made to the person actually ordering the goods sent, the carrier is not liable, unless it is negligent in not identifying the recipient as the addressee, and that when the order is sent through the carrier, or by telegram to the knowledge of the carrier, the mere sending of a telegram is not sufficient identification. This rule is well expressed by the Missouri court, cited above, in this language: "The carrier is responsible for a correct delivery, but he is not the guardian of his patrons, nor, when faultless himself, must he answer for their mistakes, or mend their misfortunes. If the name used was assumed by a swindler, the carrier would not be liable in the absence of proof of negligence. The only liability that can exist in this case is such as would arise from the negligence of the carrier in the delivery; or, being aware of the fraud, failed to thwart it by holding the goods; or if proper care on its part would have led to a discovery of the fraud." 184 Usually, the carrier is bound to deliver the goods intrusted to it to none other than the one to whom the bill of lading is made out or assigned, or their authorized agents, or, if no bill be made, then to the one to whom the goods are addressed. But when such person is not the true owner of the goods, and the latter appears and demands them, the carrier may surrender them to him without liability to shipper or consignee. 135 But a delivery to one other than the consignee, his assignee or agent, is made at the risk of the carrier, and if he prove to be not the owner, but some one without an owner's right, the carrier is liable.136

134 Wilson & Co. v. Adams Exp. Co., 27 Mo. App. 360, syllabus. 135 King v. Richards, 6 Whart. 418, 37 Am. Dec. 420; The Idaho, 93 U. S. 575; Bliven v. Hudson River R. Co., 36 N. Y. 403; Brunswick v. United States Exp. Co., 46 Iowa, 677; Wolfe v. Missouri Pac. R. Co., 97 Mo. 473, 10 Am. St. Rep. 331, 11 S. W. 49.

136 Adams v. Blankenstein, 2 Cal. 413, 56 Am. Dec. 350; Pacific

138

§ 617, Delivery-What Constitutes.-Another point of importance in connection with this subject is that of the acts which constitute delivery. What must the carrier do to fulfill the implied agreement to deliver? Originally, it was considered that a common carrier should make a personal delivery to the one entitled to receive the goods at his residence or place of business,137 and this is the rule as to express companies to-day.1 Outside of the express companies, railroads and steamship companies now form the largest classes of common carriers. Owing to the fact that the means of transportation which these classes employ are quite limited in the points which they can reach, it is held that they are only required to carry the goods to their usual depots or grounds, or wharfs as the case may be and there make provision for surrendering them when demanded by the proper persons. It seems, then, that to-day all

139

Exp. Co. v. Shearer, 160 Ill. 215, 52 Am. St. Rep. 324, 43 N. E. 816; Brunswick v. United States Exp. Co., 46 Iowa, 677; Norwalk Bank v. Adams Exp. Co., 19 How. Pr. 462; Bailey v. Hudson River R. Co., 49 N. Y. 70; Wolfe v. Missouri Pac. R. Co., 97 Mo. 473, 10 Am. St. Rep. 331, 11 S. W. 49.

137 Hyde v. Trent etc. Navigation Co., 5 Term Rep. 389; Stow v. Crowley, 1 McClel. & Y. 129; Gibson v. Culver, 17 Wend. 305, 31 Am. Dec. 297; Fisk v. Newton, 1 Denio, 45, 43 Am. Dec. 649.

138 Adams Exp. Co. v. Darnell, 31 Ind. 20, 99 Am. Dec. 582; Witbeck v. Holland, 45 N. Y. 13, 6 Am. Rep. 23; Sullivan v. Thompson, 99 Mass. 259; Southern Exp. Co. v. Armstead, 50 Ala. 350; American etc. Exp. Co. v. Robinson, 72 Pa. St. 274; American etc. Exp. Co. v. Wolf, 79 Ill. 430; Bullard v. American Exp. Co., 107 Mich. 695, 61 Am. St. Rep. 358, 65 N. W. 551.

