showing the intention of the parties.' It cannot be proved where the contract is definite and certain; and it cannot be proved to vary a settled rule of law. The circumstances may be proved, and the antecedent relation of the parties, including a previous parol contract, to interpret a written receipt of goods to be forwarded.3

§ 353. It is the warehouseman's duty to redeliver the goods, on being paid or tendered his reasonable charges. As in other cases, the delivery must be so made as to charge the owner with the custody of the property; and the bailee is discharged as soon as that is done. Holding by a delegated right, a warehouseman is not permitted as a rule to dispute the title of his principal; he is not allowed to set up a personal claim to the property; and he is prima facie bound to restore the goods to his bailor. The rule rests upon the assumed admission by the bailee, of the bailor's title; it does not rest on the ground of an estoppel. It does not apply where the property is taken from the bailee by process of law or by a paramount title; or where the bailee on demand delivers the goods to the true owner.' For his own safety, the bailee should leave a stranger claiming the property to his action; and give the bailor notice of the suit. This course will protect him, and save him the inconvenience of a litigation on behalf of the bailor.

G

§ 354. In actions against warehousemen, as against other bailees, the onus of proof rests with the party holding the affirmative on the pleadings. The plaintiff must prove the fact, where his right to recover is based upon an allegation of loss through the defendant's negligence; he must sus

'Goodyear v. Ogden, 4 Hill, 104; Dawson v. Kittle, 4 Hill, 107. The terms of a contract, though in the form of a receipt, must prevail; they cannot be varied by parol evidence. Wadsworth v. Allcott, 6 N. Y., 64, 71; 4 N. Y. 76; 44 N. Y., 495, 504; Furniss v. Hone, 8 Wend., 247.

2 Markham v. Jaudon, 41 N. Y., 235, 245; Townsend Manuf. Co. v. Foster, 51 Barb., 346.

3 Blossom v. Griffin, 13 N. Y., 569. A warehouseman's receipt is often merely an item of evidence; its legal effect depends upon the situation of the parties. Gardiner v. Suydam, 7 N. Y., 357.

Tittsworth v. Winnegar, 51 Barb., 148.

5 Bates v. Stanton, 1 Duer, 79; Simpson v. Wrenn, 50 Ill., 222.

6 Edson v. Weston, 7 Cowen, 278; Stamford Steam B. Co., 9 Wend., 327; Cook v. Holt, 48 N. Y., 275; Edson v. Weston, 6 Cranch, 278; Agle v. Atherton, 5 Taunt., 758; 18 Vt., 186.

'Hardman v. Wilcock, 9 Bing., 382; King v. Richards, 6 Whart. R., 418; 56 N. Y., 544, 552.

' Rogers v. Weir, 34 N. Y., 463; 45 Barb., 390, 395; 24 N. Y., 424, 427; Bliven & Mead v. Hudson River R. R., 36 N. Y., 403; see Carroll v. Mix, 51 Barb., 212; and Barnard v. Kobbe, 3 Daly, 35, 373; and Ball v. Liney, 48 N. Y., 6.

3

tain his action by such proof as the circumstances naturally call for.1 Negligence is a wrong, and not to be presumed. Proof of a total failure to account for the property, is prima facie sufficient; so is proof of a failure to return the goods, on demand; the failure is itself evidence of a conversion. The bailee cannot fairly remain silent under a demand; he is bound to give some account of the property. If he returns only a part of the goods, or returns them in a damaged condition, he ought to show what has become of the missing goods, or how the dam age arose. Being in possession of the property at the time of the loss or injury, and charged with its custody, he ought to explain the loss or the injury; he has the means of doing so; the explanation comes naturally from him."

§ 355. WHARVES.

The wharves and piers used in our seaports to facilitate the shipment

1 Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y., 271, 278; 4 Keyes, 108; 10 Wallace, 176; 18 N. Y., 534.

2 Bush v. Miller, 13 Barb., 483; Schmidt v. Blood, 9 Wend., 263, is the leading case in this State.

3 Schwerin v. McKie, 5 Robt., 404; S. C. 51 N. Y., 180; Higgins v. 5 Conn., 76.

Emmons,

Dunlap v. Hunting, 2 Denio, 643; Cairnes v. Robbins & Mills, 8 Mees. & Wels., 258; Rose v. Hill, 2 Man. Gr. & Scott, 787.

"Arent v. Squire, 1 Daly, 347.

