, 2'J5; Kessler v. Railroad Co., 01 N. Y. 5oS; Irwin V. Rid. Co., 92 111. 103; Insurance Co. v. Rid. Co., 104 U. S. 14G; same case, 3 Am. & Eng. Rid. Cas. 200. Among the cases relied on by the defendant in error is Hart v. Rid. Co., 4 Selden, -37. In that case the defendant, which was one of three railroad companies owning distinct portions of a continuous road, was held liable for the loss of the baggage of a passenger received at one terminus to be carried over the whole road. The liability was not, however, based alone upon the selling of the ticket and the checking of the baggage. In addition to through tickets, it appeared that under the agreement made each of the railroad com- panies ran its cars over the wliole route, and employed the same agents to sell passage-tickets. Besides these facts, it appeared that the lost baggage had been placed directly in charge of the servants of the defendant company, and that its loss was due in part to the negligence of that company. Texas & Pacific Rid. Co. y. Fort, a decision by the commission of appeals of the State of Texas, reported in 9 Am. & Eng. Rid. Cases, 392, is also relied on. There it is held that the delivery of through checks, upon which were stamped letters indicating the different railways over which the baggage would go, constituted a contract under which the several companies were liable, regardless of the line upon which the loss occurred, — a proposition to wliich we can- not accede. The decision in this case is biised upon the ruling in Hart V. Railroad Co., supra, which, as we have seen, was deter- mined upon other considerations. The same may also be said respecting Texas & Pacific Railway Co. v. Ferguson, another de- cision of the commission of appeals of Texas, Am. & Eng. Rid. Cases, 395, as well as Hart v. The Grand Era, 1 Woods C. C. 184. The only other case relied on is Wolf /•. Central Rid. Co., 08 Ga. 653. It was there held that where a passenger with a through ticket over a connecting line checked his baggage at the starting-jioint through to his destination, and upon arrival there found that it had been injured, he might sue the railroad com]iany which issued the check or the one delivering the baggage in bad order. Upon the facts in that case the court determined that the company selling the tickets was to be regarded as the agent of the other companies composing the line, and intimated that where a passenger travels over a continuous line on a through ticket, and the baggage is sent on a through check, that any one of the companies may be lu-ld liable for spoliation of the baggage, irrespective of the ])()int at which it actually occurred; and the quer}' is also raised as to whether tlicy are ' ' liabh; as pai-tners. The writer of the o])inion held that by t of the tickets and the division of the reci'ipts at jteriod- ieal ..ents they acted as princii)als and not as agents, and that DELIVERY BY CAERIKK. 313 by such action they stood substantially in the position of partner in the through business, aiul were jointly and severally liable as such. The concurrence of the other justices was, however, placed upon the ground that as the last carrier, and the one which was sued, received the baggage in apparent good condition, it was presumaldy liable, and the Chief Justice stated that this was the exact point decided. It is difficvilt in many cases to determine whether the arrangements and agreements of connecting carriers are such as to constitute each of them principals, or to place them in the relation of partners ; but neither upon reason or authority can we hold that the sale of through tickets and the checking of baggage over the connecting lines of several companies, without other proof of their relations or the basis upon which the business was done, is sufficient to make them jointly and severally liable as partners. The instructions of the court not being in accord with the views herein expressed, and the evidence being insufficient to support the verdict, the judgment of the District Court must therefore be reversed, and the cause remanded for another trial. All the justices concurring. PETERSON V. CHICAGO, ROCK ISLAND AND PACIFIC E. CO. 80 Iowa, 92. 1890. The plaintiff seeks to recover of the defendants, who are common carriers of passengers and baggage, the value of certain wearing apparel, ornaments, and other property which were stolen from cer- tain trunks of the plaintiff and her husband, while being conveyed as baggage from Davenport, in this State, to the city of Los Angeles, in the State of California. There was a trial by jury, and at the close of the introduction of the evidence the court, on the motion of the defendants, directed the jury to return a verdict for the defendants. Plaintiff appeals. ROTHROCK, C. J. II. In an amendment to the petition the plaintiff set up a second and further cause of action, in which it is, in substance, alleged that, at the time the tickets were purchased by Peterson and the journey was made, the four railroad companies owned and operated by the defendants formed a complete connecting line of railway from Davenport to Los Angeles, and at said time said four defend- ants had formed and entered into an agreement and combination for the purpose of transporting passengers and their baggage from Davenport to Los Angeles, by using said four lines of railway as a o 14 CARRIERS OF GOODS. continuous line between said places, and making one fare or charge for such transportation for the entire distance, " that said business of transporting said baggage was done by defendants in such a man- ner that it was impossible for plaintiff or her husband to kuow or discover at what particular place on said route said property was so taken from trunks, aud she is, therefore, unable to state." There was no evidence to sustain this count of the petition as against the Chicago, Rock Island and Pacific Railway Company. On the contrary, it is expressly provided, on the face of the ticket, that the said company assumed "no responsibility beyond its own line." It did not check the baggage beyond its own line, and the evidence shows that the trunks were not opened while they were in the pos- session of that company. When the baggage was delivered at Kansas City, the checks taken up and the trunks rechecked, the contract, so far as the Rock Island Company was concerned, was fully per- formed. The court is committed to the doctrine that the reueiviug or initial carrier may, by a stipulation in the bill of lading or con- tract of carriage, limit its liability to injuries to the consignment which occur on its own line. ^Mulligan v. Railway Co., 36 Iowa, ISI. We ()U the presum]'f ion fli.it tlir- goods DELIVERY BY GAREIER. 317 were stolen in the possession of the last carrier. In Brintnall v. Kailway Co., the plaintiff was permitted to recover of the receiving carrier, because, when the goods were shown to have been in its custody, it was incumbent on it to show that it had delivered the goods to the next carrier in the line. It may be said of all the cited cases that they rest mainly upon what is deemed presumptions. These presumptions are grounded upon the necessities of the case, rather than upon any clear and well-defined legal grounds. Indeed, many of them are really grounded upon the thought that, where it is impossible for the owner to show upon which part of the whole line of travel the property was lost or stolen, it is incumbent on the defendant to show itself clear of the loss. In one of the cited cases. Smith V. Railway Co., 43 Barb. 225, it is said: "Unless this rule is to be applied to goods delivered, to be transported over several connecting railroads, there would be no safety to the owner. It would often be impossible for him to prove at what point, or in the hands of what company, the injury happened." Others of the cited cases hold the defendants liable upon grounds which are really based upon the thought that all of the connecting lines are jointly liable. This is true of the case of Wolff v. Railway Co., 68 Ga. 653; and in Railway Co. v. Fort, 9 Am. & Eng. R. R. Cas. 392, and Rail- way Co. V. Ferguson, 9 Am. & Eng. R. R. Cas. 395, the Supreme Court of Texas holds that, when a person purchases a through ticket over several railroads, and procures a corresponding check for his baggage, and the baggage is lost, each carrier is the agent of all the others, and is liable to any damage to the baggage on whatever part of the line the damage was done. The case of Harp v. The Grand Era, siqjra, is to the same effect. On the other hand, we are cited by counsel for appellee to a large number of cases which determine that, where several connecting companies form a through line, each operating its own road, and through tickets with coupons attached are sold over the entire route for a single fare, there is no joint liability by reason thereof, and each carrier will only be liable for defaults occurring on its own road, except that in some States the receiving carrier is presumed to contract for carriage over the entire route. Among the cases cited are the following: Ellsworth v. Tartt, 26 Ala. 733; Hood v. Rail- way Co., 22 Conn. 12; Knight v. Railway Co., 56 Me. 210; Croft v. Railway Co., 1 Mc Arthur, 492; Kessler v. Railway Co., 61 N. Y. 538; Railway Co. v. Roach, 35 Kan. 740; 12 Pac. Rep. 93. The length of this opinion forbids that we should review these cases. After a very full and careful examination of the subject, IVIr. Hutchinson, in his work on carriers (page 131), says: "From the cases it may be deduced: First, that where carriers over different routes have associated themselves under a contract for a division of the profits of the carriage in certain proportions, or of the receipts from it, after deducting any of the expenses of the business, they 31S CARRIERS OF GOODS. become jointly liable as partners to third persons ; but that, where the agreement is that each shall bear the expenses of his own route, and of the transportation upon it, and that the gross receipts shall be divided in proportion to distance or otherwise, they are partners neither inter se nor as to third persons, and incur no joint liability." We think this is a fair statement of the rule of joint liability which is supported by the great weight of authority. It only remains to be determined whi^ther the evidence in this case authorized the jury to find a joint liability. We tliiuk it did. It is true there is no express proof that these defendants were partners. But it is to be remembered that the plaintiff made the best proof of which her case was capable. The fact as to the relation which these companies sustained to each other, and the impossibility of proving where or on which road the trunks were pillaged; the receijit of the whole of the fare by their joint agent, the Eock Island Kailway Company; the collection of the charge for extra baggage at Kansas City ; and the fact that the trunks were checked through and carried to the end of tlie journey on the same train with Peterson and his family; and the initials of all of the companies to eacli coupon, authorized a finding that the undertaking was a joint transaction, at least so far as the rights of the passengers to have their baggage safely carried were involved. In our opinion, the case ought to have been submitted to the jury. Reversed. b. Delivery to Consignee. SWEET V. BAr.XEY. 23 N. y. 335. 18(Jl. Appkal from the Supreme Court. Action against the defendants, an express company, as common carriers, to recover tlie amount of a package of money, received by the defendants, directed to the "I'eoj.le's Bank, 173 Canal Street, New York." The defendants liad a verdict at the circuit, wliich was affirmed at the General Term of the Supreme Court in the seventh district, and the jdaintiffs appealed to this court. The proof showed those facts: The plaintiffs were bankers at T)nn villQ, Livingston County. They kept an account witli the 1 I'.aiik, in which they were in the habit of making deposits and drawing bills of exchange or checks against the same. A paek- age containing §2,802 was delivered by tliem to tlie defendants, ,1 ;..... .....I " i»,.r,pl..'.s Bank. 173 Canal Street, New York," to be for- "v. :i.s directed. The package was taken to Xew York, and DELIVERY BY CARKIER. 319 delivered at the defendant's office in that city to one Messenger, an employee of the People's Bank. Messenger was a porter in the People's Bank, and had been for several years; was accustomed to receive money brought by the defendant's company at the bank, at the Clearing House and at the defendant's office. Messenger was also accustomed to act for the People's Bank in making exchanges and collections with other banks ; and he acted as its representative at the Clearing House, at a desk labelled "People's Bank;" had there often received packages of money from the defendants ad- dressed to "People's Bank " and given receipts for the same for said bank. The defendants' office was in the same building with the Clearing House, and Messenger requested the defendants to keep the packages for the People's Bank at their office until he called for them. The defendants did so, and Messenger regularly called for them and received them, and gave receipts. In the eighteen days previous to the delivery of this, nine other packages for the People's Bank were delivered to and receipted by Messenger with- out any complaint or objection from the bank. After the delivery to Messenger of the package in question it was stolen from him. The plaintiff's counsel requested the judge to charge the jury that the duty of the defendants was to deliver the package at the bank as directed, and they were not authorized to deliver the same to any person at any place other than at the bank. 2. That neither the bank nor the defendants were authorized to change the mode of delivery of the package without the consent or knowledge of the plaintiffs; and that such change, if made without their knowledge or consent, would not discharge the defendants. The judge refused both of these requests, and the plaintiffs' coun- sel excepted to such refusal. The judge charged that a delivery to an agent of the bank, authorized by it to receive the package, at any place other than the bank, would discharge the defendant, to which the plaintiffs' counsel also excepted. James, J. That these defendants were common carriers can hardly be doubted. Persons whose business it is to receive pack- ages of bullion, coin, bank notes, commercial paper, and such other articles of value as parties see fit to trust to their care for the pur- pose of transporting the same from one place to another for a com- pensation, are common carriers, and responsible as such for the safe delivery of property intrusted to them. Pvussell v. Livingston, 19 Barb. 346; Sherman v. Wells, 28 Barb. 403. Such was the busi- ness of these defendants, and such their responsibility. The consignee is the presumptive owner of the thing consigned; and when the carrier is not advised that any different relation exists, he is bound to so treat the consignee; biit this presumption may be rebutted; and if_in_ an action for non-delivery by the consignor against the carrier that presumption be overcome, the action is properly brought in the consignor's name. Price v. Powell, 3 Comst. 320 CAERIERS OF GOODS. 322. But in this case, unless a deliverj-of the money be established, the plaintiffs' right to recover was made out. There was no notice of the contents of the package in question belonging to the consignors; nor was there any fact proved, calcu- lated to weaken the presumption of ownership in the consignee. The defendants were, therefore, not only authorized, but fully jus- tified in treating the consignment as the property of the bank. The defendants could not know that they were employed to make a deposit in the People's iJank for the benefit of the assignors; or that this package was entitled to or demanded a special delivery. There was, in fact, nothing in the transaction to advise them that this package was to be treated differently from other packages actually belonging to the bank; and, therefore, any delivery good against the bank discharged the carrier. The principal question then is, was there a delivery good against the bank; if there was, the plaintiffs must follow the bank; they have no cause for action against these defendants. It is conceded that the liability of a carrier begins with the receipt of the goods by liim, and continues until the delivery of the goods by him, sub- ject to the general exceptions. And an express carrier is bound to deliver the goods at their destined place, to the consignee, or as the consignee may direct. In general, the delivery must be to the owner or consignee himself, or to his agent, 11 ^let. 509, or they must be carried to his residence, or they may be taken to his place of business, when from the nature of the parcels that is the appro- priate jtlace for their delivery. l>ut there is no rule of law requir- ing a delivery at the consignee's Fe s id ence~or place of business when he is willing to accept it at a different place, or directs a delivery at another place. The consignee, or his authorized agent, may receive goods addressed to him in the hands of a carrier at any pkice, either before or after their arrival at their place of destination, and such acceptance operates as a discharge of the carrier from his liability. It was held in Lewis v. The Western Railroad, 11 Met. 5U9, that if A, for whom goods are transjxirted, authorizes B to receive a delivery thereof, and to do all acts incident to the delivery and transportation thereof to A, and B, instead of receiving the goods at the usual place of delivery, requests the agent of the railroad to permit the car which contains the goods to be hauled to a near depot of anotlier company, and such agent assents thereto, and assists B in hauling the car to such depot, and B> then requests and obtains leave of that comjiany to use its machinery to remove tlie goods from the car — the company that transported the goods is not answerable for the want of care or skill in the persons employed in 8o removing tl>e goods from tlie car. nor for the want of strcngtli in tlie machinery used for tlie removal of them, and cannot be charged with any loss that may happen in tlie course of such delivery to A. Had the consignee in this case received tlie package in question at DELIVEEY BY CARKIER. 321 the defendants' oflBce, I think no one would doubt the defendants were discharged. The case then turns upon Messenger's agency. If an authorized agent in the premises, a delivery to him was as effectual as a delivery to the principal. The question of agency was a question of fact, and was settled by the verdict of the jury. We think the delivery at the office of the defendant to the authorized agent of the consignee was proper, and operated to discharge the defendants from their obligations as carriers. This disposes of the case unless there was some error committed at circuit in submitting the question of Messenger's authority to the jury, or in the court's refusing to charge as requested. I have been unable to discover any such error. The evidence submitted was competent — it was of the most perfect and satisfactory kind, and not only justified, but required the verdict rendered. The judg- ment should be affirmed.^ 1 Da VIES, J., dissenting. * • The question presented to our consideration in this case is, whether the defendants have performed the service which they undertook. There is no ground for the assump- tion that the money transmitted by the defendants was the property of the bank. It was sent by the plaintiffs to be deposited with the bank as their property, and there is no reason to infer that it was sent to pay an antecedent debt. There is no proof that any such debt existed, and it might as well be said that the money of any de- positor when set aside to be deposited in a bank became the property of the bank and ceased to be that of the depositor. It is placed in the bank for safety, and as a convenient mode of transacting business and for making payments by the depositor by checks or drafts on the bank. It could be attached and reached as the property of the depositor. The ordinary presumptions applicable to a consignment of property, as to the ownership by the consignee, have no application to the present case. Have the ^defen dants pe rformed the servke which Jhe;^_un.dertook ? It is contended^onTtheir behalf that they have, because they delivered the package to an agent of the bank, and, as they assume, under such circumstances as would render the bank liable to the plaintiffs for the money transmitted. It would seem to be a sufficient answer to this defence to say, that such was not the contract made by the defendants with the plaintiffs, and that they have no legal right _to make a new contract, or do something which they contend" is' equivalent" to that undertaken to be done by them : tliere is no pretence that the plaintiffs were parties to any such modification of the contract, made or had any knowledge of it, or in any manner assented to it. Nor can it be alleged that the custom of the defendants in delivering packages to the parties, at places other than the bank, can have any effect on the rights of the plaintiffs. As between the defendants and the bank it has sicrnifi- cance : as to the parties of the contract, it is res inter alios acta, and the plaintiff" are not deprived of any of their rights by reason of it. It is well settled, that it is the duty of the carrier, not only to transport the goods safely to the place of delivery but without any demand upon him to deliver the same according to the owners' directions There is no question that in this case the directions of the owners, the plaintiffs were to deliver this money at the bank, at 173 Canal Street, to the officers of the bank It was held m Hyde v. Trent and Jersey Navigation Company (5 T. R., 389 [260]) that a delivery to a porter at an inn, to cany to the consignee, did not discharge the carrier. That the goods continued at the risk of the carrier until a personal delivery at the house or place of deposit of the consignee, and that the porter to whom the package was delivered, was the servant of the carrier. It wourd follow in the present 21 322 CARRIERS OF GOODS. BAILEY V. HUDSON EIVER K. CO. 49 N. y. 70. 1S72. Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiffs entered upon a verdict. Action for the conversion of eleven cases of dry goods. Church, C. J. It is undisputed that Alden, Friuk & "Weston delivered the goods in question to the defendant, to be transported by them to the plaintiffs; that they were consigned to the plaintiffs, and the packages properly marked with the name of the plaintiffs' firm, and the defendant gave a receipt for the same, agreeing to deliver the goods safely to the plaintiff's at the city of New York. It is also undisputed that the plaintiffs had made a specific advance upon a portion of the goods, and the remainder were shipped in pursuance of an agreement between the plaintiff's and Alden , Frink & Weston, to pay for monej- borrowed by the latter of the former a few days previous, and that invoices of all the goods, stating the consignment and shipment by the defendant's railroad, had been forwarded to the plaintiffs by mail. This was substantially the condition of things on the 17th of October, when one of tlie members of the firm of Alden, Frink & "Weston, for his individual benefit, but in the name of his firm, changed the destination of the goods, and the defendant delivered them in pursuance of such clianged destination to another person. The question is whether the title had vested in the plaintiffs. I think it had. It is clear that the consignors delivered the goods to the carrier for the plaintiffs in case that Messenger, the porter to whom the defendants delivered the package in this instance, is to be regarded as the servant of the di'fendants. Prima facie, the carrier is under an obligation to deliver the goods to the consignee personally at the place of delivery. Custom of so general and universal a character as may warrant the sup- jK>sition that the parties contracted with reference to it, may be jirovcn to vary the manner of the delivery ; or the place and manner of the delivery may be varied by the assent of the owner of the pro[H-rty ; and where he interferes to control or direct in the matt«T, he as.sumes the re8i)onsibility. Edwards on Hail., pp. .Mf), MP. In this case no general or universal custom changing the carrier's legal liability, of such a character as that we may presume the pnrtit!s to have contracted in referenif to it, wjis vri or pretcndid. Neither was it alleged tliat the owners, the jihiintiirs, had by li,. .r assent in any manner varied the carrier's legal liability, or interfered in any way with the delivery or had any knowledge of tin- practice of the defendants in making 'I'livi-ries different from that contained in the direction or contract, or had given any coiiM-nt to any other delivery or to any change of the legal liabilities assumed by the carrier on receipt of the package. The arrangemi^nt alleged to be made between the ts and tlie bank or it.s officers, by which a dilfi-rent delivery was made than I — ^ ...i.raced in the contract with the plaintiffs, cati therefore have no binding effect njx»n the jilaintifTs, or in any manner impair or afTect their rights. DELIVERY BY CARRIER. 