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gality has this effect, (n) An alleged one, if it be not true



use its maehinery to remove the goods
from the ear; then the company that
transported the goods is not answerable
for the want of care or skill in the per-
sons employed in so removing the goods
from the car, nor for the want of strength
in the machinery used for the removal
of them, and cannot be charged with
any loss that may happen in the course
of such delivery to A. Lewis v. The
Western Kailroad Corp. 11 Met. 509.
And Dewei/, J., said: — "The duty of
the defendants was to transport the arti-
cle, and deliver it at their depot. But
this duty may be modilied as to the
manner of its performance. The omis-
sion of the defendants to remove goods
from the cars and place them in the
warehouse, or upon tlie platform, would
not, in all cases, subject them to an
action for non-delivery, or for negli-
gence in the delivery. Suppose a bale
of goods was transported by tiiem, and,
on its arrival at the depot, the owner
should step into the car, and ask for a
delivery there, and thereupon the goods
should be passed over to him, in the
car. The delivery would be i)crfcct;
and if any casualty should subseniiently
occur, in taking out the bale, the loss
would be his. The place and manner
of delivery may always be varied with
the assent of the owner of the ]>ro-
perty ; and if he interferes to control or
direct in the matter, he assumes the
responsibility." See Scotthorn v. South
Staifordshire Railway Co. 18 E. L. «fc
E. 55.3.

(1) Parsons v. Hardy, 14 "VVcnd. 215;



VOL. I.



59



Harris v. Eand, 4 New Hamp. 259, 555 ;
Welch V. Hicks, 6 Cow. 504 ; Lorent v.
Kentring, 1 N. & McC. 132; Hunt r.
Haskell, 24 Maine, 339. But the goods
must be voluntarily received. Rossiter
V. Chester, 1 Doug. [Mich.] 154. And
in Lowe v. Moss, 12 111. 477, it was held
that the receipt by the owner of a part
of a lot of goods in transitu, though it
would discharge the carriei-, from all
further liability as to such ])art would
not so discharge him as to the residue.

(vi) Willoughby r. Backhouse, 2 B.
& C. 821 ; Baylis v. Usher, 4 M. & P.
790 ; Bowman v. Teall, 23 Wend. 306.

(n) Gosling v. Iliggins, 1 Camp.
451. This was an action for the non-
delivery of ten pipes of wine, shipped
at the island of Madcria, on board a
vessel of Avhich the defendant was own-
er, to be carried to Jamaica, and from
thence to England. When the vessel
arrived off Jamaica, she was seized, with
her cargo, for a supposed viohition of
the revenue laws, and there condemned ;
but, upon an appeal to the Privy Coun-
cil in England, the sentence of condem-
nation was reversed. Upon tin se facts,
Lord EUenhorough held that the defend-
ant was liable, and must seek his reme-
dy against tiie' officers of goverrinicnt.
So in Spence v. Chadwick, 10 Q. B.
517, which was assumpsit by a shijiper
on a contract of aflicitihtnicnt. The
declaration stated that tlic i)laiiititr had
shipped on board the dcfcmlant's ship,
then in the bay of Gibraltar, and bound
for London, calling at Cadiz, certain
goods to be safely conveyed to Loudon,

[fi97]



676'



THE LAW OF CONTRACTS.



[book III.



ill fact, does not discharge the carrier ; but if, though not true
in fact, or although the cause of a seizure or other inter-
ference with the goods which prevents their delivery is not
substantiated, yet if there be a justifiable cause for such seiz-
ure, it would seem reasonable that the carrier should not be
held responsible for the consequences. It would .certainly
be unjust to hold him so, where it was the fault of the owner
or shipper that such apparent cause for seizure existed.

* Nor is the carrier liable where the goods are thrown over-
board from necessity, to save life or property ; (o) if to save
property, all the property that is saved must contribute to
make up the loss, under, what is termed in the mercantile
law, a general average, (p) Nor if the goods perish from



and there delivered in good order, the
act of God, the Queen's enemies, fire,
and all and every other dangers and
accidents of the seas, rivers, and navi-
gation, of whatever nature or kind so-
ever, save risk of boats, &e., excepted,
the plaintiff" paying freight. The de-
claration then averred a promise by the
defendant so to convey and deliver the
cargo, saving the above exceptions ; and
alleged as a breach that he failed to do
so. The defendant pleaded that the
ship in the course of her voyage called
at Cadiz, and was then within the juris-
diction of the officers of customs there,
and of a certain court of Spain, (de-
scribed in the plea) ; that while the ship
was there, the goods were, according to
the law of Spain, lawfully taken out of
the ship by the said officers, against the
will and without the default of the de-
fendant, on a charge of suspicion of
their being contraband according to the
law of Spain, and were confiscated by a
decree of the said court, upon the charge
aforesaid. Upon- demurrer, the court
held that the plea alleged no excuse
within the express exceptions in the
contract ; that the decree of confiscation
was in itself no answer ; and that it did
not appear by the plea to have been in-
curred through any fault of the plain-
tiff'.

