M. S. & N. I. R. R. Co. v. SHUETZ. of destination of property was usually left blank in such receipts when the property was to be carried to Toledo, whereby they undertook to carry to Toledo. Breach as in the first count. Fifth Count. That defendants as carriers received the wheat, to be safely and securely kept in their warehouse, and thence conveyed to such place on their road as plaintiff should designate when defendants should be prepared to carry the same, that they did not and would not furnish the requisite cars for carrying the same, though required so to do, but so negligently conducted themselves that the wheat became lost to plaintiff. Seventh Count. That defendants as carriers, received the wheat and agreed safely and securely to keep the same in their warehouse, and safely carry to such place as plaintiff should afterwards designate. Breach, that they did not safely and securely keep the wheat, whereby it became lost to plaintiff. Ninth Count. That defendants received the wheat to be taken care of, but took so little care thereof that it was destroyed, and lost to plaintiff. Tenth Count. That defendants, as carriers, received the wheat and agreed to securely keep the same, and carry to Toledo within a reasonable time. Breach, that they did not securely keep, and did not carry within a reasonable time, and through their carelessness, negligence, and delays, the wheat became lost to plaintiff. Eleventh Count. That the customary place to which wheat was carried by defendants for lake shipment was Toledo, and that by the receipt (above set forth) and the custom, they undertook to securely keep and carry said wheat to Toledo. Breach as in tenth count. Twelfth Count. Like the eleventh, except that it alleged Monroe, instead of Toledo, to be the place to which the wheat was to be carried. M. S. & N. I. R. R. Co. v. SHURTZ. The third, sixth and eighth counts were abandoned on the trial. Plaintiff (below) gave in evidence the receipt above copied, and proved that a portion of the wheat therein mentioned remained in the warehouse of defendants on December 24th, 1854, when said warehouse was destroyed by fire. He was also permitted by the circuit judge, under objection that no such fact was alleged in his declaration, to give evidence tending to prove that before the fire he had directed the wheat to be sent forward to Toledo the judge holding the evidence proper under the first count. Plaintiff also, under exception, introduced evidence tending to prove the following facts: That defendants, at the date of the receipt, had insufficient facilities for forwarding the grain received by them; and that it was customa ry to give receipts for grain without specifying the place of destination, even when it was known to both parties. They also gave some evidence which they claimed tended to show negligence on the part of the company's servants, in the burning of the warehouse. The circuit judge charged the jury among other things excepted to: That if the wheat was received to be carried, and if that was the principal thing to be done, then defendants are liable for its loss, otherwise not: That if defendants received the wheat to carry to Toledo, then they are liable, notwithstanding the agent may have given a receipt not authorized by the charter of defendants: That if plaintiff, either at the time of the delivery of the wheat or afterwards, gave orders to the defendant to forward it to Toledo, then their liability as common carriers attached from the time of such orders, and they are liable for the loss. That if defendants did not use ordinary care, (such M. S. & N. I. R. R. Co. v. SHURTZ. care as men of ordinary prudence take of their own property) in regard to the stove and fire in the office in the warehouse, and through the want of such care the warehouse and wheat were consumed by fire, then the plaintiff is entitled to recover, even though the defendants received the wheat as warehousemen. The jury under the charge of the court returned a verdict for plaintiff. W. Wing, H. H. Emmons, and A. Pond, for plaintiffs in error. Whittemore & Crosby, for defendant in error. MARTIN Ch. J.: The principal question presented by this case, is whether the railroad company are liable as common carriers for the wheat deposited in their warehouse, to await orders for transportation, and a determination of what shall be its destination. We think they are not, nor should they be. By their charter the company have no right to charge as warehousemen, for storage of goods awaiting transportation; but this disability does not of itself create any liability. When the goods are delivered to be transported to a specified point, the liability of the company as carriers commences immediately; but if they are deposited to await orders- if the company can not carry them because ignorant of the contemplated destination, or because no destination has been concluded upon by the owner, it would be gross injustice to hold them subject to the extraordinary liabilities of common carriers, while thus awaiting the determination of their owner. While the wheat was lying in their warehouse awaiting the determination of Shurtz as to its destination, the company can not be regarded as any thing more than gratuitous bailees, and are liable only as such. If the intention of Shurtz can not be clearly seen to have been that it should be transported to any particular place, how can they M. S. & I. R. R. Co. v. SHURTZ. be seen to be carriers of it? Can the company be carriers of a thing not to be carried? But when Shutz had determined to what point he would have his wheat transported, and had notified the company of such determination, then their liability as carriers commenced, and it became their duty to forward it without delay. This is the obligation of their charter, and a want of facilities for transportation will not relieve them from that liability. There is no count in the declaration which will authorize a recovery for the destruction of the wheat, held by the company to await orders for its transportation, charging them as carriers. The theory of the first count of the declaration, and it is under that, that the court below held that this proof was admissible,-is that the company were common carriers for hire, and that the plaintiff caused the wheat in question to be delivered to them to be conveyed to Toledo; and that this they undertook to do; but so carelessly and negligently conducted, that the wheat was destroyed. And a like theory, viz., that the wheat was in the company's possession, subject wholly to their control, or to transportation at their convenience, and according to their ability, runs through and characterizes all the other counts, except one, in the declaration. This fundamental error renders it unnecessary to consider the other questions raised by the bill of exceptions. The judgment should be reversed, and a new trial ordered. John S. Gay v. John S. Bidwell and others. The courts will not infer a dishonest meaning from a written instrument, where an honest one is possible, and consistent with the whole tenor of the instrument. A chattel mortgage of a stock of goods, which leaves the mortgagor in possession, and by inference authorises him to sell in the usual course of business, is good between the parties, and not necessarily fraudulent as to creditors. GAY . BIDWELL. Being good between the parties, such a mortgage could not be fraudulent on its face against creditors, since it would not show there were any creditors, or if it it did, it would not appear but that they had assented to it, or were themselves sufficiently secured. A creditor who does not show that he was such at the time of the giving of such a mortgage, is not in position to attack it as fraudulent, on the ground that it allows the mortgagor to remain in possession and dispose of the mortgaged prop erty. Heard November 4th and 8th. Decided December 9th. Appeal in Chancery from Kent circuit. The case is suf ficiently stated in the opinions. Pond & Russell and E. S. Eggleston for complainant: The provision in the mortgage which makes it cause of forfeiture if the mortgagors shall sell otherwise than in the ordinary course of their usual business, is not equivalent to a stipulation or agreement that they may so sell.-3 Mich. 110; 4 Mich. 296; 5 'Mich. 108. Doubtless it must be construed to allow this until the mortgagee should see fit to take possession, but this he might do at any time. But such an intention appearing in the mortgage, does not necessarily render it fraudulent and void as to creditors. An agreement to that effect shown aliunde clearly would not.19 N. Y. 123; Oliver v. Eaton [ante p. 108]. And we insist there is no sound distinction between cases where the understanding is, and those where it is not, expressed in the mortgage. Mortgages containing stipulations of similar character have frequently been held valid.-2 Cush. 294; 3 Metc. 518; 11 Metc. 333; 2 Story, 646; 40 Me. 561. Holbrook & Bishop for defendants: The mortgage is void on its face, for the reason that, by necessary implication, it gives permission to the mortgagors to deal with the goods mortgaged as their own, in the course of their ordinary business.-13 Barb. 380; 5 Seld. 213; 4 Comst. 580; 6 Duer, 504. And it is also fraudulent and void as a matter of fact, for the reason that the mortgagee allowed the mortgagors to deal with the goods as |