20. We might extend this article to an almost indefinite length, but we must now content ourselves with a brief allusion to some few questions of special interest connected with this mode of transportation, and an imperfect analysis of the more recent decisions bearing upon these questions.

(1). One who employs a carrier to carry an article of such a dangerous character as to require extraordinary care in its conveyance, must communicate the fact to the carrier, or he cannot hold him responsible for any injury to such article, which is, to any extent or in any manner, the result of his omission to make such communication, either to the carrier or his servants. Farrant v. Barnes, 11 C. B. N. S. 553; s. c. 8 Jur. N. S. 868.

(2). In the somewhat recent case of Ashmore v. The Pennsylvania, &c. Trans. Co., 4 Dutcher, 180, the Supreme Court of New Jersey decided that, although it was entirely competent for a carrier to stipulate for exemption from his extreme common-law responsibility, he could not by such contract discharge himself from responsibility for the consequences of his own fault or negligence, or that of his servants. And it seems always to have been held in Ohio, that common carriers cannot relieve themselves of their first and legal responsibility by their own acts, or by general notice brought home to the knowledge of the owner of the goods, and not objected to by him. Davidson v. Graham, 2 Ohio State, 131; Graham & Co. v. Davis & Co., 4 Id. 362. See also Scott, J., in Welsh v. The Pittsburgh, Fort Wayne, & Chicago Railroad Company, 10 Ohio St. 65, citing Jones v. Voorhes, 10 Ohio R. 145. And it was held, in a recent case in Massachusetts, Judson v. The Western Railroad Co., 6 Allen, 486, that a common carrier cannot by general notice exonerate himself from his legal responsibility, or fix a limit beyond which he shall not be held liable.

(3). As before intimated, the first carrier upon an extended route of transportation, to whom goods are delivered, addressed to some remote point upon the route, acts as a mere forwarding agent, as to those connected with the transportation beyond the terminus of his own route, and, as such, is only bound to the extent of ordinary care and common diligence. Northern Railroad Co. v. Fitchburg Railroad Co., 6 Allen, 254. And if an injury occurs, or any loss ensues, by reason of the first carrier, to whom the owner's instructions were communicated, not fully, or understandingly, carrying them through the route, as he should have done, as if the goods are in consequence sent to the wrong place, this will not exonerate the owner from responsibility for the charges of transportation by the subsequent carriers, or affect the validity of their lien for such charges as they have themselves earned or advanced to the other companies from the point of original departure. Briggs v. Boston & Lowell Railroad Co., 6 Allen, 246. But common carriers can acquire no lien upon goods transported for the national government, so as to justify their detention. Dufolt v. Gorman, 1 Min. R. 301.

(4). The general duty of carriers of goods is defined in a late English case, Hales v. London & Northwestern Railw. Co., 4 B. & S. 66, to be, to carry according to the usual route professed by them to the public, and to deliver within a reasonable time. And in another late English case, Peck v. North Staffordshire Railw. Co., 9 Jur. N. S. 914, it is held, that all the parts of the statute

regulating the traffic, must be taken together, and the conditions affecting the responsibility of carriers must be, in the opinion of the court, both just and reasonable, and be also embodied in a special contract in writing, signed by the owner or sender of the goods. S. P. Aldridge v. Great Western Railw. Co., 15 C. B. N. S. 582. And some of the American courts seem to insist that safe delivery to the consignee is primâ facie the duty of all carriers; and with the necessary exceptions, that it be upon their professed route, and consistent with their mode of doing their business, we see no ground to question the binding obligations of that rule. Bartlett v. Steamboat Philadelphia, 32 Missouri R. 256. (5). And in regard to express companies, who are generally supposed to undertake for personal delivery to the consignee of all packages within the range of their own particular route, it has been lately decided, that such company should deliver at the place of business of the consignee, as early as practicable after arrival, and within the usual business hours. Marshall v. The American Express Co., 7 Wis. R. 1.

(6). Express companies have, to a considerable extent, acted as collectors of bills of exchange and notes in some portions of the country. And it becomes a very serious question for them as well as the public how far such business is likely to involve them in responsibility, it being something quite beyond and aside of the ordinary carrying business. In a late case in Indiana, it was held, that where such company receives for collection, for compensation, a bill of exchange, drawn in one state and payable in another, and delivers the same to a notary for demand and protest on the day before it should regularly be made, and in consequence the notary makes such demand one day before the maturity of the bill, whereby the drawer and indorsers are released, the acceptor being insolvent, the company will be liable to the holder for the sum due upon the bill. American Express Co. v. Haire, 21 Ind. R. 4.

