delivery is voidable, and the carrier may maintain an action of replevin for the goods.1

The contract between the shipper and the carrier of goods, gives rise to some important rules of law and rules of evidence. In the first place, the contract being made in writing, cannot be varied by parol evidence.2 In the second place, the carrier derives his right to the custody and possession of the goods from the shipper, and cannot therefore on his own account dispute the title of his bailor, to whom he stands in a relation like that of a tenant to his landlord :-a rule which applies in all cases where the bailee seeks to avail himself of the title of a third person for the purpose of keeping the property himself, and to all cases where the bailee has not yielded to a paramount title in another; and does not apply where the property has been taken from the carrier or bailee by due process of law, or where the bailee has surrendered it to the true owner on demand. The contract of bailment is strong prima facie evidence of the bailor's title, and it is not conclusive. If goods be taken from a carrier by due process of law, it is his duty to give his bailor immediate notice of such taking. And if the bailee in a proper action is compelled to pay for the property to a party having the true title, he cannot be held answerable for it again to his bailor, who was duly notified of the suit."

6

It is a matter of discretion with the bailee, whether he will stand upon the title of his bailor or yield to the newly asserted and paramount title. He is not at fault until he does some act making himself a party to a litigation of the title; and he cannot refuse, on a reasonable demand, to surrender the goods to the true owner, without assuming the burden of defending the title."

1 Bigelow v. Heaton, 6 Hill, 43; S. C., 4 Denio, 498; Golding v. Shea, 103 Mass., 360.

2 Hinckley v. N. Y. C. & H. R. R. R. Co., 56 N. Y., 429; Long v. N. Y. C. R. R., 50 N. Y., 76; 11 Cush., 102; 51 N. Y., 230.

3 Goslin v. Birnie, 7 Bing., 339; Hall v. Griffin, 10 Bing., 246; Benton v. Wilkinson, 18 Vt., 186.

4 Bates v. Stanton, 1 Duer, 79; Hardman v. Wilcock, 9 Bing. R., 382; King v. Richards, 6 Whart., 418; Western Transp. Co. v. Barber, 56 N. Y., 544; Biddle v. Bend, 6 Best & Smith, 224. Ante § § 353, 362.

5

Berkley v. Watling, 7 Adol. & Ellis, 29; Barrett v. Rogers, 7 Mass., 297; Md. Ins. Co. v. Ruden, 6 Cranch, 338.

6 Blivin v. Hudson River R. R., 36 N. Y., 403; seo 45 N. Y., 34.

7 Cook v. Holt, 48 N. Y., 275.

Dudley v. Hawley, 40 Barb., 398: the bailee may ask for time to investi

gate the title; McEntee v. N. J. Steamboat Co., 45 N. Y., 34, 37.'

9 Rogers v. Weir, 34 N. Y., 463; Chaunce v. Syanton, 7 Mann & Gr., 903. A mere stakeholder may file a bill of interpleader; Shaw v. Coster, 8 Paige, ch.

VII. DELIVERY BY THE CARRIER.

§ 615. The carrier's contract is not fulfilled until he delivers the goods, or discharges himself, or is discharged from his liability by some equiva lent act. He engages to carry and deliver the goods safely; his undertaking to transport the goods, necessarily includes the duty of delivering them in safety.1

The manner of the delivery is regulated by many circumstances; by the mode of the conveyance; by the nature of the goods; by the custom or course of business; and by the contract.

§ 616. When goods are carried over connecting lines, under a through contract made with the carriers first receiving them, the contract covers the duty of making a safe delivery at the place of destination;-a duty to be discharged in the same manner and subject to the same rules, as where he delivers goods to a consignee at the end of his own line."

When the delivery is to be made by one of several connecting lines engaged in the transportation of through freight, the carrier company bringing the goods to their place of destination, is bound to deliver them. The obligation of the company is the same as if the first carrier had not contracted for the conveyance and delivery of the goods at the place of destination. The carrier may be charged on the ground of his or its common law liability.3 Under the English rule, there is an implied agreement by a railway company, receiving goods addressed to a particular place, to be reached by a connecting road, to carry and deliver at that place. The contract is entire, and the first is the contracting carrier, the only party liable for a failure to deliver the goods. The rule appears to be followed in Illinois; it is not generally followed in this country.

§ 617. The contract prescribes the carrier's duty in making a deliv ery, where he receives and engages to carry goods over his line and

339; equitable relief may be had, based on new facts; N. Y. & H. R. Co. v. Haws, 56 N. Y., 175; 3 Daly, 373.

1 De Mott v. Laraway, 14 Wend., 225; 46 N. Y., 578; 52 N. Y., 40; 50 N. Y., 121; 56 N. Y., 194; Miller v. Steam Nav. Co., 10 N. Y., 431; Gibson v. Culver, 17 Wend., 305.

