does not undertake to carry and deliver them. The contract determines the capacity in which he receives the property. If he receives it under a contract, express or implied, to carry and deliver, he is held to the liability of a carrier. His want of interest in the conveyance by which the goods are to be transported, is not the test of his liability: our express companies conduct an extensive carrying business, without having any proprietary interest in the cars, roads and lines employed by them in the work of transportation. At the outset, they claimed to act as forwarders, under a limited liability;3 on a mature consideration, it is now agreed that they act in the capacity of common carriers. And where a party undertakes the business of a carrier, and makes contracts in the prosecution of it, he is not permitted to escape responsibility; the receivers or trustees of a railroad company acting as common carriers are held liable in that capacity.5

§ 336. Where a party unites the business of a common carrier with that of a warehouseman, and receives goods into his warehouse, to be carried forward on the owner's subsequent order, the contract is one of ordinary bailment; and the bailee is liable for the goods as a warehouseman until they are ordered forward. But where the deposit in the warehouse is a mere accessory to the carriage, or where the goods are deposited for the purpose of being carried without further orders, the responsibility of the bailee begins as that of a carrier from the time. the goods are received."

After the goods arrive at their place of destination and the consignee. is notified of their arrival and has had a reasonable time to receive them, the carrier's character changes to that of a warehouseman; and after that he is only liable as a bailee for hire. The same rule applies where the carrier makes due inquiry and fails to find the consignce, and there

217.

1 Roberts v. Turner, 12 John. R., 232.

2 Teall v.

Sears, 9 Barb., 317; Simmons v. Law, 8 Bosw., 213; S. C., 3 Keyes,.

3 Hirsfield v. Adams, 19 Barb., 577.

Place v. Union Ex. Co., 2 Hilton, 19; Buckland v. Adams Ex. Co., 97 Mass., 124; Sweet v. Barney, 23 N. Y., 335; 51 N. Y., 166; 72 Penn. St., 274; 32 Mo., 390.

Rogers v. Wheeler, 43 N. Y., 598; Ballon v. Farnum, 9 Allen, 47; Sprague v. Smith, 29 Vt., 421 ; Paige v. Smith, 99 Mass., 336; Blumenthal v. Brainard, 39 Vt., 408; Morse v. Brainard, 41 Vt., 111.

6 Blossom v. Griffin, 13 N. Y., 569; Ladue v. Griffith, 25 N. Y., 364; Read v. Spaulding, 30 N. Y., 630; 34 N. Y., 497; 47 Barb., 152; Barren v. Eldridge, 100 Mass., 455; Rogers v. Wheeler, 52 N. Y., 262; S. C., 6 Lansing, 420.

Fenner v. Buffalo & State L. R. Co., 44 N. Y., 505; Cook v. Erie Railway Co., 58 Barb., 312.

upon stores the property.1 He is not regarded as a gratuitous bailee, though he receives nothing definitely charged for the storage, at the commencement or at the close of the transaction. The incidental facilitates or contributes to the principal business; the storage of the goods is not therefore a gratuitous service. It is a duty which springs out of the principal contract, where the goods are left in the carrier's hands temporarily for the owner's convenience; an event which occurs so frequently that the parties are supposed to have contemplated the contingency.2

§ 337. When the consignee is unable or refuses to receive the goods within a reasonable time, the carrier is at liberty to deposit them with a responsible warehouseman.3 And where he does so under these circumstances, the storehouse-keeper becomes a bailee of the property and liable for it to the owner. The necessities of business authorize the transaction; and it is not considered the carrier's legal duty to notify the consignor of the action taken by him. The duty of diligence in this particular rests properly with the owner of the goods. The carrier is not at liberty to return or carry back the goods."

5

The carrier is not obliged to store the goods at the place of destination with another party, in order to reduce his liability to that of a warehouseman. He makes a new contract by consenting to hold the goods after having tendered a delivery of them, for the accommodation of the consignee; and his agreement to retain or to store them for a time binds. him to the responsibility of a bailee for hire. By simply retaining the goods at the owner's request, after notice of his readiness to deliver, the carrier by implication ceases to be liable as an insurer of the goods; '

1 Pelton v. Rensselaer & Saratoga R. Co., 54 N. Y., 214; Witbeck v. Holland, 45 N. Y., 13.

2 In the matter of Webb and others, 8 Taunt. R., 443; White v. Humphrey, 11 Adolph. & Ellis, 43; Burnell v. N. Y. Central R. Co., 45 N. Y., 184 ; 10 Metc., 472; N. Plains Co. v. Boston & Maine R. R. Co., 1 Gray, 263; Cay v. Cleveland & T. R. R. Co., 29 Barb., 35.