(7). It seems that it will not relieve a railway company from its responsibility as a common carrier, because the owner of the goods furnishes his own car, in which property is transported, and assumes the loading and unloading, and furnishes a brakesman to accompany the car. Mallory v. Tioga Railroad Co., 39 Barb. 488.

(8). As to the form of action against common carriers, it seems to have been settled, from an early day, that a delivery to a wrong person will amount to a conversion. Duff v. Budd, 3 B. & Bing. 177; Sanquer v. London and Southwestern Railroad Co., 32 Eng. L. & Eq. 338; Claflin v. Boston and Lowell Railroad Co., 7 Allen, 341. And the carrier may maintain an action in his own name for injury done to property intrusted to him, and may even recover the value of the property, which he will hold in trust for the owner. Merrick v. Brainard, 38 Barb. 574. But in an action for non-delivery of the goods, the owner cannot recover for an injury to the goods. Nudd v. Wells & Co., 11 Wis. R. 407.

(9). The courts have had considerable controversy in regard to questions affecting the amount of damages recoverable of common carriers. The English courts adhere strenuously to their former views, that all speculative damages are to be excluded. Redfield on Railways, § 175. Thus, where the plain

tiff had ordered goods, by express, for the purpose of manufacturing them into articles for sale, from which he expected to derive considerable profit, and the articles were not delivered until the season for the business had passed, the plaintiff was held to recover the difference in the market value of the articles between the time of expected and actual delivery, but nothing for the loss of profits. Wilson v. Lancashire and Yorkshire Railw. Co., 9 C. B. N. S. 632, s. c. 7 Jur. N. S. 862. The same rule is declared in Simmons v. Southeastern Railw. Co., 7 Jur. N. S. 849. And where the goods are not delivered at all, the rule of damages is the value at the time and place of delivery, and interest from that time. Spring v. Haskell, 4 Allen, 112. A common carrier may limit the extent of his responsibility by express contract, but it is said, in New York, not by mere notice. Nevins v. Bay State, &c. Co., 4 Bosw. 225.

(10). It has been decided that the carrier may require of the consignee a receipt, showing the delivery of the goods in good condition, and that the owner has a corresponding right to examine the goods before giving the receipt, to determine their condition. Skinner v. Chicago and Rock Island Railroad Co., 12 Iowa R. 191. This seems to be the only just rule in regard to the subject. But we apprehend the practice has been different, to some extent: express companies requiring the name of the consignee upon their delivery books, which amounts to a receipt for delivery, which presumptively means in good condition, but, at the same time, refusing time or opportunity for examination. We are sure this practice prevails to some extent, but we believe without any just foundation.

There are many other points we would be glad to examine, but we have no space. Our readers will find a valuable case, upon this subject, in another place in this number.

In the case of Hooper v. Wells, Fargo & Co., 5 Am. Law Reg., N. S. 16, the following points are decided:

The liabilities of common carriers and forwarders, independent of any express stipulation in the contract, are entirely different.

The common carrier who undertakes to carry goods for hire is an insurer of the property intrusted to him, and is legally responsible for acts against which he cannot provide, from whatever cause arising; the acts of God and the public enemy alone excepted.

Forwarders are not insurers, but they are responsible for all injuries to property, while in their charge, resulting from negligence or misfeasance of themselves, their agents or employees.

Restrictions upon the common-law liability of a common carrier, for his benefit, inserted in a receipt drawn up by himself and signed by him alone, for goods intrusted to him for transportation, are to be construed most strongly against the common carrier.

If a common carrier, who undertakes to transport goods, for hire, from one place to another, “ and deliver to address," inserts a clause in a receipt signed by him alone, and given to the person intrusting him with the goods, stating that the carrier is "not to be responsible except as forwarder," this restrictive clause does not exempt the carrier from liability for loss of the goods, occasioned by the care

lessness or negligence of the employees on a steamboat owned and controlled by other parties than the carrier, but ordinarily used by him, in his business of carrier, as a means of conveyance. The managers and employees of the steamboat are, in legal contemplation, for the purposes of the transportation of such goods, the managers and employees of the carrier.

