addition, be accepted by the carrier; but the subject of delivery alone will be discussed in this section, while the next section will deal with such acceptance.

The strict responsibility of the common carrier, then, dates only from a delivery to him for the purpose of immediate transportation.* A delivery for any other purpose will not have this effect. The strict liability attaches after a delivery for immediate transportation, however, though the goods, after such delivery, may remain in the carrier's storehouse, though he may then have no car or vehicle ready to take the goods, or even though they are not loaded on such car or vehicle for several days."

The delivery, however, is not one for immediate transportation if anything remains to be done by the shipper before the goods can be sent on their way.' If by the usage and course of business, and especially if by express request, the shipment is delayed for further orders from the shipper as to the destination of the goods, or for the convenience of the shipper, then, during the time of such delay,

54; St. Louis, I. M. & S. R. Co. v. Citizens' Bank of Little Rock, 87 Ark. 26, 112 8. W. 154, 128 Am. St. Rep. 17. See, also, cases cited in notes 4-8.

3 See cases cited in § 137.

* See cases cited in note 2; Dixon v. Central of Georgia Ry. Co., 110 Ga. 173, 35 S. E. 369; Schmidt v. Chicago & N. W. Ry. Co., 90 Wis. 504, 63 N. W. 1057; Basnight v. Atlantic & N. C. R. Co., 111 N. C. 592, 16 S. E. 323; St. Louis, I. M. & S. R. Co. v. Knight, 122 U. S. 79, 7 Sup. Ct. 1132, 30 L. Ed. 1077; Pittsburg, C., C. & St. L. R. Co. v. American Tobacco Co., 126 Ky. 582, 104 S. W. 377, 31 Ky. Law Rep. 1013; Milne v. Chicago, R. I. & P. R. Co., 155 Mo. App. 465, 135 S. W. 85; Central of Georgia R. Co. v. Sigma Lumber Co., 170 Ala. 627, 54 South. 205, Ann. Cas. 1912D, 965; Murray v. International S. S. Co., 170 Mass. 166, 48 N. E. 1093, 64 Am. St. Rep. 290. 5 Rogers v. Wheeler, 52 N. Y. 262; Fitchburg & W. R. Co. v. Hanna, 6 Gray (Mass.) 539, 66 Am. Dec. 427; London & L. Fire Ins. Co. v. Rome, W. & O. R. Co., 144 N. Y. 200, 39 N. E. 79, 43 Am. St. Rep. 752; White v. Goodrich Transp. Co., 46 Wis. 493, 1 N. W. 75.

• Meloche v. Chicago, M. & St. P. R. Co., 116 Mich. 69, 74 N. W. 301; St. Louis, I. M. & S. Ry. Co. v. Murphy, 60 Ark. 333, 30 S. W. 419, 46 Am. St. Rep. 202; Gregory v. Wabash Ry. Co., 46 Mo. App. 574; Grand Tower Mfg. & Transp. Co. v. Ullman, 89 Ill. 244; Clarke v. Needles, 25 Pa. 338.

7 ST. LOUIS, A. & T. H. R. CO. v. MONTGOMERY, 39 Ill. 335, Dobie Cas. Bailments and Carriers, 234; Michigan Southern & N. I. R. Co. v. Shurtz, 7 Mich. 515; Moses v. Boston & M. R. R., 4 Fost. (24 N. H.) 71, 55 Am. Dec. 222; Rogers v. Wheeler, 52 N. Y. 262; O'Neill v. New York Cent. & H. R. R. Co., 60 N. Y. 138; Wade v. Wheeler, 3 Lans. (N. Y.) 201; Barron v. Eldredge, 100 Mass. 455, 1 Am. Rep. 126; Fitchburg & W. R. Co. v. Hanna, 6 Gray (Mass.) 539, 66 Am. Dec. 427; St. Louis, I. M. & S. Ry. Co. v. Knight, 122 U. S. 79, 7 Sup. Ct. 1132, 30 L. Ed. 1077; Louisville & N. R. Co. v. Unit ed States, 39 Ct. Cl. 405; Dixon v. Central of Georgia Ry. Co., 110 Ga. 173, 35 S. E. 369.

the carrier's liability is merely that of a warehouseman. The more stringent liability of a common carrier attaches only when the duty of immediate transportation arises.

SAME-ACCEPTANCE BY THE CARRIER

137. The acceptance of the goods by the carrier may be, and usually is, express; but it may also be implied, as where the goods are left in a certain place in accordance with the contract of the carrier thus to receive them.