6 Clark v. Spencer, 10 Watts Pa., 337; Rex v. Burdit, 4 B. & A., 161; 51 N. Y., 180. In Platt v. Hibbard, 7 Cowen, 493, 500, the rule was laid down in these terms: "When property entrusted to a warehouseman, wharfinger, or storing or forwarding merchant, in the ordinary course of business, is lost, injured or destroyed, the weight of proof is with the bailee, to show a want of fault or negligence on his part; or in other words, to show that the injury did not happen in consequence of his neglect to use all that care and diligence on his part, that a prudent or careful man would exercise in relation to his own property." In Schmidt v. Blood, 9 Wend., 268, the warehouseman offered to show that the goods had been purloined, and the evidence being excluded, the Court on review granted a new trial, with this remark: "The onus of thowing negligence seems to be upon the plaintiff, unless there is a total fault in delivering or accounting for the goods." Approved in Foote v. Storrs, 2 Barb., 326; and in Harrington v. Snyder, 3 Barb., 380; and in Wiggins v. Hathaway, 6 Barb., 632; and in Bush v. Miller, 13 Barb., 481; and in Davison v. Owners of Crystal Palace, 9 How. Pr., 6; and in Williams v. Holland, 22 How. Pr., 137; and in Schwerin v. McKie, 5 Robt., 404; S. C., 51 N. Y., 180; where a part of the goods were not redelivered, it was held that the burden of proof as to diligence was on the warehouseman. The authorities are conflicting in regard to the burden of proof. See cases cited by counsel in Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y., 274, and by PECKHAM, J., in his dissenting opinionid., 289. See Cass v. Boston & Lowell Railroad Co., 14 Allen, 448; and Baron v. Eldredge, 100 Mass., 460; post § 446.

and landing of goods, are generally devoted like highways to the public use; the owners of them are bound to keep them in a safe condition ; and the lessee is bound to keep them in repair.' The ownership of those which are used in this manner, is qualified by the right of the public to go and return upon them; and the owner's possession is qualified in like manner: neither he nor his tenant can exclude the public from the reasonable use of the premises. This blending of public and private rights is created by the law of the State; it is necessary in order to the construction and proper enjoyment of wharves, piers and slips. The essence of the ownership in them, allowed by law, when constructed for the public use, is the right to collect wharfage from ships and vessels using them, in the ordinary way, to receive or discharge their cargo.2 Erected on navigable waters, the public have an implied license, to use them, in the customary way;3 erected and used as private property, the public has no right to enter upon them.*

§ 356. WHARFINGERS.

The similarity of their duties, often performed by the same persons, has occasioned the terms warehousemen and wharfingers to be used sometimes in the books interchangeably, as if they conveyed substantially the same meaning. But this is inaccurate; the warehouseman receives goods and merchandise into his warehouse to be stored for hire; and the wharfinger keeps a wharf, for the purpose of receiving and shipping merchandise to or from it, for hire. They are historically and actually distinct branches of business, and yet they are often united; as where a wharfinger procures and appropriates a warehouse on the wharf, and assumes also the duties and the character of a warehouseman."

§ 357. The wharfinger's responsibility begins as soon as he acquires the custody of the goods, and ends when he has fulfilled his express or

1 Radway v. Briggs, 37 N. Y., 256; Wendell v. Baxter, 12 Gray, 494; Pittsburgh City v. Grier, 22 Penn. St., 54; Lan. Canal Co. v. Parnaby, 11 Ad. & Ell., 223; Thompson v. N. E. Railway Co., 3 Best & Smith, 106; Smith v. London & St. K. Docks Co., L. R. C. P., 326.

2 The Mayor &c. of N. Y. v. Rice, 4 E. D. Smith, 604; Taylor v. Atlantic M. Ins. Co., 37 N. Y., 275; see further under the laws relating to the City of New York: Marshall v. Guion, 11 N. Y., 461; Furman v. New York City, 10 N. Y., 567; and Brooklyn: Wetmore v. The Brooklyn Gas Light Co., 42 N. Y., 384; Wetmore v. Atlantic White Lead Co., 37 Barb., 70.

3 Heaney v. Heeney, 2 Denio, 625 ; Swords v. Edgar, 59 N. Y., 28. 4 Wetmore v. Brooklyn Gas Light Co., supra; Collett v. London & N. R., 16 Ad. & El., N. R., 984, 989; 22 Penn. St., 54; Thompson v. Mayor &c., 11 N. Y.,

Bouvier's Law Dictionary; and White v. Humphrey, 11 Adolph. & Ellis, 43,

implied contract with respect to them. What will amount to a delivery of the goods to him, so as to charge him with the custody of them, depends very much upon the custom and usages of the business A mere delivery at the wharf is not enough, unless accompanied with express notice, under such circumstances as will imply a consent on his part to receive them. If it be according to the custom and understanding of the parties, a delivery of the goods on the wharf with notice will be suf ficient to charge the bailee. If the goods be received into a warehouse situated on the wharf, to be forwarded, the bailee, it seems, does not hold them as a wharfinger; he is a warehouseman just the same as if his storehouse stood in some other part of the town.3 Some of the English cases speak of and treat him, under these circumstances, as a wharfinger. But names are not material, since the duties incident to his situation and character are the same by whatever name he is called. If he receive the goods on the wharf, to forward by a carrier as soon as he can find an opportunity, and in the mean time stores them in his warehouse; the measure of his responsibility remains all the while the same; he is bound to exercise the ordinary diligence and care of a prudent man in their preservation.5

