true, even though it subsequently appeared that the carrier had given no such authority to such person, but that another employé had charge of this department of the carrier's business at the place in question.

Delivery may be made to a carrier wherever he or his authorized agent will accept the goods.21 But if the delivery is not made at the place appointed by the carrier, or at his regular office or place of business, it must be accepted by the carrier himself, or his duly authorized agent, or the carrier will not be bound.22 The presumption that one in charge of the usual place of receiving goods has authority to accept them does not apply where the delivery is made elsewhere,23

SAME EVIDENCE OF DELIVERY AND ACCEPTANCE

138. The delivery of the goods to, and their acceptance by, the carrier can be proved by any evidence that is relevant and proper. Such evidence, however, is usually incorporated in the Bill of Lading.

Bills of Lading

The general nature of the bill of lading has already been discussed.24 As the issuance of these instruments by the carrier is almost universal, they form the readiest and most available means of proving the delivery and acceptance necessary to charge the carrier.

It has already been noted, too, that the bill of lading is not only a receipt, but also a contract,25 and its importance as an instrument standing for, and as a means of dealing with, the goods has also been mentioned. These dealings are not confined to the consignee,

defiance of the known course of business of the company" (Redm. Ry. Carr. p. 42). See, also, in general, Stoner v. Chicago G. W. Ry. Co., 109 Iowa, 551, 80 N. W. 569; Lowenstein v. Lombard, Ayres & Co., 164 N. Y. 324, 58 N. E. 44; Rudell v. Ogdensburg Transit Co., 117 Mich. 568, 76 N. W. 380, 44 L. R. A. 415; Pecos & N. T. R. Co. v. Cox (Tex. Civ. App.) 150 S. W. 265. 21 Phillips v. Earle, 8 Pick. (Mass.) 182.

22 Cronkite v. Wells, 32 N. Y. 247; Southern Exp. Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783. Cf. Witbeck v. Schuyler, 44 Barb. (N. Y.) 469; Missouri Coal & Oil Co. v. Hannibal & St. J. R. Co., 35 Mo. 84.

23 Blanchard v. Isaacs, 3 Barb. (N. Y.) 388. See cases cited in preceding note.

24 Ante, pp. 196, 211-214.

25 See, also, Mears v. New York, N. H. & H. R. Co., 75 Conn. 171, 52 Atl. 610, 56 L. R. A. 884, 96 Am. St. Rep. 192; Chicago & N W. Ry. Co. v Simon, 160 Ill. 648, 43 N. E. 596; Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998.

but the consignor, by taking the bill of lading to his own order, reserves the disposal of the goods, and may even prevent the passing of title to the consignee, for whom the goods are ultimately destined. Thus since, under such a bill of lading, the carrier can deliver the goods to no one save the holder of the bill of lading properly indorsed, the consignor frequently uses it to secure the payment of the purchase price of the goods.27

This is usually done by the so-called "bill of lading with draft attached." 28 After the issuance of the bill of lading to shipper's order, this is sent to a bank at the destination of the goods, with a draft on the buyer for the purchase price of the goods shipped. Upon the payment of this draft (or its acceptance, as the case may be) by the buyer, he obtains the bill of lading. If the carrier, in such case, delivers the goods to the consignee, who has not the bill of lading, the carrier would be responsible to the holder of the bill of lading, properly indorsed.29

TERMINATION OF THE COMMON CARRIER'S
LIABILITY-IN GENERAL

139. The common carrier's liability is terminated when the transportation is completed and the carrier has delivered the goods either to the consignee or to a connecting carrier according to the terms of the contract. There are also certain excuses for nondelivery by the carrier which operate in addition to relieve him of all responsibility. Under

26 North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 8 Sup. Ct. 266, 31 L. Ed. 287; Thompson v. Alabama Midland R. Co., 122 Ala. 378, 24 South. 931; Midland Nat. Bank v. Missouri Pac. Ry. Co., 132 Mo. 492, 33 S. W. 521, 53 Am. St. Rep. 505; Union Stockyards Co. v. Westcott, 47 Neb. 300, 66 N. W. 419; Libby v. Ingalls, 124 Mass. 503.