Acceptance by Carrier

It has been seen that a bailment cannot arise in the absence of the bailee's consent. Liability as a common carrier, therefore, does not attach until the goods have been accepted for immediate transportation by the carrier.10 No act of the shipper alone

8 ST. LOUIS, A. & T. H. R. CO. v. MONTGOMERY, 39 Ill. 335, Dobie Cas. Bailments and Carriers, 234; Barron v. Eldredge, 100 Mass. 455, 1 Am. Rep. 126; Mt. Vernon Co. v. Alabama G. S. R. Co., 92 Ala. 296, 8 South. 687; O'Neill v. New York Cent. & H. R. R. Co., 60 N. Y. 138; Schmidt v. Chicago & N. W. Ry. Co., 90 Wis. 504, 63 N. W. 1057; St. Louis, I. M. & S. R. Co. v. Citizens' Bank of Little Rock, 87 Ark. 26, 112 S. W. 154, 128 Am. St. Rep. 17; American Lead Pencil Co. v. Nashville, C. & St. L. Ry., 124 Tenn. 57, 134 S. W. 613, 32 L. R. A. (N. S.) 323; St. Louis & S. F. R. Co. v. Cavender, 170 Ala. 601, 54 South. 54; Missouri Pac. Ry. Co. v. Riggs, 10 Kan. App. 578, 62 Pac. 712.

9 Ante, § 11.

10 Missouri Pac. R. Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. 990, 38 L. Ed. 944. "There must be either an actual or constructive acceptance by the carrier, or the contract of bailment will not arise. The essential element of such a contract is that the bailee is to be trusted with the goods, and if he is not made aware of the intention of the party to trust the goods to his keeping, or if the party, instead of trusting the goods to him, still retains the care of them, the bailment to the carrier evidently does not arise, or arises only in a modified form. Thus, where a wharfinger delivered goods, which were sent to a wharf, to go on board a vessel, to one of the crew, and did not deliver them to the captain of the vessel, or to some other person that he might reasonably presume to be in authority, it was held that he had not discharged his duty, and he, and not the shipper [the carrier], was liable for the loss which occurred owing to his negligence." Wood, Browne, Carr. § 90. And see Leigh v. Smith, 1 Car. & P. (Eng.) 638; TATE v. YAZOO & M. V. R. CO., 78 Miss. 842, 29 South. 392, 84 Am. St. Rep. 649, Dobie Cas. Bailments and Carriers, 232; St. Louis, I. M. & S. Ry. Co. v. Murphy, 60 Ark. 333, 30 S. W. 419, 46 Am. St. Rep. 202; Illinois Cent. R. Co. v. Smyser, 38 Ill. 354, 87 Am. Dec. 301; Southern Exp. Co. v. McVeigh, 20 Grat. (Va.) 264; Williams v. Southern R. Co., 155 N. C. 260, 71 S. E. 346. A carrier's liability begins when it receives freight, and does not depend upon issuance of a bill of lading. St. Louis, I. M. & S. R. Co. v. C. C. Burrow & Co., 89 Ark. 178, 116 S. W. 198.

can impose the strict liability on the common carrier. The acceptance of the goods by the carrier, though, may be either express or implied." When it is express, after a delivery of the goods, there is little difficulty, so the question of implied acceptance will next be discussed.

Implied Acceptance-Contract, Custom, and Usage

The carrier, for his own protection, may make reasonable regulations as to the place and manner of delivery. The parties may themselves agree upon the place and manner of delivery, and their agreement will govern. So, if they agree that goods for transportation may be deposited at any particular place without notice to the carrier, a deposit in that place will constitute a sufficient delivery.12 The acceptance by the carrier is then presumed, if, indeed, it cannot be said to have been made in advance.

So, also, an established custom and usage in regard to receiving goods for transportation will bind the parties. Where goods are left in the usual manner at the usual place, in accordance with. the established custom of the carrier to receive them there, acceptance is presumed.18 "It is well settled by a series of adjudications

