"agree to buy" within CH. XIV. s. 7. As we have already seen (ante, pp. 237, 349), the hirer does not Hire"agree to buy " the goods within the meaning of sect. 9 of the purchase Agreements. Factors Act, 1889, or of sect. 25 (2) of the Sale of Goods Act-which Hirer does not is identical therewith-whereby a person who having bought or "agreed to buy" goods, obtains possession of them with the consent of the seller, may sell or pledge them to any person receiving them in good faith with the same effect as if he were a mercantile agent having authority to sell, so that where the hirer of a piano under a hire-purchase agreement pledged it with pawnbrokers, it was held by the House of Lords that the owner could recover it from them in an action of trover (x). Factors Act Goods Act. Landlord's right to distrain. The landlord's right to distrain any goods found on demised premises, to whomsoever belonging, with certain exceptions (see Ch. XII., sect. 6, ante) overrides the power of the owner to seize goods unpaid for under a hire-purchase agreement (y), except in the case of agricultural or other machinery on agricultural premises or live stock for breeding purposes on such premises (2). (x) Helby v. Matthews, [1895] A. C. 471; distinguishing Lee v. Butler, [1893] 2 Q. B. D. 318. (y) See Moore, Nettlefold & Co. v. Singer Manufacturing Co., [1903] 2 K. B. 168; aff. by C. A., [1904] 1 K. B. 820, where it was held that the landlord could not himself purchase the goods. (2) Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61, s. 45, ante, p. 218. CHAPTER XV. BAILMENT FOR CARRIAGE. [See Macnamara on Carriers (1888); Browne and Theobald's Law of Railway ... 387 (b) Fares, Rates, and "Ter- 404 (d) The Liability of an In (c) Restrictions on Special Con (e) Place, Mode, and Time of Delivery (f) Time Tables, Unpunctuality 421 4. Shipowners as Carriers (a) The Charter-party ... 423 426 426 426 427 SECT. 1.-Carriers generally. (a) Who is a Common Carrier. carrier. A common carrier is one who undertakes, for hire, to transport Who is a from place to place, either by land or water, the goods of such common persons as may choose to employ him; as, for instance, the owner or master of a general ship (a); a barge-owner who lets out vessels for the conveyance of goods to any customer who applies for them, the customer, in each case, having the right to fix the points of the vessel's arrival and departure (b); a wharfinger who undertakes to convey goods from his wharf, in his own lighters (c); or the proprietor of a common stage-coach or waggon (d). So a (a) Laveroni v. Drury (1852), 8 Exch. 166, 170. (b) The Liver Alkali Co. v. Johnson (1874), L. R., 9 Ex. 338, Ex. Ch. (c) Maving v. Todd (1815), 1 Stark. 72; 16 R. R. 779. (d) Coggs v. Bernard (1704), 2 Ld. Raym. 918; Gisbourn v. Hurst (1710), 1 Salk. 249. As to the liability of hackney C.C. carriage proprietors as carriers, see Powles The Postmaster-General is not a com- 25 CH. XV. s. 1. Carriage Who is not. Obligation to carry. He ought to carry in the usual course. railway company may be common carriers, as will be seen below (e), and may be so although one of the termini of the journey be out of England (f). But it has been held, that a person who conveys passengers only is not a common carrier (g). Nor is a town carman, who does not ply from one terminus to another, but merely undertakes casual jobs, a common carrier (h). (b) The Obligation to Carry. A common carrier is bound to convey the goods of any person who offers to pay his hire-unless his carriage be already full, or the risk sought to be forced on him be extraordinary; or unless the goods be of a description which he cannot convey, or which he is not in the habit of conveying (i). It is the duty of a carrier, whether by land or water, to carry the goods entrusted to him without any unnecessary delay or deviation, and in the usual and customary course (k). But he is not bound to carry by the shortest route, but only by that by which he usually carries such goods, and which he professes to go (1). In order, however, to render the carrier liable, even at common to the carrier. law, the goods must be duly delivered to him, or to some one entrusted by him to receive