road company. When goods were shipped to a station at which, to the knowledge of the shipper, the railroad had no warehouse, it was held that merely placing the goods on the station platform, according to usage and course of dealing between the parties, was a delivery at a proper place."

Express Companies

It has frequently been said that the inconvenience caused by the carrier's being excused from making a personal delivery is largely responsible for the existence of express companies. To avoid this inconvenience, and at the same time to secure speed and a higher degree of safety in the carriage of goods, the greatly increased cost of sending goods by express is paid. Hence a personal delivery to the consignee is a part of the duty of an express company. This is certainly true as to all the larger places at which an express company carries on its business." But at small. places, where the volume of business will not justify the company in maintaining a service of personal delivery, it may show a custom

68

66 Where a car load of freight is consigned to a place where there is a side track, but no depot platform or agent of the carrier, which is known to the parties, leaving the car on the side track is a good delivery, and relieves the carrier of further responsibility. Reid & Beam v. Scuthern R. Co., 149 N. C. 423, 63 S. E. 112. A railroad company may have yards for its convenience in handling, storing, and distributing freight, and will not be obliged as a common carrier to transport freight from one point in the yards to another for the convenience of shippers. Louisville & N. R. Co. v. Higdon, 149 Ky. 321, 148 S. W. 26. See, also, Atchison, T. & S. F. R. Co. v. Interstate Commerce Commission (Com. C.) 188 Fed. 229; Davies v. Michigan Cent. R. Co., 131 Ill. App. 649; Newby v. Ford, 36 Pa. Super. Ct. 634; Kirk v. Chicago, St. P., M. & O. Ry. Co., 59 Minn. 161, 60 N. W. 1084, 50 Am. St. Rep. 397; Kenny Co. v. Atlanta & W. P. R. Co., 122 Ga. 365, 50 S. E. 132.

67 McMasters v. Pennsylvania R. Co., 69 Pa. 374, 8 Am. Rep. 264.

68 Packard v. Earle, 113 Mass. 280; Baldwin v. American Exp. Co., 23 Ill. 197, 74 Am. Dec. 190; Union Exp. Co. v. Ohleman, 92 Pa. 323; BULLARD v. AMERICAN EXP. CO., 107 Mich. 695, 65 N. W. 551, 33 L. R. A. 66, 61 Am. St. Rep. 358, Dobie Cas. Bailments and Carriers, 244; State v. Adams Exp. Co., 171 Ind. 138, 85 N. E. 337, 966, 19 L. R. A. (N. S.) 93. There is a distinction in the liability of a carrier in the handling of express and freight shipments. Express carriers are required to make personal delivery, and until such delivery is made they are liable as carriers, unless a reasonable excuse for nondelivery exists, while carriers of freight are exempt from the duty of personal delivery Baum v. Long Island R. Co., 58 Misc. Rep. 34, 108 N. Y. Supp. 1113.

69 American Merchants' Union Exp. Co. v Schier, 55 Ill. 140; American Merchants' Union Exp. Co. v Wolf, 79 Ill. 430; Witbeck v. Holland, 45 N. Y. 13, 6 Am. Rep. 23; American Union Exp. Co. v. Robinson, 72 Pa. 274, Marshall v. American Exp. Co., 7 Wis. 1, 73 Am. Dec. 381; Southern Exp. Co. v. Armstead, 50 Ala. 350; Sullivan v Thompson, 99 Mass. 259, Bennett v. Northern Pac. Exp. Co., 12 Or. 49, 6 Pac. 160.

not to make a personal delivery to the consignee, but to send him prompt notice of the arrival of the goods." It has also been held that an express company, in good faith and on first giving seasonable notice to the public may fix limits or zones in cities beyond or outside of which it cannot be compelled to make personal delivery."1

C. O. D. Shipments

The business of the express companies in C. O. D. ("collect on delivery") shipments has attained tremendous proportions. In such shipments it is the duty of the express company, not only safely to carry the goods and deliver them to the consignee, but also to collect, on behalf of the shipper, the price of the goods and to return the money so collected to the shipper. The company, having accepted such a shipment, must comply with the consignor's instructions, under which the delivery of the goods and the payment of the price are to be concurrent. If, therefore, the goods. are delivered to the consignee without the payment of the price, the express company becomes liable therefor to the consignor.73

By the better opinion, an opportunity to inspect the goods before paying for them should be given to the consignee." It has even been held proper to permit the consignee, on depositing the price, to take the goods for the purpose of trying or inspecting them, on

70 Gulliver v. Adams Exp. Co., 38 Ill. 503; State v. Adams Exp. Co., 171 Ind. 138, 85 N. E. 337, 966, 19 L. R. A. (N. S.) 93; American Standard Jewelry Co. v. Witherington, 81 Ark. 134, 98 S. W. 695; Southern Exp. Co. v. Holland, 109 Ala. 362, 19 South. 66: BULLARD v. AMERICAN EXP. CO., 107 Mich. 695, 65 N. W. 551, 33 L. R. A. 66, 61 Am. St. Rep. 358, Dobie Cas. Bailments and Carriers. 244.