323 compliance with their contract to do so. The parol contract was thereby executed, and the title vested in the plaintiffs. The plain- tiffs occupied the legal position of vendees after having paid the purchase-money and received the delivery of the goods. But it is unnecessary, in order to uphold this judgment, to maintain that the plaintiffs occupied strictly the relation of vendees. The legal rights of the vendee attach when goods are shipped to a commission mer- chant, who has made advances upon them in pursuance of an agree- ment between the parties. Such an agreement may be either inferred from the circumstances or shown by express contract. Holbrook v. Wight, 24 Wend. 169; Haille v. Smith, 1 Bos. & Pul. 5G3. In the latter case. Eyre, J., said: "From the moment the goods were set apart for this particular purpose, why should we not hold the prop- erty in them to have changed, it being in perfect conformity to the agreement and such an execution thereof as the justice of the case requires ? " The same principle has been repeatedly adopted. Gros- venor v. Phillips, 2 Hill, 147. It must appear that the delivery was made with the intent to transfer the property. Until this is done the parol agreement is executory, the title remains in the consignor, and he has the power to transfer the property to whomsoever he pleases, and render him- self liable for the non-performance of the contract. It is urged by the counsel for the defendant that no bill of lading was forwarded or delivered to the plaintiffs, and that until this was done the title remained in the consignors. This is undoubtedly true in many cases; but it is mainly important in characterizing the act of the shipper, and showing with what purpose and intent the goods were delivered to the carrier. If A has property, upon which he has received an advance from B upon an agreement that he will ship it to B to pay the advance or to pay any indebtedness, he may or may not comply with his contract. He may ship it to C or he may ship it to B upon conditions. As owner he can dispose of it as he pleases. But if he actually ships it to B in pursuance of his contract, the title vests in B upon the shipment. The highest evidence that he has done so is the consignment and unconditional delivery to B of the bill of lading. If the consignor procures an advance upon the bill of lading from a third person, or delivers or indorses the bill of lading to a third person for a consideration, it furnishes equally satisfactory evidence that the property was not delivered to the consignee, for the simple reason tliat it was delivered to some one else. But I apprehend that if a consignor who had such an agree- ment retained in his own possession a duplicate of the bill of lading, and notified the consignee by letter that he had shipped the property for him in pursuance of the agreement, or in any other manner the intention thus to ship it was evinced, the title would pass as effec- tually, as between them, as if he had forwarded the bill of ladin^-. The question whether a subsequent indorsee of the bill of lading for 324 CARRIERS OF GOODS. a valuable consideration could acquire any rights against the con- signee, is not involved. As against the consignor the delivery of the property to the carrier, with intent to comply with his contract, vests the title in the consignee. It is largely a question of inten- tion. In Mitchell v. Ide, 3i) C. S. 11. 2GU, cited by the defendants. Lord Denman said: "The intention of Mackenzie to transfer the property to the plaintiff is unquestionable, and we think that under the circumstances he has carried that intention into effect." And in the Bank of Eochester r. Jones, 4 X. Y. 501, this court said: •• When the bill of lading has not been delivered to the consignee, and there is no other evidence of an intention on the part of the con- signor to consign the specific property to him, no lien will attach." In that case the bill of lading was not only not sent to the consignee, but was transferred to the plaintiiJs, and money borrowed upon it, and there was no evidence of an intention to consign the flour to the defendant except upon the condition of paying the money so bor- rowed. It should be observed also that in that case there was no agreement to consign the property to the defendant as security, or in payment of the indebtedness due him from the consignor. Such an agreement, either express or implied, is important, although not conclusive, in showing the intent with which the act was done. In this case there was no other bill of lading than the receipt produced in evidence, and no duplicate was taken; but the intention of Alden, Friuk & Weston to transfer this specific property to the i)laintitfs, to be applied upon their indebtedness, conclusively appears by the undisputed evidence. 1. By the agreement the day i)rior to the shipment. 2. By forwarding invoices of the shipment to the plain- tiffs. 3. By making the shipment unconditionally. 4. By retain- ing the receii)t given by the defendant, and neither making nor attempting to make any use of it. Tliese acts were so unequivocal of an intention to transfer the property to the plaintiffs that there remains no room for doubt. Tlu' moment these acts were done, the title vested in the plaintiffs, and the consignors were powerless to interfere with tlu' i)ropt'i"ty. Tlie recent case of the Cayuga County National l'>;xnk v. Daniels Tnot reported) was decided ag;iin.st tlie consignees upon the distinc- tion above referred to. It was held in that case that the consignors did not deliver the ])roi)erty to the carrier with the intention to vest the title in the defendants, except upon condition of paying a draft discounted by the plaintiffs, and tli;it tlie bill of lading was delivered upon that condition, and that on tlie defendants' refusal to conjply with the condition they acquired no right or title to the property, and that the case therefore came within the principle of tlie P>ank of Kochester v. Jones, supra. Here the intention to vest the title is clear and plain. It is urge: ; plaintiff liad no knowledge of it. The contract of shipment njuirctd defendant to delivc^r the goods to the canning com])any, and we question the right of defendant to vary this by showing a DELIVERY BY CARRIER. 335 custom in conflict with it. The contract was not ambiguous, and required no explanation. But where a custom may be shown it must appear that it was so general that the parties to the contract will be presumed to have contracted with reference to it. Couch v. Watson Coal Co., 46 Iowa, 20; Berkshire Woolen Co. v. Procter, 7 Cush. 422; Fay y. Insurance Co., 16 Gray, 461; Wilson v. Bauman, 80 111. 494; 2 Greenl. Ev. sec. 251. The court below not only found that the custom pleaded was local, but that plaintiff had no know- ledge of it. How the knowledge of plaintiff would affect the con- tract does not appear, but knowledge on the part of the canning company when the shipping receipt was taken is not pleaded nor is it shown. Therefore this defence is not maintained. Walls v. Bailey, 49 N. Y. 473; Higgins v. Moore, 34 N. Y. 425; North Penn. Ey. Co. V. Commercial Bank, 123 U. S. 727; 8 Sup. Ct. Kep. 266; Clarke's Browne, Usages & Cust. 134, note 4. The further exami- nation which we have given this case on rehearing leads us to con- clude that the first decision of this court was erroneous. The judgment of the Superior Court is Affirmed. SHAW V. RAILROAD CO. 101 U. S. 557. 1879. Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. This is an action of replevin brought by the Merchants' National Bank of St. Louis, Missouri, againstShaw & Esrey, of Philadel- phia, Pennsylvania, to recover possession of certain cotton, marked "WD I." One hundred and forty-one bales thereof having been taken possession of by the marshal were returned to the defendants upon their entering into the proper bond. On Nov. 11, 1874, Norvell & Co., of St. Louis, sold to the bank their draft for $11,947.43 on M. Kuhn & Brother, of Philadelphia, and, as collateral securit}' for the payment thereof indorsed in blank and delivered to the bank an original bill of lading for one hundred and seventy bales of cotton that day shipped to the last-named city. The duplicate bill of lading was on the same day forwarded to Kuhn & Brother by Norvell & Co. The Merchants' Bank forwarded the draft, with the bill of lading thereto attached, to the Bank of North America. On November 14, the last-named bank sent the draft — the original bill of lading still being attached thereto — to Kuhn & Brother by its messenger for acceptance. The messenger presented the draft and bill to one of the members of that firm, who accepted the former. 336 CARRIERS OF GOODS. but, without being detected, substituted the duplicate for the original bill of lading. Un the day upon which this transaction occurred, Kuhn & Brother indorsed the original bill of lading to Miller & Brother, and received "thereon an advance of §8,500. \Vithiu a few days afterwards, the cotton, or rather t;hat portion of it which is in controversy, was, through the agency of a broker, sold by sample with the approval of Kuhn & Brother to the defendants, who were manufacturers at Chester, Pennsylvania. The bill of lading, having been deposited on the same day with the Xorth Pennsylvania Bailroad Company, at whose depot the cotton was expected to arrive, it was on its arrival delivered to the defendants. The fact that the Bank of North America held the duplicate instead of the original bill of lading was discovered for the first time on the 9th of December, by the president of the plaintiff, who had gone to Philadelphia in consequence of the failure of Kuhn & Brother and the jirotest of the draft. The defendants below contended that the bill of lading was nego- tiable in the ordinary sense of tliat word; that Miller «& Brother had purchased it for value in the usual course of business, and that they thereby had acquired a valid title to the cotton, which was not impaired by proof tliat Kuhn & Brother liad fraudulently got posses- sion of the bill; but the court left it to the jury to determine, — 1st, Whetlier tliere was any negligence of the plaintitf or its agents in parting with possession of the bill of lading. 2d, Whether Miller & Brother knew any fact or facts from which they had reason to believe that the bill of lading was held to secure payment of an outstanding draft. The jury having found the first question in the negative and the second in the affirmative, further found "the value of the goods eloigned "to be 67,015.07, assessed the plaintiff's damages at tliut sum with costs, for wliich amount tlie court entered a judgment. Shaw & Esrey thereupon sued out tliis writ of error. Mr. Justice Stuono. Tlie defendants beluw, now plaintiffs in error, bought the cotton from Miller & Brother by sample, through a cotton broker. X<> bill of lading or other written evidence of title in their vendors was exhibited to them. Hence, they can have no other or better title than their vendors liad. The inquiry, therefore, is, what title had .Miller it Brotlier as against the bank, wliich confessedly was the owner, and wliicli is still the owner, unless it has lost its ownership by thi; fraudulent act of Kuhn & lirother. Tlie cotton was represented by the bill of lading given to Xorvell & Co., at St. Louis, and by them indorsed t ■ *!■■■ l)aiik, to secure! the jjayment of an accompanying discounted I ail. Tliat indorsement vested in the bank the title to tlie cotton, as well as to the contract. Whih; it tliere continued, and during the transit of the cotton from St. Louis to Philadelphia, the DELIVERY BY CARRIER. 337 indorsed bill of lading was stolen by one of the firm of Kuhn & Brother, and by them indorsed over to Miller & Brother, for an advance of $8,500. The jury has found, however, that there was no negligence of the bank, or its agents, in parting with possession of the bill of lading, and that Miller & Brother knew facts from which they had reason to believe it was held to secure the payment of an outstanding draft; in other words, that Kuhn & Brother were not the lawful owners of it, and had no right to dispose of it. It is therefore to be determined whether Miller & Brother, by taking the bill of lading from Kuhn & Brother under these circum- stances, acquired thereby a good title to the cotton as against the bank. In considering this question, it does not appear to us necessary to inquire whether the effect of the bill of lading in the hands of Miller & Brother is to be determined by the law of Missouri, [where the bill was given, or by the law of Pennsylvania, where the cotton was delivered. The statute of both States enact that bills of lading shall be negotiable by indorsement and delivery. The statute of Pennsyl- vania declares simply, they "shall be negotiable and may be trans- ferred by indorsement and delivery; " while that of Missouri enacts that " they shall be negotiable by written indorsement thereon and delivery, in the same manner as bills of exchange and promissory notes." There is no material difference between these provisions. Both statutes prescribe the manner of negotiation; i.e., by indorse- ment and delivery. Neither undertakes to define the effect of such a transfer. We must, therefore, look outside of the statute to learn what they mean by declaring such instruments negotiable. What is negotia- bility? It is a technical term derived from the usage of merchants and bankers, in transferring, primarily, bills of exchange and, after- wards, promissory notes. At common law no contract was assign- able, so as to give to an assignee a right to enforce it by suit in his own name. To this rule bills of exchange and promissory notes, payable to order or bearer, have been admitted exceptions, made such by the adoption of the law merchant. They may be trans- ferred by indorsement and delivery, and such a transfer is called negotiation. It is a mercantile business transaction, and the capa- bility of being thus transferred, so as to give to the indorsee a right to sue on the contract in his own name, is what constitutes negotia- bility. The term " negotiable " expresses, at least primarily, this mode and effect of a transfer. In regard to bills and notes, certain other consequences generally, though not always, follow. Such as a liability of the indorser, if demand be duly made of the acceptor or maker, and seasonable notice of his default be given. So if the indorsement be made for value to a bona fide holder, before the maturity of the bill or note, in due course of business, the maker or acceptor cannot set up ''2 338 CARUIERS OF GOODS. a'^ainst the indorsee any defence which might have been set up ao'ainst the payee, had the bill or note remained in his hands. So, also, if a note or bill of exchange be indorsed in blank, if pavable to order, or if it be payable to bearer, and therefore nego- tiable by delivery alone, and then be lost^or stolen, bona Jide pur- chaser for value paid acquires title to it, even as against the true owner. This is an exception from the ordinary rule respecting personal property. But none of these consequences are necessary attendants or constituents of negotiability, or negotiation. That may exist without them. A bill or note past due is negotiable, if it be payable to order, or bearer, but its indorsement or delivery does not cut off the defences of the maker or acceptor against it, nor create such a contract as results from an indorsement before maturity, and it does not give to the purchaser of a lost or stolen bill the rights of the real owner. It does not necessarily follow, therefore, that because a statute has made bills of lading negotiable by indorsement and delivery, all these consequences of an indorsement and delivery of bills and notes before maturity ensue or are intended to result from such negotiation. Bills of exchange and promissory notes are exceptional in their character. They are representatives of money, circulating in the commercial world as evidence of money, "of which any person in lawful possession may avail himself to pay debts or make ]iurchase8 or make remittances of money from one country to another, or to remote places in the same country. Hence, as said by Story, J., it has become a general rule of the commercial world to hold bills of exchange, as in some sort, sacred instruments in favor of bona firle holders for a valuable consideration without notice." Without such a holding they could not perform tlieir peculiar functions. It is for this reason it is held tliat if a l)ill or note, indorsed in blank, or payable to bearer, be lost or stolen, and be purchased from the finder or thief, without any knowledge of want of ownership in the vendor, the bona fide purcliaser may hold it again.st the true owner. He may hold it though he tof»k it negligently, and wlien there were suspicious circumstances attending tlie transfer. Nothing sliort of actual or constructive notice tliat tlie instrument is not the property of the person \v\\o offers to sell it — tliat is, nothing short of mala fi(l,.8 — will defeat his right. The rule is the same as that which pr' ' 'he bona fide indorser of a bill or note purchased for value frt.iw ;.-. true owner. The j)\ircliasi'r is not bound to look beyond the iiijitrumeut. Goodman v. Harvey, 4 Ad. & K. S7(); Goodman v. • Is, 20 How. :i4;{; Murray v. T.ardiier. 'J Wall, lid; Matthews V. Poythress, 4 Ga. 2.S7. Tlie rule was first applied to the case of a lost ])ank-note (.Miller v. Kace, 1 Burr. 452). and jnit upon the jfroiiinl that the interests of trade, the usual course of business, and the fact that bank-notes pass from hand to hand as coin, require it. DELIVERY BY CARRIER. 339 It was subsequently held applicable to merchants' drafts, and in Peacock v. Rhodes, 2 Doug. 633, to bills and notes, as coming within the same reason. Th e reason can have no application to the case of a lost or stolen bill of lading. The function of that instrument is entirely different from that of a bill or note. It is not a representative of money, used for transmission of money, or for the payment of debts or for purchases. It does not pass from hand to hand as bank-notes or coin. It is a contract for the performance of a certain duty. True, it is^ symbol of ownership of the goods covered by it, — a represen- tative of those goods. But if the goods themselves be lost or stolen, no sale of them by the tinder or thief, though to a bona fide pur- chaser for value, will divest the ownership of the person who lost them, or from whom they were stolen. AVhy then should the sale of the symbol or mere representative of the goods have such an effect? It may be that the true owner, by his negligence or care- lessness, may have put it in the power of a finder or thief to occupy ostensibly the position of a true owner, and his carelessness may estop him from asserting his right against a purchaser who has been misled to his hurt by that carelessness. But the present is no such case. It is established by the verdict of the jury that the bank did not lose its possession of the bill of lading negligently. There is no estoppel, therefore, against the bank's right. Bills of lading are regarded as so much cotton, grain, iron, or other articles of merchandise. The merchandise is very often sold or pledged by the transfer of the bills which cover it. They are, in commerce, a very different thing from bills of exchange and promis- sory notes, answering a different purpose and performing different functions. It cannot be, therefore, that the statute which made them negotiable by indorsement and delivery, or negotiable in the same manner as bills of exchange and promissory notes are nego- tiable, intended to change totally their character, and put them in all respects on the footing of instruments which are the representa- tives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes. Some of these consequences would be very strange if not impossible, — such as the liability of indorsers, the duty of demand ad diem, notice of non-delivery by the carrier, etc., or the loss of the owner's property by fraudulent assignment of a thief. If these were intended, surely the statute would have said some- thing more than merely make them negotiable by indorsement. No statute is to be construed as altering the common law farther than its words import. It is not to be construed as making any inno- vation upon the common law which it does not fairly express. Especially is so great an innovation as would be placing bills of lading on the same footing in all respects with bills of exchange not to be inferred from words that can be fully satisfied without it. 340 CAKKIERS OF GOODS. The law has most carefully protected the ownership of personal property, other than money, against misappropriation by others than the owner, even when it is out of his possession. This protection would be largely witlidrawu if the misappropriation of its symbol or representative could avail to defeat the ownership, even when the person who claims under a misappropriation had reason to believe that the person from whom he took the property had no right to it. "We think, therefore, that the rule asserted in Goodman v. Harvey, Goodman v. Simonds, ^Murray v. Lardner, siijjra, and in Phelan t». ;Moss, 67 Pa. St. 59, is not applicable to a stolen bill of lading. At least the purchaser of such a bill, with reason to believe that his vendor was not the owner of the bill, or that it was lield to secure the payment of an outstanding draft, is not a. bona Jide purchaser, and he is not entitled to hold the merchandise covered by tlie bill against its true owner. In the present case there was more than mere negligence on the part of Miller & Brother, more than mere reason for suspicion. There was reason to believe Kuhn «S: Brother had no right to negotiate the bill. This falls very little, if any, short of knowledge. It may fairly be assumed that one who has reason to believe a fact exists, knows it exists. Certainly, if he be a reasonable being. Jxulfjment affinned. d. JJellvcri/ to True Owner. THE IDAHO. 93 U. S. 575. 1870. Mr. Justice Strong. In determining the merits of the defence set up in this case, it is necessary to inquire whether the law per- mits a common carrier to show, as an excuse for non-delivery jjur- suant to his bill of lading, tliat he has delivered the goods upon demand to the true owner. Upon tliis subject tliere has been mucli debate in courts of law, and some contrariety of decision. In KoUe's Al)r. GOO, tit. "Detinue," it is said, "If the bailee of goods deliver them to him wlio has the right to them, he is, not- withstanding, chargeable tf» the bailor, who, in truth, has no right; " and for this, Henry VI, /5.S, is cited. And so, if the bailee deliver them to the bailor in such a case, he is said not to be chargeable to the true owner, id. 007, for which 7 Ibinv \I. L'2, is cited. Tlu^ reasons given for sucli a doctrine, however satisfactory they may have been whon thr-y wero aniiouncnd, can lianlly oomniand assr iit now. It is now everywhere licld, that, whon the true owner has by legal proceeding.s compelled a delivery to himself of the goods bailed, DELIVERY BY CARRIER. 341 such delivery is a complete justification for non-delivery, according to the directions of the bailor. Bliven v. Hudson River liailroad Co., 36 N. Y. 403 [364]. And so, when the bailee has actually delivered the property to the true owner, having a right to the pos- session, on his demand, it is a sufficient defence against the claim of the bailor. The decisions are numerous to this effect. King v. Richards, 6 Whart. 418; Bates v. Stanton, 1 Duer, 79; Hardman v. Wilcock, 9 Ring. .382; Riddle v. Rond, 6 Rest & S. 225. If it be said, that, by accepting the bailment, the bailee has estopped him- self against questioning the right of his bailor, it may be remarked in answer, that this is assuming what cannot be conceded. Un- doubtedly the contract raises a strong presumption that the bailor is entitled; but it is not true that thereby the bailee conclusively admits the right of the principal. His contract is to do with the property committed to him what his principal has directed, — to restore it, or to account for it. Cheeseman v. Exall, 6 Exch. 341. And he does account for it when he has yielded it to the claim of one who has right paramount to that of his bailor. If there be any estoppel, it ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title paramount; that is, by the reclamation of possession by the true owner. Riddle V. Rond, sujjra. ISTor can it be maintained, as has been argued in the present case, that a carrier can excuse himself for failure to deliver to the order of the shipper, only when the goods have been taken from his possession by legal proceedings, or where the shipper has obtained the goods by fraud from the true owner. It is true, that, in some of the cases, fraud of the shipper has appeared; and it has sometimes been thought it is only in such a case, or in a case where legal proceedings have interfered, that the bailee can set up t'hejus tertii. There is no substantial reason for the opinion. No matter whether the shipper has obtained the possession he gives to the carrier by fraud practised upon the true owner, or whether he mistakenly supposes he has rights to the property, his relation to his bailee is the same. He cannot confer rights which he does not himself possess; and if he cannot withhold the possession from the true owner, one claiming under cannot. The modern and best-con- sidered cases treat as a matter of no importance the question how the bailor acquired the possession he has delivered to his bailee, and adjudge, that, if the bailee has delivered the property to one who had the right to it as the true owner, he may defend hmself against any claim of his principal. In the late case of Riddle v. Rond, supra, decided in 1865, it was so decided; and Rlackburn, J., in delivering the opinion of the court, said there was nothing to alter the law on the subject in the circumstance that there was no evi- dence to show the plaintiff, though a wrong-doer, did not honestly believe that he had the right. Said he, the position of the bailee is precisely the same, whether his bailor was honestly mistaken as to 342 CARRIERS OF GOODS. the rights of the third person whose title is set up, or fraudulently acting in derogation of them. In "Western Transportation Company r. Barber, 56 N. Y. 544, the Court of Appeals of New York unani- mously asserted the same doctrine, saying, "The best-decided cases hold that the right of a third person to which the bailee has yielded may be interposed- in all cases as a defence to an action brought by a bailor subsequently for the property. When the owner comes and demands his property, he is entitled to its immediate delivery, and it is the duty of the possessor to make it. The law will not adjudge the performance of this duty tortious as against a bailor having no title." The court repudiated any distinction between a case where the bailor was honestly mistaken in believing he had the right, and one where a bailor obtained the possession feloniously or by force or fraud; and we think no such distinction can be made. We do not deny the rule that a bailee cannot avail himself of the title of a third person (though that person be the true owner) for the purpose of keeping the property for himself, nor in any case where he has not yielded to the paramount title. If he could, he might keep for himself goods deposited with liim, without any pre- tence of ownership. But if he has performed his legal duty by delivering the property to its true proprietor, at his demand, he is not answerable to the bailor. And there is no difference in this particular between a common carrier and other bailees. e. Delivery to Wrong Party throicjh Mistake or Fraud. r(j\VELL r. :myers. 2G Weud. (N. Y. Ct. of Errors) 591. 