27 Boatmen's Sav. Bank v. Western & A. R. Co., 81 Ga. 221, 7 S. E. 125; Joslyn v. Grand Trunk R. Co., 51 Vt. 92; The Thames, 14 Wall. 98, 20 L. Ed. 804; North Pennsylvania R. Co. v Commercial Nat. Bank, 123 U. S. 727, 8 Sup. Ct. 266, 31 L. Ed. 287; FORBES v. BOSTON & L. R. CO., 133 Mass. 154, Dobie Cas. Bailments and Carriers, 236.

28 See, on this subject, 1 Hutch. Carr §§ 183-191; FORBES v. BOSTON & L. R. CO., 133 Mass. 154, Dobie Cas. Bailments and Carriers, 236.

29 National Newark Banking Co. v. Delaware, L. & W. R. Co., 70 N. J. Law, 774, 58 Atl. 311, 66 L. R. A. 595, 103 Am. St. Rep. 825; Walters v. Western & A. R. Co., 66 Fed. 862, 14 C. C. A. 267; Tishomingo Sav. Inst. v. Johnson, Nesbitt & Co., 146 Ala. 691, 40 South. 503; Vaughn v. New York, N. H. & H. R. Co., 27 R. I. 235, 61 Atl. 695; Libby v. Ingalls, 124 Mass. 503; FORBES v. BOSTON & L. R. CO., 133 Mass. 154, Dobie Cas. Bailments and Carriers, 236.

Analysis

certain circumstances, the liability of the carrier is not terminated, but his extraordinary insuring liability gives way to that of the ordinary warehouseman.

The termination of the common carrier's liability can conveniently be considered under the following heads:

(1) Delivery to the consignee.

(2) Delivery to a connecting carrier.

(3) Excuses for nondelivery by the carrier.

These will be discussed in this order, in the remaining seven sections of this chapter. The termination by the third method (excuses for nondelivery) requires only very brief mention; but termination by the first and second methods will necessitate, owing both to the difficulties of these topics and their practical importance, more extended treatment.

SAME-DELIVERY TO CONSIGNEE

140. The duty of a proper delivery to the consignee resting on the common carrier, which terminates his liability, is usually held to involve four requisites, viz.: A delivery

(a) To the proper person;

(b) At a proper time;

(c) At the proper place;

(d) In a proper manner.

When the carrier tenders a delivery of the goods involving the four requisites above set out, he is relieved of his rigorous responsibility, even though the tender be not accepted.30 Of course, a delivery failing in some of the above requisites may be accepted as a good delivery by the consignee, who thus waives his right to insist on a proper delivery.81 In such case the carrier is relieved. of all liability.32

80 See 2 Hutch. Carr. §§ 662, 664, 686: Gregg v. Illinois Cent. R. Co., 147 Ill. 550, 35 N. E. 343, 37 Am. St. Rep. 238; Gulf, C. & S. F. R. Co. v. A. B. Frank Co. (Tex. Civ. App.) 48 S. W. 210.

31 Cleveland & P. R. Co. v. Sargent, 19 Ohio St. 438; Jewell v. Grand Trunk Ry, 55 N. H. 84; The Mohawk, 8 Wall. 153, 19 L. Ed. 406; Normile v. Northern Pac. R. Co., 36 Wash. 21, 77 Pac. 1087, 67 L. R. A. 271.

82 Sweet v. Barney, 23 N. Y. 335; Bartlett v The Philadelphia, 32 Mo. 256; Anchor Mill Co. v. Burlington, C. R. & N. Ry. Co., 102 Iowa, 262, 71 N. W. 255.