(o) Mouse's case, 12 Co. Rep. G3 ;
Bird V. Astcock, 2 Bulst. 280 ; 2 Rol.
Abr. 567 ; Halwerson v. Cole, 1 Spears,
321. In Kenrig v. Eggleston, Aleyn,
93, it is said that Rolle, C. J., cited one
Barcroft's case, " where a box of jew-

r698]



els was delivered to a ferryman, who,
knowing not what was in it, and being
in a tempest, threw it overboard into
the sea; and resolved that he should
answer for it." But Sir William Jones,
in commenting upon this case, says : —
" I cannot help suspecting that there
was proof in this case of culpable negli-
gence, and probably the casket was both
small and light enough to have been
. kept longer on board than other goods ;
for in the case of Gravesend barge,
cited on the bench by Lord Coke, it ap-
pears that the pack which was thrown
overboard in a tempest, and for which
the bargeman was held not answerable,
was of great value and great weight;
although this last circumstance be omit-
ted by Rolle, who says only, that the
master of the vessel had no information
oj its contents." See Jones on Bailm.
108.

(p) But the owners of goods shipped
on deck, and thrown overboard in a
storm, are not entitled to general aver-
age ; nor is the owner of the vessel lia-
ble for them as carrier, in such case.
Smith V. Wright, 1 Caines, 43 ; Lenox
V. United Ins. Co. 3 Johns. Cas. 178,
But in Gillett v. Ellis, 11 111. 579, where
goods, stowed on the main deck of a
propeller-, were necessarily cast over-
board, in a tempest, by the order of the
master, to preserve the vessel and crew,
it was held that the owner of the goods
was entitled to the benefit of a general
average. And per Treat, C. J. : — " It
is insisted that the plaintiff cannot claim
contribution, because his goods were



CH. XII.]



BAILMENT.



*677



inherent defect, (q) nor if the owner or shipper has been neg-
* ligent or fraudulent in not disclosing the peculiar nature of
goods requiring peculiar care, by the want of which care they
have perished or suffered injury, (r) But the carrier is bound
to take all such reasonable care of goods as he knows or
should know to be necessary for them.

If the carrier, on the ground of his liability for damages to
the goods he undertook to transport, pays for such damages,
it is equivalent to a delivery of them in safety, and reesta-
blishes his claim for freight, (s)



SECTION X.

WHERE A THIRD PARTY CLAIMS THE GOODS.

One question in regard to the carrier's obligation to deliver
goods to the shipper or consignor, has been much agitated,



stowed on the deck of the vessel. The
general rule undoubtedly is, that the
owner of the goods which are placed on
the deck of a ship, and are swept over-
board by the action of the wind or
waves, or cast into the sea by command
of the master, in order to protect the
vessel and crew, is not entitled to the
benefit of a general average. The cargo
on deck, from its situation, increases
the difficulty of navigating the ship, and
is more exposed to peril than that
which is under cover ; and, if swept
away or cast overboard, the owner must
bear the loss, without contribution from
the owners of the vessel and the cargo
under hatches. But this case does not
fall within the operation of this rule.
Propellers are a class of vessels but re-
cently introduced in the navigation of
the lakes, to which, from the peculiarity
of their construction, and the general
usage respecting them, this general rule
is not applicable. They are double
deckers, with two holds. By the gene-
ral custom prevailing in reference to
them, goods stowed on the main deck,
or upper hold, are regarded as under
hatches, and as safe as those stowed in
the lower hold, or where the cargo in



ordinary vessels is only considered as
under cover. The master is allowed,
by this general custom, to stow the
cargo either in the hold or on the main
deck, at his convenience. No distinc-
tion is made in the price of transporta-
tion by the carrier, or in the rates of
insurance by the underwriter. The
cargo below and between decks is put
on the same footing. This universal
usage, resulting from the cliaracter of
the vessel, must govern the rights and
liabilities of the owners of the vessel
and cargo. The owner of goods, which
are stowed on the main deck of a pro-
peller, and necessaiily cast overboard
by the direction of the master, to pre-
serve the vessel and crew, is, therefore,
entitled to the benefit of a general aver-
age, as much as the owner of goods that
are stowed in the hold would be, under
like circumstances."

