to whom the delivery was made is the party rightfully entitled to the goods, and puts upon him the entire risks of mistakes in this. respect, no matter from what cause occasioned, however justifiable the delivery may seem to have been, or however satisfactory the circumstances or proof of the identity may have been to his mind; and no excuse has ever been allowed for a delivery to a person for whom the goods were not directed or consigned."

88

Thus, if an impostor induces the consignor to ship goods to a fictitious person or firm, the carrier is liable for a delivery to the impostor. So, too, the carrier is liable if an impostor procures a consignment of goods to be made to a real person, and then secures. the goods from the carrier by representing himself to be that person. A like result follows when the goods are delivered by the carrier on a forged order, or when there is a delivery by mistake of the carrier to the wrong person, regardless of how the mistake was made.41

39

40

The case in this connection about which there is probably the greatest conflict of authority is when a swindler assumes (exactly or substantially) the name and address of a real firm or person in good standing and writes to a dealer in another city, asking that goods be shipped to him. If this is done, and the goods are delivered to the swindler, is the carrier responsible? Was the consignee the person who ordered the goods (the swindler), or the firm or person in good standing? Samuel v. Cheney 2 is probably the leading case exempting the carrier from liability The opposite view, holding the carrier liable (which seems to be the better doc

38 Price v. Oswego & S. Ry. Co., 50 N. Y. 213, 10 Am. Rep. 475; Winslow v. Vermont & M. R. Co., 42 Vt. 700, 1 Am. Rep. 365; Stephenson v. Hart, 4 Bing. (Eng.) 476. But see McKean v. McIvor, L. R. 6 Exch. (Eng.) 36; Fulton Bag & Cotton Mills v. Hudson Nav. Co. (D. C.) 157 Fed. 987.

39 Houston & T. C. Ry. Co. v. Adams, 49 Tex. 748, 30 Am. Rep. 116; American Exp. Co. v. Fletcher, 25 Ind. 492; American Exp. Co. v. Stack, 29 Ind. 27; Duff v. Budd, 3 Brod. & B. (Eng.) 177. But see Heugh v. Railroad Co., L. R. 5 Exch. (Eng.) 50.

40 Southern Exp. Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107; American Merchants' Union Exp. Co. v. Milk, 73 Ill. 224; Leibbock v. Ingles, 1 Starkie (Eng.) 104. In New York Cent. & H. R. R. Co. v. Bank of Holly Springs, 195 Fed. 456, 115 C. C. A. 358, the bill of lading on which the carrier delivered the goods was forged and the carrier was held liable.

41 Guillaume v. Hamburgh & A. Packet Co., 42 N. Y. 212, 1 Am. Rep. 512; Devereux v. Barclay, 2 Barn. & Ald. (Eng.) 702. See, also, Cleveland, C., C. & St. L. Ry. Co. v. Wright, 25 Ind. App. 525, 58 N. E. 559. See, also, cases cited in notes 34, 36.

42 135 Mass. 278, 46 Am. Rep. 467. See discussion of this case in 2 Hutch. Carr. § 672.

trine), is admirably set forth in PACIFIC EXPRESS CO. v. SHEARER.43

Of course, the carrier would not be responsible for a delivery to the wrong person, if this is due to the wrong of the shipper.** Thus the carrier's misdelivery is excused when it was either caused, induced, or ratified by the shipper or owner.

45

SAME-SAME-DELIVERY AT A PROPER TIME

142. A delivery by the carrier, to be proper, must be at a reasonable time.

46

A reasonable time here involves both a reasonable day and a reasonable hour of the day. A reasonable day ordinarily would exclude a delivery on the Sabbath and also a delivery on a legal holiday, on which labor is forbidden. By a reasonable hour is meant an hour at which business is usually transacted, and this would exclude a delivery out of business hours, such as, for example, a delivery at a late hour of the night.

SAME-SAME-DELIVERY AT THE PROPER PLACE

143. At common law, the common carrier of goods was obliged to make a personal delivery to the consignee, unless excused from such delivery by custom or usage. By custom or usage carriers by water and railroads (but not express companies) are exempted from the necessity of a personal delivery.