1811. Error from tlie Supreme Court. .Myers brcmght an action in the common pleas of New York against Powell and others as common carrier-s, for the loss of a trunk and its contents, taken on bo;ird a steamboat owned by the defendants, at West Point, by a son of tlie plaintiff, who, at the time, was a minor, and took jiassage in the boat for New York. Tlie boat usually left Newburg ;it five o'clock I'.M., and arrived at New York between nine and ten the same even- ing. Sliortly before arriving at the dock, a young man n:imcd Pruyn, who accomi)anied the plaintiff's son from West I'oint, in his presence inrpiired of the master of tlie boat wlictlier llu-ir baggage would be safe on board the l)oat during the night; who answered that it would bo perfectly safe, for they stationed a watch for its protection until morning. Passengers occasionally stayed on board during the niglit, but usually left the boat on arriving at the city. DELIVERY BY CAKRIER. 343 Pruyn stayed on board, but the plaintiff's son left the boat soon after its arrival, and on the next morning, at about eight o'clock, went to the boat for his trunk, and then learned that it had been delivered on a forged order. A negro man had come on board and presented an order for the trunk. The master of the boat pointed it out to the negro. Pruyn, who was present, observed that the trunk had been left in his charge. The master of the boat said there was an order for it, when Pruyn said very well, and told the negro to take it. The judge charged the jury that the defendants were responsible for the delivery of the baggage of travellers in their boat, unless lost by inevitable accident; that if the trunk had not been delivered to the passenger, and was not so lost, the defendants remained liable even after the boat arrived at the wharf. To which charge the counsel for the defendants excepted. The jury found a verdict for the plaintiff, on which judgment was rendered: which judgment was affirmed by the Supreme Court on writ of error, on the ground that this case was not distinguishable from those of Hollister V. Nowlen, 19 "Wendell, 234, and Cole v. Goodwin, id. 251. The defendants removed the record into this court by writ of error, where the case was submitted on printed arguments by : — By the Chancellor. ....... It appears from the testimony, that the boat usually arrived at New York in the night, and though the passengers usually landed with their baggage before morning, they frequently remained on board through the night. The jury therefore were right in conclud- ing that the baggage left on board was in the custody of the master in his capacity of common carrier until it was called for at the usual time in the morning, after his arrival at his place of destination. The owners of the boat, in whose custody the trunk was, were there- fore clearly liable for the misdelivery thereof to the colored man, upon the forged order, and were rightfully charged with the loss. Even in the ordinary case of a bank which pays out the money of a depositor upon a forged check, in his name, the institution and not the depositor must sustain the loss. So, too, the Avarehousenian, who is not liable to the same extent as the common carrier, has been held liable for delivering the goods intrusted to his care to the wrong person, where such delivery was by mistake merely and not intentionally wrong. See Devereux v. Barclay, 2 Barn. & Aid. Rep. 702. For these reasons I think the decisions of the judge who tried the cause and of the Supreme Court were correct, and that the judgment should be affirmed. 344 CARRIERS OF GOODS. AMEKICAN EXPRESS CO. v. STACK. 29 Ind. 27. 1S67. Gregory, J. Stack sued the appellant for the non-delivery of two bonds. The defendant answered by the general denial, with an agreement between the parties that all legal defence could be given in evidence under it. Trial by the court; finding for the plaintitf ; motion for a new trial overruled, and judgment. • The evidence which is made part of the record tends to show that the plaintiff enlisted as a soldier in the army of the United States, in Lockport, Niagara County, New York, in September, 18G4, and received, as a bounty from that county, two hundred dollars in cash and the bonds described in the complaint, which bonds were imme- diately sent by express to the plaintiff's wife, Hannah Stack, at Chicago, Illinois. In July, 1SG5, the plaintiff' was mustered out of the service near Albany, New York, and arrived home in Chicago on the IGth of that month. A few days before the plaintiff got home his wife appeared at the provost marshal's office in Chicago, and after a conference with Captain James, the provost marshal, she was referred by him to the witness, Eveleth, then a clerk in the office, with a request that he attend to her business. She then exliibited to Eveleth a paper purporting to be a telegram from her Imsband, James Stack, from number 64 :Montgomery Street, Albany, New York, directing her to send those bonds to Albany, New York, 04 Montgomery Street. She handed Eveleth two bonds, an- swering the description of those in the complaint referred to, who thereupon enclosed them properly and directed the package ''To James Stack, G4 Montgomery Street, Albany, N. Y." He also indorsed on the back of tlie package the amount of the enclosed, and the words "From Mrs. Hannah Stack, Cliioago, Illinois." He, at the same time, wrf)te a letter, in the name of Hannah Stack, to be sent by mail, informing James Stack of the transmission of tlie bonds by express, and addressed the letter to "James Stack, Gl Mont- gomery Street, Albany, New York." On the 11th of July, John Staving, then receiving clerk of the United State.s Exiircss Company at (Jhicago, received the ])ackago and gave a receipt tlR-refor, in V. l.wl, tliat company undertook to forward the package to the ; point readied by it, and that the company should only be liable a.s forwarders. The United States Express Comi)any carrioil tlie jjackage to Buffalo, New York (the end of tlie linr), and tlicre df'livnrcd it to the ai)])ellant. The jiackagc reached Albany. New York, on the 14th of July, 1SG5, and wa.s there (hdivcrcd, by the duly authorized agent of the defendant, on the 15th (the next day) DELIVERY BY CARRIER. 345 to a man representing himself to be James Stack, under these cir- cumstances : On the day of its arrival, the delivery agent of the com- pany called with it at 64 Montgomery Street, which was a hotel, or boarding-house, kept by Lillis, and there found, on inquiry, that Stack was not then in, whereupon the package was returned to the defendant's office. On the morning of the 15th of July, a man called at the office, representing himself to be James Stack, and showed the agent a letter purporting to come from Hannah Stack, from Chicago, informing him (Stack) that the bonds had been sent by express. He was informed by the agent that he must get some one to identify him — that the letter was not enough. The man left the office, and shortly after returned with Lillis. The agent was unac- quainted with the latter, and required some one known to him (the agent) to be brought to vouch for Lillis. Slevin was then brought in, who was known to the agent to be a reliable man. Slevin did not know Stack, and so informed the agent, but did know Lillis, and represented him to the agent as all right and reliable. The agent then asked Lillis if the man with him was James Stack, and Lillis replied that he was, and was staying at his (Lillis') house. Lillis was asked no other questions and gave no other information. The man calling himself Stack was asked by the agent, in the presence of Lillis, what the package contained, and the man replied that it contained a bond for ^500, and one for $300, Niagara County war bonds, and was from his wife, Hannah Stack, from Chicago. The agent thereupon delivered the package to the supposed Stack. The person to whom the package was delivered was not the real James Stack, but a swindling pretender, who had doubtless sent the false despatch to Stack's wife. The appellee did not send the desj)atch which his wife got, nor had he any knowledge of its being sent. Lillis had no other knowledge or information about the pretender than this : About a week or ten days before the package was delivered, a man came to his house and said his name was James Stack, and that he was a soldier, stopping at the barracks, then located between Troy and Albany, and asked permission of Lillis for a room to write a letter to his wife, which was given. After the letter was written, he asked Lillis for his address, which was given thus: "James Lillis, 64 Montgomery Street, Albany, New York." Stack said he would have a letter addressed to him at Lillis' house, and requested that if it came it should be kept. After that he called occasionally at Lillis' house and took meals, up to the time the package camej and, in the mean time, a letter came to Lillis' house for him, and he stated to Lillis that the letter came from his wife, and informed him of the sending of a package by express. The agent of the express company, at the time he delivered the package, was not aware of the nature or extent of Lillis' knowledge and acquaintance with the pretender, nor did he ask any question or make any effort to acquire such information. 34fi CAi:i:iEi;s of goods. It is claimed, that, ailmitting the liability assumed by the appel- lant to be that of a commou carrier, yet that such liability ter- minated when the package was taken to 64 Montgomery Street, and thereafter the appellant was only bound to ordinary diligence in keeping the package for the owner. It is also urged that the con- tract entered into between the plaintiff and the United States Express Company is to govern in fixing the liability of the appellant. It is not necessary, for the determination of this case, that we should pass upon either of these propositions. For in any event the liability of the company could not be less than that of a warehouse- man. In Devereux et al. v. Barclay et al., 2 Bar. & Aid. 702, it was held that trover will lie for the misdelivery of goods by a ware- houseman, although such misdelivery has occurred by mistake only. Nor will a delivery on a forged order protect the warehouseman. Lubbock V. Inglis, 1 Starkie, 104 (2 En. Com. L. 215). The court below found, under the facts, that there was a want of ordinary diligence on the part of the company in the delivery of the package. "We think the evidence justifies this conclusion. But we are not inclined to ajtply this rule to the delivery of goods intrusted to warehousemen and others in like condition. There must be a delivery to the right person. It is always in the power of the person having the goods in charge to identify the owner. Tf he suffer himself to be imposed on, it is his own fault. The judgment is affirmed, with costs, and three per cent damages. rPJCE V. OSWEGO & SYRACUSE R. CO. 50 N. Y. 213. 1.S72. Ari'E.vL from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favur of defendant, entered upon the report of a referee, lieportcd below, 58 P.arb. 509. The action was brought against defendant as common carrier to recover the value of three bales of bags shipped by plaintiff at Syraeuso, fonsigned to S. H. \Yilson & Co., Oswego. The facts are stated sullicit'ntly in the opinion. Gkovkk, J. The referee found as a conclusion oi' hiw, from the facts found, that the defendant, Iiaving delivered the bags to the person who made the order for them (althougli in tin- name of a fictitious firm) without notice of the fraud, was not liable to the •''■••• iff tlierefor. To this conclusion the ap])ellant excepted. The ■ 1 for the respondent insists that if the legal conclusion is not sustained by tlie facts found, tl«e court will assume that he found DELIVEKY BY CARRIER. 347 6uch additional facts as were necessary for that purpose. This posi- tion is correct, subject, however, to the qualification that it must appear from the case that such additional findings would have been warranted by the evidence. Oberlander v. Spiess, 45 N. Y. 175. In the present case there was no evidence warranting the finding of any additional facts sustaining the legal conclusion. The ques- tion, therefore, is whether such conclusion is sustained by the facts found. The facts (so far as material) found were : That the plain- tiff, on and prior to Septeuiber, 1866, was a dry-goods merchant, doing business in Syracuse. That the defendant was a common carrier of goods between Syracuse and Oswego. That a few days prior to the 10th of September, 1866, Caleb B. Morgan, a resident of Syracuse, received a letter by mail, dated and mailed at Oswego, directed to him at Syracuse, signed S. H. Wilson & Co., inquiring the price of bags. That Morgan had been a dealer in bags, but had given up the business, and upon receipt of the letter he delivered the same to the plaintiff, who kept bags for sale, and requested the plaintiff to inform him of the price of the said bags. That Morgan did not know any person or firm by the name of S. H. Wilson & Co., nor had he heard of any such person or firm, but delivered the letter to the plaintiff, believing it had been written in good faith in the ordinary course of business by a firm wishing to purchase bags. That the plaintiff upon receipt of the letter gave to Morgan the prices of bags, who communicated them in a letter, addressed and mailed by him to S. H. Wilson & Co., Oswego. That afterward, and on the 10th or 11th of September, the plaintiff received through the post-office at Syracuse ajetter, mailed at Oswego, as follows : — " Oswego, Sept. 10, 1866. "Mr. Milton Price, — Sir: We are in want of some bags, and wrote Mr. Morgan, supposing he was in the trade, and he has quoted your prices for stock, etc. Please send us by rail 100 of each, and hope you can make the price a little less, and will be able to give you a larger order soon. Please send bill by mail, and we will remit check for amount of same. " (Signed) S. H. Wilson & Co." That on the 13th September, 1866, the plaintiff, with a view of complying with the order, delivered to the defendant at Syracuse three bales of bags, of the value of $205, directed to S. H. W^ilson & Co., Oswego, and the defendant undertook as a common carrier to carry the bags to Oswego, and there deliver them to the consignees, and also mailed a bill of the bags to S. H. Wilson & Co., Oswego. That the defendant carried the bags to Oswego the same day, and soon after their arrival at Oswego and on the same day, a man called at the office of the defendant there, and asked defendant's agent if three bales of bags, directed to S. H. Wilson & Co., had arrived. He was informed that they had, and he then said they were what he wanted, and offered to and did pay the freight thereon, and they 348 CAHRIEKS OF GOODS. were delivered to liim by the agent of the defendant upon signing a receipt therefor in the name of S. H. Wilson & Co., and they were taken away. That the plaintiff did not know any person or firm by the name of S. H. AVilson »S: Co., and had no information of any such person or firm, except what was contained in their letter to him of September 10th and in the letter to Morgan. In fact, there was no such firm of S. H. Wilson & Co. in business at Oswego or elsewhere, and the letter written in the name of S. H. Wilson & Co. and the order were part of a scheme on the part of some person or persons to defraud the plaintiff of his property, and no part of the purchase price has been paid, nor has the property been recovered or the person who received the same from the defendant been traced. That the defendant, Avhen said bags were received and delivered, did not know any person or firm by the name of S. H. Wilson & Co., nor did the defendant know the person to whom the bags were delivered, nor did they require any evidence of the identity of the person, or of his being connected with the firm of S. H. Wilson & Co. That it was the usual custom of the defendant not to deliver goods to a stranger without his being identified or his satisfying the defendant by papers or otherwise that he was entitled to receive them; and further, that reasonable care and prudence required such precautions to be taken. That the person to whom the bags were delivered Vjy the defendant was the person who wrote the letters signed S. H. Wilson & Co., or his authorized agent to receive said bags in case they should be sent pursuant to the order of September loth. That there was no evidence from which it could be found whether his name was S. H. Wilson or not. That when the plaintiff sent the bags he supposed that S. H. Wilson & Co. was the name of a firm at Oswego, and when the defendant delivered them at Oswego they had no knowledge of the fraud, and supposed that the person to whom they were delivered was a member uf or re])resented the firm of S. H. Wilson & Co. It is the duty of a carrier to carry the goods to the place of delivery and deliver them to the consignee. When goods are safely conveyed to the place of destination and the consignee is dead, absent, or refuses to receive, or is not known and cannot after reasonable diligence be found, the carrier may be dis- charged from further responsibility as carrier by placing them in a j)ro per warehouse for and on account of the owmi. I'isk r. Newton, 1 Denio,45. The responsibility continues as carrier until discharged in the manner above stated. 1 Fence, a delivery to a wrong ])erson, :,1t1u,ii"1i upon a forgetl order, will not c-xunerate the carrii'r from ilulity. I'owell ('. .Myers, 20 Wend. HDl [342]. In examin- ing the cases, the distinction between the liability of carriers and warehousemen must be kept in mind. The former is resjionsible as insurer; the latter ff>r proper diligence and care only, in tlie ]>res- erv.'ition of the i)roj)erty and its delivery to the true owner. The former must, at their peril, deliver jirojierty to tlie true owner, for DELIVEKY BY CARRIER. 349 if delivery be made to the wrong person, either by an innocent mis- take or through fraud of another, they will be responsible, and the wrongful delivery will constitute a conversion. McEntee v. The New Jersey Steamboat Co., 45 N. Y. 34 [328]. It is of the liability of a warehouseman after the responsibility as carrier had terminated that the chief judge is speaking in the opinion in Burnell v. The N. Y, Central R. R. Co. , 45 N. Y. 184, where he holds that the defendant was responsible only for due care and diligence. In the present case the goods were consigned to S. H. Wilson & Co., Oswego. This plainly indicated some person, or, rather, persons, known by and doing business under that name. But as there was no such firm, and so far as the findings or case show, never had been, delivery could not be made to the consignees. Then, as already seen, it became the duty of the carrier to warehouse the goods for the owner. Instead of this, the defendant delivered them to a stranger without making any inquiry as to who or what he was, simply upon his inquiring if such goods for Wilson & Co. had arrived, and upon being informed that they had, saying that he wanted them. If the case had been determined by the referee upon the question whether due care had been used by the defendant, it would have been necessary to determine whether the goods were at the time held as carrier or as bailee of another character, as in the latter case only will the exercise of proper care exonerate from liability for the loss of the property. But as the legal conclusion of the referee shows that the judgment was not based upon any finding upon that question, but upon the legal conclusion of the referee, that the defendant was discharged from liability by having delivered the goods to the person who wrote the letters and orders, or his authorized agent, it is unnecessary to determine whether the defendant at the time held the goods as carrier or warehouseman, because if the legal conclusion is correct, a delivery to this person or his agent would have discharged the defendant in either case, entirely irrespective of the degree of care exercised in making delivery. The entire findings of the referee show that he would have held the defendant liable had the delivery under a like state of facts been made to any other than this person. The opinion of the learned judge, given at the General Term, shows that the judgment was affirmed by that court upon the same ground, and that the case would have been differently decided had the delivery been made to some other person. Indeed, this is the only reason that can with any plausibility be given for the judgment. As a finding, that proper care had been exercised by a bailee of goods whose duty it was to keep them for the owner, when he had delivered them to an entire stranger, who claimed to be the owner, and gave no evidence of his right except to make inquiry if they had arrived for the con- signee, and saying that he wanted them, would be wholly unsup- ported by the evidence. The question is whether the person who 350 CARRIERS OF GOODS. wrote the order acquired a right, so far as the defendant was con- cerned, to a delivery of the goods; in other words, whether as to it he was the consignee. If he was, the conclusion of the referee was correct. In that case, delivery to him discharged the carrier upon the principle that any delivery, valid as to the consignee, is a defence for the carrier as to all persons. It would hardly be claimed, in case there had been a firm doing business at Oswego under the name of S. H. Wilson & Co., a swindler would make himself con- signee of goods or acquire any right whatever thereto, which were in fact consigned to such firm, simply by showing that he had forged an order in the name of the firm directing such consignment. If he would not thereby acquire any right to the goods, delivery to him would not protect the carrier any more than if made to any other person. In the American Express Co. v. Fletcher, 25 Indiana, 492, the facts were that a person claiming to be J. O'Kiley presented himself to a telegraph operator, who was also agent of the express company, and presented a despatch to be forwarded to the plaintiff, signed J. O'Riley, requesting him to send 61j0<><>. wliich the oper- ator sent through. That in due time the operator, in his capacity of agent for the express company, received a package purporting to contain valualjles, addressed to J. O'Riley, whereupon the same per- son who had sent the despatch presented himself and demanded the package, which was delivered to him. It turned out that this per- son was not J. O'Riley, but a swindler. Held, that the express company was liable to the jjlaintiff for the money. The case is silent as to whether J. O'Riley was a fictitious name, but I infer that it was not, as the plaintiff would not be likely to forward that amount of money to a person unknown to him. It will be seen that this was a much stronger case for the company than is that of the present defendant, so far as care was concerned, for the delivery was made to the person known by the company to be the one who sent the despatch, while the defendant knew nothing whatever about the letters or order, or how tlie goods came to be forwarded, con- signed as they were. But the case directly decides that no right to tlie ])ar-kage was acquired by the swindler l)y sending a despatch therefor in the name of anotlier. If no riglit is ac(|uired by sending a despatch in the name of a real person, it is a little dillicult to see how any is acquired by writing in tlie name of a firm liaving no existence, especially when the facts sliow, as in the ])iesent case, the consignor supi)Osed he was dealing with a substantial l)usiness firm, and tlie consignment showed tiiat it was intended to be made to such a firm. In Ward v. The Vermont & Mass. M. ][. [42 Vt. TOO] one Collins rci)reHentf'd to the plaintiff tliat there was a ]ierson of tlie name of J. F, Rf)})erts residing at Roxbury, Mass., and fraudulently induced the plaintiff to consign goods to him. In fact, no sueli person resided tliere. Upon the arrival oi the goods Collins went to a truckman and DELIVERY BY CARRIER. 351 personated Roberts, and as such sent the truckman for the goods, to whom they were delivered by the company. Held, that the com- pany was liable to the plaintiff therefor. That, in principle, is like the present case. In tliis the swindler had in substance represented to the plaintiff that there was a business firm at Oswego wishing to purchase bags, and had fraudulently procured a consignment of bags from the plaintiff to this firm, when in fact there was no such firm. This gave the defendant no right to deliver the goods to any one else. The argument for the defendant is that the plaintiff consigned the goods to S. H. Wilson «& Co., and there being no such firm, the "person signing the name of the firm to the letter and order was in respect to the goods to be regarded as the firm for the purpose of delivery by the defendant. This is in direct conflict with the intention of the plaintiff, apparent from the consignment. That authorized a delivery to S. H. Wilson & Co. , and to no other. There was not a particle of proof that the person who wrote the letter was ever known to any one by that name. The consignment did not, therefore, authorize a delivery to him. The defendant had no knowledge whatever of the letters, and his writing them furnished no evidence to it of his doing business in that name. Duff V. Budd, 7 Eng. Com. Law, 399, was a case much like the present. The evidence that the person who received the goods was the same stranger who ordered them in a fictitious name, was equally strong as in the present case, yet there is no intimation that by this fraud he acquired any right to the goods or the defendant any authority to deliver them to him, and the plaintiff was held entitled to recover of the carrier therefor. See also Birkett v. Willan, 4 Eng. Com. Law, 540. Heugh v. The London Railway Co., 5 Law Exch. Reports, 51, and McKean v. Ivor, 6 id. 36, are relied upon by the defendant. In the former, one Nurse, who had been in the employ of a rubber company which had ceased to do business, wrote and sent to the plaintiff an order for goods in the name of the company. The plaintiff forwarded the goods by the defendant, a common carrier, consigned to the company. Tlie defendant ten- dered the goods at the place where the company had carried on business. The persons in possession refusing to receive, they were taken away by the defendant, who, according to the course of busi- ness, wrote a letter addressed to the company, advising of the receipt of the goods and requesting their removal. iSTurse there- after came and presented this letter, with an order for the delivery of the goods, signed in the name of the company by him to the de- fendant, who thereupon delivered the goods to him. Held, that the liability of the defendant as carrier was terminated by the tender, and that whether the defendant had been negligent in the delivery was a question of fact for the jury. The latter was a case where goods had been sent to a fictitious firm upon a fraudulent order, by the plaintiff, consigned to the firm at 71 George Street, Glasgow, 352 C.VRRIERS OF GOODS. that being the address specified in the order by the defendant, a car- rier, who upon the arrival of the goods followed the usage universal among carriers at Glasgow, which was to send notice of the arrival of the goods, with a request for their removal. This notice was received by the one giving the order, who indorsed the name of the firm thereon and presented it to and obtained the goods from the defendant, Held, that the defendant having delivered tlie goods according to the universal usage of carriers, had complied with the directions of the consignor, which must be taken as including such usage, and was therefore not liable. In Stephenson v. Hart, 4 Bing. 47G, it was expressly held that the carrier had no right to make delivery to the writer of the ficti- tious order. But it is said that the plaintiff intended the goods should be delivered to the writer of the order. ZS'ot at all. He did not consign them to the writer of any order, but to Wilson & Co. This is the only evidence of his intention as to the persons to whom delivery should be made. It is further said that it was the plain- tiff's negligence in forwarding the goods without ascertaining that there was in fact such a firm. I am unable to see what the defend- ant had to do with this. Its duty was to deliver to the firm, and if that could not be found, to warehouse and keep for the owner. The same might be said in every case where goods were forwarded to a consignee supposed to be at a particular place, but who in fact was not there. The usage of the defendant cannot avail him in tliis case. The referee has found just what was done. This accords with the evidence, in which there was no conflict. The judgment appealed from must be reversed, and a new trial ordered, costs to abide event. SA:^IUEL v. CHENEY. 