(7) Farrar r. Adams, Bui. N. P. G9 ;
Clark V. Barnwell, 12 IIow. 272.

(r) Edwards v. Sherratt, 1 East, 604;
Titehburne v. White, 1 Str. 145 ; Bat-
son V. Donovan, 4 B. & Aid. 21.

(s) Hammond v. McClurcs, 1 Bay,
101.

[699]



678



THE LAW OF CONTRACTS.



[book III.



and perhaps is not quite settled. It arises in the case of
another party claiming the goods as owner, and taking them
in that character from the carrier. Will such taking excuse
the carrier for non-delivery ? If the goods are demanded
from him by a third party on this ground, can he deliver the
goods and justify his conduct ? It is quite certain that the
carrier cannot himself raise the question of title in a third
person, and on that ground refuse delivery to the party ori-
ginally holding them, (t) And it is undoubtedly the general
rule, that the carrier cannot deny the title of the party from
whom he has received the goo(^ for transportation. In
* general, no agent can defend against the action of his prin-
cipal by setting up the jus tertii in his own favor, (w) On
the other hand, if the carrier delivers them to a third party,
and it can be shown in an action against him that this third
party was the actual and lawful owner, and that the plain-
tiff, who delivered the goods to the carrier, had no right to
them whatever, this certainly is a sufficient defence, {v) It



(t) Anon., cited in Laclouch v. Towle,
3Esp. 114. This was a case tried be-
fore Mr. Justice Gould, and was to the
following effect. A carrier had a par-
cel of goods delivered to him, to be car-
ried from Maidstone to London. While
the goods lay at his warehouse, a person
came there who said the goods were his,
and claimed them from the carrier ; the
carrier said he could not deliver them ;
but that if he was indemnified he would
keep them, and not deliver them accord-
ing to order. An indemnity was given ;
and the goods not being delivered ac-
cording to order, the party by whom
they were delivered to the carrier
brought an action against the carrier.
The learned judge would not permit
him to set up any question of property
out of the plaintiff; and held, that he
having received the goods from him,
was precluded from questioning his
title, or showing a property in any
other person. And Lord Kenyan, be-
fore whom the case was cited, admit-
ted it to be law. See also ante, p.
621, n. {z.)

(u) Nickolson v. Knowles, 5 Mad.
47 ; Mvler v. Fitzpatrick, 6 Mad. &
Geld. 360; Dixson v. Hamond, 2 B.
& Aid. 310 ; Roberts v. Ogilby, 9 Price,
269; Hardman v. Willcock,' 9 Bing.
[700]



382, n. a. ; Bates v. Stanton, 1 Duer,
79.

(v) This was settled, after much con-
sideration, in King v. Richards, 6 Whart.
418. The defendants in that case were
common-carriers of goods between New
York and Philadelphia, and had signed
a receipt for certain goods as received
of A., which they promised to deliver
to his order. In trover by the indorsees
of this paper, who had made advances
on the goods, it was held, that the de-
fendants might prove that A. had no
title to the goods ; that they had been
fraudulently obtained by him from the
true owner ; and that upon demand
made, they had delivered them up to
the latter. Kennedy, J., said : — ''It is
said that it would be a breach of tnist
or an act of treachery, on the part of
the bailee, to deliver the goods, even on
demand, to the true owner, notwith-
standing he has received them from a
wrongdoer, because he promised to re-
store the goods to such wrongdoer. If
the bailee in such case receive the goods
from the bailor innocently, under the
impression made by the bailor that he
is the owner thereof, or has the right to
dispose of them in the manner he is
doing, and therefore promises to return
the goods ^0 the bailor, it is very obvi-



CH. XII.]



BAILMENT.



