carrier. If, before sending goods by a carrier, the sender applies at his wharf to know at what price certain goods will be carried, and he is told by a clerk transacting the 'business there, a certain sum per cent., and, on the faith of this, he sends the goods, the carrier cannot charge more, although it be proved, that the carrier had previously ordered his clerks to charge all goods according to a printed book of rates in which a greater sum is set down for goods of the sort in question. Again, in the case of the Grand Junction Railway Company, which has been before referred to,3 who published a printed notice, which was affixed over the door of their station, to the effect that all goods received after four o'clock, P. M., would not be forwarded until the next working day; notwithstanding this notice, inasmuch as the company was in the habit of forwarding goods for the plaintiff delivered at the station after four o'clock, and the company's weigher, on a particular evening, told a servant of the plaintiff who brought goods to the station after the hour limited by the notice, that there was then "plenty of time," and the goods were left upon the faith of this assurance; it was held, that there was evidence to go to a jury of a special contract on the part of the railway company, to forward the goods (which were perishable) the same evening.

$279. It appears, at one period, to have been thought, that the mere receipt of goods whose value was manifestly beyond the sum in the notice, without any extra payment

only the ordinary hire, it is a waiver of the notice as to the goods. Evans v. Soule, 2 M. & Sel. R. 1; Wilson v. Freeman, 3 Campb. R.

527.

I Winkfield v. Packington, 2 C. & Pa. R. 599.

Palmer v. Grand Junction Railway Co. 12 M. & Welsb. R. 766. 3 Ante, § 136.

1

therefor, was a waiver of the notice. But the later doctrine seems to exclude any presumption founded merely upon the knowledge of the fact above stated, and requires some auxiliary circumstance to support it.2

1 Beck v. Evans, 16 East, R. 244; S. C. 3 Campb. R. 267. 2 Story on Bailm. § 572, citing Marsh v. Horne, 5 B. & Cress. R.

322.

24*

CHAPTER VIII.

OF THE TERMINATION OF THE CARRIER'S RESPONSIBILITY, BY DELIVERY, AND WHAT EXCUSES A NON-DELIVERY.

$280. HAVING considered the duty of a common carrier to receive goods for conveyance, and having endeavored to show when, in the sense of the law, they are delivered to him, and that, with the delivery to him, his extraordinary responsibility commences; and having also endeavored to show the extent of that responsibility, as imposed by the Common Law, and as it may be limited, modified or varied by special agreement and by general notices, the subject which next claims attention, is that of the delivery of goods by the carrier, by which his duties and responsibilities are terminated. It is therefore proposed now to consider, 1st, the obligation properly to deliver; and 2dly, what will excuse a non-delivery.

2

$281. FIRST. It has been shown to be an implied engagement on the part of every undertaker of the work of carrying, as a common carrier, to proceed without deviation from the usual and ordinary course, to the place of delivery, or the port of destination; and also to be the duty of the carrier, if the goods he receives for conveyance are directed to a place beyond the place to which he ordinarily professes to carry, to see that they are delivered at the place to which they are directed. It has been shown likewise, that if, by the terms of the bill of lading, the carrier has the

1 Ante, § 164.

2 Ante, 175, et seq. 3 Ante, § 95, et seq.

privilege of re-shipping the goods in the course of transportation, he is bound for their safe delivery at the place of their ultimate destination. But if a carrier is instructed by his employer, to deliver goods on board of another vessel for a continuance of the transportation, and the goods are lost on board such other vessel, he is not responsible if he has safely placed them on board such other vessel, as, by so doing, his character, as common carrier, has ceased. Thus, common carriers, who received goods to transport from New York to Troy, and, at the latter place, transferred them pursuant to instructions from the bailor, on board a canal boat bound for the north, and the goods were lost, by the upsetting of the boat, it was held, that their character, as common carriers, ceased at Troy; and that having taken. proper care that the goods were safely put on board the canal boat, they were not responsible for the loss.3

$282. The undertaking of a common carrier to transport the goods to a particular destination, necessarily includes the duty of delivering them in safety; and his obligation is to deliver safely at all events, excepting the goods be lost by the act of God, or the public enemy. It is not enough, that the goods be carried in safety to the place of delivery, but the carrier must, and without any demand upon him, deliver; and he is not entitled to freight until the contract

1 Ante, § 227.

2 Abbott on Shipp. 465, (5th Am. edit.); Strong v. Natally, 4 Bos. & Pull. R. 16.

Where the master of another vessel, a deliv

3 Ackley v. Kellogg, 8 Cow. (N. Y.) R. 223. a vessel is directed to tranship or deliver on board ery on board such other vessel, is the termination of the duty of a common carrier. The master, at the end of the transit, is only a forwarder. Van Stantwood v. St. John, 6 Hill, (N. Y.) R. 158, reversing the decision of the Supreme Court of New York, in 25 Wend. R. 661, and Ante, § 95. As to forwarding merchants, see Ante, § 75.

for a complete delivery is performed. Hence, it has been held, that if a common carrier on a canal, uses the tackle or machinery of a third person in hoisting the goods from his boat, and the machinery breaks, and the goods are thereby injured, he is responsible for the damage; for, although the machinery does not belong to him, it is his pro hac vice, and so as to render him answerable for its sufficiency. But if the warehouseman has fairly taken the goods into his own custody, the moment he applies his tackle to them, from that moment the carrier's liability is determined. It appears, therefore, to be of importance to consider what is requisite to constitute a competent delivery, or such a delivery as will determine the transit.

$283. The carrier is bound in all cases to make a proper delivery with reasonable expedition, if no particular time be fixed upon; for the duty to deliver within a reasonable time, is a term ingrafted, by legal implication, upon a promise or

1 Forward v. Pittard, 1 T. R. 27; Garside v. Trent Navigation Co. 4 Ib. 581; Hyde v. Trent and Mersey Navigation Co. 5 Ib. 389; Harris v. Rand, 4 N. Hamp. R. 555; S. C. Ib. 259. When the responsibility has begun, it continues, until there has been a due delivery by the carrier, or he has discharged himself of the custody of the goods in his character of common carrier. 2 Kent, Comm. 604, (6th edit.); Eagle v. White, 6 Whart. (Penn.) R. 505; Gibson v. Culver, 17 Wend. (N. Y.) R. 305; Ludwig v. Meyre, 5 Watts & S. (Penn.) R. 435; Erskine v. Thames, 6 Mississip. R. 371. In Harrell v. Owens, in North Carolina, 1 Dev. & Bat. R. 273, it was held, that where the master of a vessel undertakes to deliver articles on board of his vessel, on freight, at a certain place, he cannot allege ignorance, or any excuse arising from human fault or human weakness, as a defence for violating his engagement; that the true question is not one of actual blame, but of legal obligation. Nothing short of the act of God or of the public enemy will excuse, in a common carrier, a neglect to deliver. See also Griffith v. Ingledew, 6 S. & Rawle, (Penn.) R. 429.

2 De Mott v. Laraway, 14 Wend. (N. Y.) R. 225.

3 Thomas v. Day, 4 Esp. R. 462.