2 Cutts v. Brainerd, 42 Vt., 566; 104 Mass., 122; Toledo, P. & W. R. R. Co. v. Merriman, 52 Ill., 123 ; Lamb v. Camden & Amboy R. R. & Tr. Co., 46 N. Y., 271; Burnell v. N. Y. Central R. R. Co., 45 N. Y., 184. Ante § 583.

3 Ante § § 577, 583; 24 N. Y., 269; 27 Vt., 110; 40 N. Y., 168; 104 Mass., 122. 4 Mytton v. Midland R. Co., 4 Hurl. & Norman, 615; Coxon v. Great Western R. Co., 5 H. & N., 274; Bristol & Exeter Railway v. Collins, 7 House of L• Cases, 194.

Ill. Central R. R. Co. v. Frankenberger, 54 Ill., 88; Anchor Line v. Dater, 68 Ill., 369; 24 Ill., 332; see also Angle v. Mississippi R. R. Co., 9 Iowa, 437.

then forward them by another carrier: he remains liable until he delivers them to the next carrier, as specified in the contract.1

The rule is the same where a carrier receives goods or parcels addressed to a point on a connecting line beyond its terminus; on arriving at the terminus, the goods must be safely delivered to the next carrier, pursuant to the shipper's instructions.2 The first carrier is liable for the goods until he delivers them into the custody of the second, and where the goods are to pass over several successive lines, the second carrier is liable for them until he delivers them to the third, and third until he delivers them to the fourth, and so onward until the goods reach the place of destination. It is the duty of each carrier forming the line, to transfer the goods to the next; and he remains liable for them as a carrier until he does so.3

Agreements to forward the goods in a particular way or by a specified line, whether made in express terms or implied from the marks or address upon the goods themselves, are to be fulfilled with all fidelity; the carrier must not depart from them. It is his duty, and it is his right, to deliver and forward the goods according to the contract.1

§ 618. A carrier by coach is bound to deliver to the consignee at his residence or place of business; prima facie he is bound to deliver the goods to the consignee personally.5 The rule had its origin in the early

'Reed v. U. S. Ex. Co., 48 N. Y., 462; Am. Ex. Co. v. Second National Bank, 69 Penn. St., 394; Schneider v. Evans, 25 Wis., 241; Conkey v. Milwaukee & St. Paul R. Co., 31 Wis., 619; Cin., Ham. & Dayton, & D. & Mich. R. R. Co. v. Pontius, 19 Ohio St., 221; ante § 582; Hinckley v. N. Y. C. & H. R., 56 N. Y., 429.

2 Root v. Great Western R. Co., 45 N. Y., 524; Etna Ins. Co. v. Wheeler, 49 N. Y., 616; Mills v. Mich. Central R. R. Co., 45 N. Y., 622; 33 N. Y., 610; 56 N. Y., 429.

3 This rule is held with great strictness; in Miller v. Steam Nav. Co., 10 N.Y., 431, where the goods were burned as they were transferred from a barge to a floating platform from which the next carrier was to take them; and in Gould V. Chapin, 20 N. Y., 259, where the goods were burned under like circumstances, and the second carrier had delayed unreasonably to receive them; and in Mills v. Michigan Central R. R. Co., 45 N. Y., 622, where the goods were tendered to the succeeding carrier and burned before they were delivered; and in Hooper v. Chicago & N. R. Co., 27 Wis., 81; and in Conkey v. Milwaukee & St. P. R. Co., 31 Wis., 619, where the goods were destroyed under like circumstances. Gass & North v. N. Y., Prov. & B. R. Co., 99 Mass., 220; ante § 582.

4 Babcock v. Lake Shore & M. S. R. Co., 49 N. Y., 491 ; Van Santvoord v. St. John, 6 Hill, 157; Simkins v. N. & N. L. St. Co., 11 Cush., 102; White v. Ashton, 51 N. Y., 280; Hinckley v. N. Y. Central & H. River R. Co., 56 N. Y., 429; all rail, Bostwick v. Baltimore & Ohio R. R. Co., 45 N. Y., 712; United States Ex. Co. v. Haines, 67 Ill., 137.

5 Gibson v. Culver, 17 Wend., 305, citing Golden v. Manning, 3 Wils., 425, 433; Owen, 57; Storr v. Crowley, 1 McClel. & Young, 129, 138.

custom of carriers by land, and it is still enforced, on grounds of public convenience. It applies with special propriety to express carriers, recently established for the purpose of extending to the public the advantages of a prompt conveyance and personal delivery. It requires an actual delivery of parcels according to their address, unless the duty is qualified by the contract, or by the consignee's consent. A parcel addressed to the cashier of a bank, may in his absence be delivered to a receiving teller standing behind the counter: being by its address legally deliverable to the bank, it is properly delivered to an assistant acting for the bank in business hours.^

A carrier is not obliged to deliver a package of money or specie addressed to a bank, within banking hours, unless there is a special contract to that effect or an established usage of business requiring it; and he is bound to tender a delivery of the package, at a reasonable time, and in a reasonable manner, having regard to the safety of the package and the convenience of both parties.5

The liability of an express carrier does not terminate on the arrival of a package at the place of destination, until he has used all reasonable diligence to find the consignee and deliver the package to him. Having fulfilled his contract, his liability diminishes to that of a bailee for hire; and he will afterwards hold the package subject to the owner's order, subject to the order of the consignee where the shipper retains no interest in it; and subject to the order of the consignor where he retains the title or right to control the disposition of the property.