*679



is held, in general, that if he does not yield to an adverse
claim by a third party, he is liable to an action, in case the
title of this party be good, (iv) The carrier may have his
* interpleader in equity to ascertain who has the right; but it
is not easy to see what adequate means of self-protection he
has at common law. And yet he should be permitted, in



ous that such' a promise ought not to be
regarded as binding, because obtained
through a false impression, made wil-
fully by the bailor; and truth, which
lies at the foundation of justice, as well
as all moral excellence, would seem to
require, in every such case, that the
goods should be delivered up to the
true owner, especially if he demand the
same, instead of the wrongful bailor.
But if the bailee knew at the time he
received the goods, and made the pro-
mise to redeliver them to the bailor,
with a view to favor the bailor, that the
latter had come wrongfully by them,
either by having taken them tortiously
or feloniously from the owner, then the
bailee thereby became a participant in
the fraud or the felony, and it would be
abhorrent to every principle of justice
that he should be protected under such
circumstances against the demand or
claim of the owner. This promise, how-
ever, of the bailee, is said to be binding
on him only, and is not such as his
personal representatives are bound to
regard ; and the reason assigned for this
is because the goods have come to their
possession by operation of law. This
doctrine, if it were to be allowed, would
certainly be singularlv anomalous, and
unlike, in its eti'ect, to any other pro-
mise i-ecognized by the law as bind-
ing." See also Bates v. Stanton, 1
Duer, 79.

(iv) Wilson V. Anderton, 1 B. & Ad.
450. In tiiis case the captain of a ship,
who had taken goods on freight, and
who claimed a lien upon them, but
whose claim was unfounded, delivered
them to the defendant as his bailee.
Tiie plaintiff, who was the owner of the
goods, demanded them of the defend-
ant, but he refused to deliver them with-
out the directions of the bailor. The
court held that the bailor not having
any lien upon the goods, the refusal of
the bailee was sufficient evidence of
a conversion. Lord Ihita-ilen, C. J-,

59*



said : — "A bailee can never be in a
better situation than the bailor. If the
bailor has no title, the bailee can have
none, for the bailor can give no better
title than he has. The right to the pro-
perty may, therefore be tried in an
action against the bailee, and a refusal
like that stated in this case has always
been considered evidence of a conver-
sion. The situation of a bailee is not
one without remedy. He is not bound
to ascertain who has the right. He
may file a bill of interpleader in a court
of equity. But a bailee who forbears
to adopt that mode of proceeding, and
makes himself a party by retaining the
goods for the bailor must stand or fall,
by his title." Litlledale, J. : — " The
question is, whether, under the circum-
stances stated in this case, the bailee
can set up any title against the real
owner ? What is the situation of a
bailee 1 He has no other title except
that which the bailor had. As to the
nisi prius case before Gould, J., [see
ante, n. (t),] it is not applicable to the
present point. There the carrier, on
the goods being demanded by a third
party, voluntarily identified himself with
that party, by proposing to retain them
on an indemnity, and ofl^ering to set up
the title of that party on an action by
the bailor. Now a lessee cannot dis-
pute the title of his lessor at the time
of the lease, but he may show that the
lessor's title has been put an end to;
and therefore in an action of covenant
by the lessor, a plea of eviction by title
paramount, or that which is equivalent
to it, is a good plea, and a threat to dis-
train or bring an ejectment, by a person
having good title would be equivalent
to an actual eviction. So here if the
bailor brought an action against the de-
fendant as bailee, the latter might, on
the same principle, show that tiie plain-
tiff recovered the value of the goods, or
that, on being threatened with an .action
by a person who had good title to the
goods, he had^delivered them to him."

' [701]



680 * THE LAW OF CONTRACTS. [BOOK III

some way, to demand security of the party whose title seems
to him the better and to whom he is therefore willing to
give the goods. And whenever security is refused, there
should be no recovery against him, unless the better title of
the person claiming the goods was obvious and certain, or
there were other circumstances indicating that the carrier
had not acted with entire good faith or proper discretion.
But, in the present state of the authorities, it seems that if
the carrier be called upon by such antagonistic claimants, he
must decide between them at his own peril.

If the goods are stopped in transitu, this would involve
. questions which could be answered only by the law of " stop-
page in transitu" which is elsewhere considered.



SECTION XI.
COMPENSATION.

This is sometimes fixed by law ; as for incorporated com-
panies, ferries, &c. Where it is not so fixed, the carrier may
* determine it himself. But having adopted and made known
a usual rate, he is so far bound by it, that on tender of this
rate he must receive the goods, and can recover no more if
they are not prepaid and he carries them ; and whether it be
fixed by law, or by his own established usage, it must be
applied equally and indifferently ; all persons being charged
the same price for carriage of the same quantity the same
distance, (x) Where, however, it is not fixed by law, the
carrier may change it at his discretion, and all parties are
bound who have, or might have but for their own fault, sea-
sonable knowledge of such change. If the hire to which he
is entitled be not paid, he is not bound to deliver the goods,
and if he now retains them in his warehouse or place of
business, he is liable, in case of loss or injury, only for negli-

(x) See ante, p. 650, n. {t.) It seems can maintain no action for their carriage

that although a carrier need not re- until the goods are delivered. Barnes

ceive goods until the price of carriage is v. Marshall, 4 E. L. & E. 45.
paid, yet if he does so receive them he

[702]



CH. XII.] BAILMENT. *681

gence. His liability is no longer that of a common-carrier,
but that of a depositary for hire or gratuitously, as the case
may be. iy) For he now holds the goods by virtue of the
right we shall now proceed to consider.