139 As to railroad companies, see Michigan etc. R. Co. v. Ward, 2 Mich. 538; Southern etc. R. Co. v. Wood, 66 Ala. 167, 41 Am. Rep. 749; Illinois etc. R. Co. v. Friend, 64 Ill. 303; Merchants' Transp. Co. v. Hallock, 64 Ill. 284; Morris etc. R. Co. v. Ayers, 29 N. J. L. 393, 80 Am. Dec. 215. As to carriers by water, see Norway Plains Co. v. Boston etc. R. Co., 1 Gray, 263, 61 Am. Dec. 423; McAndrew v. Whitlock, 52 N. Y. 40, 11 Am. Rep. 657; Farmers' etc. Bank v. Champlain Transp. Co., 23 Vt. 186, 56 Am. Dec. 68;

carriers are not bound to make personal deliveries, but only those who hold themselves out as agreeing to do so. This holding out may arise from express offers, from custom and the possession of facilities to make such deliveries. Of course a railroad or other common carrier may bind themselves by contract to deliver to the consignee personally, and under such circumstances their duty is not performed by merely carrying the goods to their depots or warehouses.140 From the early rule that delivery must be personal has sprung the doctrine that while, owing to the changed modes of transportation, some carriers are relieved from continuing the carriage to the presence or abode of the consignee, still the liability as carrier continues until the consignee has actually received the goods or had a reasonable opportunity to do so. Under this doctrine, which is termed the New Hampshire rule, the carrier, in order to relieve itself from the liability of insurer, must give notice to the consignee of the arrival of the goods at its depot.141 An opposing line of decisions follow what

Kohn v. Packard, 3 La. 227, 23 Am. Dec. 453; Cope v. Cordova, 1 Rawle, 203: Chickering v. Fowler, 4 Pick. 371; Redmond v. Liverpool etc. S. S. Co., 56 Barb. 320.

140 Baltimore etc. R. Co. v. Green, 25 Md. 72; Cahn v. Michigan etc. R. Co., 71 Ill. 96.

141 Moses v. Boston etc. R. Co., 32 N. H. 523, 64 Am. Dec. 381; Smith v. Nashua etc. R. Co., 27 N. H. 86, 59 Am. Dec. 364; Graves v. Hartford Co., 38 Conn. 143, 9 Am. Rep. 369; McMillen v. Michigan etc. R. Co., 16 Mich. 79, 93 Am. Dec. 208; Cavallaro v. Texas etc. R. Co., 110 Cal. 348, 52 Am. St. Rep. 94, 42 Pac. 918; Mobile etc. R. Co. v. Prewitt, 46 Ala. 63, 7 Am. Rep. 586; Collins v. Alabama etc. R. Co., 104 Ala. 390, 16 South. 140; Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 350; Winslow v. Vermont etc. R. Co., 42 Vt. 700, 1 Am. Rep. 365; Tarbell v. Royal Exchange Shipping Co., 110 N. Y. 170, 6 Am. St. Rep. 350, 17 N. E. 721; Faulkner v. Hart, 82 N. Y. 413, 37 Am. Rep. 574; Zinn v. New Jersey Steamboat Co., 49 N. Y. 442, 10 Am. Rep. 402; Mills v. Michigan Cent. R. Co., 45 N. Y. 622, 6 Am. Rep. 152; Lake Erie etc. R. Co. v. Hatch, 52 Ohio St. 408, 39 N. E. 1042; Wood v. Milwaukee etc.

is known as the Massachusetts rule, and hold that, inasmuch as the carrier's contract, which renders him liable as an insurer, is that of transportation, so soon as the transportation is concluded and the goods have been placed in the position from which they are finally to be turned over to the consignee, this extreme liability ceases, and the duty of the carrier becomes that of a mere bailee for hire, and it is only liable for neglect.142 But even in those states, which hold the carrier liable after the arrival of the goods at their destination, and require notice to the consignee, it is decided that after the expiraR. Co., 27 Wis. 541, 9 Am. Rep. 465; Wood v. Crocker, 18 Wis. 345, 86 Am. Dec. 773; Backhaus v. Chicago etc. R. Co., 92 Wis. 393, 66 N. W. 400; Kirk v. Chicago etc. R. Co., 59 Minn. 161, 50 Am. St. Rep. 397, 60 N. W. 1084; Missouri Pac. R. Co. v. Nevill, 60 Ark. 375, 30 S. W. 425; Missouri Pac. R. Co. v. Haynes, 72 Tex. 175, 10 S. W. 398; Baltimore etc. R. Co. v. Green, 25 Md. 72; Kohn v. Packard, 3 La. 224, 23 Am. Dec. 453; Jefferson R. Co. v. Cleveland, 2 Bush, 468; Michigan Cent. R. Co. v. Ward, 2 Mich. 538; Missouri Pac. R. Co. v. Wichita etc. Co., 55 Kan. 525, 40 Pac. 899; Pinney v. St. Paul etc. R. Co., 19 Minn. 251.