7

§ 619. A transaction requiring the concurrence of two parties in a matter of business, such as a delivery of goods by a carrier to a consignee, naturally takes its form with due consideration for the convenience of both parties. A mode of action is gradually adopted, as suggested and qualified by experience, with a view to promote the convenience and safety of the business; by degrees this mode of action

1 Great Western R. v. Crouch, 3 H. & N., 183; 2 Kent's Com., C04.

2 Witbeck v. Holland, 45 N. Y., 13.

3 Haslam v. Adams Ex. Co., 6 Dosw., 235; Sweet v. Barney, 24 Barb., 533 ; §. C., 23 N. Y., 335; Am. U. Ex. Co. v. Robinson, 72 Penn. St., 274; Finn v. West. R. R., 102 Mass., 283; Adams Ex. Co. v. Stettaners, 61 Ill., 184.

4 Hotchkiss v. Artisans' Bank, 42 Barb., 517; S. C., 2 Keyes, 564. Merwin v. Butler, 17 Conn., 138; Young v. Smith, 3 Dana, 91; Marshall v. American Ex. Co., 7 Wis., 1.

6 Witbeck v. Holland, 45 N. Y., 13; Adams Ex. Co. v. Darnell, 31 Ind., 2.

7 Thompson v. Fargo, 58 Barb., 575; 44 How. Pr.; and S. C., 49 N. Y., 158; and 63 N. Y., 479.

Lewis v. Galena &c. R. R. Co., 40 Ill., 281; Hamilton v. Nickerson, 11 Allen, 308; 8 Exch., 341.

settles into a general custom, and becoming well known, all parties make their contracts with reference to it. This appears to be the genesis of the rules of law prescribing the carrier's duty in delivering goods.1

Carriers by water, in the absence of any special custom, deliver on the wharf, at a suitable time, and on a reasonable notice to the consignee. The delivery must be made in a reasonable manner, so that the consignee may receive the goods; and if for any reason the consignee does not receive them, it is the carrier's duty to protect them from loss or injury; the law does not permit him to leave them neglected on the wharf. He must deliver them to the consignee, or place them within his legal custody; and he does this where the consignee, being present, accepts the consignment or evinces a readiness to receive the goods, and the same are landed on the wharf so as to give the consignee a reasonable time and opportunity to take charge of and remove them.*

§ 620. The carrier's duty to call upon the consignee, or notify him of his readiness to deliver the goods, may be qualified by circumstances, by the course of business between the parties, or by contract. The carrier is not required to do impossible things; and so he need not give the usual notice, where on due inquiry he cannot find the consignee or his place of business; 5 he may store the goods or retain them as a warehouseman. The carrier is not bound to depart from the established course of business; and so where a steamboat regularly carries and delivers goods on its wharf, from which the consignee habitually takes them without notice, the delivery is sufficient to relieve the carrier of his extraordinary liability, after the lapse of a reasonable time to remove the goods. The course of business enters into the contract; and so

1 Golden v. Manning, 2 W. Bl., 916; 3 Wils, 429; Stoer v. Crowley, M'Clelland & Y., 129; Ostrander v. Brown, 15 John., R., 39; Packard v. Getman, 6 Cowen, 757.

2 Price v. Powell, 3 N. Y., 322; Fisk v. Newton, 1 Denio, 45; 17 Wend., 305; McAndrew v. Whitlock, 52 N. Y., 40. The same rule applies to a railroad carrier; Stowe v. New York, Boston & Prov. R., 113 Mass., 521.

3 Redmand v. Liverpool, N. Y. & Phila. S. Co., 46 N. Y., 578; Richardson v. Goddard, 23 How. U. S. Rep., 28; Gatliff v. Bourne, 4 Bing. N. C., 314; 3 M. & G., 643; 11 Clark & Fin., 45; 48 Barb., 455 ; 21 Wis., 356.

4 Goodwin v. Baltimore & Ohio R. R. Co., 50 N. Y., 154; Scholes v. Ackerland, 15 Ill., 474; per GROVER, J., in Witbeck v. Holland, 45 N. Y., 13, 17.

Pelton v. Rensselaer & S. R. R. Co., 54 N. Y., 214; Northrop v. Syracuse & B. N. Y. R. R. Co., 2 Trans. App., 183; Herman v. Goodrich, 21 Wis., 356. 6 Ely v. New Haven S. Co., 53 Barb., 207; Farmers' &c. Bank v. Champlain Trans. Co., 23 Vt., 186; Richardson v. Rich, 104 Mass., 156; The J. Russell Manuf. Co. v. N. H. Steamboat Co., 50 N. Y., 121; 8. C., 52 N. Y., 657; ante § 525.