SECTION XII.

OF THE LIEN AND AGENCY OF THE CARRIER; AND HIS RESPON-
SIBILITY BEYOND HIS OWN ROUTE.

Whether a private earner has a lien on the goods for his
freight, is not, as we have already said, determined by the
authorities. Generally, perhaps, it has been considered that
one of the distinctions between the private carrier and the
common-carrier is, that the first has no such lien, while the
latter has, and has had for centuries, {z) No part of the
law of bailments is more firmly established than that the
common-carrier has this lien. He may not only refuse to
carry goods unless the freight is paid to him, but if he carry
them, and the freight is withheld, he may retain the goods,
and obtain his freight from them in any of the ways in which
* a party enforces a lien on personal property, (a) And while
he holds them on this ground, they are not at his risk as a
common-carrier, for he is responsible only as any other party
who holds property as security for debt.

It has been questioned whether a common-carrier, who

(y) Younf^ v. Smith, 3 Dana, 91. son liable for the charge. Bailey v.

See ante, p. 674, n. («.) Quint, 22 Verm. 464 ; Forth v. Simp-

{z) Skinner v. Upshaw, 2 Ld. Raym. son, 13 Q. B. 689 ; Bigelow v. Ileaton,

752 ; Hunt v. Haskell, 24 Maine, 339 ; 6 Hill, 43, 4 Denio, 496. But, s<smhle,

Hayward v. Middleton, 1 So. Car. per Beardsley, J., that the lien may be

Const. Rep. 186 ; EUisw. James, 5 Ohio, retained after delivery by the agrce-

88 ; Bowman v. Hilton, 11 Ohio, 303. ment of the parties. Id. And it is so

(a) See Hunt v. Haskell, 24 Maine, held in Sawyer v. Fisher, 32 Jlaine,

339 5 Fox V. McGregor, 11 Barb. 41. — 28. So if a carrier be induced to dc-

A relinquishment of possession by a liver goods to the consignee, by a false

carrier, or other person who has a lien and fraudulent promise of the latter

on property, is an abandonment of the that he will pay the freight as soon as

lien. By a transfer of the possession they are received, the delivery will not

the holder is deemed to yield up the se- amount to a waiver of the carrier's lien,

curity he has by means of the custody but he may disaffirm the delivery, and

of the property, and to trust only to tlic sue the consignee in replevin. Biyelow

responsibility of the owner, or other per- v. Heaton, supra.

[703]



682* THE LAW OP CONTRACTS. [BOOK III.

carries goods of a party, but without his order or knowledge,
can maintain a lien for the freight. Generally, the owner
would have the right to refuse such service, and to require
that the goods should be replaced, or he might have his
action for intermeddling with his property. But if the facts
were such as to leave to the owner only the option between
receiving his goods or rejecting them, must he either refuse
the goods, or by accepting give the carrier all the rights
which he would have had if he had himself placed them in
the hands of the carrier ? If a thief in Albany steals one hun-
dred barrels of flour from an owner who intends to send it to
Boston, and the thief, for his own purposes, sends it by rail-
road to Boston, and there the owner's agent discovers the
flour, and recognizes it by marks and numbers, can the owner
or the owner's agent get possession of the flour, only by
paying the freight, and so discharging the lien of the rail-
road ? If a service has been distinctly rendered to the owner,
and he accepts that service and holds the benefit of it, on
general principles he must pay for it. "Whether that rule
would apply here would depend upon the peculiar circum-
stances of the case. But if it would, it does not follow that
the carrier is entitled to his lien. He may have a rightful
claim for freight, which he may otherwise enforce, but still
have no lien for it on the goods transported. If the lien be
connected with his peculiar obligation to carry for all who
* offer, (b) and his peculiar responsibility as an insurer against
every thing but the act of God or the public enemy, these
three, the lien, the obligation, and the responsibility, existing
only together, and in dependence on each other, then it
would follow that he has no such lien, unless he was under
a legal obligation to carry the goods for the thief. Such an
obligation, in the present extension of our internal inter-
change of property, and with the existing facilities of loco-



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