3 Redmond v. Liverpool, N. Y. & Phila. S. Co., 46 N. Y., 578; Ostrander v. Brown, 15 John. R., 39; Price v. Powell, 3 N. Y., 322; Richardson v. Goddard, 23 How. U. S., 23; Western Tr. Co. v. Barber, 56 N. Y., 544.

4 Fisk v. Newton, 1 Denio, 45; 22 How. Pr., 137.

* Hudson v. Baxendale, 2 Hurl. & Norm., 577; Williams v. Holland, 22 How. Pr., 137; 33 N. Y., 610, 612; Railey v. Porter, 32 Mo., 471.

6 Crouch v. Great Western R. Co., 2 Hurl. & Nor., 491; S. C., 3 Id., 183.

7 Fenner v. Buffalo & State Line R. Co., 44 N. Y., 505.

Hathorn v. Ely, 28 N. Y., 78.

9 Labar v. Taber, 35 Barb., 305; as to baggage left at depot, see 45 N. Y., 184; 34 N. Y., 548; 49 N. Y., 546; 57 N. Y., 552.

9

he can hardly be held liable as a carrier where by reason of the consignee's neglect he is entitled by the contract implied by law to recover demurrage for the wrongful detention of his vessel; nor where the consignee, being obliged to come and remove the goods, does not do so within a reasonable time.2

§ 338. Custom often indicates the carrier's duty in delivering the goods; and the course of business may often be shewn, in order to interpret his contract. And both the custom and course of business may be proved, with the circumstances to establish the carrier's liability as a warehouseman, after the goods have been landed on the wharf.3 Steamboats running regular trips, must land their freight without delay; and where that is the custom, the delivery is completed by landing the goods on the wharf, after the consignee has had a reasonable time to remove the goods. And it is agreed, that the course of business between the parties may control the mode of delivery. In the absence of any such course of business or local usage, the delivery must be reasonable in time and place; the carrier must not leave the goods unprotected on the wharf; it is his duty to take care of them for the owner. He should notify the owner of his readiness to deliver; 'and ordinarily should place the goods within the owner's custody. On the other hand, it is the duty of the owner or consignee to accept and remove the goods within a reasonable time; and where there is no dispute about the facts, it is for the court to determine what is reasonable time, as a question of law. The delivery is complete where bulky articles are landed from a vessel on a public wharf, and the consignee who is the owner, pays the freight and takes steps toward removing them: the delivery is complete as soon as the owner has had a reasonable opportunity to remove the goods."

§ 339. When goods are to be carried over successive lines, it is the duty of each carrier to deliver to the next; and it is the policy of the law to prevent the goods from falling into the hands of a warehouseman

1 Clendaniel v. Tuckerman, 17 Barb., 184; Cross v. Beard, 26 N. Y., 85. ? Thomas v. Boston & Prov. R. Co., 10 Metc., 477; 30 Penn. St., 247; 20 111., 23, 404, 407, 412; 25 Ind., 434; 16 Mich., 79, 123; 34 N. Y., 548.

3 Gibson v. Culver, 17 Wend., 305, and cases there cited by COWEN, J.; The J. Russell Manuf. Co. v. N. H. Steamboat Co., 50 N. Y., 121.

4 Ely v. N. H. Steamboat Co., 51 Barb., 207; 6 Abbott Pr., N. S., 72; 50 N. Y., 121; Western Tr. Co. v. Hawley, 1 Daly, 327; 2 Hilton, 150; Farmers & Mechanics Bank v. Champlain Transp. Co., 23 Vt., 186, 209; Noyes v. Rut. & Bur. Railway, 27 Vt., 110.

* Redmond v. Liverpool, N. Y. & Phila. S. Co., 46 N. Y., 578.

6 Hedges v. Hudson River R. R. Co., 49 N. Y., 223; Roth v. Buffalo & State Line R. R. Co., 34 N. Y., 548; Dininny v. N. Y. & N. H. R. R. Co., 49 N. Y., 546. "Goodwin v. Baltimore & Ohio R. Co., 50 N. Y., 154.

2

between the connecting lines. The intermediate carrier does not become a warehouseman, by carrying the goods to the end of his route and depositing them there in his own warehouse, or in a place of temporary storage to facilitate a transfer of the goods.' He holds as carrier until he delivers the goods; certainly the law does not permit him, at his own option, to store the goods and thereby escape his proper responsibility. A refusal by the next carrier to receive the goods, will doubtless justify him in taking the proper steps renouncing any further liability as a carrier. But so long as he retains the goods, waiting upon the action of the next carrier, his character remains unchanged. The contract of each is to carry and deliver to the next carrier; his duty as a carrier is not therefore fulfilled until the delivery is made; and it is considered sound public policy that a strict responsibility should cover the goods until they reach their destination.1

