ployer. In like manner a contract to carry the ordinary luggage of the passenger is implied from the usual course of the business; and the price paid for fare is considered as including a compensation for carrying the freight.2

§. 603. It is customary and proper, in an action against the carrier, founded on his contract, to allege by way of inducement that the defendant was a common carrier of goods and chattels, specifying his route;3 and that the plaintiff delivered to him as such common carrier, and at his request, certain goods, describing them with a certainty of description to a common intent, and specifying their value, to be securely carried and safely delivered to the consignee at the place of destination, to be named; that the defendant in consideration thereof, and of the reward to be paid to him in that behalf, undertook and faithfully promised the plaintiff to take care of the said goods and chattels, and safely and securely carry and convey, and deliver them for the plaintiff according to his undertaking, and the complaint then concludes by alleging a breach of the undertaking by the defendant, neglecting and not regarding his duty as such carrier. To this is commonly added a general count for not taking due and proper care of the goods; and such other counts, grounded on the contract, as may be applicable to the case.*

Proceeding upon a contract, it is necessary to sue all the joint contracting parties, and only such as are liable on the same contract; and the contract must be proved as laid in the complaint. As every legal and valid promise must be supported by a consideration, it is essential that the complaint should aver a consideration as well as an undertaking, and that the consideration should be correctly stated according to the terms of the agreement."

§ 664. A contract in the alternative, to transport fifteen or twenty tons of marble from one place to another, must be stated in the declaration according to the terms of it. If stated as an absolute contract for the transportation of twenty tons, and not fifteen or twenty tons, the variance is fatal, under the common law practice. So, where the dec

13 Wend. R., 161.

29. Wond. R., 85; 25 id., 459; 6 Hill R., 586.

31 Chitt. Pl., 115, 418; 2 id., 335, 7th ed.

Pozzi v. Shipton, 8 Adolph. and Ellis R., 963.

* Patten v. Magrath, 1 Rice (S. C.) R., 162; Walcott v. Canfield, 1 Conn. R., 194.

6 Corbett v. Packington, 6 Barn. and Cres, R., 263; Smith v. Seward, 3 Barr. R., 342.

* Stone v. Knowlton, 3 Wend. R., 374; Penny v. Porter, 2 East R., 2 $ 3 Wend. R., 374.

laration stated that in consideration of thirty-five dollars to be paid by the plaintiff, and the agreement of the plaintiff to pay the defendant three dollars per ton, and such canal tolls as should be charged to the defendant, the defendant agreed to transport twenty tons of marble from Fort Ann to Weedsport; and the agreement proved was to transport twenty tons for three dollars per ton and the tolls, and that the thirty dollars should be advanced towards the tolls; the variance was considered substantial and manifest.1 It is a sufficient averment of a consideration that the defendant, being a common carrier, for a certain hire or reward, received the goods for carriage. If the carrier limits his responsibility, that need not be noticed in the pleading; but if a stipulation be made that, under certain circumstances, as in the case of fire and robbery, he shall not be liable at all, that should be stated."

2

In brief, when the action against the carrier is based on the contract, either expressed or implied, between the parties, it is sufficient here to say, that the general principles which have been held to govern the action of assumpsit, become applicable; and the plaintiff has the right of uniting in the same suit as many causes of action against the defendant as he may have, belonging to the same class. If the action be brought against several, he must establish a joint liability against all the persons whom he has sued, and the contract must be proved as stated. Though he cannot in the same action state a cause of action not in the same class, he may recover on any evidence which shows a breach of the contract, whether arising through the neglect or wrongful act of the defendant; and the evidence is substantially the same as that required in an action on the case.

§ 665. Parties to the Action. The contract for carriage of goods implied by law is with the owner of them, and hence the action of assumpsit for the enforcement of the contract should be brought in his name, whether he be the consignor or consignee of the goods. Having the legal title, he has the right of action. The consignor cannot bring the action for a loss of the goods, where the title passes to the consignee, on the delivery of them to the carrier; as it does where a merchant sends

13 Wend. R., 375; 3 Term R., 531.

2 Clark v. Gray, 6 East R., 564.

̈3· Latham v. Rutley, 2 Barn. and Cres. R., 20.