If, however, the consignee refuses, as he has a right to refuse, the imperfect delivery, then the carrier is not relieved from his strict liability as to the goods. The four requisites of a good delivery to the consignee will next be discussed in the order above set out.

38

SAME-SAME-DELIVERY TO THE PROPER PERSON

141. The common carrier of goods is an insurer as to delivery of the goods to the person to whom they are consigned. For any mistake in this respect the carrier is absolutely liable, regardless of the question of the care or diligence he has used.

Delivery to Wrong Person

84

A carrier, by accepting goods for transportation, agrees to deliver them according to the terms in the contract of shipment, and for a delivery to any person other than the consignee the carrier is liable. The reasons for this rule have already been discussed.35 If the carrier has, through fraud, mistake, or any other cause, delivered the goods to the wrong person, the fact that there has been no negligence on his part is not an excuse. The carrier is ab

83 Hill ▾ Humphreys, 5 Watts & S. (Pa.) 123, 39 Am. Dec. 117; Houston & T. C. R. Co. v. Trammell, 28 Tex. Civ App. 312, 68 S. W. 716.

34 PACIFIC EXP. CO. v. SHEARER, 160 Ill. 215, 43 N. E. 816, 37 L. R. A. 177, and note, 52 Am. St. Rep. 324, Dobie Cas. Bailments and Carriers, 239; Merchants' & Miners' Transp. Co. v. Moore & Co., 124 Ga. 482, 52 S. E. 802; McEntee v. New Jersey Steamboat Co., 45 N. Y. 34, 6 Am. Rep. 28; Price v. Oswego & S. Ry Co., 50 N. Y. 213, 10 Am. Rep. 475; Powell v. Myers, 26 Wend. (N. Y.) 591; Hawkins v. Hoffman, 6 Hill (N. Y.) 586, 41 Am. Dec. 767; American Merchants' Union Exp. Co. v. Milk, 73 Ill. 224; Samuel v. Cheney, 135 Mass. 278, 46 Am. Rep. 467; Claflin v. Boston & L. R. Co., 7 Allen (Mass.) 341; Hall v. Boston & W. R. Corp., 14 Allen (Mass.) 443, 92 Am. Dec. 783; Wernwag v. Philadelphia, W. & B. R. Co., 117 Pa. 46, 11 Atl. 868; American Exp. Co. v. Stack, 29 Ind. 27; American Exp. Co. v. Fletcher, 25 Ind. 492; Winslow v. Vermont & M. R. Co., 42 Vt. 700, 1 Am. Rep. 365; Southern Exp. Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107; Gosling v. Higgins, 1 Camp. 451; Lubbock v. Inglis, 1 Starkie (Eng.) 104. Where a carrier, on refusal of the consignee to receive goods, delivers them to one who represents himself to be the agent of the consignor, without notice to the latter, and the agent converts the goods to his own use, the carrier is liable therefor. American Sugar-Refining Co. v. McGhee, 96 Ga. 27, 21 S. E. 383. See, also, Adrian Knitting Co. v. Wabash R. Co., 145 Mich. 323, 108 N. W. 706; Security Trust Co. v. Wells, Fargo & Co. Exp., 178 N. Y. 620, 70 N. E. 1109.

35 This principle is applicable to bailees in general and was discussed in that connection. See ante, § 19.

solutely liable as an insurer for delivery to the right person, and the question of diligence is immaterial.30

This idea is admirably expressed in the following language from Hutchinson on Carriers (section 668), adopted by the Supreme Court of Illinois in the leading case of PACIFIC EXPRESS CO. v. SHEARER: 37 "No circumstances of fraud, imposition, or mistake will excuse the common carrier for a delivery to the wrong person. The law exacts of him absolute certainty that the person