4

§ 358. It has been sometimes said that the duties of a wharfinger are similar to those of a common carrier. The authorities do not sustain the proposition. Lord Ellenborough, it is truc, in one instance at Nisi Prius, where the goods had been accidentally destroyed by fire while in the hands of the wharfingers, does speak of their liability as similar to that of a carrier; but the case did not turn upon that point; it was a part of the duty of the defendants, as lightermen, to convey the goods from the wharf in their own lighters to the vessel in the river, on which they were to be shipped; but it appeared in evidence, and was allowed to control the case, that the defendants had limited their liability, so as not to cover a loss by fire, by giving notice to the vendor of the goods to that effect. The other cases cited in support of the doctrine, are

1 Gibson v. Inglis, 4 Camp., 72; Buckman v. Levi, 3 Camp., 414; Packard v. Getman, 6 Cowen, 757; Grosvenor v. The N. Y. C. R. R. Co., 39 N. Y., 34 ; Etna Ins. Co. v. Wheeler, 5 Lansing R., 480; the delivery must be made to some one authorized to receive the goods; Leigh v. Smith, 1 C. & P., 638; R. & M., 224.

2 Cobban v. Donne, 5 Esp., 41.

3 Platt v. Hibbard, 7 Cowen, 497.

4 White v. Humphrey, 11 Adolph. & Ellis, 43.

5 Matter of Webb and others, 8 Taunt. R., 443; Quiggin v. Duff, 1 Mees. & Wels., 174; Platt v. Hibbard, supra; Roberts v. Turner, 12 John R., 232; Brown v. Denison, 2 Wend., 593; Dillon v. N. Y. & Erie R. R. Co., 1 Hilton, 231. • Maving v. Todd, 1 Stark. R., 59; 4 Campb., 225.

6

simply dicta of the judges, made incidentally in the course of a trial on principles not involved in the decision of the court.1

§ 359. The liability of a wharfinger is not distinguishable in degree from that of a warehouseman; both are bound to take common and reasonable care of the goods delivered to them. What will be regarded as ordinary care and diligence, is generally a question of fact for the jury, to be determined from the circumstances of the case. The wharfinger, of course, will not be required to take the same care of lumber received and piled upon his wharf, as he takes of merchandise and such goods as may be easily purloined and stolen. The nature of the article, the time of the deposit, and the dangers to which it is exposed, are all proper circumstances to be considered in determining the diligence demanded of the bailee; for in this manner alone can it be ascertained that he has exercised, or failed to exercise, the ordinary care and diligence of a prudent man; a failure in which degree of care renders him liable.2

As the same rule applies to both of these classes of bailees, the decisions in respect to the liabilities of warehousemen are in point to illustrate the duties of wharfingers in taking care of the articles bailed. They are to use ordinary diligence in keeping and guarding the property, while in their possession, and in delivering or forwarding it; having used such diligence they are no longer liable, though the goods be destroyed by fire, stolen by thieves, or embezzled by the person having them in charge.3

§ 360. The wharfinger is not responsible for goods casually burnt upon his premises. But where he gets them insured against loss by fire, and they are burned, and the insurance money is paid to him, the owner may recover of him the moneys representing the value of his goods, after deducting the lien and expenses. The bailee derives his interest from the owner, and the insurance must be deemed to have been made for his

Ross v. Johnson, 5 Burr., 2827; Isaack v. Clerk, Moore, 841; 7 Cowen, 502, note by the reporter. This distinction between the argument of the judge and the judgment of the court, familiar to all lawyers, is always material. On the precise issue presented, the judicial decision is the authoritative witness of what the law is; but the argument with which it is sustained is only matter of illustration, that derives its weight from the individual character of the judge and the inherent force of his reasoning.

2 White v. Humphrey, 11 Adolph. & Ellis R., 43; 1 Mees. & Wels., 174; Foote v. Storrs, 2 Barb., 326; 10 Watts, 335; Blin v. Mayo, 10 Vt., 56; Hatchett v. Gibson, 13 Ala. R., 587; Hemphill v. Chenie, 6 Watts & Serg., 62, 75.

3 Brown v. Denison, 2 Wend., 593; Schmidt v. Blood, 9 Wend., 268; 12 John. 232; 8 Cowen, 223; 4 T. R., 581; 19 John. R., 44; ante § § 333, 344, 345, 354; Chenowith v. Dickinson, 8 B. Mon. R., 156.