135 Mass. 278. 1883. Tort, against a common carrier, for the conversion of a quantity of cigars. At the trial in the Sui)erior Court, before Coliu'kn, J., the jury returned a verdict for the defendant; and tlie plaintilY alleged exceptions. The facts appear in the opinion. MoKTf.N, C. J. The princii)al facts in this case, regarded in tlie light most favorable to the jdaintilf, are as follows : — In June, 1881, a swindler, assuming tlic name of A. Swainiick, Bent a letter to the jdaintiff asking for a j.rice list of cigars, and giving hi.«J address as "A. Swannick, V. (). box 1505, Saratoga Springs, N. Y." The plaintiff n'l.li.-d, addressing his letter accord- ing to this direction. Tli«' swin.ll.-r then sent another letter order- ing a quantity of cigars. The plaintiff forward.-.l tin- oigars by tlie DELIVERY BY CARRIER. 353 defendant, who is a common carrier, and at the same time sent a letter to the swindler addressed "A. Swannick, Esq. ,P. 0. box 1595, Saratoga Springs, M". Y.," notifying him that he had so forwarded the goods. There was at the time in Saratoga Springs a reputable dealer in groceries, liquors, and cigars, named Arthur Swaniiick, who had his shop at the corner of Ash Street and Franklin Street, and who issued his cards and held out his name on his signs and otherwise as " A. Swannick." He was in good credit, and was so reported in the books of E. Russell and Company, a well-known mercantile agency, of whom the plaintiff made inquiries before sending the goods. Xo other A. Swannick appeared in the Saratoga Directory for ISSl, or was known to said mercantile agency. But in June, 1881, a man hired a shop at No. 16 Congress Street, Saratoga Springs, under the name of A. Swannick, and also hired a box, numbered 1595, in the post-office, and used printed letter-heads with his name printed as "A. Swannick, P. 0. box 1595." This man wrote the letters to the plaintiff above spoken of, and received the answers sent by the plaintiff. He soon after disappeared. The plaintiff supposed that the letters were written by, and that he was dealing with, Arthur Swannick. He sent the goods by the defendant, the packages being directed, "A. Swannick, Saratoga Springs, N. Y." The defendant carried the packages safely to Saratoga Springs. On July 1, the defendant, by his agent, carried a package of cigars directed to A. Swannick to said Arthur Swannick, who refused to receive it on the ground that he had ordered no cigars. Afterwards, on the arrival of the packages, the value of which is sought to be recovered in this suit, the defendant carried the same to the shop No. 16 Congress Street, and delivered them to the person appearing to be the occupant of the shop, and took receipts signed by him as "A. Swannick." We assume that his real name was not A. Swannick, but that he fraudulently assumed this name in Saratoga Springs and in his dealings with the plaintiff. The question whether, under these circumstances, the property in the goods passed to the swindler, so that a bona fide purchaser could hold them against the plaintiff, is one not free from difficulty, and upon which there are conflicting decisions. The recent case of Cundy v. Lindsay, 3 App. Cas. 459, is similar to the case at bar in many of its features ; and it was there held that there was no sale, that the property did not pass to the swindler, and therefore that the plaintiffs could recover its value of an innocent purchaser. That this case is very near the line is shown by the fact that such emi- nent judges as Blackburn and Mellor differed from the final decision of the House of Lords. Lindsay v. Cundy, 1 Q. B. D. 348. But it is not necessary to decide this question, because the lia- 23 354 CAKRIERS OF GOODS. bility of the defendant as a common carrier does not necessarily turn upon it. The contract of the carrier is not that he will ascer- tain who is the owner of the goods and deliver them to him, but that he will deliver the goods according to the directions. If a man sells goods to A, and by mistake directs them to B, the carrier's duty is performed if he delivers them to B, although tlie unexpressed intention of the forwarder was that they should be delivered to A. If, at the time of tliis transaction, the man who was in correspon- dence with the plaintiff had been the only man in Saratoga Springs known as, or who called himself, A. Swannick, it cannot be doubted that it would have been the defendant's duty to deliver the goods to him according to the direction, although he was an impostor, who by fraud induced the plaintiff to send the goods to him. Dunbar v. Boston & Providence Kailroad, llU Mass. 26. The fact that there were two bearing the name made it the duty of the defendant to ascertain which of the two was the one to whom the plaintiff sent the goods. Suppose, upon the arrival of the goods in Saratoga Springs, the impostor had appeared and claimed them; to the demand of the defendant upon him to show that he was the man to wliom they were sent, he replies, "True, there is another A. Swannick here, but he has nothing to do with this matter; I am the one who ordered and purchased the goods; here is the bill of the goods, and here is the letter notifying me of their consignment to me, addressed to me at my P. 0. box, 1595." The defendant would be justitied in delivering the goods to him whether he was the owner or not, because he had ascertained that he was the person to wliom the jdaintiif had sent them. It is true the defendant did not make these inquiries in detail; but if, by a rapid judgment, often necessary in carrying on a large business, he became correctly satisfied that the man to whom he made the delivery was the man to whom the plaintiff sent the goods, his rights and liabilities are the same as if he liad pursued the inquiry more minutely. The plaintiff" contends that lie intended to send the goods to Arthur Swannick. It is equally true tliat lie intended to send them to the person with whom he was in correspondence. We think the more correct statement is, that he intended to send them to the man wlio ordered and agreed to pay for them, supjiosing, erro- neously, that lie was Arthur Swannick. It seems to us that the defendant, in answer to the jtlaintitl's claim, may well say, we have delivered the goods intrusted to us according to your directions, to the man to whom you sent them, and who, as we were induced to l>elieve by your acts in dealing with him, was the man to whom you intended to send tliom; we are guilty of no fault or negligence. 1'he case at bar is in some respects similar to the case of M'Kean V. M'lvor, L. ]l. G Kx. 3G. There the plaintiffs, induced by a fie- titious order sent to them by one Ileddell, an agent of theirs to DELIVERY BY CARRIER. 355 procure orders, sent goods by the defendants, who were carriers, ad- dressed to "C. Tait & Co., 71 George Street, Glasgow." There was no such firm as C. Tait & Co., but Heddell had made arrangements to receive the goods, at No. 71 George Street. Upon the arrival of the goods, the defendants, in the usual course of business, sent a notice to 71 George Street for the consignee to call for the goods, the notice saying that it ought to be indorsed so as to operate as a delivery order. Heddell indorsed the notice in the name of "C. Tait & Co. ," and sent it to the defendants by a carter, to whom the goods were delivered. It was held that the defendants were not liable, upon the ground that no negligence was shown, and that, having delivered the goods according to the directions of the plain- tiff, they had performed their duty; and the fact that they delivered to some person to whom the plaintiff did not intend delivery to be made, was not sufficient to make them liable for a conversion. See Heugh V. London & North Western Railroad, L. E. 5 Ex. 51; Clough V. London & North Western Railroad, L. R. 7 Ex. 26. The cases of Winslow v. Vermont & Massachusetts Railroad, 42 Vt. 700, American Express Co. v. Fletcher, 25 Ind. 492, and Price V. Oswego & Syracuse Railway, 50 N. Y. 213 [346], differ widely in their facts from the case at bar, and are distinguishable from it. Upon the facts of this case, we are of opinion that the defendant is not liable, in the absence of any proof of negligence ; and there- fore that the rulings at the trial were sufficiently favorable to the plaintiff.'' Exceptions overruled. 1 The plaintiff requested the judge to rule that on the facts, which were undisputed and agreed, he was entitled to a verdict. The judge refused so to rule. The plaintiff then requested the judge to rule that, if the jury believed that in shipping these goods the plaintiff intended as the consignee A. Swannick, the person who was well rated in the commercial agency books, and that that intent was properly expressed in the address on the packages, and that the name of the person to whom delivery was in fact made was not A. Swannick, they must find a verdict for the plaintiff. The judge refused so to rule, and instructed the jury that, the intent of the plaintiff being uncommunicated to the defendant, except so far as expressed in the address on the packages, was of itself of no importance ; and that if the delivery was made to a per- son who was known at Saratoga Springs by that name and no other, that was enough, so far as the question of name affected the legal result. The judge then left the single question to the jury, as to whether the defendant acted negligently in making the de- livery he did, instructing them further that, although there was no question that there was a misdelivery of the goods in suit, the only (luestiou was, whether the defendant was guilty of negligence in making this misdelivery. 356 CARRIERS OF GOODS. EDMUNDS I'. MERCHANTS' DESrATCH TRANSP. CO. 135 Mass. 2S3. 1S83. Three actions of tort, with counts in contract, against a com- mon carrier, to recover the value of certain goods intrusted to the defendant by the plaintiffs, at Boston, for carriage to Dayton, Ohio. At the trial in the Superior Court, before Rockwell, J., the jury returned verdicts for the plaintiffs; and the defendant alleged excep- tions. The facts appear in the opinion. MoRTOx, C. J. These three cases were tried together. In some features they resemble the case of Samuel v. Cheney, ante, 278 [352]. In other material features they differ from it. They also, in some respects, differ from each other. In two of the cases a swindler, representing himself to be Edward I'ape of Dayton, (.)hio, who is a reputable and responsible merchant, apjjcared personally in Boston, and bought of the plaintiffs the goods which are the subject of the suits respectively. In those cases we think it clear, upon principle and autliority, that there was a sale, and the property in the goods passed to the purchasers. The minds of the parties met and agreed upon all the terms of the sale, the thing sold, the price and time of payment, the person selling and the person buying. The fact that the seller was induced to sell by fraud of the l)uyer made the sale voidable, but not void. He could not have supposed that he was selling to any other person; his intention Avas to sell to the person present, and identified by sight and hearing; it does not defeat the sale because the buyer assumed a false name, or practised any other deceit to induce the vendor to sell. In Cundy v. Lindsay, 3 App. Cas. 459, 4G4, wliere the question was whether a man, wlio in good faith had bought cliattcls of a swindh-r who had obtained jiossession of them by fraud, could hold tliem against tlie formor owner, Lord Chancellor Cairns states the rule to be that, " if it turns out that tlic chattel has come into the hands of the person who ])rofessed to sell it, by a de facto contract, — that is to say, a contract whicli lias purported to jiass the property to him from the owner of the jtropcrty, — tliere the piiirliaser will obtain a good tith'." In the cases before us, there was a <r not they would ship the goods ordered, to the party ordering the same; and the said E. F. Witmer & Co. had notliing wliatever to do with the delivery of tlio ■ s}ii])pcd on ordfr.s forwarded by them. Tliat was controlled • .y by plaintiffs. When the package of goods aforesaid arrived in Wasliington over DELIVERY BY CARRIER. 359 the line of the defendant's road, it was claimed by the said Leopold Behrend. The said A. Behrend, to whom the plaintiffs supposed they were selling the goods, and whose name was on the box, was not then in business in Washington, though he was living there at the time. Before delivering the goods to the said Leopold Behrend, the agent of the railroad company defendant inquired of the said Wilbur F. Murphy, the agent who had taken the order, whether he had sold any goods to Leopold Behrend, and what class of goods they were; and after Murphy had said that he had sold goods to Leopold Behrend, and had described them, the agent of the defendant delivered them to Leopold Behrend. The goods so delivered were the same goods which plaintiffs had shipped to A. Behrend as aforesaid. After the plaintiffs had delivered the said goods to defendant for transportation on November 5, 1883, they heard nothing concerning them until they received a notice, dated January 14, 1884, that Leopold Behrend had assigned his property for the benefit of his creditors, and requesting them to forward a statement of their claim to his assignee. The assigned estate of the said Leopold Behrend never paid any dividend to the general creditors, and the goods so shipped by them and delivered by the defendant to the said Leopold Behrend were totally lost to plaintiffs. If the court be of the opinion that on the above facts their judg- ment should be for the plaintiffs, then judgment is to be entered for plaintiffs for .^242.37, with interest from November 5, 1883; but, if not, then judgment to be entered for the defendant, the costs to follow the judgment, and either party reserving the right to sue out a writ of error. The judgment of the court was for the defendant, no opinion being filed. Thereupon the plaintiffs took this writ, assigning for error the entry of said judgment. Mr. Justice Green". "From the facts appearing in the case stated it is manifest that the plaintiff intended to sell, and in point of fact did consign, the goods in question to A. Behrend and not to L. Behrend. They knew the former and were satisfied to sell to him. They did not know the latter and did not intend to sell to him. They supposed that A. Behrend was intended as the purchaser in the order, though L. Behrend was named. Granting this to be a mistake of theirs in the reading of the order, it does not in the least alter the fact that A. Behrend was the person to whom they supposed they were selling. However that may be, they certainly consigned the goods to A. Behrend, and there was then such a per- son living in Washington, the place to which the goods were shipped. It cannot be questioned for a moment that it was the duty of the carrier to deliver the goods to the person to whom the owner con- signed them. If the carrier does not so deliver them, he acts at his o60 C.VRKIEUS OF GOODS. peril, and the whole risk of a wrong delivery rests upon him. lu Shenk v. Steam Propeller Co., GO Pa. 109, we said, Sharswood, J. : " Whatever doubt may hang over the question as to the termination of a carrier's or other bailee's responsibility, there is one jioint which is indisputable, that he must take care at his peril that the goods are delivered to the right person, for a delivery to a wrong person renders him clearly responsible though innocently and by mistake." In the present case the goods were delivered to L. I'ehreud, and, as between the plaintiffs and the carrier, tliat was undoubtedly a wrong delivery. But it is argued that the delivery to L. Behrend was made in consequence of the direction of Murphy, who it is said was the plaintiffs' agent. If, in the case stated, it appeared that Murpliy did direct the delivery to L. l>ehrend, this contention would have great force; because it was Murphy who sold the goods and sent the order; and it would be difficult for the plaintiffs to escape the consequences of his act in directing the delivery. But the only averment upon this subject which the case stated contains, is in the following words : "Before delivering the goods to the said Leopold Behrend, the agent of the railroad company defendant inquired of the said "Wilbur F. Murphy, the agent who had taken the order, whether he had sold any goods to Leopold Behrend and what class of goods they were; and after Murphy had said that he had sold goods to Leopold Behrend, and had described them, the agent of the defendant delivered them to Leopold ]^)ehren(l. The goods so delivered were the same goods which plaintiff's liad shijiped to A. Behrend as aforesaid." From this it appears that !Murp]iy gave no directions to deliver the goods to any one. He merely said he liad sold goods to L. Behrend and described them. Granting that tiiey weretlie same kind of goods, and even the same goods, wliieh Murphy had sold to L. Behrend (and this important fact is nut mentioneil in the case stated), yet that was as far as ^Murphy went, or as he was asked to go, in giving information. Tlie effect of that information, as sufficing to exonerate the defendant from liability for a wrong delivery, was a matter of which the defendant tlirough its agent took tlie entire risk. In tliis at least the plaintiffs were in no fault. Their agent, if Muri)hy was their agent, simply told the tU'fendant's agent that he had sold goods to L. Behrend and describi-d them, ami tlicreupon the defendant's agent delivered these particular goods to L. P.ehrend. P»y what authority did he do this? The goods were consigned to another person, and the defendant's duty was to deliver to that person. Surely that duty was not discliarged l)y a delivery to one who was not the consignee, merely because the plaintiffs' agent l»ad sold similar goods to such a person. The fact still re- m.iined that the goods were not delivered to the one to whom they wer< ' • "ncd. The entire risk of a delivery to the right ]»erson was . (1 l)v tlie (lifiiiil.iiit. and :i wrong delivery was made l>y DELIVERY BY CARRIER. 30 1 the mistake of the defendant's agent, which, of course, is their mis- fortune. We are clearly of opinion that the plaintiffs were entitled to judgment on the case stated. f. Stoppage in Transitu. HUTCHINSON ON CAEKIERS. § 409. Carriers may show Stoppage to excuse Delivery. — Another excuse which the carrier may set up for the non-delivery of the goods is that the vendor has exercised his right of stoppage 171 transitu. This right arises upon the discovery by the vendor, after the sale of the goods on a credit, of the insolvency of the buyer, and is said to be based on the plain reason of justice and equity, that one man's goods shall not be applied to the payment of another man's debts. If, therefore, after the vendor has delivered the goods out of his own possession, and has put them into the hands of the carrier for delivery to the buyer, he discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer's possession, and thus avoid having his property applied to paying debts due by the buyer to other people. This right of the vendor of the goods is held to continue from the time he parts with their possession until they have come into the actual possession of the buyer, and may be enforced by him no matter into whose pos- session they may have come in the course of the transportation, at any time before their delivery to the buyer or to his agent, or to a purchaser of them from the buyer by a l)07ia fide indorsement and transfer of the bill of lading. The right is highly favored by the law on account of its intrinsic justice, and prevails almost uni- versally among civilized nations; but it arises only in favor of one who stands in the relation of vendor to the goods. § 410. How Right exercised. — No particular form or mode has been held necessary in the exercise of this right, and it has even been said that the vendor was so much favored in exercising it as to be justifiable in getting his goods back, by any means not crim- inal, before they reached the possession of an insolvent vendee. All tliat is required is some act or declaration of the vendor, or his agent, countermanding the delivery, and the usual mode is by a simple notice to the carrier, stating the vendor's claim, forbidding delivery to the vendee, or requiring that the goods shall be held subject to the vendor's orders. The vendor may, however, and some- times does, resort to a possessory legal action, such as replevin or attachment, in the first instance, and takes the goods by legal process, either from the carrier himself or from some officer who has seized them for a debt of the vendee. Or resort may be had to 362 CARRIERS OF GOODS. a bill in equity, the jurisdiction of which to enforce the vendor's right of stoppage is said to be unquestionable. § 421. Duty and Liability of Carrier after Notice. — The insol- vency of the buyer is t'sseutial to the existence uf the right of the vendor to stop the "goods. If, therefore, the former 'be solvent at the time of its attempted exercise, the carrier, if he know the fact, will be not only justified in refusing to give up the goods or to pay attention to the notice, but it would be his dutv to do so. He obevs the order or demand at his peril in any case. For, while a rightful stoppage protects the carrier against the claims of the consignee, yet if it should turn out that the purchaser of the goods was solvent, the notice or demand would be entirely without authority. If. there- fore, the carrier refuse to give up the goods to the consignee, who is solvent, upon his demand, the latter might maintain an action of trover against him at once. If, on the other hand, the carrier fail to withhold the goods upon a notice to do so, or to surrender their possession to the vendor upon his demand, or if, after such notice or demand, he should deliver them to the buyer, and it should turn out that the latter was insolvent, the carrier will be liable to the vendor, at least to the extent of the buyer's indebtedness for the goods. It has therefore been said that, "as the carrier obeys the stoppage m transitu at his peril, if the consignee be in fact sol- vent, it would seem no unreasonable rule to require that, at the time the consignee was refused the goods, he should have evidenced his insolvency by some overt act." But in the case of The Tigress [.'^2 L. T. Adm. 97] this suggestion is rejected, the judge saying tliat the proof of the conditions on which the vendor's rights depend would always be difficult, often impossible, at the time of their exercise; "for instance, whether tlie vendee is insolvent may not transpire till afterwards, when the bill of exchange for the goods becomes due; for it is, as I conceive, clear law that tlie riglit to stop does not require the vendee to have been found insolvent." § 422. Course to be pursued by Carrier, for his own Protection. — The law of sto})page in fnmsifu, therefore, becomes of great imiutr- tance to the common carrier; and when a notice is given or a demand is made upon him for the goods by a vendor who claims the right to «ivail himself of it in the particular case, it jdaces liim in very nearly the same situation as when a demand is made for the goods by one who claims adversely to tlie bailor or his consignee. If it be doubtful whether the right exists to stop tlie goods, the carrier may, as in tliat case, instead of refusing to comply witli the notice or the demand, require that ho shall bo allowed a reasonable time to investigate the condition of the buyer; and if, after inquiry, } "1 be unable to satisfy himself, and does not choose to assume tii- i--ii.()nsif)ility of a delivery to either seller or buyer, or to act ui.on tlif^ dfTuniul r.f tlin vendor that the goods shall be withheld DELIVERY BY CARRIER. 363 from the consignee, he may, for his own security, resort to legal proceedings to have the question determined, as in the case of adverse claimants of the property. g. Seizure under Legal Process. STILES V. DAVIS. 1 Black (U. S.) 101. 