48 160 III. 215, 43 N. E. 816, 37 L. R. A. 177, and note, 52 Am. St. Rep. 324, Dobie Cas. Bailments and Carriers, 239. See analysis of this case in 2 Hutch. Carr. § 673. See, also, in support of this view (citing both the Shearer Case and the Samuel Case), the recent case of Southern Exp. Co. v. C. L. Ruth & Son, 5 Ala. App. 644, 59 South. 538. See, also, Southern Exp. Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107.

44 Stimson v. Jackson, 58 N. H. 138; Congar v. Chicago & N. W. Ry. Co., 24 Wis. 157, 1 Am. Rep. 164; Erie Ry. Co. v. Wilcox, 84 Ill. 239, 25 Am. Rep. 451; Treleven v. Northern Pac. R. Co., 89 Wis. 598, 62 N. W. 536.

45 Schwarzschild & Sulzberger Co. v. Savannah, F. & W. Ry. Co., 76 Mo. App. 623; Dobbin v. Michigan Cent. Ry. Co., 56 Mich. 522, 23 N. W. 204; Carroll v. Southern Exp. Co., 37 S. C. 452, 16 S. E. 128; Converse v. Boston & M. R. R., 58 N. H. 521; Cleveland & P. R. Co. v. Sargent, 19 Ohio St. 438. 46 Gates v. Ryan (D. C.) 37 Fed. 154; Scheu v. Benedict, 116 N. Y. 510, 22 N. E. 1073, 15 Am. St. Rep. 426; Richardson v. Goddard, 23 How. 28, 16 L. Ed. 412.

47 Marshall v. American Exp. Co., 7 Wis. 1, 73 Am. Dec. 381; Merwin v. Butler, 17 Conn. 138. Delivery to the teller of a bank after banking hours

48

The common-law rule, imposing the duty of a personal delivery on the common carrier, placed no very great hardship when the carrying was for the most part done in wagons. It was easy and practicable for the carrier to go about with his wagon anywhere for the purpose of making deliveries." When, however, other modes of carriage arose, in which a personal delivery was either impracticable or impossible, such carriers were by custom or usage excused from this duty. In modern times, the question of whether the carrier is obliged to make a personal delivery presents little difficulty. In the case of the more important classes of carriers, the question is settled by so many adjudications that it is more a question of settled law than of custom. Of course, any common carrier may by contract, express or implied, agree to make a personal delivery.50 In such event, he is bound by his contract and must live up to it.

When personal delivery is necessary, it must be made to the consignee himself, or to some one having authority to receive the goods for the consignee.51 Such delivery should be at the consignee's office or residence. A delivery at the foot of the stairs, when the consignee's office was in the fourth story, has been held insufficient. If personal delivery to the consignee is tendered,

52

has been held a good delivery, where a custom was shown to receive express packages at such time. Marshall v. American Exp. Co., supra. If the carrier tenders them at consignee's store after business hours, when store is closed and hands have gone away, consignee may refuse to receive them and carrier will remain liable as carrier. Hill v. Humphreys, 5 Watts & S. (Pa.) 123, 39 Am. Dec. 117. See, also, Young v. Smith, 3 Dana (Ky.) 91, 28 Am. Dec. 57.

48 To the effect that personal delivery was the common-law rule, unless the carrier was exempted therefrom by usage, see Bartlett v. The Philadelphia, 32 Mo. 256; Schroeder v. Hudson R. R. Co., 5 Duer (N. Y.) 55; Hemphill v. Chenie, 6 Watts & S. (Pa.) 62; Loveland v. Burke, 120 Mass. 139, 21 Am. Rep. 507; Birket v. Willar. 2 Barn. & Ald. (Eng.) 356.

49 Fenner v. Buffalo & S. L. R. Co., 44 N. Y. 505, 4 Am. Rep. 709.

50 Hyde v. Trent & M. Navigation Co., 5 Term R. (Eng.) 389. A carrier and shipper could contract that property, destined to a station at which there was no regular agent or depot, when delivered on the siding, should be considered delivered to the consignee and afterwards held at his risk. Southern R. Co. v. Barclay, 1 Ala. App. 348, 56 South. 26.