The manner in which a carrier uniformly delivers goods to the succeeding carrier, as by placing them upon an adjacent platform, indicates the duty of each in the transaction.5

§ 340. There may be special cases where the carrier receives goods to be carried to the end of his route, and then forwarded by the first opportunity to another point; where the contract is double, and the goods have to be stored to await the opportunity to send them forward. Thus, where common carriers undertook to carry goods from Stourpoint to Manchester, and to forward them from thence to Stockport, and carried them according to agreement safe to Manchester, and there deposited them in a warehouse of their own, where they were destroyed by fire before an opportunity occurred to forward them, Lord Kenyon held that the liability of the carriers as such, ceased when the goods were put into the warehouse; and that in the capacity of warehousemen, they were not responsible for an injury arising from no want of diligence on their part." In cases of this kind, where the carrier makes a distinct contract

1 Goold v. Chapin, 20 N. Y., 259; McDonald v. Western R. Co., 34 N. Y., 497; Miller v. Steam Nav. Co., 10 N. Y., 431.

2 Ladue v. Griffith, 25 N. Y., 364.

3 Mills v. Michigan Central R. R. Co., 45 N. Y., 622; Plantation No. 40 v. Hall, 61 Maine, 517.

4 Railroad Co. v. Manufacturing Co., 16 Wallace, 318; Corkey v. Milwaukee & St. P. R. R., 31 Wis., 619; Irish v. Milwaukee & St. Paul R. R., 19 Minn., 376; 34 N. Y., 497; 20 N. Y., 259; 44 N. Y., 505; 25 N. Y., 354; Nashua Lock Co. v. Railroad Co., 48 N. H., 339; Barter v. Wheeler, 49 N. H., 9.

5 Converse v. Norwich & N. Y. Transp. Co., 33 Conn., 166. The usage also controls the delivery to the consignee: 23 Vt.. 186, 209; 27 Vt., 110.

6 Garside v.

Lansing, 325.

Proprietors of Trent and Mersey Nav. Co., 4 Term R., 581; see 2

to forward the goods from the end of his route, and the circumstances imply an undertaking on his part to store the goods until they can be sent forward, or where they reach a place of deposit where they are to remain till ordered forward, there is no reason for a departure from the early rule. But where the carrier stores them for his own convenience at any point along the route, or at its termination, preparatory to a delivery, he is liable as a carrier, and not as a warehouseman.1

§ 341. When a given mode of delivery becomes the established course of business between a carrier and a consignee, it affects them on the theory of a tacit understanding to follow the usage; and that is the ground on which parties are bound by a uniform settled usage or custom of business. They are supposed to adopt it and carry on their business under it. Hence, in some of our States, the carrier by rail becomes a warehouseman, where on the arrival of goods at the depot or at waystations along the line, it is the well known and settled custom for him to store the goods, and for the consignee to come and take them, without notice.1

§ 342. It is sometimes difficult, and as important as it is difficult, to determine when the duties of a warehouseman begin, and from what time he is chargeable with the care and custody of the goods. Where he receives them from the carrier, his responsibility commences at the point where that of the carrier ends. If by the custom of the place to which the goods are directed, the carrier delivers them to the consignee by depositing them in a warehouse, the delivery is not complete so as to discharge the carrier, until they are actually stored within the building. If a carrier on the canals, in unloading his boat at the termination of the voyage, uses the tackle or machinery of a warehouse in hoisting the goods from his boat, he makes the machinery his own for that purpose; and if it breaks so as to injure or destroy the goods, he is responsible for the loss. His undertaking includes the duty of delivering them in

1 Forward v. Pittard, 1 Term R. 27; Hooper v. Wells, Fargo & Co., 27 Cala. ; Hide v. Trent & Mersey Nav. Co., 5 Term R., 39; 6 Lansing, 420; 52

-

N. Y., 262 ; 100 Mass., 455; Sultana v. Chapman, 5 Wis., 454.

2 The J. Russell Manuf. Co. v. The X. H. Steamboat Co., 22 N. Y., €57.

3 Gibson v. Culver, 17 Wend., 36; 33 Barb., 251.

4 Norway Plains Co. v. Boston & Maine R. Co., 1 Gray, 203; see Tanner v. Oil Creek Railw., 53 Peun. St., 411; New Albany & Salem R. R. v. Campbell, 12 Ind., 55; Morris & Essex R. R. v. Ayres, 5 Date'ber, 334; Francis v. Dubaque R. R., 25 Iowa, 60; Hillard v. Weldon R. R., 6 Jones (N. C.), 343; Chicago & H. R. R. v. Scott, 42, 132.

'See Salinger v. Summons, 2 Lansing, 325; 8 Abbott Pr. (N. 8.), 409; 57 Barb., 513.