1861. Mr. Justice Xelsox. The case was this: The plaintiffs below, Davis and Barton, had purchased the remnants of a store of dry- goods of the assignee of a firm at Janesville, Wisconsin, who had failed, and made an assignment for the benefit of their creditors. The goods were packed in boxes, and delivered to the agents of the Union Despatch Company to be conveyed by railroad to Ilion, Herkimer County, Xew York. On the arrival of the goods in Chicago, on their way to the place of destination, they were seized by the sheriff, under an attachment issued in behalf of the creditors of the insolvent firm at Janesville, as the property of that firm, and the defendant, one of the propri- etors and agent of the Union Despatch Company at Chicago, was summoned as garnishee. The goods were held by the sheriff, under the attachment, until judgment and execution, when they were sold. They were attached, and the defendant summoned on the third of November, 1857; and some days afterwards, and before the com- mencement of this suit, which was on the sixteenth of the mouth, the plaintiffs made a demand on the defendant for their goods, which was refused, on the ground he had been summoned as gar- nishee in the attachment suit. The court below charged the jury that any proceedings in the State court to which the plaintiff's were not parties, and of which they had no notice, did not bind them or their property; and further, that the fact of the goods being garnished, as the property of third persons, of itself, under the circumstances of the case, constituted no bar to the action; but said the jury might weigh that fact in determining whether or not there was a conversion. We think the court below erred. After the seizure of the goods by the sheriff', under the attachment, they were in the custody of the law, and the defendant could not comply with the demand of the plaintiffs without a breach of it, even admitting the goods to have been, at the time, in his actual possession. The case, how- ever, shows that they were in the possession of the sheriff's officer or agent, and continued there until disposed of under the judgment 364 CARRIERS OF GOODS. upon the attachment. It is true, that these goods had been delivered to the defendant, as carriers, by the plaintiffs, to be conveyed for them to the place of destination, and were seized under an attach- ment against third persons; but this circumstance did not impair the legal etfect of the seizure or custody of the goods under it, so as to justify the defendant in taking them out of the hands of the sheritf. The right of the sheriif to hold them was a question of law, to be determined by the proper legal proceedings, and not at the will of the defendant, nor that of the plaintiffs. The law on this sul)ject is well settled, as may be seen uu a reference to the cases collected in sections 453, 290, 350, of Drake on Attach't, 2d edition. This precise question was determined in Verrall r. Kobinson, Turwhitt's Exch. R. 1069; 4 Dowling, 242, S. C. There the plain- tiff was a coach proprietor, and the defendant the owner of a car- riage depository in the city of London. One Banks hired a chaise from the plaintiff, and afterwards left it at the defendant's deposi- tory. While it remained there, it was attached in an action against Banks; and, on that ground, the defendant refused to deliver it up to the plaintiff on demand, although he admitted it to be ]iis property. Lord Abixger, C. B., observed that the defendant's refusal to deliver the chaise to the plaintiff was grounded on its being on his premises, in the custody of the law. That this was no evidence of a wrongful conversion to his own use. After it was attached as Banks' property, it was nut in the custody of the defendant, in such manner as to permit him to deliver it up at all. And Aldeksox, B., observed: Had the defendant delivered it, as requested, he would have been guilty of a breach of law. The plaintiffs have mistaken their remedy. They should have brought their action against the oflicer who seized the goods, or against tlie plaintiffs in tlie attachment suit, if the seizure was made under their direction. As to these parties, the process being against third i)ersons, it would have furnished no justification if tlie plain- tiff could have maintained a title and right to possession in tliem- selves. Judgment of the court below reversed. BLIVEX V. HUDSON i;IVER It. TO. 30 N. Y. 403. 1R67. Pakkkk, J. On the second day ol September, 1S50, the plaintiff's dfliverj-d to the defendants, at tlieir dei)ot, in the village of Sing Sing, WestcheattT County, twenty-nine cases of saw plates and DELIVERY BY CARRIER. 365 handles, of the vahie of $4,338.82, for transportation to the city of New York, which were on that day placed by the defendant in their freight cars for tliat purpose. Before the regular hour for the departure of the train in which they were to go, a complaint was made on oath by one Cheeseman, to a justice of the peace at Sing Sing, to the effect that the said merchandise had been stolen or embezzled from the Eagle Saw Manufacturing Company at Sing Sing (of which company Cheese- man claimed to be the secretary), and that he suspected that the said property was concealed in a railroad car at the Sing Sing depot. The magistrate thereupon issued a warrant to search for the prop- erty, and delivered it to a constable of the town, who, in proceeding under it, on the morning of tlie 3d of September, forcibly opened the car in which the merchandise was locked, and seized, and took The same before the justice, who thereupon sent the same to the place of business of the said manufacturing company, and there delivered the same to said Cheeseman, for said company. The plaintiff, Bliven, was at such place of business on the morning of the day on which the merchandise was so delivered, and was then made acquainted with, and fully knew, all the circumstances attend- ing the taking of said merchandise out of the possession of the defendants, as before stated. It further appears, by the findings of the referee before whom the cause was tried, that the certificate, by the filing of which on the 28th of November, 1858, the company became incorporated, provided for the management of its affairs by five trustees, of whom plaintiff Bliven was one, and Cheeseman one; and that by the by-laws, three trustees constituted a quorum ; that on the organization of the com- pany, a president, treasurer, and secretary were chosen from the five trustees, Bliven being the treasurer. The manufacturing carried on by the company was done in the Sing Sing prison, by the hired labor of convicts, in shops provided for the company and under a superin- tendent employed by the company. Immediately upon the organiza- tion^ a contract was made by the company with the plaintiffs, by "which plaintiffs were to have the sale of all articles made by the company, on a commission, and were to make advances to the com- pany, and hold all the articles consigned to them as security for such advances. And subsequently, on the 30th of June, 1859, the company gave the plaintiffs a chattel mortgage on all their fixtures and stock, manufactured and unmanufactured, and all their other goods and chattels then or thereafter to be at the works in Sing Sing prison, as security for the payment to plaintiffs on demand, of all advances made, or to be made, by them to the company. On the 31st of August, 1859, at an adjourned meeting of the trus- tees, the said Cheeseman and one other trustee, in the absence of the others, assumed to remove the president, and declare his office as trustee, vacant, and to elect one Francis trustee in his place; and 366 CAKEIEliS OF GOODS. at a subsequent time in Xew York, to which they adjourned, assumed in conjunction with said Francis, to remove tlie secretary from his office, as such, and to appoint Cheeseman in his place. Cheeseman thereupon proceeded to Sing Sing, to the works of the company in the prison, and took possession as secretary, notifying Hawley, the secretai:}-, of his removal. On the 2d of September, in the absence of Cheeseman and the superintendent, Hawley, still claiming to be secretary, went with Bliven to the premises, and caused the articles of merchandise in question, which were not in a state of completeness for the market, to be boxed up and delivered to Bliven for the plaintiffs, and he thereupon delivered them, as before stated, to the defendants, for transportation to New York, where was the plaintiffs' place of busi- ness tor selling the merchandise received by them for sale. It does not appear from the findings of the referee that the plaintiffs had made any advances to the company, or that the company was at that time indebted to the plaintiffs. There is no dispute that the ownership of the goods was in the manufacturing company, and the facts found fall short of showing that the plaintiffs had any lien upon them. The taking of them by Bliven, on the 2d of September, was not warranted by the original contract, for that contemplated only the consignment to the plain- tiffs of articles fitted for the market. Neither was it warranted by the subsequent mortgage, for there was no indebtedness, so far as appears, on which to rest a lien, by virtue of it. The description of the mortgage given by the referee, is that it was upon ''all the engines, shafts, tools, anvils, and fixtures, stock manufactured and unmanufactured, or in course of manufacture, and all other goods and chattels of the company now or hereafter to be at the works in Sing Sing prison, as security for the payment to the plaintiffs, on demand, of all advances made, or to he made, by them to the com- pany." The fact of the existence of such a mortgage does not carry with it the presumption of an existing indebtedness, as between the plaintiffs and the comitany; tlierefore, so far as appears, not only the ownership, but the right of possession belonged to the comi)any. The goods, then, belonging, in fact, to th.e company, without any riglit of possession in the plaintiffs, the delivery of them by the jus- tic<; at tlje company's shop, from which they had been taken, to a jjerson liaving the actual possession of it lor the company, was a delivery to tlie company. The defendants, then, are entitled to take the ground Miat the goods were taken from them by valid legal process, and under sucli process delivered to the true owner. If it is said tliat the evidence shows an indebtedness from tlio couii>any to the jjlaiutiffs, we are not at lil)erty to go into tlie evi- dence for the facts, but must take them from the findings of the referee. If we were at liberty to examine the evidence, and Innn DELIVERY BY CARKIER. 367 our own conclusions of fact, we should see Bliven present at, or immediately after, the delivering up of the goods at the company's rooms, claiming them under plaintiffs' mortgage, and as agent of the company, and directing Rooney, the superintendent, who was in charge of the establishment for the company, to keep them, and let no one take them without his (Bliven's) consent, and that Rooney thereupon put tliem back Avhere they belonged, and where they had been the day before, and that they remained there about a month. This, I think, we should have to consider, either as a taking of them into his own possession, or as consenting to the possession of the company, either of which would exonerate the defendants. But as the case stands upon the findings of the referee, I think it may well be considered a case of delivery to the true owners, through the regular process of the law ; so that, even if the mere taking of them out of the defendants' possession by valid legal process would not alone be a defence, there can be no doubt that, on this ground, a good defence was made to the action. It is well settled that the right of the true owner may be set up by the carrier as a defence against the shipper or bailor, in all cases where the property has been delivered up to him by the carrier, whether voluntarily on demand, as in Bates v. Stanton, 1 Duer, 79, or taken by process in a suit instituted for that purpose. Van Winkle v. U. S. Steamship Co., 37 Barb. 122; Barton v. Wilkinson, 18 Vern. 186. But my associates, not passing upon the question whether the property was delivered to the true owners, desire to put this case upon the doctrine that the common carrier is exonerated from his obligation to his bailor, where the property of the latter is taken from him by due legal process, provided the bailor is promptly notified of such taking. It is to be remembered that the plaintiff Bliven had notice of the taking of the merchandise from the defendants, with all the circum- stances attending it, on the morning when it occurred; so that the case is fully within the doctrine just referred to. The judgment of the Supreme Court should therefore be affirmed. All affiFm, on the ground that when the property is taken from the carrier by legal process, and he gives notice thereof, he is discharged. OHIO & MISSISSIPPI E. CO. v. YOHE. 51 Ind. 181. 1875. DowxEY, J. This was an action by appellees against the appel- lant as a common carrier. It is alleged in the complaint that the plaintiffs' consignors, on 368 CARRIERS OF GOODS. the 3d of Xovember, 1S73, delivered to the appellant, at Bridgeport, Illinois, a quantity of wheat, to be carried to Viucennes, Indiana, and delivered to the appellees. The appellant signed and delivered a bill of lading evidencing the contract, and this is the foundation of the action. It is alleged that .the company failed to deliver the wheat accord- ing to the contract, etc. A demurrer to the complaint was tiled and overruled. The defendant moved the court, on affidavit, to stay the action until the determination of an action of replevin in Illinois, involv- ing the title and ownership of the property, brought by one Johnson. This motion having been overruled, tlie defendant asked that John- sou be made a party to the action, which request Avas also refused. Thereupon the defendant pleaded, in substance, that while the wheat was in a car of the company, at Bridgeport, awaiting the coming of a train and engine to transport it to Vincennes, in accord- ance with the bill of lading, without any act, fault, or connivance of the defendant, or of any of her agents, servants, or em})loyees, Johnson sued out of the office of the clerk of the Circuit Court of Lawrence County, Illinois, a writ of replevin, the said Johnson then and there claiming to be the owner and entitled to the possession of said wheat, and, by virtue of said writ, the sheriff of said county seized and took the same out of the possession of the defendant, and delivered the same to said Johnson, according to law and the com- mand of said writ, and the said Johnson took possession thereof; that said action is yet pending, by reason whereof the defendant was prevented from transporting said wheat to said city of Vin- cennes, and delivering the same to the plaintiffs. It is averred that said Lawrence Circuit Court had jurisdiction, and certified cojiies of the papers and process in the action of replevin, etc., are hied with the answer. A demurrer to this answer, on the ground that it did not state facts sufficient to constitute a defence to the action, was filed by the jtlaintiffs and sustained by tlie court. The defendant declining to answer further, there was judgment for the plaintiffs. It is objected to the complaint that it does not show that the plaintiffs own the wheat, or that they are the consignees mentioned in the bill of lading. There is no foundation for these objections. The complaint alleges tliat tiie plaintiffs purchased the wlieat of the consignors; that tlje consignors delivered the same to the defendant; and that the defendant executed the bill of lading to the plaintiffs. It is further assigned as error, that the court improperly sustained ''•iiiurrer to the answer. • '[uestion i»resented is this, Is a conunon carrier of goods . from liability for not carrying and delivering the goods, when they are, without any act, fault, <»r eonnivanco on his part, seized, by virtue of legal process, and taken out of his possession? DELIVERY BY CARKIER. 369 It is impossible for the carrier to deliver the goods to the con- signee when they have been seized by legal process and taken out of his possession. The carrier cannot stop, when goods are offered to him for carriage, to investigate the question as to their ownership. Nor do we think he is bound, when the goods are so taken out of his possession, to follow them up, and be at the trouble and expense of asserting the claim thereto of the party to or for whom he under- took to carry them. We do not think it material what the form of the process may be. In every case the carrier must yield to the authority of legal process. After the seizure of the goods by the officer, by virtue of the process, they are in the custody of the law, and the carrier cannot comply with his contract without a resistance of the process and a violation of law. The right of the sheriff to hold the goods involved questions which could only be determined by the tribunal which issued the process or some other competent tribunal, and the carrier had no power to decide them. If the goods were wrongfully seized, the plaintiffs have their remedy against the officer who seized them, or against the party at whose instance it was done. As between these parties, the process would be no justification if the plaintiffs were the owners and entitled to the possession of the goods. It makes no difference, we think, that the process was issued by a tribunal of a State different from that in which the plaintiffs reside. The rule must be the same as in a case where the process emanates from a court in the State of the plaintiff's residence. It cannot be denied that the carrier must obey the laws of the several States in which it follows its calling. The laws of Illinois which give force and effect to a writ of replevin must be obeyed. It cannot say to the sheriff, who is armed with a writ issued in due form of law, commanding him to take the . property, that it has exe- cuted a bill of lading, and thereby agreed to transport the property to another State, and therefore he cannot have it. The sheriff would have the right, and it would become his duty, to call out'the power of the county to aid in serving his lawful process. The carrier is deprived of the possession of the property by a superior power, the power of the State, — the vis major oi the civil law, — and in all things as potent and overpowering, as far as the carrier is concerned, as if it were the "act of God or the public enemy." In fact, it amounts to the same thing; the carrier is equally powerless in the grasp of either. In Redf. Eaihv., vol. 2, p. 158, the learned author says that it is settled that the bailee may defend against the claim of the bailor, by showing that the goods have been taken from him by legal process. And in a note he adds, "If this defence were not valid, it miglit compel the party to resist the acts of a public officer in the discharge of his duty, which the law will never do." 24 370 CARRIERS OF GOODS. In Xew York, where property was forcibly seized by a constable, on a complaint that the property had been stolen, the court said, "But my associates, . not passing upon the question whether the property was delivered to the true owners, desire to put this case upon the doctrine that the common carrier is exonerated from his obligation to his bailor, where the property of the latter is taken from him by due legal process, jirovided the bailor is promptly notified of such taking. . . . The judgment of the Supreme Court should therefore be atiirmed. All affirm, on the ground that when the property is taken from the carrier by legal process, and he gives notice thereof, he is discharged." Bliven v. Hudson lliver 1\. E. Co., 3G X. Y. 403 [364]. In this same case, in the Supreme Court, it was held that "the bailee must assure himself, and show the court that the proceedings are regular and valid, but he is not bound to litigate for his bailor, or to show that the judgment or decision of the tribunal issuing the process, or seizing the goods, was correct in law or in fact. This is the rule as to bailees in general, and it includes the case of common carriers." Bliven c Hudson River R. R. Co. , 35 Barb. 101. In a case where goods were seized on attachment, the court held, " If goods are taken from a bailee or carrier by authority of law, in anj- case coming within these exceptions, there is no doubt that it is a good defence to an action by the bailor or shipper, for a non- delivery." Van Winkle v. United States Mail Steamship Co., 37 Barb. 122. In Vermont, where goods in the hands of a wharfinger were seized under legal process, the court held that if they are taken from the wharfinger or warehouseman ])y lawful process, the wharfinger or warehouseman can protect himself in a suit brought against him by the owner. Burton v. "Wilkinson, IS Vt. 186. In the Supreme Court of the United States, where goods in the hands of a carrier had been attached by a third jiarty, in a suit Ijrought by the consignees on a bill of lading, ]\Ir. .Justice Nelson, in delivering the opinion of the court, said: — "After the seizure of the goods by the sheriff, under the attach- ment, they were in the custody of the law, and tlie defendant could not comply with tlie demand of the jdaintiffs without a breach of it, even adnutting tlie goods to have been, at the time, in his actual possession. The case, however, shows that they were in the pos- session of the sheriff's officer or agent, and continued there until disposed of under the judgment ujion the attachment. It is true that these goods had been delivered to the defendant, as carriers, by the phiintifTs, to be ccmveycd for them to the ])lace of destination, and were seized under an attachment against third jiersons; but this circumstance did not imjair the legal effect of the seizure or custody of the goods under it, so as to justify the defendant in taking them out of the hands of the shcrilT. The right of the sherilT to hold DELIVERY BY CARRIER. 371 them was a question of law, to be determined by the proper legal proceedings, and not at the will of the defendant nor that of the plaintiffs. The law on this subject is well settled, as may be seen on a reference to the cases collected in sections 453, 290, 350, of Drake on Attachment, second edition." Stiles v. Davis, 1 Black, 101 [363]. The above case is the same as the case at bar, with the single exception that in Stiles v. Davis the goods were seized under an attachment, while in this case they were seized under a writ of replevin. There is a defect, however, in the answer, which justified the Cir- cuit Court in holding it bad, and that is the want of an averment that the defendant gave immediate notice to the plaintiffs that the goods had been seized and taken out of its possession. That the carrier should do this seems to be a necessary and reasonable quali- fication of the rule. The rule is laid down with this qualification in Bliven v. The Hudson Kiver K. R. Co., supra. The only aver- ment as to notice in the answer is this: "And the defendant further avers that said plaintiffs had notice before the commencement of this suit, that said action of rei^levin was pending," etc. The bill of lading bears date November 3d, 1873. The writ of replevin bears date November 5th, 1873. The wheat was taken and delivered to Johnson on the 6th day of November, 1873. The record does not show when this action was commenced. The first date given is that of the filing of the amended complaint, February 7th, 1874. There is nothing from which we can find that proper diligence was used by the carrier in giving notice of the seizure of the goods. It may be repeated that the wheat was received by the defendant on the 3d day of November, 1873, and was not seized until the 6th. It is probable that a satisfactory excuse or reason should be alleged why the wheat was not moved before the seizure. The answer admits the receipt of the wheat and the execution of the bill of lading, on the 3d of November, and then alleges, "and thereupon said wheat was loaded into a car of defendant then standing upon her side track, at said town of Bridgeport, and while said wheat was in said car, and so upon said track, and awaiting the arrival of a train and engine to transport the same to the city of Vincennes afore- said, in accordance with the terms of said bill of lading, and with- out the act, fault, or connivance of the defendants or of any of her agents, servants, or employees, one Benjamin F. Johnson sued out," etc. It is very questionable whether this shows proper diligence on the part of the carrier. We need not, however, decide this ques- tion. Clearly, we think, the carrier cannot make use of the fact that the property has been seized by legal process to shield himself from liability for his own negligence, or to justify any improper confederation with the party or officer seizing the goods. The rulings of the court on the motions to stay the proceedings in 372 CARRIERS OF GOODS. the action, and to cause Johnson to be made a party to the action, were proper, for the reasons stated in determining the validity of the answer. A question is made concerning the publication of a deposition taken by the plaintiffs, which, it is contended, was not properly directed on the envelope. But as the deposition was not used on the trial, the defendant could not have been injured by this ruling. The judgment below is affirmed, with costs. EDWAEDS r. WHITE LINE TE.V^'SIT CO. 101 Mass. 159. 1870. Contract against common carriers for breach of their agreement to carry safely from Cincinnati to Providence, and deliver to the plaintiffs a car-load of middlings. Another count on a contract to carry corn is now immaterial. Wells, J. The only exception relied on here is that which relates to the car-load of '' middlings " taken from the carriers by attach- ment, and sold on execution, in a suit brought in New York against the plaintiffs' consignors, David Schwartz & Company, by ])arties from whom they had previously obtained the property. The court held, and we think correctly, that there was a sufficient transfer and delivery from David Schwartz & Company to vest the title in the plaintiffs ; that the suit against David Schwartz & Com- jiany, the judgment therein, and levy upon the property, were suffi- cient to show a waiver of the condition of the sale by wliich David Schwartz & Company obtained possession of it from the former owners. Aside from that consideration, any defect in tlie title of the Ijailor could not be set up against him or against his consignee, by the bailee, unless the superior title had been asserted against the bailee. In this case the property was not taken from the carrier by virtue, or upon the assertion, of any superior title in the former owners. It was taken as the jjroperty ol' Diivid Selnvartz & Com- pany, by means of legal process against them. For all ])ur]»oses of this decision, therefore, we may lay out of view the claim that Seliwartz ^: Comjiany had not acquired title and right to transfer the property, and reganl tin; i)laiiitiffs as having become the absolute owners of it before the attachment. The judge who tried the case decided, that, "as under the attach - nionts the goods were taken out of t\w jtossession of the defendants" without collusion, negligence, or fraud on tlu-ir part, "the perfonn- auff of their contract to carry and deliver the goods was thus ren- (Ured impossible by the intervention of a superior jiower, which DELIVERY BY CARKIER. 