A receipt signed by a common carrier for goods intrusted to him for transportation for hire, which restricts his liability, will not be construed as exempting him from liability for loss occasioned by negligence in the agencies he employs, unless the intention to thus exonerate him is expressed in the instrument in plain and unequivocal terms.

be

Under our Practice Act a complaint cannot be amended in this court so as to make it correspond with the verdict. The District Court, in a proper case, fore judgment, may direct the complaint to be so amended.

The foregoing case we regard as one of great interest. The amount involved, and the peculiar character of the case, would naturally have led to the most careful scrutiny, both of court and counsel; and we feel the utmost confidence in giving our full assent to each and all the propositions so carefully and so ably maintained by the learned judge.

1. The first question stated in the syllabus, which admits of any controversy, is that in regard to the restrictions contained in the carrier's receipt. The proposition that such restrictions are to be construed most strongly against the carrier, is only the common rule of construction in all analogous cases, that, in pleadings or contracts, the words, in a precise equipoise of intendment or import, shall be taken against the person using the words. We believe the decisions upon this point, stated in our leading article, ante, p. 20, would have justified the learned judge in stating the proposition somewhat more strongly against the carrier. We understand the courts, as requiring satisfactory evidence, that the owner, at the time he left the goods for transportation, either did understand the nature of the conditions upon which the carrier claimed to accept them, or else, that he would have so understood them, but for his own want of ordinary care. Ante, pp. 19, 20.

2. The proposition that such a restrictive clause, to the extent that the express company are only to be responsible as “forwarders,” could not be construed as exempting the carrier from responsibility for loss caused by the negligence of the employees on a steamboat, owned and controlled by other parties than the carrier, but ordinarily used by him, in his business of carrier, as a means of transportation; and that in such case the employees of the steamboat are, in legal contemplation, the servants of the carrier, seems not susceptible of much question. The clause of exemption from responsibility, that the carriers shall not be "responsible except as forwarders," in its precise terms does not seem to have any just application to that portion of the transportation which was performed under the express supervision of their own agent. It would seem to have been inserted with reference to such cases as required transportation beyond the defendant's line. They were certainly not "forwarders " their own route and while the goods were in charge of their own servants, as was the fact when the loss occurred in this case. We think, therefore, that the court

upon

might, with perfect propriety, have held that the words had no application to transportation upon their own line, and consequently did not touch the present case.

3. But if they were susceptible of the application given them by the court, in favor of the carrier, as intended to reduce his responsibility as an insurer to that of an ordinary agent, general or special, which seems to us a far too liberal construction of the carrier's own words, by which he now claims to secure his own exemption from the extreme common-law responsibility, when other terms were far more natural and more effective for any such purpose; but, admitting this construction is allowable, still we think it cannot relieve the defendants, since it leaves them still responsible for ordinary care, diligence, and skill, in the conduct of the business of transportation. And this must extend, not only to themselves and their particular servants, but to all the agencies employed by them, both animate and inanimate. And although the owners might have looked directly to these servants of the carrier, and brought their action against the steamboat company, as in the case of New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 344;

4. Still, they were not obliged to do so. This company were employed by the carriers, as their servants, and they are responsible for their faithfulness and good conduct, as such, and there is nothing in the contract to throw this upon the owner of the goods, or to shift his claim for indemnity upon them. It is at the election of the owners whether they will pass over their immediate employees and call upon the general carrier for indemnity. The English courts, as we have before shown, ante, pp. 22, 23, will not allow the owner of the goods to maintain an action against any carrier connected with the transportation, except those with whom his immediate contract is made. But the American rule gives the owner an election to call upon any one connected with the transportation for indemnity, to the extent of the loss or damage sustained through his particular default. Ante, pp. 23, 24. And we think this the more just and reasonable rule.

5. So that upon every ground, it would seem, the owners of the goods might claim to recover, for a loss sustained through the want of ordinary care in those independent carriers employed by the express company with whom they contracted, since, if the restriction was not properly applicable to such independent carriers, they would be responsible to the full extent, as insurers, and the express company having assumed to overlook the transportation, personally, and to accept the whole price of transportation themselves, must be responsible to the owners for all defaults of independent carriers employed by them, and will in turn have a remedy over against such carriers. This may imply that the ultimate carriers will, in some cases, be liable to actions from more than one party for the same default. But this is true in all cases where business is transacted through the agency of others. The action may always be brought in the name of the agent, in whose name the contract is made, or of the principal. And in the latter case the defendant will have the same right of set-off, and other defences, as if the suit were brought in the name of the agent with whom he contracted. Lapham v. Green, 9 Vt. R. 407. And if, on the other hand, the