51 Southern Exp. Co. v. Everett, 37 Ga. 688; Sullivan v. Thompson, 99 Mass. 259.

52 Gibson v. Culver, 17 Wend. (N. Y.) 305, 31 Am. Dec. 297; Fisk v. Newton, 1 Denio (N. Y.) 45, 43 Am. Dec. 649; Duff v. Budd, 3 Brod. & B. (Eng.) 177; Storr v. Crowley, 1 McClel. & Y. (Eng.) 129; Hyde v. Navigation Co., 5 Term R. (Eng.) 389; Bansemer v. Toledo & W. Ry. Co., 25 Ind. 434, 87 Am. Dec. 367. See, also, Banner Grain Co. v. Great Northern R. Co., 119 Minn. 68, 137 N. W. 161, 41 L. R. A. (N. S.) 678.

58 Haslam v. Adams Exp. Co., 6 Bosw. (N. Y.) 235.

and he refuses to accept such delivery, or fails to pay the carrier's proper charges, the carrier has performed his duty, and his exceptional liability is at an end.54 The carrier may then store the goods for the owner.55 So, when the consignee is dead, or cannot be found after a reasonable endeavor to do so, the carrier is no longer responsible for the goods as a carrier."

57

If the carrier knows that the goods are the property of the consignor, the latter should be notified of their nondelivery. Even when the carrier is not informed that the consignor is the owner, though there are cases to the contrary," the better rule would seem to be that the consignor should be presumed to be the owner when the consignee refuses to receive the goods, and the carrier should give notice to the consignor."

54 Manhattan Rubber Shoe Co. v. Chicago, B. & Q. R. Co., 9 App. Div. 172, 41 N. Y. Supp. 83. See, also, Gregg v. Illinois Cent. R. Co, 147 Ill. 550, 35 N. E. 343, 37 Am. St. Rep. 238; Storr v. Crowley, 1 McClel. & Y. (Eng.) 129; United States Exp. Co. v. Keefer, 59 Ind. 263. See, also, Illinois Cent. Ry. Co. v. Carter, 165 Ill. 570, 46 N. E. 374, 36 L. R. A. 527.

55 See 2 Hutch. Carr. § 685; Landsberg v. Dinsmore, 4 Daly (N. Y.) 490. The carrier may even go further and sell the goods under some circumstances. E. L. Hasler Co. v. Griffing Florida Orchard Co., 133 Ill. App. 635; Hull v. Missouri Pac. Ry. Co., 60 Mo. App. 593. A sale of goods by a carrier, on the refusal of the consignee to accept them, is unauthorized, where the sale is for much less than the market value and is made without notice of sale, and immediate sale is unnecessary to protect the carrier in its freight charges, and it is liable for the fair market value at the time of sale. Missouri, K. & T. Ry. Co. of Texas v. Groce (Tex. Civ. App.) 106 S. W. 720. In case of refusal of the consignee to accept perishable goods, it may be the carrier's duty to sell them for the owner's account, in order to make the loss as light as possible, and he has implied authority to do so. Arthur v. The Cassius, 2 Story, 81, Fed. Cas. No. 564; Rankin v. Memphis & C. Packet Co., 9 Heisk. (Tenn.) 564, 24 Am. Rep. 339.

56 Adams Exp. Co. v. Darnell, 31 Ind. 20, 99 Am. Dec. 582; Marshall v. American Exp. Co., 7 Wis. 1, 73 Am. Dec. 381; Clendaniel v. Tuckerman, 17 Barb. (N. Y.) 184; Roth v. Buffalo & S. L. R. Co., 34 N. Y 548, 90 Am. Dec. 736; Alabama & T. R. R. Co. v. Kidd, 35 Ala. 209; Hasse v American Exp. Co., 94 Mich. 133, 53, N. W. 918, 34 Am. St. Rep. 328; American Sugar Refining Co. v. McGhee, 96 Ga. 27, 21 S. E. 383.