373 necessarily excused them from such performance; that, upon the attachment by the sheriff of the goods, the same came into the cus- tody of the law ; whether they were the property of the plaintiffs or of David Schwartz & Company, they were in the custody of the law for adjudication;" and that the defendants could not be held liable for not transporting and delivering goods so taken from them. This ruling is in accordance with what might seem, at first sight, to be the decision of the Supreme Court of the United States in Stiles V. Davis, 1 Black, 101 [363]. The defendants' counsel insists that to hold otherwise would be in direct conflict with that decision. We do not so regard the matter. In Stiles v. Davis the action was not brought upon the contract of carriage ; nor for a violation , by the defendant, of his obligations as carrier. It was an action of trover for the conversion of the goods. The failure to deliver the goods at another place than that of their destination, upon a demand made there, with no denial of the plaintiffs' right, but merely for the reason that they were detained under attachment by legal process, would not be a conversion of the property. The case decides noth- ing more. The question, whether the same facts would constitute a good defence to a suit against the defendant for breach of his con- tract or obligation as common carrier, was not decided, and was not raised by the form of the action. The opinion, by Mr. Justice Nelson, does, indeed, assign, as a reason for the decision, that the goods " were in the custody of the law, and the defendant could not comply with the demand of the plaintiffs without a breach of it;" that "the right of the sheriff to hold them was a question of law, to be determined by the proper legal proceedings, and not at the will of the defendant, nor that of the plaintiffs." But this language must be interpreted with reference to the precise question then under consideration. In one sense, the property was in the custody of the law ; so far, at least, that the surrender of its possession to the officer claiming to attach it upon legal process was not tortious on the part of the carrier, so as to subject him to the charge of con- verting it to his own use. But that custody was of no effect against any one having an interest in the property, not made party to the suit in which the process issued. It was not in the custody of the law in the sense in which property that is the subject of proceedings in rem is in the custody of the law, or property actually belonging to the party against whom the suit is brought. In personal actions, the attachment of property of another than a defendant in the suit is a trespass ; and, as the true owner, the property is not regarded as in the custody of the law. It may be reclaimed by replevin ; except where the replevin would bring State and federal authorities into conflict, as in Howe v. Freeman, 14 Gray, 566; s. c. 24 How. 450. The officer may always be held liable as a trespasser for its full value, notwithstanding the pendency, and without reference to the suit in which the attachment was made. The liability is ex. 374 CAKRIERS OF GOODS. pressly recognized in the closing paragraph of the opinion of Mr. Justice Nelson. See also Buck v. Colbath, 3 Wallace, 334. It does not appear, from the report, how far, if at all, the decision in Stiles V. Davis was affected by the fact that the carrier was made a party to the proceedings, as garnishee. The present suit, is brought against the defendants upon their contract as carriers. Assuming that the title to the iirojierty had vested in the plaintiffs, according to the finding of the facts at the trial, the attachment by the officer, in a suit against David Schwartz & Company, was a mere trespass. As against the plaintiffs, it was of no more validity than a trespass by any other unauthorized pro- ceeding, or by an unofficial person. The earner is not relieved from the fulfilment of his contract, or his liability as carrier, by the inter- vention of such an act of disposition, any more than he is by destruction from fire, or loss by theft, robbery, or unavoidable acci- dent. In neither case is he liable in trover for conversion of the property; but he is liable on his contract, or upon his obligations as common carrier. The owner may, it is true, maintain trover against the officer who took the property from the carrier; but lie is not obliged to resort to him for his remedy. He may proceed directly against the carrier upon his contract, and leave the carrier to pursue the property in the hands of those who have wrongfully taken it from him. It will not be understood, of course, that these considerations apply to the case of such an attachment in a suit against the owner of the property. If the present plaintiffs had been defendants in the suit in which the attachment was made, the case would have stood differently. In that state of facts, the property would have been strictly in the custody of the law, so far as these parties were concerned, and the intervention of those legal proceedings would have deprived the plaintiffs of the riglit to require the delivery of the property to themselves until released from that custody. But it is not so ujion the state of facts shown by this report; and the ruling of the court against the plaintiffs ui)on this branch of tlie case was wrong. They are therefore entitled to a new trial upon the counts of their declaration relating to the car-load of "middlings; " and for that jjurpose the Exccjjtions arc sustained. KIFF '.OLD rr)T,()\y .e reached by process of garnishment, in order to avail himself of this right the garnisliee must transport the property to the sheriff hold- ing the writ, and deliver it to him. Tlie garnishee cannot be deprived of this right, and as he is an innocent ]iarty, lie cannot be compelled to bring the property within the jiirisdietion of the court. The facts in this case are as good an illustration of the fallacy of this claim as can be given. The steamer e()mi)any had taken this property upon one of its boats, and was under way, l)ound under its c<^iiitraet f)f affreightment to deliver the same at St. Louis. To avail itself of its riglit under the above statute, it would be required to ship the goods back to Keokuk, make its answer, and deliver the REMEDIES AS AGAINST CARRIER. 381 property to the sheriff. The law imposes no such an obligation upon a garnishee; and yet, under the claim made by appellant, the garnishee must either do this or become the debtor of the defendant for the value of the property. The law puts no such a hardship upon a garnishee. It is very different where a debt is garnished. It is a debt first and last. In such case the process of the law does not practically compel the garnishee to become a debtor against his consent. This identical question was determined by the Supreme Court of Wisconsin in the case of Bates v. Railway Co., 60 Wis. 296; 19 N. W. Rep. 72. In an elaborate opinion, in which many of the authorities cited by counsel in this case are reviewed, it was held that personal property under the control of a garnishee, but situated out of the State where suit is brought, cannot be reached by the process of garnishment. In that case, as in this, the prop- erty was in actual transit, and out of the State, when the garnish- ment notice was served. We do not think it necessary to do more than refer to that case, and the authorities therein cited. It ap- pears to us in its reasoning to be eminently sound, and that no other conclusion could have been fairly reached; and the rule adopted has peculiar force when applied to an attempt to garnish a common carrier while transporting goods outside of the State where suit is commenced. As was said by Chief Justice Breese in Railroad Co. V. Cobb, 48 111. 402: "When the property has left the county, and is in transit to a distant point, though on the same line of railway, it would be unreasonable to subject the companj^ to the costs, vexa- tion, and trouble of such process, merely because it had received that to be carried which the law compelled it to receive and carry." It will be understood that we do not determine the question as to the right to garnish a carrier of property, where the same is within this State. Affirmed. 8. REMEDIES AS AGAINST CARRIER. a. Who TYiay sue. DAVIS V. JAMES. King's Bench. 5 Burr. 2680. 1770. This was an ac tion against a comm on carrier, for not delivering goods sent by him ; and the only q uestio n was, " In whose name the a^tion^ughttoha^ The fact was that Davis and Jordan, the present p laintiffs, were niaiiuf acturers of cloth , at Shipton-Mallet. And their d eclaration charged, that they being possessed of cloth, as of their own proper 3S2 CARRIERS OF GOODS. goods, del ivered the same to the defe udaut, being the com mon car- rier, etc., and requested him to deliver it safely and securely, for them, to one Elizabeth Bowman at the Three Xuns, at White Chapel; which they undertook t o do, fo r a reaso nable price pay abl e and r)aid hj the^id plaintiffs to the defendant^ but the goods were lost, and never delivered. The defendant pleaded " Xot guilty ; " and the plaintiffs obtained a verdict. The defendant's counsel (Mr. Sergeant Davi/, ^Ir. Sergeant Biu- laiul, and Mr. HotcJcins) moved for a new trial; objecting that the action ought to have been brought in the name of the consujuee of the goods, and not in the name of the consignors : for that the consignors parted with their property, upon their delivering the goods to the carrier; and that no propertij remained in them after such delivery. And they cited as to the point of property, the case of Knight v. Hopper, Tr. 8, W. .3, cases tempore, Holt, Ch. J., pa. 8, and the case of Godfrey r. Furzo, 3 Peere "Williams, 185, and Lee and others v. I'rescott and some other cases. Mr. Sergeant Ghjnn and ]\rr. Mansfield, of counsel for the plain- tiffs, answered that the present question does not turn ujion the strict property. The carrier has nothing to do with the vesting of the property: it does not lie in his mouth to say that the consignor is not the owner. He is the owner, with respect to the carrier; who has undertaken to him, and was paid by him. He was therefore servant to the consignor, but had no connection at all with the consignee. And many such actions have been brought by the consignor. Lord ;^L\^'SFIKLD said, there was^eithe r law nor conscience in the objection. The vesting of the property may differ according to the circumstances of cases; but it does not enter into the present question. This is an action \\\)0\\ the agreement between the plain- tiffs and the carrier. The plaintiffs were to pay him. Therefore the^ctionjs propei-ly brought by the persons who agreed w ith h im and were to pay him. Kulc discharged ununiinuusli/. DAWES V. PECK. King's Bench. 8 Term W. .•'.30 1799. Tins was an action on the r i . 1iy the consignor of goods against the defendant, a common carrier, lor not safely carrying, according to his undertaking in consideration of a oertain hire and reward to be therefore jaid, two casks of gin from London to one Thomas Odey at Hillmorton in Warwickshire within the time limited by two excise i>ermit8, in consequence of which the casks of gin l)ecame REMEDIES AS AGAINST CARRIER. 383 forfeited to the Crown and were seized. This case came on to be tried at the sittings in London after last Easter Term, when the plaintiff proved his case by showing the delivery of the casks to a person employed by the defendant at the usual place, where they were booked to be sent by the defendant's wagon and the usual price paid for booking by the plaintiff's servant. The casks were directed to "Mr. Odey Hillmorton, near liugby, Warwickshire, by Peck's wagon." It appeared that they were afterwards sent by the wagon, and were left at the Crown Inn at West Haddon, which was the nearest place to Hillmorton in the road which the wagon travelled; and where, after laying some time, they were seized in consequence of the time mentioned in the permit for their removal being expired. The merits of the case as between the plaintiff and Odey the consignee, or in respect of the legality of the seizure, were not entered into; but the defendant's counsel in opening his case to the jury read a letter from the plaintiff to Odey, after the seizure was known, in which he said that the liquors sent "were in quan- tity and prices exactly conformable to your (Odey's) order; but by what authority they were ever left at the Crown Inn at West Haddon remains for the innkeeper or the carrier to explain or account for. All I have to observe is this, that the goods liavhuj been sent conformahhj to your orders and by the carrier you directed, I I shall certainly look to you for their amount," etc. Upon reading this letter, whic h was adm itted to be genuin e, Lord Kenyon was of opinion "that^ the action by the present plaintiff could n ot be sup- port^d ; for that the legal right to t he goods after such deli v ery was vested in the_consignee^ to whom alone the carrier was answerable, if_at_allj^ and therefore the plaintiff was nonsui ted^ A new trial was moved for in Trinity Term last, and a rule nisi for setting aside the nonsuit was obtained which stood over till this term. And now Ersklne and Balne showed cause against the rule. A delivery of goods to a carrier named by the consignee, as in this case, is tanta- mount to a delivery to the consignee himself, and divests the con- signor of the legal property in them, though he still retains an equitable right of stopping them while in transitu in case of the failure of the consignee. After such a delivery the property in these goods was altered and the goods were at the risk of the consignee ; and so it was considered by the plaintiff himself, as appears by his letter to Odey; consequently the plaintiff can maintain no action for any loss or injury which happened to them after they became the property of another. In the cases of Davis v. James [5 Burr. 26S0] [381] and Moore v. Wilson [1 Terra E. 659] the ground of the decisions, that the consignors might maintain the action, was that they had made themselves responsible to the carriers for the price of the carriage. In the former of those Lord ^Mansfield said that there was no question in the case as to the vesting of the property; 384 CAKKIERS OF GOODS. for the action was founded on the agreement between the carrier and the plaintiffs who were to pay him. But there is nothing in this case from which any property in the plaintiff can be inferred whereon to found his action; because his own letter shows that he had renounced all property in the goods. G'lrroic and Yates, contra. It does not follow that because the consignee may maintain an action against a carrier for the loss of goods, the consignor may not also have his remedy. The cases show that the action may be maintained by either. The reason of the thing is more in favor of the action by the consignor, for there is a privity of contract between him and the carrier; but there is no such privity between the latter and the consignee. Here, too, the booking was paid for by the consignor, which is evidence of a con- tract between him and the carrier. The carrier is ignorant of the particular agreement between the consignor and the consignee; and at all events the consignor is liable to the carrier for the price of the carriage, if the consignee do not accept the goods. Davis r. James, 5 Burr. 26S0. The liability of the consignor to the carrier is a sufficient ground to maintain this action. Both the case in 5 Burr, and that of ^loore v. Wilson proceeded on the admission that the legal property passed to the vendee by the delivery to the car- rier. All the cases of stopping in transifii show that until a delivery in fact to the consignee a latent right to the goods remains in the vendor even as against the vendee; but whatever the question maj' be as between those, it ought not to be permitted to the carrier to dispute the property of the person from whom he received the goods. Lord Kexyox, C. J. I cannot subscribe to one part of the argu- ment urged on behalf of the plaintiff; namelj", that the right of prop- erty on which this action is founded is to fluctuate according to the choice of the consignor or consignee, and that consequently eitlier of them may, at his pleasure, maintain an action against the carrier for the non-delivery of the goods. In ni}'^ opinion the legal rij,'hts of the parties must be certain, and depeiid upon the contract between them, and_cannot flu^tu:ii' i riling to the inclination of either . This que stion imist be governed^by_tlie conside ration^m whom the legal jjght was vested; for Jie isjhe jiersgn \vho has s usta ine d the loss^^f_anyj l)y_tlie iiegligence^of the carrier; and whoever^ has sus- tained the loss is the proper party to call for eompensa tio]i f roin the I>ersonJ[)^:jivhQiu lie luis been injun-d^ The facts are these: a man in Warwickshire gave an order for goods from London, which he dir<'Ctf'd to be sent by a certain carrier, and the dealer in London delivered them, accordingly, to that carrier to bo conveyed to tlie vr-ndr-o. Vvm] tlii" shf.rt statfinnnt tlmro can be nn dniib t ])ui. f.hnl^ ;iil( '• \'.:\ ;i'l t(i thej-isk^ Then here the dnmnum et injuria are to him and not to tlic vfinlitr, the I»laintiff. I do not find that anything which I have advanced is EEMEDIES AS AGAINST CARRIEK. 385 broken in upon by the two cases which have been relied upon in the argument: the distinction which is there taken I fully adopt. In the one case the action brought by the consignor against the carrier was sustained, because the consignor was to be answerable for the price of the carriage; he stood, therefore, in the character of an insurer to the consignee for the safe arrival of the goods. And the subsequent case of jVEoore v. Wilson proceeded on the same ground. It is not disputed but that the consignee might have maintained the action in this case : then if the consignee had recovered a verdict against the carrier how could such recovery by a stranger have been pleaded in bar to this action? And if it could not, and yet this action could be maintained, the consequence would be that the car- rier would be liable to answer in damages to both for the same loss. Therefore common sense and justice as well as strict law are in favor of the objection made against the plaintiff's recovering in this action. Grose, J. The plaintiff, who was at one time the owner of these goods, delivered them by the order of Odey to the defendant, a com- mon carrier, for the purpose of having them conveyed to Odey. By such delivery they became the property of Odey ; he Avas liable to be sued for the value of them; and it is admitted that he might have maintained an action for any loss or injury happening to them by the default of the defendant. It is true that, while the goods remained in the hands of the carrier, there was a latent right in the plaintiff to stop them in transitu : but that is in its nature an equit- able right, though now grown into law; but the legal right was by the delivery to the carrier vested in the consignee, by whose order they were so delivered. But cases have been cited, wherein it was holden that the consignor might maintain the action: on looking into them, however, it appears that they proceeded on the ground of special agreements between the respective consignors and carriers. Now here there was no evidence of any such agreement; and the letter from the plaintiff to Odey excludes the idea of any such agree- ment, for the former therein insists that the property was vested in the consignee, whom he considered at all events answerable to him for the value. Then, after it appears that the plaintiff had renounced all right and property in the goods at the time, upon what ground can he claim an indemnity for the loss of what belonged to another? I am therefore of opinion that the action against the carrier ought to have been brought by the consignee of the goods, in whom the property was vested by the delivery to the carrier according to his own order. Lawrence, J. Some stress has been laid on the circumstance of the consignor having paid the carrier for booking the goods, as evi- dence of a special contract between them, in order to bring this case within those which were cited at the bar; but that circumstance would not give a right of action against the carrier to recover 3S6 CARRIERS OF GOODS. damage for the loss of the goods, if it appeared that they were the property of auother person. And here it is admitted that the action might have been bruught by the consignee in right of liis projierty in them. It is true that in some special cases a man may make himself liable to either of two persons on account of the same interest: but that, is not usual; and it is more consonant to the general principle of law to refer all transactions of agents to the principal on whose account they were entered into. Xow here I consider that what was done by the consignor in respect of the booking was as the agent of the consignee, at whose risk the goods were sent. And, generally speaking, the carrier knows nothing of the consignor, but only of the person for whom the goods are directed, and to whom he looks for the price of the carriage upon delivery. Le Blaxc, J. It is admitted that the legal property of the goods was by the delivery to the carrier vested in the consignee, and that he might maintain the action; and upon examination of the cases referred to in support of the consignor's riglit of action, it appears that they proceeded upon the ground of a special agreement between the parties that the consignor was to pay for the carriage of the goods. But as there was no evidence of any such agreement in this case, I think that the nonsuit was proper. Hide dlscliar'jcd. FINN V. WESTERX II. CORP. 112 Mass. 524. 1S73. CijXTUACT against the defendant corporation, as a common carrier, for its failure to forward and deliver sliingles to Josei)]i S. Clark, at Westfiel.l. Writ dated June 28, 1SC7. The declaration alleged the delivery to the defendant, its neglect to forward, and the destruc- tion of the shingles while in its possession. At the second trial in the .Sujjerior Court, Ijcforc rrT.vAM. .1., after the decision reported in 102 Mass. 2s;{, the ])laintifT testified tliat May 9, IHGl, he received at Olean, in tlie State of New York, a written order for a quantity of shingles, from J. S. Clark of Soutlianipton, Massafliu.sctt.s, to l)e forwiirih-il to liim at Soutliamj)- ton; that he filled the order by sliii)piiig the shingles ordered on board the canal-boat " M. White," iit (Uean; that when he shijijied the shingles, he filled in triplicate the following shipping liill: "Olean, .May 1.'5, Isr.I. Shijiped for account of 1^1. W. Finn, on borird f;anaM)oat ' .M. White* of Niagara, N. Y., wliereof James Smith i.s .Master for the jjresent trip, as follows: lUO bunches, 50 M. of 18 in., Sorted Shaved Shingles, marked J, S. C. — Kxtra. 150 bunches, 75 M. of 18 in., No. 1 Shaved Shingles, marked J. S. C. REMEDIES AS AGAINST CAKEIER. 