4 Code of Procedure, § 167.

5 Wilsford v. Wood, 1 Esp. R., 182.

Sleat v. Fagg, 5 Barn. and Ald. R., 349.

"Jeremy on Car., 123; Price v. Powell, 3 N. Y., 322.

8

* 1 Chitty Pl., 1; Ely v. Ehle, 3 N. Y., 506; Duff v. Budd, 6 Moore, 469; Stephenson v. Hart, 4 Bing., 476.

a written order for goods, with directions to send them by canal or by rail, and they are sent accordingly. The sale being valid, a delivery to the carrier operates as a delivery to the purchaser; the property immediately vests in him, and he alone can bring an action for any injury done to the goods; they are at his risk; the vendor retains only the right to stop them in their transit, in case the purchaser becomes insolvent before they reach him.

2

On a verbal sale of specific goods or chattels a delivery of them to the carrier chosen or designated by the purchaser, satisfies the statute of frauds; because here the purchaser names the person or party to whom the delivery is to be made, and the delivery being so made, the sale is complete and the title passes.3

On the other hand, where the buyer gives a verbal order for goods without examining them, and directs them to be sent to him without naming the carrier, a delivery of them to a carrier, is not sufficient to satisfy the terms of the statute. The title does not pass on the delivery to the carrier. And for the same reason, where an order is given for a certain quantity of goods, of a given quality, and there has been no selection or separation of them from the bulk, a delivery by the seller to the carrier named by the purchaser, does not satisfy the statute; because the carrier is not appointed as the buyer's agent to accept the goods within the meaning of the statute. The purchaser must accept and receive, in order to render the sale valid and vest the title in him.

§ 666. When goods are shipped for the account and risk of the consignee, he paying the freight, and it is so expressed in the invoice and bill of lading, the delivery to the carrier is considered as a delivery to the consignee, and he alone can bring an action against the carrier for a failure to deliver the goods. No other fact appearing, the consignee is to be treated as the owner of the property. The goods being placed at his absolute disposal, the legal presumption is that he is the owner;

1 Krulder v. Ellison, 47 N. Y., 36 ; Magruder v. Gage, 33 Md., 344.

2 Dutton v. Solomonson, 3 Bos. and Pull., 584; Ilsley v. Stubbs, 9 Mass., 63. 3 Cross v. O'Donnell, 44 N. Y., 661; Glen v. Whitaker, 51 Barb., 451; People v. Haynes, 14 Wend., 546; 63 N. Y., 587.

4 Rodgers v. Phillips, 40 N. Y., 519; Maxwell v. Brown, 39 Maine, 98; Frostburgh M. Co. v. N. C. Glass Co., 9 Cush., 115.

Norman v. Phillips, 14 Mees. and Welsb., 278; Mendith v. Meigh, 2 Ellis

and B., 364; Allard v. Greasert, 61 N. Y., 1, 5.

6 Caulkins v. Hellman, 47 N. Y., 449; Stone v. Browning, 51 N. Y., 211; Brand v. Focht, 3 Keyes, 409.

'Potter v. Lansing, 1 John. R., 215; Sweet v. Barney, 23 N. Y., 335.

and though not the absolute owner, he may recover the goods against any party not claiming under the true owner.1

Between the parties to it, the contract embodied in a bill of lading cannot be varied by parol evidence as against other parties, it is of no force. It cannot therefore be used to defeat the true title to the property, as against any third party.2

When the consignor acts as an authorized agent in shipping goods, he is considered as having authority to agree upon the terms of transportation; and the stipulations agreed upon by him will bind his principal.

§ 667. On a sale of goods to be carried and delivered to the vendee at his place of business, the carrier's contract is with the vendor; the vendor assuming the expense of the transportation. And so in like cases, where the title does not pass on a delivery to the carrier; the bailor is entitled to enforce the contract with the carrier."

We need not consider the subject further in the connection. The consignor shipping his own goods, has the right to enforce his contract with the carrier; and he has the right to transfer that contract, with the goods covered by it, so as to vest in the transferee the title and give him the usual remedies for any injury to the property, or for a conversion of it."