71 BULLARD v. AMERICAN EXP. CO., 107 Mich. 695, 65 N. W. 551, 33 L. R. A. 66, 61 Am. St. Rep. 358, Dobie Cas. Bailments and Carriers, 244; State v. Adams Exp. Co., 171 Ind 138, 85 N. E. 337, 966, 19 L. R. A. (N. S.) 93. As to custom and usage in affecting the question of substitutes for, or equivalents of, personal delivery by express companies, see Southern Exp. Co. v. Everett, 37 Ga. 688. Haslam v. Adams Exp. Co., 6 Bosw. (N. Y.) 235. 72 American Exp. Co. v. Lesem, 39 Ill. 312; United States Exp. Co. v. Keefer, 59 Ind. 263. As to what is a contract for shipment C. O. D., see Adams Exp. Co. v. Ten Winkel, 44 Colo. 59, 96 Pac. 818; Smith v. Southern Exp. Co., 104 Ala. 387, 16 South. 62.

78 Murray v. Warner, 55 N. H. 546, 20 Am. Rep. 227; Meyer v. Lemcke, 31 Ind. 208; Feiber v. Manhattan Dist. Tel. Co. (Com. Pl.) 3 N. Y. Supp. 116; Libby v. Ingalls, 124 Mass. 503. The consignor may, however, ratify a delivery not in accordance with his instructions. Rathbun v. Citizens' Steamboat Co. of Troy, 76 N. Y. 376, 32 Am. Rep. 321; Southern Ry. Co. v. Kinchen, 103 Ga. 186, 29 S. E. 816.

74 Hutch. Carr. § 733; Lyons v. Hill, 46 N. H. 49, 88 Am. Dec. 189; Brand v. Weir, 27 Misc. Rep. 212, 57 N. Y. Supp. 731; Sloan v. Carolina Cent. R.

the condition that, if they are not satisfactory, he may return them to the express company and recover back the price.75 Some courts, however, deny the right of inspection on the part of the consignee. The reason usually given for this view is that it is the practice of the express companies not to permit such an inspection, and that C. O. D. contracts will be assumed to have been made with this practice in the minds of the parties." The right of inspection here is expressly denied by the American Sales Act.78

If the consignee is not able to pay for the goods immediately, the express company should keep the goods a reasonable time in order to give the consignee a suitable opportunity to secure the purchase price of the goods." When the consignee refuses to receive the goods, the shipper should be notified. The carrier is then no longer an insurer, but a mere warehouseman.81

80

The common law places upon the common carrier no obligation whatsoever to engage in the business of C. O. D. shipments. 82 Under that law, he is required merely to be a carrier, and not a collector. These obligations are assumed, on the part of the carrier, entirely by contract; but, when thus assumed, as we have just seen, they must be carried out.s 83 If, however, the common carrier holds himself out to the public as willing to accept C. O. D. shipments, then he must undertake the service according to his holding out.84

Co., 126 N. C. 487, 36 S. E. 21; Herrick v. Gallagher, 60 Barb. (N. Y.) 566; Thick v. Detroit, U. & R. Ry., 137 Mich. 708, 101 N. W. 64, 109 Am. St. Rep. 694.

75 Lyons v. Hill, 46 N. H. 49, 88 Am. Dec. 189. In Hardy v. American Exp. Co., 182 Mass. 328, 65 N. E. 375, 59 L. R. A. 731, the carrier was held liable to the consignee for demanding and receiving payment without informing the consignee that the goods were damaged; such fact being well known to the carrier.

76 Wiltse v. Barnes, 46 Iowa, 210.

77 See Williston on Sales, § 479, for able exposition of this view and its qualifications. The question is also discussed in 18 Harvard Law Rev. 386. 78 § 47 (3).

79 Great Western Ry. Co. v. Crouch, 3 Hurl. & N. (Eng.) 183; 2 Hutch. Carr. § 729.

80 American Merchants' Union Exp. Co. v. Wolf, 79 Ill. 430; Adams Exp. Co. v. McConnell, 27 Kan. 238.

81 American Merchants' Union Exp. Co. v. Wolf, 79 Ill. 430; Weed v. Barney, 45 N. Y. 344, 6 Am. Rep. 96; Gibson v. American Merchants' Union Exp. Co., 1 Hun (N. Y.) 387.

82 American Exp. Co. v. Lesem, 39 Ill. 313; Chicago & N. W. R. Co. v. Merrill, 48 Ill. 425.

83 See cases cited in note 73.

84 2 Hutch. Carr. § 726.

SAME-SAME-DELIVERY IN A PROPER MANNER

144. As to what manner of delivery will substitute for the common carrier's insuring liability that of a mere warehouseman,

the courts, though agreeing as to carriers by water, have evolved three different rules as to railroads.

In the case of carriers by water, after the arrival of the goods, the carrier must give notice of such arrival to the consignee, and also give him a reasonable time for the removal of the goods.

As to railroads, the insuring liability ends

(a) By the Massachusetts rule, when the goods have arrived at their destination and have been stored by the carrier.

(b) By the New Hampshire rule, when, after the arrival and storage of the goods, a reasonable time has elapsed within which the consignee could have removed the goods.