387 360 bunches, 90 M. of 18 in., Extra Sawed Shingles, marked J. S. C. — Extra. In good order, to be delivered in like good order, Avithout delay, to the Great Western Kailroad Company or their Assignees, at Greenbush, N. Y. Consignee to pay freight on the delivery at the rate of seventy-five cents per M. for Shaved Shingles, and sixty-two and one-half cents per M. for the Sawed Shingles, ^2.50 for towing less amount advanced Master, one hundred and fifty-two and fifty-one hundredths dollars, M. W. Finn, Consignor. James Smith, Master, $152.50; " that one of the bills was sent by mail to Clark, one was given to the master of the canal-boat, and one was retained by himj that the shingles were put up in bunches and were branded upon the flat surface of each bunch; that the brand upon some of the bunches was "J. S. C." and upon the rest was "J. S. C, Extra;" that upon about one bunch in six, he wrote with a lumberman's pencil, in letters plainly legible at a distance of twenty feet, the words " J. S. Clark, Southampton, Mass. ; " that the shingles were forwarded by canal from Olean to Greenbush, to be forwarded from thence by the Western Eailroad to Clark; that this was the usual mode of conveyance; that between the years 1858 and 1861 he had sent upon similar orders 6 or 8 lots of shingles to Clark, to Westfield or Southampton, by the same routes, marked in the same manner as the lot in question; that on June 6, 1861, he received from the agent of the Western Eailroad a letter stating that the boat " M. White " had arrived at Greenbush with shingles, and asking for the name of the consignee ; that upon the same day he wrote a letter in reply, in the post-office at Olean, in the presence of the postmaster, stating that the shingles were for J. S. Clark, of Southampton, Mass., and requesting them to be forwarded to him at once ; that the letter was addressed to " The Agent of the West- ern Railroad Company, Greenbush, N. Y. ; " that he delivered the letter to the postmaster personally, in the post-office at Olean ; that by the ordinary course of mail the letter would arrive at Greenbush on the next day; that at the time of shipping the shingles, he drew upon Clark for the price of them; that the draft was duly accepted, and paid at its maturity, but whetlier it was paid before the fire or not, he did not know. On his cross-examination, the plaintiff stated that with each of the prior lots of shingles, a shipping bill was given to the master of the boat, by which they were shipped, in which J. S. Clark, of Southampton or Westfield, was named as the person to whom the goods were sent, and a like bill was sent to Clark. Benjamin Barker, a witness called by the plaintiff, testified that he helped the plaintiff mark the shingles as they were loaded on the canal-boat, at Olean, and that he marked, with a lumberman's pen- cil, on one bunch in every six or eight, the name and address, "J. S. Clark, Southampton, Mass.," in letters that could be plainly read at a distance of twenty or thirtv feet. 388 CARRIERS OF GOODS. The deposition of the postmaster at Glean was read in evidence, who testified to the mailing of a letter by Finn, June 0, 18G1, addressed to the agent of the "Western Kailroad, but that it was directed to East Albany, N. Y., and that his register of that day showed one letter sent to East Albany, X. Y., and that letter was mailed by the postmaster personally, and by him sent out of the othce by the eastern mail. It appeared that the proper address for the defendant's agent was either Greeubush or Albany ; that East Albany was a village in the town of Greenbush, and the western terminus of the defendant's road, and that Greenbush was sometimes known as East Albany, and that letters addressed to East Albany had at different times been received at and delivered from the post-office at Greenbush, and that letters addressed to Green, the defendant's agent at East Albany, had been frequently received by him from the post-office at Greenbush. The facts as to the shipment of the prior lots of shingles were also testified to by Clark, substantially as by the plaintiff, though he did not testify that he received shipping bills with them. Asa C. Parker, the defendant's station agent at ^Vestf^eld, tes- tified that he knew of the receipt of the prior lots over the road, but that no bills of lading or any shipping bills accompanied any of these that he ever saw. Thomas L. Green testified that he was agent for the defendant at Greenbush in 18G1, and had been for some time prior to 185.S, and was still its agent there; that no one but himself and George H. Penfield opened letters addressed to him or to the agent of the defendant at Greenbush or Albany, and that he never received or saw the letter of June G, testified to having been sent by the plain- tiff, and that up to the time of the fire he did not know the name of the consignee; that when the shingles in controversy arrived at Greenbush, the master of the canal-lwat exhibited to him the ship- ping bill before mentioned, and there being no person named therein to wliora the shingles were to be delivered, he declined to receive them until, at the solicitation of the master, he agreed to take them upon storage, and that he wrote the letter mentioned by the plaintiff as having been received l)y him, before he agreed to take them on storage, and as soon as he saw the way-bill ; that a day or two after- wards he examined the shingles and turned over one-third of the bundle.s, so that he could see all sides of them, in order to .see if there was a name of any consignee, or any direction upon them, and found no mark or direetion ui)oii ih.in exce])t " J. S. (J.," and "J. S. C. Extra; " that he had no recollection of liaving seen either of the jirior lots testified of by Finn and l>y Clark, tliat he had no r "ft ion fif any of the i)rior consignments, and only knew from 1 -ks that tliey were forwarded; that it at that time was, and Still is, a cu.stom of the defendant corporation that all freight com- REMEDIES AS AGAINST CARRIER. 389 ing to their road by way of the Erie Canal, as these shingles did, should be governed by the directions contained in the shipping bill accompanying them, and not by the marks upon the goods. On cross-examination, he admitted that he received before the fire two letters from Clark, and one from Parker, the station agent at Westfield, in relation to the shingles in controversy. The plaintiff and William G. Bates both testified that at two former trials of the case of Finn v. Clark, in which the same facts were in issue, Green did not testify as to his receiving the shingles on storage, and did testify that he had seen the name of J. S. Clark, Southampton, in full, on some of the bunches of the former consignments. The foregoing is all the material evidence in the case. The defendant requested the court to rule that upon the whole evidence in the case the plaintiff was not entitled to recover. That if the shingles were sent in pursuance of an order from Clark in Southampton, to Finn in Olean, to be forwarded by the usual conveyances to him in Southampton, and the shingles were so for- warded with proper directions, so that it was the duty of the defend- ant upon the receipt thereof to forward them, then the shingles belonged to Clark, and the plaintiff could not recover. That if the shingles were ordered of Finn at Olean, by Clark, to be forwarded to him at Southampton, and were forwarded by the usual means of conveyance, properly directed to Clark, then the shingles belonged to Clark, and the plaintiff could not recover. These rulings the court refused to make in the form requested, but instructed the jury at length as to the duties and liabilities of common carriers, and their obligations in forwarding freight, as applicable to the shingles in question, which instructions were not objected to by either party, and further instructed them that if the defendant's agent knew, by reason of the receipt of the letter alleged to have been sent to him, or by reason of his having seen the name and address of Clark upon the bundles, that the shingles belonged to and were intended for Clark, it was the duty of the defendant to forward them within a reasonable time thereafter, and that the plaintiff could not recover unless he satisfied the jury that the defendant's agent received the letter of June G, or saw the full name and address of Clark upon the bunches of shingles, and that the jury might consider the fact of the former shipment from Finn to Clark as evidence upon the question whether or not the agent knew for whom the shingles were intended, provided they were satisfied that in such previous instances the freiglit was not accom- panied with proper way-bills, disclosing its destination. The jury returned a verdict for the plaintiff, and found, especially, upon the question submitted to them by the court, that Green did see the full name and address of Clark upon the bunches of shingles. The defendant excepted. 390 CARRIERS OF GOODS. Wells, J. The only question argued by the defendant, upon these exceptions, is whether the action for loss of the property can be maintained by and in behalf of Finn. It is contended that if there was a delivery, with proper directions for the transportation, so as to charge the defendant with responsibility as carrier, then the title in the property had passed to Clark, the consignee; and the right of action for injur}- to it was in him alone. On the other hand, if proper directions for its transportation had not been given, then the defendant is not liable at all as carrier, according to the former decision in 102 Mass. 283. It is not contended that the defendant is liable as warehouseman. In either aspect of the case, upon this view of the law, no recovery could be had by Finn. The jury having found that the defendant became responsible as carrier, the case is now presented only in that aspect. We think also that the facts, as disclosed by the present bill of exceptions, show that the title to the i)roperty had passed to Clark before the loss occurred ; leaving in Finn at most only a right of stoppage i>i transitu. The liabilities of a common carrier of goods are various; and when not controlled by express contract, they spring from his legal obligations, according to the relations he may sustain to the par- ties, either as employers, or as owners of the property. Prima fucie^ his contract of service is with the party from whom, directly or indirectly, he receives the goods for carriage; that is, with the consignor. His obligation to carry safely, and deliver to the con- signees, subjects him to liabilities for any failure therein, which may be enforced by the consignees or by the real owners of the property, by appropriate actions in their own names, independently of the original contract by which the service was undertaken. Such remedies are not exclusive of the riglit of the party sending tlie goods, to have his action upon the contract implied from the delivery and receipt of them for carriage. This, in effect, we understand to be the result of the elaborate discussion of the principles applicable to the case in lilanchard v. Page, 8 Gray, 2.S1. That decision nmy not be precisely in jKjint, as an adjudication, to govt-rn the case now before us; for tlie reason that tliere was a written receipt or bill of lading for carriage by water, and the i)laintiffs were acting in the transaction as agents for the owners of the goods; yet the general principles evolved do ai)ply, and are satisfactory to us for the deter- mination of the present case. When carrying goods from seller to purchaser, if tliere is notliijig in the relations of the several parties except what arises from the fact that the seller commits the goods to tlie carrier as the ordinary and convenient mode of transmission and delivery in execution df the order or agn-f-ment of sale, the employment is liy the seller, tlie contract of service is with him, and actions based upon that contrart li: iv. if tlicy must not necessarily, be in tlie name of the consignor. REMEDIES AS AGAINST CARRIER. 391 If, however, the purchaser designates the carrier, making him his agent to receive and. transmit the goods; or if the sale is complete before delivery to the carrier, and the seller is made the agent of the purchaser in respect to the forwarding of them, — a different implication would arise, and the contract of service might be held to 136 with the purchaser. This distinction, we think, must deter- mine whether the right of action upon the contract of service, implied from the delivery and receipt of goods for carriage, is in the consignor or in the consignee. In the case of Blanchard v. Pao-e the action was maintained in the name of the consignors, who were merely the agents of the owners in forwarding the goods. But that was explicitly on the ground of the express contract with them, embodied in the receipt or bill of lading. As already suggested, the consignee, by virtue of his right of pos- session, or the purchaser, by virtue of his right of property, may have an action against the carrier for the loss, injury, or detention of the goods, though not party to the original contract. Such action is in tort for the injury resulting from a breach of duty imposed by law upon the carrier; or, in the language of the early cases, upon " the custom of the realm." There are many cases, both in England and in the United States, in which the doctrine appears to be maintained that, except when there is a special contract, a remedy for injury resulting from breach of duty by a carrier can be had only in the name and behalf of some one having an interest in the property at the time of the breach, which is injuriously affected thereby. The rule might well be conceded, if the exceptions were not too restricted. It will hold good in actions of tort, because they are founded upon injury to some interest or right of the plaintiff. And the cases which support this view are mostly, if not altogether, actions of tort. This is true of the leading early cases from which the doctrine is mainly derived: Dawes v. Peck, 8 T. R, 330; also of Griffith V. Ingledew, 6 S. & R. 429; Green v. Clark, 5 Denio, 497, 13 Barb. 57, and 2 Kernan, 343; and does not appear from the report to be otherwise in Krulder v. Ellison, 47 N. Y. 36. In discussing the grounds of decision it seems to have been assumed by various judges, as we think, erroneously, that the right of recovery necessarily involved the question with whom the original contract of service was made. And the effort to make the inference of law as to that contract conform to what was deemed the proper decision as to the right to recover for the injury, has led to some statements of legal inference which appear to us to be somewhat overstrained. Thus in Dawes v. Peck it is said by Lawrence, J., that, in the pay- ment of freight by the consignor, he is to be regarded as the agent of the consignee; that the carrier generally knows nothing of the consignor, but looks to the person to whom the goods are directed. In Ereeman v. Birch, 1 Nev. & Man. 420, it is said by Parke, J., 392 CARRIERS OF GOODS. / "In ordinary cases the vendor employs the carrier as the agent of the vendee.'' In Green v. Clark, 13 Barb. 57, it is said by Allen, J., that when the consignee is the legal owner, or the property vests in him by the delivery to the carrier " it is an inference of law, and not a presumption of fact, that the contract for the safe carriage is between the carrier and consignee, and consequently the latter has the legal right of action." But in the same case in the Court of Appeals, 2 Kernan, 343, it was regarded as immaterial by whom the contract was made, and whether the plaintiff was consignor or con- signee, for the purpose of an action of case for negligence by which his property was injured. In Griffith v. Ingledew, the dissenting opinion of Gibson, J., assuming that the contract of carriage formed the basis of the action, combats with great force of reasoning the proposition that a contract with the consignee is the legal result of the receipt of goods by a carrier, when no privity with or authority from the consignee is shown, and none professed by the consignor at the time, unless the direction of the goods to the address of the consignee can be taken to be such profession. The whole force and effect of the reasoning in Blanchard v. Page is in the same direction. The ordinary bill of lading or receipt, given to the consignor by the carrier, simply expresses what is the real significance of the transaction independently of the writing. There is no reason for giving a different interpretation to, or draw- ing a different inference from, the acts of parties, because of a writing which is nothing but a voucher taken to preserve the evidence of those acts. "Whatever remedy is sought in contract must necessarily be sought ill the name of the party with whom the contract is entered into, whether it be special, that is, express, or implied. The question then is simply this: In the absence of an exi)ress agreement, with whom is the carrier's contract of employment and service in respect of goods delivered to him by the seller to convey to the purchaser, wlifMi there is no i)rivity or relation of agency between the carrier and the purchaser save' that whicli springs from i)OSsession of the goods, and the seller has no authority to make a contract for the purclia.ser except what is to be implied from the agreement of purchase or the order for the goods? The law imposes upon the carrier the duty to transport the goods, allows him a rea.sonable compensation, and gives him a lien upon the goods for security of its payment. It also implies a promise on the one part to carry and deliver the goods safely, and, on the other, to pay the reasonable compensation. These two j.romises , the contract. Kach is the counterpart and tlie consideration '• other. If the contract of carriage is with the consignee, the I. al promise to pay the freight must be liis also. Against this inference are the considerations tliat the seller is acting in his own REMEDIES AS AGAINST CARRIER. 393 behalf in making the delivery, and the goods remain his property until the contract with the carrier takes effect. The title of the purchaser does not exist until that contract is made. It follows as a result. The carrier is not agent for either party, but an inter- mediate, independent principal. If made an agent of the consignee, his receipt of the goods cuts off the right of stoppage tn transitu on the one hand, and satisfies the Statute of Frauds on the other. He has a right to look for his compensation to the party who employs him, unless satisfied from his lien. The fact that, as between seller and purchaser, the purchaser must ordinarily pay the expenses of transportation as a part of the cost of the goods, does not affect the relations of contract between the carrier and either party. We dis- cover nothing in the nature of the transaction, and we doubt if there is anything in the practice or understanding of the community which will justify the inference that one to whom goods are sent by carrier, without direction or authority from him, other than an agreement of purchase or consignment, is the party who employed the carrier and is bound to pay him ; unless he assumes such liability by receiving the goods subject to the charge. The contract is made when the goods are received by the carrier. If it is then the contract of the consignee, it will not cease to be so, and become the contract of the consignor, by reason of subsequent events. Suppose, then, the seller exercises his right of stoppage i7i transitu. Is the purchaser still liable to the carrier for the unpaid freight ? Suppose the contract of sale to be Avithout writing and within the Statute of Frauds. The contract of the carrier is not within the statute, and the authority to the seller to make such contract in behalf of the purchaser need not be in writing. Is the carrier to look to the purchaser or to the seller for the freight? Or does it depend upon the contingency whether the con- tract of sale is affirmed or avoided? And if affirmed, and the carrier should deliver the goods without insisting on his lien, of whom must he collect it? The authorities hold, when the agreement of sale is within the Statute of Frauds, that the contract of the carrier is with the consignor. Coombs v. Bristol & Exeter Eailway Co., 3 H. & N. 510; Coats v. Chaplin, 3 Q. B. 483. We do not think the carrier's contract and right to recover his freight can be made to depend upon what may prove to be the legal effect of the negotiations between consignor and consignee upon the title to the property which is the subject of transportation. His contract must arise from the circumstances of his employment. He has a right to look for his compensation to the party who required him to perform the service by causing the goods to be delivered to him for transportation. And that party, unless he is the mere agent of some other, may enforce the contract, and sue for its breach by the carrier. One who forwards goods in execution of an order or agreement o 94 CARRIERS OF GOODS. for sale is not a mere agent of the purchaser in so doing. He is acting in his own interest and behalf, and his dealings with the carrier are in his own right and upon his own responsibility, unless he has some special authority or directions from the purchaser, upon which he acts. The plaintiff in this case is therefore entitled to maintain his action upon the contract; and we think there is no sufficient reason shown to prevent his recovering the full value of the property destroyed. If Clark was the owner at the time, and his interest has been in no way satisfied or discharged, the plaintiff will hold tlie proceeds recovered in trust for his indemnity. Clark might have prosecuted an action of tort in his own name, and recovered the value of his property lost; in which event the damages in Finn's suit would have been nominal, or reduced to whatever amount of actual loss he suffered. But it is not pretended tliat Clark has ever brought any suit or made any claim upon the defendant, although knowing of the pendency of this suit, and having testified as a witness in the same; and all claim by him is long since barred. It is to be pre- sumed that he acquiesces in the recovery by Finn. If there were any doubt upon this point, we might order a new trial uj)on the question of damages only. As there is none, the judgment must be upon the verdict. JExcepiions overruled. KKULDER V. ELLISON. 47 N. Y. 3G. l.^TL Appkal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff entered ujion a verdict. Tliis action is l^rought to recover the value of a barrel of spirits shellac delivered to defendants, wlio were common carriers u])un the canal, consigned to Newell & Turpin of Rochester, and alleged to have been lost by the defendants. The shellac was sent by a boat of defendants jmrsuant to the following order: — "Send us, via canal, one barrel imitation shellac, sudi as you sent us la«t. ■ Newki.l \ Tlhi'I.n. Iluchester." Upon the shipment, plaintiff sent a bill of sale to the consignees. When the barrel arrived at Kocliester it was emjity, and was re- shippr-d to the plaintiff and received by liim. Dt-fcndanta' counsel ai»k«-d the court to charge, that if plaintiff sold the barrel of varnisli to Newell & Turpin to be delivered to them upon defendants' boat, REMEDIES AS AGAINST CARRIER. 395 upon such delivery the title passed to Newell & Turpin, and the plaintiff could not recover. The court declined so to charge, and defendants excepted. Peckham, J. Had the plaintiff, the vendor of the goods, the right to maintain an action for their loss? Here the evidence shows that Newell & Turpin, of Kochester, had ordered the goods from plaintiff, of New York City, to be sent to them ^^via canal, such as you sent last." Plaintiff sent them a bill by mail of the j)urchase, and shipped the goods "vta canal," by defendant's boat. Plaintiff also remitted to the purchasers a bill of sale of the goods. The presumption of law is, that the consignee is the owner of the goods in the absence of any evidence on the subject, and is the proper party to sue, for their injury or loss. Sweet v. Barney, 23 N. Y. 335 [318]; Price v. Powell, 3 Comst. 322; Everett v. Saltus, 15 Wend. 474; Ang. on Carriers, § 497, and cases cited. There have been decisions qualifying this rule as to the proper party to sue, some holding that an action might be maintained by the consignor where he had made a special contract for the trans- portation. In Moore v. Wilson, 1 Tr. R. 659, an action was sustained by the consignor against a carrier, where it appeared that the consignee had agreed with the plaintiff to pay for the transportation, Buller, J., holding that the agreement was between the "consignor and the carrier, the former of whom was, by law, liable." One case only is referred to; this was in 1787, in a note, 1 Atk. 248, where the Lord Chancellor declares the rule to be the other way; and that such an action would not lie. In Joseph v. Knox, 3 Camp. 320, where goods had been shipped by plaintiff, an agent of the owner, who resided abroad, to be for- warded to a given place, and the freight paid by the agent and con- signor, a recovery was allowed by Lord Ellen borough, at nisi prius, on the ground of the special contract. This in 1812. So in Davis V. James, 5 Burr. 2680 [381], a like rule was held where the con- signor agreed to pay, and paid the carrier in 1770. In Dawes v. Peck, 8 Durn. & E. 330 [382], it was unanimously held, after full citation of authorities and consideration, that an action by the con- signor would not lie for the loss of the goods, when they had been delivered to a particular carrier by order of the consignee, though he paid for booking the goods. Lord Kenyon, Ch. J., in deliver- ing the opinion of the court, observed (K. B.): "This question must be governed by the consideration in whom the legal right was vested, for he is the person who has sustained the loss." The court held, that this booking was done as the agent of the consignee. This in 1799. In Brower v. Hodgson, 2 Camp. 36, a like decision at nisi prius, by Lord Ellenborough, where the goods were shipped by order, and on account of the consignee, as appeared by the bill of lading. So held, on the ground that the property was in the con- 396 CARRIERS OF GOODS. signee, from the time of delivery, on board the vessel. This in 1«09. In Dutton v. Solomonson, 3 Bos. & Pul. 582, same doctrine. Lord Alvauley, Ch. J., expressed his surprise that the point should be questioned, as he said it appeared to him to be a proposition as well settled as any in the law, that if a tradesman order goods to be sent by a carrier, though he names no particular carrier, the moment the goods are delivered to the carrier it operates as a delivery to the purchaser. The whole property immediately vests in him; and he alone can bring an action for any injury done to them. In 1803, in Freeman v. Birch, 1 Xev. & Man. 420, a laundress sent linen she had washed to the owner in London, and paid the carriage. Lost b}' the carrier, the action by laundress sustained on the ground that she had a special property in the linen; but admitted by both justices, Littledale and Tarke, that if there be a complete sale the property is out of the vendor altogether. There the vendor transmits as agent for the vendee. Excepting cases of special contract, where it has formerly been held that the consignor may bring the action, I think the cases agree substantially that the action must be brought in the name of the consignee only, as the owner; and that the owner alone can bring the action. Angell on Carriers, § 497. In such case, he and not the consignor must bring the action, for the consignor has his remedy against the purchaser. Id. Where the contract of pur- chase and sale is not valid or comi)lete by reason of the Statute of Frauds, the goods being over the value of £10, and the title, there- fore, still vests in the consignor, though the goods have been delivered to the carrier, no acceptance, and all still vesting in parol, the action must be brought by the consignor. Coombs v. The Br. and Ex. II. Co., 3 Hurl. & Nor. 510. lUit all the judges, in de- livering opinions, admitted the rule to be, that the consignee must have brouglit the action had the order been in writing, and the sale valid. The question was whether tlie property passed to the vendee. If it did, lie must sue. In 1858, see Botter v. Lansing, 1 J. K. 215. Tliat the proi.crty passed to the consignee, in tlie case at bar on its deli very tu tlie carrier " /wV; the canal," is entirely clear. I'eople v. llaynes, 14 Wend. 540; Aug. on Car. §407; Smith's Merc. Law, 200, 5th ed., 2 Kent's Com. 8th ed., p. in mar., 400, and cases cited. Tliere is nothing disclosed in tlie case to qualify or modify that title. In thfi language of the books, it is a eomi)lete sale. No spin'ial con- tract l)y the vendor witli the carrier, and no jiayment of tlio price of trati.sportation if either could affect the title of the vendee. I think it ch-arly could not. The order being positive and in writing, and stfiting the mode of conveyance, where the goods were delivered to the carrier pursuant to that order, the title passed absolutely to the v«!i(lee, subject to the right of stoppage iti trnnsitu, and it gave REMEDIES AS AGAINST CARRIER. 