57 American Merchants' Union Exp. Co. v. Wolf, 79 Ill. 430; Stephenson v. Hart, 4 Bing. (Eng.) 476, 484.

58 Fenner v. Buffalo & S. L. R. Co., 44 N. Y. 505, 4 Am. Rep. 709; Kremer v. Southern Exp. Co., 6 Cold. (Tenn.) 356.

59 Alabama Great Southern R. Co. v. McKenzie, 139 Ga. 410, 77 S. E. 647, 45 L. R. A. (N. S.) 18; American Merchants' Union Exp. Co. v. Wolf, 79 Ill. 430; American Sugar Refining Co. v. McGhee, 96 Ga. 27, 21 S. E. 383. See 2 Hutch. Carr. § 721. When, however, there is no duty to make a personal delivery, it seems that the carrier is under no legal duty when the consignee refuses to receive the goods or cannot be found, to give notice to the consignor. 2 Hutch. Carr. § 725; Merchants' Dispatch Transp. Co. v. Hallock, 64 III. 284.

Carriers by Water

Carriers by water have never been required to make a personal delivery. This exemption by immemorial usage is naturally due to the fact that this mode of transportation makes such a delivery absolutely impracticable. To make such a delivery, since the operation of his ships is confined to navigable waters, it would be necessary for the water carrier to become also a carrier by land.

When the transportation contract provides for delivery at a particular wharf or landing, such provision is, of course, binding."1 In the absence of a provision in the contract of carriage as to the place of delivery, the carrier is to deliver at the usual wharf.2 In the absence of a usage to the contrary, if the carrier has no wharf at the port of delivery, the consignee may require delivery at any convenient wharf. In such cases, if there are several consignees, and they are not unanimous in selecting a wharf, it seems that a majority—that is, those who pay more than half the freight-have the right to choose the wharf."

Railroads

63

Since the cars of railroad companies cannot leave the rails on which they are operated, personal delivery by them would also be impossible without the employment of additional means of transportation. By virtue of custom and usage they are, therefore, not bound to make a personal delivery. The usual place of delivery, in case of railroads, is at the yard, siding, or warehouse of the rail

65

60 Richardson v. Goddard, 23 How. 28, 16 L. Ed. 412; Chickering v. Fowler, 4 Pick. (Mass.) 371; McAndrew v. Whitlock, 52 N. Y. 40, 11 Am. Rep. 657; Cope v. Cordova, 1 Rawle (Pa.) 203.

61 Stricker v. Leathers, 68 Miss. 803, 9 South. 821, 13 L. R. A. 600; Johnston v. Davis, 60 Mich. 56, 26 N. W. 830.

62 Richmond v. Union Steamboat Co., 87 N. Y. 240; The Boston, 1 Low. 464, Fed. Cas. No. 1,671; The E. H. Fittler, 1 Low. 114, Fed. Cas. No. 4,311; Montgomery v. The Port Adelaide (D. C.) 38 Fed. 753; Devato v. 823 Barrels of Plumbago (D. C.) 20 Fed. 510; Gatliffe v. Bourne, 4 Bing. N. C. (Eng.) 314; Salmon Falls Mfg. Co. v. The Tangier, 1 Cliff. 396, Fed. Cas. No. 12,266. 63 Richmond v. Union Steamboat Co., 87 N. Y. 240.

64 See Richmond v. Union Steamboat Co., 87 N. Y. 240.

65 South & N. A. R. Co. v. Wood, 66 Ala. 167, 41 Am. Rep. 749; Michigan Cent. R. Co. v. Ward, 2 Mich. 538; Buddy v. Wabash, St. L. & P. Ry. Co., 20 Mo. App. 206; Bansemer v. Toledo & W. Ry. Co., 25 Ind. 434, 87 Am. Dec. 367; Merchants' Dispatch Transp. Co. v. Hallock, 64 Ill. 284; Thomas v. Boston & P. R. Corp., 10 Metc. (Mass.) 472, 43 Am. Dec. 444; Norway Plains Co. v. Boston & M. R., 1 Gray (Mass.) 263, 61 Am. Dec. 423; Fenner v. Buffalo & S. L. R. Co., 44 N. Y. 505, 4 Am. Rep. 709. So a transportation company engaged in carrying freight over railroads not owned by it is not bound to make a personal delivery. Merchants' Dispatch Transp. Co. v Hallock, 64 Ill. 284; See, also, Jackson v. New York Cent. & H. R. R. Co., 167 Ill. App. 461, and cases cited in note 66.