11 TATE v. YAZOO & M. V. R. CO., 78 Miss. 842, 29 South. 392, 84 Am. St. Rep. 649, Dobie Cas. Bailments and Carriers, 232; Merriam v. Hartford & N. H. R. Co., 20 Conn. 354, 52 Am. Dec. 344; Converse v. Norwich & N. Y. Transp. Co., 33 Conn. 166; Ford v. Mitchell, 21 Ind. 54; GREEN v. MILWAUKEE & ST. P. R. CO., 38 Iowa, 100; Id., 41 Iowa, 410, Dobie Cas. Bailments and Carriers, 235; Wright v. Caldwell, 3 Mich. 51; Packard v. Getman, 6 Cow. (N. Y.) 757, 16 Am. Dec. 475; Freeman v. Newton, 3 E. D. Smith (N. Y.) 246; Illinois Cent. R. Co. v. Smyser, 38 Ill. 354, 87 Am. Dec. 301; O'Bannon v. Southern Exp. Co., 51 Ala. 481; Evansville & T. H. R. Co. v. Keith, 8 Ind. App. 57, 35 N. E. 296. See, also, Clara Turner Co. v. New York, N. H. & H. R. Co., 86 Conn. 71, 84 Atl. 298; Colorado & S. R. Co. v. Breniman, 22 Colo. App. 1, 125 Pac. 855.

12 Merriam v. Hartford & N. H. R. Co., 20 Conn. 354, 52 Am. Dec. 344; Montgomery & E. Ry. Co. v. Kolb, 73 Ala. 396, 49 Am. Rep. 54; Georgia S. & F. R. Co. v. Marchman, 121 Ga. 235, 48 S. E. 961. Where goods were loaded in a car upon a side track as to which the shipper and carrier had a contract providing that as to cars so loaded delivery to the carrier should be deemed to have taken place when the carrier should remove the cars from the side track and place them in its freight train for shipment, the carrier was not liable for loss of the goods in an accidental fire, started after they were loaded and while the car was standing on the side track, where the fire was not occasioned by the carrier's negligence, though its agent had issued bills of lading for the goods; delivery thereof to the carrier not having been consummated in view of the agreement. Bainbridge Grocery Co. v. Atlantic Coast Line R. Co., 8 Ga. App. 677, 70 S. E. 154.

18 Lake Shore & M. S. Ry. Co. v. Foster, 104 Ind. 293, 4 N. E. 22, 54 Am. Rep. 319; Wright v. Caldwell, 3 Mich. 51; Converse v. Norwich & N. Y. Transp. Co., 33 Conn. 166; Merriam v. Hartford & N. H. R Co., 20 Conn. 354, 52 Am. Dec. 344; GREEN v. MILWAUKEE & ST. P. R. CO., 38 Iowa

of high authority that if a uniform custom is established and recognized by the carrier, and is known to the public, that property intended for carriage may be deposited in a particular place, without express notice to him, that a deposit of property for that purpose, in accordance with the custom, is coustructive notice, and would render any other form of delivery unnecessary. The rule is founded in reason, as the usage, if habitual, is a declaration by the carrier to the public that a delivery of property in accordance with the usage will be deemed an acceptance of it by him for the purpose of transportation. To allow a carrier, when property is thus delivered, to set up by way of defense the general rule which requires express notice, would operate as a fraud upon the public, and lead to manifest injustice." 14

Thus, a deposit of cotton in the street adjacent to a railroad platform, in accordance with a well-established custom to deposit it there for carriage, is sufficient.15 So, where goods were delivered, in conformity with a clear usage, in the usual manner, for transportation by a common carrier, on his private dock, which was in his exclusive use for the purpose of receiving property to be transported by him, it was held that such delivery was a good delivery to the carrier, to render him liable as a common carrier for the loss of the goods, although neither he nor his agent was otherwise notified of such delivery.16 The custom or usage must be strictly followed, however, or the carrier will not be bound. Nor is the doctrine of implied acceptance one to be unduly extended. The courts, therefore, apply it with caution.17

Agents

The delivery of the goods to, and their acceptance by, the carrier may, of course, be by duly-authorized agents.18 In such cases, the ordinary rules of agency apply. An authority given by the shipper to an agent to deliver goods to a common carrier for trans

100; Id., 41 Iowa, 410, Dobie Cas. Bailments and Carriers, 235; Lackland v. Chicago & A. R. Co., 101 Mo. App. 420, 74 S. W. 505; Washburn Crosby Co. v. Boston & A. R. Co., 180 Mass. 252, 62 N. E. 590; Evansville & T. H. R. Co. v. Keith, 8 Ind. App. 57, 35 N. E. 296.

14 Whipple, J., in Wright v. Caldwell, 3 Mich. 51.

15 Montgomery & E. Ry. Co. v. Kolb, 73 Ala. 396, 49 Am. Rep. 54.

16 Merriam v. Hartford & N. H. R. Co., 20 Conn. 354, 52 Am. Dec. 344. See, also, Converse v. Norwich & N. Y. Transp. Co., 33 Conn. 166.