397 no right of action to the vendor to sue for the loss of the vendee's goods, though the vendor, as agent for vendee, paid the carriage, or in like character, specially contracted with the carrier to transport. Had the consignor agreed with the consignees to deliver the goods to them at Eochester, the rule would be different. Then the con- signees would not be the owners till delivery at Eochester. But upon what principle a vendor can sue for the loss of another's goods, it is difficult to see. In this case the right of action being in the vendee under the facts disclosed, the return of the empty barrel to the vendor, and his sending on another in no manner affected that right, either by extinguishing or by assigning it to the consignor. Judgment should be reversed, and new trial ordered, costs to abide event. FEEEMAN v. BIECH. King's Bench. 1 Nev. & Man. 420. 1833. o Case against a carrier for negligence. At the trial before Patterson, J., at the sittings for Middlesex in this term, the following facts appeared: — The plaintiff, a laundress residing at Hammersmith, was in the habit of sending linen to and from London by the defendant's cart, which travelled from Chiswick to London. A basket of linen belong- ing to Spinks was sent by the defendant's cart, and on its way to London part of its contents were either lost or stolen. Spinks did not pay the carriage of the linen. It was objected on the part of the defendant that the present action was misconceived, and that the action should have been brought by the owner of the linen. The learned judge overruled the objection, and a verdict was found for the plaintiff. Heaton now moved for a new trial on the ground of misdirection. The action should have been brought by the owner of the linen, and not by the laundress. It is laid down in Selwyn's Nisi Prius, p. 405, that the action against a carrier for the non-delivery or loss of goods must be brought by the person in whom the right of property in goods is vested. [Parke, J. The person who employs the car- rier must bring the action.] The action against the carrier must be brought by the person in whom the legal right was vested, Dawes v. Peck, 8 T. E. 330 [382]. [Parke, J. The circumstance of the legal right being in one person, may be evidence of employment by that person.] In Dawes v. Peck, the action was brought by the vendor of the goods against the carrier; the vendee had named the carrier, and it was holden, that because the legal right to the goods had 393 CARKIERS OF GOODS. vested in the vendee, he should have brought the actiou. Again, iu Dutton f. Solomonson, 3 Bos. & Pull. 584, it was hekl, that where goods were ordered by a tradesman to be sent by a carrier, the delivery to the carrier vested the property in the purchaser, and lie alone could maintain an action against the carrier for the loss of the goods: King v. Meredith, 2 Camp. 639. This action therefore is improperly brought. LiTTLEKALE, J. In the cases cited, the property in tlie goods was entirely gone out of the vendor. In this case the laundress retained a special property in the goods. Pakke, J. I am of the same opinion. In the case of the vendor and vendee, if the goods are, whilst the carrier has tlie care of them, to be at the risk of the vendor, he must bring tlie action against the carrier. In ordinary cases the vendor ein|)loys the carrier as the agent of the vendee. See Davis v. James, 5 Burr. 2680 [381] ; Moore v. Wilson, 1 T. R. 659. Hide reftised. ELKIXS V. BOSTON & MAINE R. 19 X. H. 337. 1849. Assumpsit. The declaration alleged that on the twenty-first of April, 1847, the defendants were common carriers of goods for hire from Andover, Mass., to Exeter; that the plaintiff delivered to them an overcoat to be carried from Andover to Exoter, and delivered to the plaintiff for a reasonable reward to be paid therefor, in consider- ation of which the defendants received the coat and undertook to transport and deliver it accordingly, which they have neglected and refused to do. At tlie trial upon the general issue it appeared in ovidcMioo that the overcoat belonging to the plaintiff, wliosi' name is Charles I). Elkins, was rolled up in a bundle with another overcoat, bidonging to Jonathan Elkins, and a label imt upon the Imndle with this address upon it: "Jonathan Elkins, Exeter, N. II." The bundle was left by Jonathan Elkins in the common room of the depot at Andover, and the depot-master was requested by him to send the bun- dle by the next passenger train to ICxeter, which he said he would do. The defendants objected that the evidence di 2 K. & K. 8-II ; '-'9 L. J. (Q. R) 1.' I. a 1 H. & .\. 600 ; 26 L. J. (Kx.) 71. REMEDIES AS AGAINST CAKKIER. 405 cause of action was founded on contract. This decision preceded that of Tattan v. Great Western Ry. Co.,i and though it appears to have been cited, the court in delivering their judgment made no observations upon it. Since both those decisions the case of Morgan V. Ravey '^ was decided. In that case an innkeeper's executors were sued for the not keeping securely the property of a traveller, and with reference to the difference between their liability in cases of tort and contract, it became necessary to consider whether the action ■was founded on tort or contract, and it was considered that it was founded on contract, and the executors were therefore held liable. Mr. Bullen, in his excellent work on Pleading, 3d ed., p. 121, states that the question of costs depends on the substance of the thing, not on mere matter of form. Pollock, C. B., says, in delivering the considered judgment of the court in Morgan v. Ravey : ^ " We think that the cases have established that where a relation exists between two parties which involves the performance of certain duties by one of them and the payment of reward to him by the other, the law will imply, or the jury may infer, a promise by each party to do what is to be done by him." Looking to those authorities, if it were now necessary to consider the case of Tattan v. Great Western Ry. Co. ,^ and to decide upon what seems to amount to a conflict of authority, I should be disposed to adopt the decisions of the Court of Exchequer and the principles on which they are based, but it is not necessary to do so in this case, inasmuch as it is distinguishable from Tattan v. Great Western Ry. Co.^ on the form of the declaration. Keating, J. I am of the same opinion. I do not pronounce any opinion on the question whether the decision in Tattan v. Great Western Ry. Co. Ms right or not, for I think that case is distin- guishable from the present. There the declaration was against a common carrier on the custom of the realm ; here a promise is alleged and a breach of such promise. It seems to me that the cause of action here is plainly founded on a contract within the meaning of the section. HoxYMAN, J. I am of the same opinion. There are many actions against carriers and other parties in which the declaration may be framed either in tort or contract. The distinction between the two Avas very material in former days. The rule is thus laid down by Tindal, C. J., in Boorman v. Brown :^ "That there is a large class of cases in which the foundation of the action springs out of privity of contract between the parties, but in which, nevertheless, the remedy for the breach or non-performance is indifferently either assumpsit or case upon tort, is not disputed; such as actions against attorneys, surgeons, and other professional men, for want of proper 1 2 E. & E. 844 ; 29 L. J. (Q. B.) 184. a 6 H. & N. 265 ; 30 L. J. (Ex.) 131. 8 6H. &N., at p. 276. * 3 Q. B. 516. 406 CAKKIERS OF GOODS. skill or proper care in the service they undertake to render; actions against common carriers, against shipowners, on bills of lading, against bailees of different descriptions, and numerous other instances occur in which the action is brought in tort or in contract at the election of the plaintiff." The decisions on the right to costs in such cases do not appear to be very easily reconcilable. It does not seem altogether satisfactory that the plaintiff should by declaring in one particular form rather than another alter the liability of the defendant in respect of costs, but many of the authorities seem to show that he may do so. In this case, however, the furni of the declaration in my opinion is clearly that of a declaration in con- tract. The duty alleged is alleged as proceeding from the contract between the parties. The plaintiff having chosen so to frame the cause of action cannot now, it appears to me, turn round and say that for the purposes of costs the cause of action is based on tort. As regards the decision in Tattan v. Great Western Ry. Co.* and the other decisions that have been referred to, I pronounce no opinion as to which we ought to follow if it were necessary to decide between them. It is clear on consideration of the former case that the declaration tliere was a declaration on the case, and the present case is therefore distinguishable. Rule refused. POZZI V. SHIPTOX. Queen's Bench. 8 A. & E. OC^. 1838. Case. The declaration stated that, on, etc., the plaintiff caused to be delivered to the defendants, and the defendants then accepted and received of and from the plaintiff, a certain ]»ackage containing a looking-glass of tlie jdaintitt", of great value, to wit, etc., to bo taken care of, and carried and conveyed by the defendants from Liverpool to Birmingham in the county of "Warwick, and there, to wit, at liirmingham, to be delivered to one Peter Pensey for the jdaintiff, for certain reasonable reward to the defendants in that behalf; and thereupon it then boeamo and was the duty of the defendants to take due care of the said package and its contents whilst they so had the charge thereof for the jturpose aforesaid, and to take due and reason- able care in and about the conveyance and delivery thereof as afore- said; yet the dcffndants, not regarding their duty in lliat behalf, but contriving and fmndulently intfuding to deocive and injure the plaintiff in that bclialf, did not nor would tako due care f)f the said package and its contents aforesaid, whilst they liad the charge thereof for the purpose aforesaid, or take due and reasonable care » 2 K & K. 811; 29 L. .1. (<,». I? ) ISJ. KEMEDIES AS AGAINST CAKRIER. 407 in and abovit the conveyance and delivery thereof as aforesaid; but on the contrary thereof, the defendants, whilst they had the charge of the said package and its contents for the purpose aforesaid, to wit, on, etc., took so little and siich bad and improper care of the said package and its contents, and such bad and unreasonable care in and about the conveyance and delivery thereof as aforesaid, and so carelessly and negligently conducted themselves in the premises, that the said looking-glass, being of the value aforesaid, afterwards, to wit, on, etc., became and was broken and greatly damaged. To the damage of the plaintiff of £ 10, etc. Pleas: 1. Xot guilty. 2. That plaintiff did not cause to be delivered to defendants, nor did defendants accept from plaintiff, the said package, etc., to be taken care of and carried, etc., and safely to be delivered, etc., for reward in that behalf, in manner and form, etc. Conclusion to the country. Joinder. [Verdict for plaintiff and a rule 7iisi.'] Patteson, J. This is an action against carriers for negligence. A verdict was found for the plaintiff against one of the defendants only, and, upon a rule for a new trial having been obtained, the case was argued in last Easter Term before my brothers, Littledale, CoLEKiDGE, and myself. The form of the declaration is in case, and differs from that used in Bretherton v. Wood [3 Brod. B. 54], in this, that it contains no positive averment that the defendants were carriers; whereas in Bretherton v. Wood there was an averment that the defendants were proprietors of a stagecoach, for the carriage and conveyance of pas- sengers for hire from Bury to Bolton. The present declaration states simply that the plaintiff delivered to the defendants, and the defendants received from the plaintiff, goods to be carried for hire from A to B. It is therefore consistent with the defendants being common carriers, or being hired on the particular occasion only. Upon the trial it was proved satisfactorily that the defendant against whom the verdict was found was a common carrier; and it does not appear to have been objected, at that time, that proof of an express contract between the plaintiff and the defendants was necessary in order to sustain the declaration. If such proof was not necessary, it can only be because the declaration may be read as founded on the general custom of the realm; and, if it mat/ he so read, the court after verdict must so read it; and then the case of Bretherton v. Wood is directly in point in favor of the plaintiff. Upon consideration we are of opinion that the declaration may be so read. The practice appears to have been in former times to set out the custom of the realm; but it was afterwards very properly held to be unnecessary so to do, because the custom of the realm is the law, and the court will take notice of it, and the distinction has for many years prevailed between general and special customs in this respect. Afterwards the practice appears to have been to state 408 CARKIEKS OF GOODS. the defendants to be common cai'riers for hire, tot idem verbis. That, however, was departed from in Brethertou v. Wood to a consider- able extent, and certainly still farther upon the present occasion. It may be that the present declaration could not have been sup- ported on special demurrer for want of some such averment ; but on this point we are not called upon to give any opinion. It does not state that the goods were delivered to the defendants at their special instance and request, nor contain any other allegation necessary applicable to any express contract only, or even pointing to any express contract. We cannot, therefore, say that it shows the action to be founded on contract; and it is sufficient for the present pur- pose, if the language in which it is couched is consistent with its being founded on the general custom as to carriers. Taking this declaration, therefore, to charge the defendants as common carriers, it follows that it is strictly an action on the case for a tort, and that one of several defendants may be found guilty upon it according to the doctrine established in Brethertou v. Wood. The evidence warrants the vt-rdict which has been found, and u-e cannot disturb that verdict. We purposely abstain from giving any opinion whether the doctrine in Govett v. Radnidge [3 East, 62] or that in Powell v. Layton, 2 N. R. 305, be the true doctrine, as we do not feel ourselves called upon to decide between them, supposing them to differ. The rule must be discharged. Bule discharged. SMITH V. SEWARD. 3 Peim. St. 342. ls4G. Tins was an action on the case for the loss of horses, etc., in crossing a ferry. The plaintiff declared against A. Smith, as owner and occupier, and E. Smith being in his employ for conducting said ferry: "for that they, the said defendants, respectively occui)ying and conducting said ferry, offered and undertook, in consideration that tlie public, and those desirous of travelling across said river, should be conveyed across by means of the ferriage of said defend- ants, and for liire to receive and safely to convey across said river, by a certain ferryboat, across, etc.; and also all wagons, etc.; and, having thus offered and undertaken, did use, occui)y, and conduct said ferry; that jdaintiff learning .said defendants did so use and occn].y, and had offered and undertaken safely to transport, etc.," Ijrougiit certain horses, and a wagon of the value, etc., together with goods in tho care of L. 0. to said ferry. That said horses, etc., being on said track, E. Smith, at the instance, and in the employ of EEMEDIES AS AGAINST CARRIER. 409 A. Smith, did agree safely to receive and convey, and that plaintiff, in consideration of such undertaking, committed said property to the care of said defendants. That defendants contriving, etc., did not safely convey, but through their carelessness said goods, etc., were thrown into the river and lost. The second count was in substance the same, laying a general undertaking by defendants to convey. The plea was not guilty. The evidence showed, according to the finding of the jury, though there was conflicting testimony whether the negligence of the wagoner was the cause of the accident, that there was no fall-board at the end of the fiat used as a ferryboat, and it being insecurely fastened to the shore, the wheels of the wagon striking the side of the boat, as it was being driven on board under the direction of the ferryman, the flat was shoved from the shore, and the horses fell into the river and were drowned, the harness injured, and a whip and robe lost. One of the witnesses called by plaintiff to prove these facts, before any evidence of negligence was given, was the OAvner of the goods in the wagon, which were also injured; he had hired the horses of the plaintiff, and a wagoner to haul them; to his deposition an exception was taken. His Honor (Contngham,P. J.) instructed the jury that the action being for a tort, viz., negligence of defendants, a recovery could be had against either of the defendants if the evidence justified it, the owner of the ferry being bound to have the boat and fixtures in proper order; but as the only ground was defect in the fastenings, he did not see how a verdict could be found against the hired man. That a ferryman was a common carrier, and was responsible for all losses except those occasioned by the act of God, inevitable accident, or the public enemies. If a fastening was necessary, he was bound to have it, and if it broke he was liable though he thought it sufficient. To this there was an exception, and the errors assigned were to the admission of the testimony excepted to. 2d. In the construc- tion that a verdict could pass against one defendant. 4th. The charge as to the extent of the liability. The 3d was for not arrest- ing the judgment. The reasons in support of the motion were, 1. The declaration sounded in contract, and there being a verdict in favor of one defendant, no judgment could be entered. 2. That no sufficient consideration was alleged. Butler and Wrirjht, for plaintiffs in error. The declaration is in asstimjjsit, and the undertaking and agreement of the defendant are alleged as the ffravamen of the action ; hence, of course, both or neither defendants are liable. That this is so, is shown from the fact that no single requisite to a declaration in contract is wanting. . . . Dana, contra. The occupation of defendant implied a general undertaking and obligation to keep suitable boats and fastenings. ti'j CARRIERS OF GOODS. the failure in which is a tort or violation of his duty, by reason that it is a breach of his undertaking; and it was long doubted whether a verdict could pass for one only in a suit against carriers. Here the misfeasance was distinctly put in issue and canvassed in the court below; and there must be a clear violation of some rule of pleading to reverse a judgment under such circumstances. All actions against carriers are directly on the contract or for a tort founded in fact on, or deducible from a contract, for wanton injuries rarely occur; a declaration must therefore be tinctured with con- tract. Church V. Munford, 11 Johns. 479; Zell v. Arnold, 2 Penna. Rep. 292. But the plea cures all defects, provided there be a tort averred in the declaration; Bac. Abr. o, I'leas G. 2; and the aver- ment of a consideration became immaterial. 2. The evidence does not show that he was such a bailee as to be liable in the manner now contended for, and if he was, that is waived by this action. Gibson, C. J. Tlie motion to arrest the judgment for the reason that the verdict was against but one of the defendants, was properly dismissed, the declaration being for a tort, which is both joint and several. It was originally the practice to declare against a carrier only on the custom of the realm; but it has long been established that the plaintiff may declare in case or assumjisit at his election; and it is usual to declare in the latter, as was done in ^IcCahan r. Hurst, 7 Watts, 175, Todd v. Figley, id. 524, and Hunt v. AVynn, C Watts, 47. Indeed, his right to do so seems never to have been questioned by the English courts. On the contrary, the judges in Powell r. Layton, 2 N. R. 356, and Dale v. Hall, 1 Wils. 2S2, thought that the declaration is essentially founded in contract, thougli the word axisrej/d be not in it. In Powell v. Layton, tlie defendant was allowed to plead the non-joinder of his i)artner in abatement, though the word duttj stood in place of the word in'ovuse; in wliich the court seems to have gone very far, inasmuch as the plaintiff may certainly waive the contract and go for a tort. There has been a good deal of wavering on the subject, not only as to tlie proper remedy, but as to tlic distinctive feature of the declaration. In regiird to the latter, Corbett v. Packington, 6 Barn. & Cres. 2GS, has put the law of the subject on .satisfactory ground, by making the presence or absence of an averment, not of promise only, but of con- sideration also, the criterion; for it is impossible to conceive of a pronii ■ •■•'♦liout consideration, any more than a consideration with- out pi' , as an available cause of action; and when a considera- tion is not laid, tlie word of/rced, or midertook, or even the more formal word, jtromised, must be treated as no more than inducement to the duty iini)Osed by tlie common law. Now no consideration is ■• ■■ ' ••■ ♦' "!it before us. The undertaking of the defendants to learn, is stated to be the consideration which moved EEMEDIES AS AGAINST CARRIER. 411 the wagoner to commit it to their care ; but no consideration is stated for anything else: certainly, none for the defendant's undertaking. As the declaration, therefore, is decisively in case, the verdict against one of the defendants and for the other is consequently good. Judgment affirmed. c. Burden of Proof . TRANSPOETATION CO. v. DOWNER. 11 Wall. (U. S.) 129. 1870. Error to the Circuit Court of the United States for the North- ern District of Illinois. This case was an action against the Western Transportation Com- pany to recover damages sustained by the plaintiff from the loss of eighty-four bags of coffee belonging to him which the company had undertaken to transport from New York to Chicago. The company was a common carrier, and, in the course of the transportation, had shipped the coffee on board of the propeller "Buffalo," one of its steamers on the lakes. The testimony showed that the steamer was seaworthy, and properly equipped, and was under the command of a competent and experienced master; but on entering the harbor of Chicago in the evening, she touched the bottom, and not answer- ing her helm, got aground, and during the night which followed, kept pounding, and thus caused the hold to fill with water. The result was, that the coffee on board was so damaged as to be worthless. The bill of lading given to the plaintiff by the transportation com- pany at New York exempted the company from liability for losses on goods insured and losses occasioned by the " dangers of navigation on the lakes and rivers." The defence made in the case was, that the loss of the coffee came within this last exception. Upon the trial the plaintiff having shown that the defendant had the coffee for transportation, and that the same was lost, the defend- ant then showed by competent evidence that the loss was occasioned in manner above stated, — that is, by one of the " dangers of lake navigation." The plaintiff then endeavored to prove that this dan- ger and the consequent loss might have been avoided by the exercise of proper care and skill. The defendant moved the court to instruct the jury as follows : — " If the jury believed from the evidence that the loss of the coffee in controversy was within one of the exceptions contained in the bill 412 CARRIERS OF GOODS. of lading offered in evidence, that is to say, if it was occasioned by perils of navigation of the lakes and rivers, then the burden of showing tliat this loss might have been avoided by the exercise of proper care and skill is upon the plaintiff; then it is for him to show that the loss was the result of negligence.'' The court refused' to give this instruction and the defendant ex- cepted, and at the request of the plaintiff, gave instead the follow- ing, to the giving of wliich the defendant also excejjted, viz. : — "The bill of lading in this case excepts the defendant from liabil- ity, when the property is not insured, from perils of navigation. It is incumbent on the defendant to bring itself within the exception, and it is the duty of the defendant to show that it has not been guilty of negligence." The plaintiff recovered, and the defendant brought the case here on writ of error. Mr. Justice Field. On the trial the plaintiff made out a jn'ima facie case by producing the bill of lading, showing the receipt of the coffee by the company at New York, and the contract for its trans- portation to Chicago, and by proving the arrival of the coffee at the latter place in the propeller " Ihookly n " in a ruined condition, and the consequent damages sustained. Tlie comjiany met this ^;;7?/i« facie case by showing that the loss was occasioned by one of the dangers of lake navigation. These terms, "dangers of lake navigation," include all the ordinary perils which attend navigation on the lakes, and among others, that which arises from shallowness of the waters at the entrance of harbors formed from them. The plaintiff then introduced testimony to show that this danger, and the consequent loss, might have been avoided by the exercise of i)roper care and skill on the part of the defendant. If the danger might have been tiuis avoided, it is plain that the loss should be attributed to the negligence and inattention of the company, and it should be held liable, notwithstanding the exception in the bill of lading. The burden of establishing such negligence and inattention rested with tlie plaintiff, but the court refused an instruction to the jury to that effect, ])rayed by the defendant, and instructed them that it was the duty of the defendant to show that it had not been guilty of negli- gence. In this respect the court erred.' In Clark r. Harnwell,* ' Tin* f>liiiiitifr fiirtlnr ■ ..iit()f rt-sts upon the carrier to Hhow not only that the cause of the loss was within the tcrnis of the limita- tion, but alno upon it« own part that thorf was no nefjlijjcnfo." In this wc do not n^TBt' with hiui. It in well Hettle