36 PACIFIC EXP. CO. v. SHEARER, 160 Ill. 215, 43 N. E. 816, 37 L. R. A. 177, and note, 52 Am. St. Rep. 324, Dobie Cas. Bailments and Carriers, 239; McEntee v. New Jersey Steamboat Co., 45 N. Y. 34, 6 Am. Rep. 28; Price v. Oswego & S. Ry. Co., 50 N. Y. 213, 10 Am. Rep. 475; Guillaume v. Hamburgh & A. Packet Co., 42 N. Y. 212, 1 Am. Rep. 512; Viner v. New York, A. G. & W. S. S. Co., 50 N. Y. 23; Claflin v. Boston & L. R. Co., 7 Allen (Mass.) 341; Shenk v. Philadelphia Steam Propeller Co., 60 Pa. 109, 100 Am. Dec. 541; Pennsylvania R. Co. v. Stern, 119 Pa. 24, 12 Atl. 756, 4 Am. St. Rep. 626; Wernwag v. Philadelphia, W. & B. R. Co., 117 Pa. 46, 11 Atl. 868; American Merchants' Union Exp. Co. v. Milk, 73 Ill. 224; Ela v. American Merchants' Union Exp. Co., 29 Wis. 611, 9 Am. Rep. 619; McCulloch v. McDonald, 91 Ind. 240; Merchants' Despatch & Transp. Co. v. Merriam, 111 Ind. 5, 11 N. E. 954; McEwen v. Jeffersonville, M. & I. R. Co., 33 Ind. 368, 5 Am. Rep. 216; Howard v. Old Dominion S. S. Co., 83 N. C. 158, 35 Am. Rep. 571; Adams v. Blankenstein, 2 Cal. 413, 56 Am. Dec. 350; Hayes v. Wells, Fargo & Co., 23 Cal. 185, 83 Am. Dec. 89; Southern Exp. Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140. A carrier who makes a mistake in delivery of goods is liable in damages for any diminution in value between the date of miscarriage and the time of their coming into the hands or under the control of the consignees. Vincent v. Rather, 31 Tex. 77, 98 Am. Dec. 516. Existence of local custom to deliver goods to person holding unindorsed bill of lading, unknown to the consignor when the goods were shipped, is no defense to an action for the value of goods so delivered. Weyand v. Atchison, T. & S. F. Ry. Co., 75 Iowa, 573, 39 N W. 899, 1 L. R. A. 650, 9 Am. St. Rep. 504. An agent sold goods on credit. His principal sent them marked C. O. D. The carrier, on a written order of the agent, delivered the goods without receiving the cash. Held, that it was a question for the jury whether the mark "C. O. D." was notice to the carrier of the agent's want of authority. Daylight Burner Co. v. Odlin, 51 N. H. 56, 12 Am. Rep. 45. Where consignor of goods is guilty of negligence in not properly marking their destination upon them, carriers are not liable for injuries arising from their being missent. Congar v. Chicago & N. W. Ry. Co., 24 Wis. 157, 1 Am. Rep. 164. See, also, Cavallaro v. Texas & P. Ry. Co., 110 Cal. 348, 42 Pac. 918, 52 Am. St. Rep. 94; Southern R. Co. v. Webb, 143 Ala. 304, 39 South. 262, 111 Am. St. Rep. 45, 5 Ann. Cas. 97; Dudley v. Chicago, M. & St. P. R. Co., 58 W. Va. 604, 52 S. E. 718, 3 L. R. A. (N. S.) 1135, 112 Am. St. Rep. 1027; Brown v. Cleveland, C., C. & St. L. Ry. Co., 155 Ill. App. 187; Seaboard Air Line Ry. Co. v. Phillips, 108 Md. 285, 70 Atl. 232; Equitable Powder Mfg. Co. v. St. Louis & S. F. R. Co., 99 Ark. 497, 138 S. W. 964. See cases cited in notes 34, 38-41.

37 PACIFIC EXP. CO. v. SHEARER, 160 Ill. 215, 43 N. E. 816, 37 I.. R. A. 177, and note, 52 Am. St. Rep. 324, Dobie Cas. Bailments and Carriers, 239.