171 Hutch. Carr. § 118.

18 Rogers v. Long Island R. Co., 2 Lans. (N. Y.) 269; Harrell v. Wilming ton & W. R. Co., 106 N. C. 258, 11 S. E. 286; Nelson v. Hudson River R. Co., 48 N. Y. 498; Squire v. New York Cent. R. Co., 98 Mass. 239, 93 Am. Dec. 162; Springer v. Westcott, 166 N. Y. 117, 59 N. E. 693; Outland v. Seaboard Air Line R. Co., 134 N. C. 350, 46 S. E. 735.

portation includes all the necessary and usual means of carrying it into effect. It can only be executed by obtaining the consent of the carrier to receive them, and the agent is therefore authorized to make the usual contract containing the ordinary terms on which such goods are transported by the carrier.1o

When the goods are accepted by an agent of the carrier with actual authority, his acceptance is, of course, binding on the carrier. Even if the agent has not such actual authority, his acts will, under the doctrine of agency by estoppel, still be binding on the carrier, if the latter has clothed him with such apparent authority. Accordingly a shipper is justified in assuming that a person in charge of the carrier's usual place for receiving goods has authority to accept such goods and contract for the carrier.20 This would be

19 Nelson v. Hudson River R. Co., 48 N. Y. 498; Jennings v. Grand Trunk Ry. Co., 52 Hun, 227, 5 N. Y. Supp. 140; Squire v New York Cent. R. Co., 98 Mass. 239, 93 Am. Dec. 162; York Co. v. Illinois Cent. R. Co., 3 Wall. 113, 18 L. Ed. 170; London & N. W. R. Co. v. Bartlett, 7 Hurl. & N. (Eng.) 400; Shelton v. Merchants' Dispatch Transp. Co., 59 N. Y. 258.

20 Cronkite v. Wells, 32 N. Y. 247, 253; Rogers v. Long Island R. Co., 2 Lans. (N. Y.) 269; Ouimit v. Henshaw, 35 Vt. 605, 84 Am. Dec. 646; Witbeck v. Schuyler, 44 Barb. (N. Y.) 469. But not where the apparent scope of his employment shows it to be clearly beyond his authority. Ford v. Mitchell, 21 Ind. 54; Trowbridge v. Chapin, 23 Conn. 595. "It is the duty of a railway company to have servants capable of giving directions, and of dealing with everything that the exigency of the traffic may require (Taff Vale Rail Co. v. Giles, 23 Law J. Q. B. [Eng.] 43, 2 El. & Bl. 823); and their servants, acting in the ordinary scope of their employment, would have authority to receive goods, and enter into contracts as to the forwarding of them (Long v. Horne, 1 Car. & P. [Eng.] 610; Winkfield v. Packington, 2 Car. & P. [Eng.] 599). As a rule the officials at a railway station (Pickford v. Railroad Co., 12 Mees. & W. [Eng.] 766; Wilson v. Railroad Co., 17 Law T. [Eng.] 223); the company's draymen, where such are employed to collect, or usually collect, goods on the road, or at the houses of the consignors (Davey v. Mason, Car. & M. [Eng.] 45; Baxendale v. Hart, 21 Law J. Exch. 123, 6 Exch. [Eng.] 769); the servants of another carrier, engaged by the company, under a subcontract, to deliver and collect goods (Machin v. Railroad Co., 17 Law J. Exch. 271, 2 Exch. [Eng.] 415); a person accustomed to book for the company, although the servant of, and deriving his authority from, another and separate carrier, who undertakes the transit during a stage of the journey anterior to the goods actually coming into the company's possession (McCourt v. Railroad Co., 3 Ir. C. L. 107, 402),—would be considered persons to whom a good delivery might be made, and who would be competent to enter into a contract, ordinary or special, for the carriage of the goods. But a servant could not bind the company beyond the authority presumed from his employment (Great Western R. Co. v. Willis, 34 Law J. C. P. 195, 18 C. B. N. S. [Eng.] 748; Horn v. Railroad Co., 42 Law J. C. P. 59, L. R. 8 C. P. [Eng.] 131; per Blackburn, J.); nor even to the extent of the authority presumable from his employment, if the customer have notice of a more limited authority (Walker v. Railroad Co., 23 Law J. Q. B. [Eng.] 73, 2 El. & Bl. 750); nor when acting in DOB.BAILM.-27