When the plaintiff brings an action of assumpsit, he must take care to bring his suit against all who are jointly liable on the contract; and he must also take care not to make any persons parties defendant, who are not liable on the contract.8

§ 668. Burden of Proof. The burden of proof is imposed upon one party or the other, by the substance and form of the pleadings. Upon non-assumpsit pleaded to an action on contract, the plaintiff holds the affirmative of the issue, and the onus of making out a promise is upon

1 Fitzhugh v. Wiman, 9 N. Y., 559; Green v. Clark, 12 N. Y., 343.

2 Covell v. Hill, 6 N. Y., 374; Everett v. Saltus, 15 Wend., 474; 20 Wend., 267; Brewer v. Peabody, 11 How. Pr., 492; 13 N. Y., 121; M. & T. Bank v. F. & M. Nat. Bank, 60 N. Y., 40.

3 Nelson v. H. R. R. R. Co., 48 N. Y., 498.

4 White v. Ashton, 51 N. Y., 280.

"Dunlap v. Lambert, 6 Cl. and F., 600; N. Y. Fireman's Ins. Co. v. DeWolf, 2 Cowen, 56, 105; Ludlow v. Bowne, 1 John. R., 1; Davis v. James, 5 Burr., 2680.

6 Gilbert v. N. Y. Central & Hudson R. R. R. Co., 4 Hun, 378; Coyle v. Western R. Cor., 47 Barb., 152.

7 Western Transp. Co. v. Hawley, 1 Daly, 327; 47 N. Y., 631; 24 N. Y., 638; 36 N. Y., 319; 53 N. Y., 19; 4 Daly, 41; 50 N. Y., 76.

Mitchell v. Ostrom, 2 Hill, 520; Jeremy on Car., 124.

• Hollister v. Bender, 1 Hill, 150.

him; but he does not hold the affirmative upon all the issues that may arise in the action. The defendant, without controverting the promise, may set up in his plea or answer, payment, release, or an accord and and satisfaction; and when he does so, the burden of proof is upon him to establish his allegation by a preponderance of evidence. The same rule holds in relation to any new matter constituting a defence or counter claim, interposed by the defendant. The burden of proof rests with the party making an allegation, or asserting a fact.2

It is a general rule of pleading, that a fact asserted on one side, and not denied on the other, is to be taken as admitted; and so the issue to be tried by a jury consists of one or more facts affirmed on one side, and denied on the other.3 In actions against common carriers, it is necessary to prove, first, a contract express or implied; second, the delivery of the goods; and third, the defendant's breach of promise or duty. If the plaintiff counts on a special agreement, it must be proved as laid, and no other will be implied. And if the plaintiff bring an action of tort, as for a conversion of the goods, he can only recover on proving the cause of action alleged by him in his complaint.5

§ 669. The plaintiff usually relies upon an implied contract, proving that the defendant is a common carrier, as alleged in the declaration, and that the goods were delivered to him for carriage to the place named, and that they have not in fact arrived. Having shown a state of facts from which the law implies a contract on the part of the carrier to carry and deliver the goods safely at their place of destination, slight evidence is sufficient to cast the burden of proof upon him to answer for the non-delivery. Evidence that the defendant's coachman, on being inquired of for a parcel entrusted to him for carriage, replied that he understood it had been lost, is sufficient in the first instance." And the testimony of the consignee's shopman, that he did not know of the deliv ery, and believed that he must have known of it, if a delivery had taken

McKyring v. Bull, 16 N. Y., 297 ; 33 N. Y., 429 ; 5 Duer, 389 ; 21 Barb., 275 ; White v. Smith, 1 Lansing, 469.

2 Buswell v. Poineer, 37 N. Y., 312; Greene v. Waggoneer, 2 Hilton, 297;' Johnson v. Plowman, 49 Barb., 472; Wakeman v. Sherman, 9 N. Y., 85; Dun ham v.Pettee, 8 N. Y., 508.

3 Raymond v. Wheeler, 9 Cowen, 295, 302; N. Y. Code of Procedure, § 168;, 2 Starkie Ev., § 282, 3d ed ; 2 Greenleaf's Ev., § 209, 213.

4 Latham v. . Rutley, 2 Barn. and Cress., 20.

Tolano v. National Steam Nav. Co., 5 Robt., 318.

• Tucker v. Cracklin, 2 Starkie C., 385.

7 Mayhew v. Nelson, 6 Carr. and Payne R., 58; Morse v. Conn. River R., 6 Gray, 450.