142 Norway Plains Co. v. Boston etc. R. Co., 1 Gray, 272, 61 Am. Dec. 423; Thomas v. Boston etc. R. Co., 10 Met. 472, 43 Am. Dec. 444; Rice v. Hart, 118 Mass. 201, 19 Am. Rep. 433; Bassett v. Connecticut River R. Co., 145 Mass. 129, 1 Am. St. Rep. 443, 13 N. E. 370; East Tennessee etc. R. Co. v. Kelly, 91 Tenn. 699, 30 Am. St. Rep. 902, 20 S. W. 312; Chicago etc. R. Co. v. Sawyer, 69 Ill. 285, 18 Am. Rep. 613; Merchants' Dispatch etc. Co. v. Moore, 88 Ill. 138, 30 Am. Rep. 541; Porter v. Chicago etc. R. Co., 20 Ill. 407, 71 Am. Dec. 286; Gregg v. Illinois Cent. R. Co., 147 Ill. 550, 37 Am. St. Rep. 238, 35 N. E. 343; Shenk v. Philadelphia etc. Propeller Co., 60 Pa. St. 109, 100 Am. Dec. 541; Francis v. Dubuque etc. R. Co., 25 Iowa, 60, 95 Am. Dec. 769; Turrentine v. Wilmington etc. R. Co., 100 N. C. 375, 6 Am. St. Rep. 602, 6 S. E. 116; Gashweiler v. Wabash etc. R. Co., 83 Mo. 112, 53 Am. Rep. 558; Almand v. Georgia etc. R. Co., 95 Ga. 775, 22 S. E. 674; Bansemer v. Toledo etc. R. Co., 25 Ind. 434, 87 Am. Dec. 367; Mohr & Smith v. Chicago etc. R. Co., 40 Iowa, 579. See Independence Mills Co. v. Burlington etc. R. Co., 72 Iowa, 535, 2 Am. St. Rep. 258, 34 N. W. 320; Morris etc. R. Co. v. Ayers, 29 N. J. L. 393, 80 Am. Dec. 215; Union Steamboat Co. v. Knapp, 73 Ill. 503.

tion of an amount of time reasonably sufficient for the removal of the goods after notice has been given, the liability of the carrier as insurer ceases, and he becomes responsible for loss only when he has been guilty of ordinary negligence.143

§ 618. Wrongful Delivery Renders Carrier Liable in Tort. The carrier owes the duty to deliver to some one entitled to the goods, and for a failure to deliver the carrier is liable in tort unless the goods have been destroyed by an act of God or the public enemy, or unless a justifiable delay renders it necessary to sell them in the exercise of due diligence.

The officer of the law acting under regular process, the true owner of the goods, the shipper and the consignee, his agent or assignee, are the persons entitled to receive delivery, and although a delivery to one of them is a good defense to an action by any of the others for refusal to surrender the goods, the carrier will subject himself to an action if he refuses a delivery to any one of them who may demand goods which are ready for delivery, and have no claims attached to them by others. Thus, an owner may maintain conversion,144 and the consignee may sue in trover145 for the refusal to deliver. Likewise,

143 See cases, note 142. "This reasonable time is not a time varying with the distance, convenience, or necessities of the consignee, but is such time as would enable a person living in the vicinity of the place of delivery, in the usual course of business, and within the ordinary hours of business, to inspect the goods and take them away": Leavenworth etc. R. R. Co. v. Máris, 16 Kan. 333.

144 Shellenberg v. Fremont etc. R. Co., 45 Neb. 487, 50 Am. St. Rep. 561, 63 N. W. 859. See Wells v. American Exp. Co., 55 Wis. 23, 42 Am. Rep. 695, 11 N. W. 537, 12 N. W. 441.

145 Louisville etc. R. Co. v. Lawson, 88 Ky. 496, 11 S. W. 511; Adams Exp. Co. v. McDonald, 1 Bush, 32; Jeffersonville etc. R. Co. v. White, 6 Bush, 251; Railroad Co. v. O'Donnell, 49 Ohio St. 489, 34 Am. St. Rep. 579, 32 N. E. 476.