(c) By the Michigan rule, only when, after the arrival of the goods, notice has been given to the consignee, and a reasonable time for their removal has elapsed after such notice.

A delivery by any common carrier must, in order to be a proper delivery, be made in a reasonable manner. Thus the goods must be in such a place that the consignee has ready access to them.8" Again, they must be set apart in such a way that the consignee can take them away without the necessity of having to separate them from other goods. The situation of the goods must also be such that the consignee can remove them with due speed, and without expending unusual effort or incurring any unusual danger, either to himself or to the goods.88

87

85 Sonia Cotton Oil Co. v. The Red River, 106 La. 42, 30 South. 303, 87 Am. St. Rep. 293; Scheu v. Benedict, 116 N. Y. 510, 22 N. E. 1073, 15 Am. St. Rep. 426; Morgan v. Dibble, 29 Tex. 107, 94 Am. Dec. 264.

86 Independence Mills Co. v. Burlington, C., R. & N. Ry. Co., 72 Iowa, 535, 34 N. W. 320, 2 Am. St. Rep. 258; Bachant v. Boston & M. R. R., 187 Mass. 392, 73 N. E. 642, 105 Am. St. Rep. 408; Russell Grain Co. v. Wabash R. Co., 114 Mo. App. 488, 89 S. W. 908.

87 The Titania, 131 Fed. 229, 65 C. C. A. 215; The Eddy, 5 Wall. 481, 18 L. Ed. 486.

88 East Tennessee, V. & G. R. Co. v. Hunt, 15 Lea (Tenn.) 261; Reynolds V. Great Northern R. Co., 40 Wash. 163, 82 Pac. 161, 111 Am. St. Rep. 883; Frasier v. Charlestown & W. C. Ry. Co., 73 S. C. 140, 52 S. E. 964.

Carriers by Water

As to carriers by water, the rule is well established that the strict liability of the common carrier continues until, after the arrival of the goods at their destination, the carrier has given notice of such arrival to the consignee and then a reasonable time has elapsed, since this notice, within which the consignee might have removed the goods. The reason usually given by the courts for this rule. is the uncertainty of the arrival of boats, which would make it unreasonable to require the consignee to watch hourly for the arrival of the boat and to be on hand at such arrival, ready to receive the goods.

90

If the consignee is present, the goods may be tendered or delivered to him personally, and he is bound to remove them within a reasonable time. If he is not present, he is entitled both to reasonable notice from the carrier of the arrival of the goods and a fair opportunity to receive and remove them. If the consignee is unknown to the carrier, the latter must use proper and reasonable diligence to find him; in such cases, due effort to find the consignee is a condition precedent to the carrier's right to warehouse the goods. What is a due and a reasonable effort, and what is proper and reasonable diligence, must depend largely upon the circumstances of each case, and, in the nature of things, is a question of fact, for the jury, and not of law, for the court. 92 The necessity, on the carrier's part, of giving notice may be dispensed with by contract, or it may be waived by a custom or usage to the contrary."

98

89 Turner v. Huff, 46 Ark. 222, 55 Am. Rep. 580; Goodwin v. Baltimore & O. R. Co., 50 N. Y. 154, 10 Am. Rep. 457; The Titania, 131 Fed. 229, 65 C. C. A. 215; Crawford v. Clark, 15 Ill. 561; Blin v. Mayo, 10 Vt. 56, 33 Am. Dec. 175; Morgan v. Dibble, 29 Tex. 107, 94 Am. Dec. 264.

90 Ostrander v. Brown, 15 Johns. (N. Y.) 39, 8 Am. Dec. 211; Zinn v. New Jersey Steamboat Co., 49 N. Y. 442, 10 Am. Rep. 402; Price v. Powell, 3 N. Y. 322; Russell Mfg. Co. v. New Haven Steamboat Co., 50 N. Y. 121; McAndrew. v. Whitlock, 52 N. Y. 40, 11 Am. Rep. 657; Gleadell v. Thomson, 56 N. Y. 194; Crawford v. Clark, 15 Ill. 561; Salmon Falls Mfg. Co. v. The Tangier, 1 Cliff. 396, Fed. Cas. No. 12,266. This notice must be actual. Publication in newspapers has been held insufficient. Kohn v. Packard, 3 La. 224, 23 Am. Dec. 453; Segura v. Reed, 3 La. Ann. 695.

91 Zinn v. New Jersey Steamboat Co., 49 N. Y. 442, 10 Am. Rep. 402; Sherman v. Hudson River R. Co., 64 N. Y. 254; Union Steamboat Co. v. Knapp, 73 Ill. 506.

92 Zinn v. New Jersey Steamboat Co., 49 N. Y. 442, 10 Am. Rep. 402.

93 The Boskenna Bay (C. C.) 40 Fed. 91, 6 L. R. A. 172; Henshaw v. Rowland, 54 N. Y. 242.

94 Russell Mfg. Co. v. New Haven Steamboat Co., 50 N. Y. 121; Ely v. New Haven Steamboat Co., 53 Barb. (N. Y.) 207; Gibson v. Culver, 17 Wend.