them (m). So if goods be delivered to A., under a contract that the owner or his servant shall go with them, and take care of them, that is not a delivery to A. as a common carrier (n). Goods must be delivered His hire. The hire charged by the carrier must be reasonable. But, at common law, it need not be uniform ;—that is, the carrier is not bound, by the common law, not to charge more to one customer or class of customers, for any service, than he charges for the same service to another customer or class of customers, or to the public generally (o). And although a carrier is entitled by the common law to insist on the full price of the carriage being paid (e) Post, sect. 3. (f) Crouch v. London and North Western Rail. Co. (1854), 14 C. B. 255. (g) See per Mansfield, C.J., Christie v. Griggs (1809), 2 Camp. 79; 11 R. R. 666; Aston v. Heaven (1797), Esp. 533; 5 R. R. 750; but see per Cur., Bretherton v. Wood (1821), 3 B. & B. 54, Exch. (h) Brind v. Dale (1837), 2 Moo. & Rob. 80. (i) See per Cockburn, C.J., Garton v. Bristol and Exeter Rail. Co. (1861), 1 B. & S. 112, 162; Riley v. Horne (1828), 5 Bing. 217. (k) See Hales v. London and North Western Rail. Co. (1863), 4 B. & S. 66 ; (1) Myers v. London and South Western Rail. Co. (1869), L. R., 5 C. P. 1. (m) What is a sufficient delivery to the carrier, see Burrell v. North (1847), 2 C. & K. 681. (n) Brind v. Dale (1837), 8 C. & P. 207; East India Co. v. Pullen (1726), 2 Stra. 690. (0) Baxendale v. Eastern Counties Rail. Co. (1858), 4 C. B., N. S. 63; Branley V. South Eastern Rail. Co. (1862), 12 C. B., N. S. 63. beforehand (p); yet, where he is sued for refusing to carry, the plaintiff need only prove his readiness and willingness to pay the hire, without proving an actual tender thereof, because the money is not required to be paid down by the customer until the carrier has received the goods which he is bound to carry (q). (c) The Freight. The carrier is bound by a representation made by a clerk in his office, as to the freight which he will charge for the carriage of any particular kind of goods (1'). CH. XV. s. 1. By the common law a carrier has, both as against the consignor His lien at and consignee, a lien on the goods carried, for the sum due in common law. respect of the carriage of those goods (s). And by agreement with the consignor or consignee, or by virtue of a usage or course of dealing between the parties, from which it may be inferred, the carrier may have the right, either as against the consignor or the consignee, to retain the goods at the end of the journey, for the general balance due from him for carriage (t). But the fact of the carrier having the right of general lien as against either of these parties, does not of itself entitle him to retain the goods as against the other of them, in respect of the general balance due from the former for the carriage of other goods (u). And in no case can the carrier stop the goods at the commencement of the journey, and hold them there under a claim of lien (x). (d) The Liability of a Carrier as Insurer. insurer. A common carrier of goods is, by the ancient custom or Carrier of common law of the realm, in the nature of an insurer-his goods is an warranty being, safely and securely to carry and deliver. And, accordingly, it is part of his contract, implied by law, that the carriage or vessel in which he offers to carry the goods shall, at the time of commencing the journey or sailing on the voyage, be fit for the purpose for which he offers and holds it forth to the public (y). Nor is it material whether, in carrying the goods, he (p) Per Cur., Wyld v. Pickford (1841), 8 M. & W. 443. As to the carrier's right to insist on being paid for booking, v. Jackson (1800), Peake, Ad. Ca. 185. (q) Pickford v. Grand Junction Rail. Co. (1841), 8 M. & W. 372. (r) Per Lord Tenterden, C.J., Winkworth v. Packington (1827), 2 C. & P. 599. (s) See Oppenheim v. Russell (1802), 3 B. & P. 42; 6 R. R. 704. Where goods are carried at a nominal freight, the holder of the bill of lading (t) See Aspinall v. Pickford (1800), 3 (u) See Oppenheim v. Russell (1802), 3 B. & P. 42; 6 R. R. 704; Butler v. Woolcott (1805), 2 B. & P., N. R. 64. (x) Per Martin, B., Wiltshire Iron Co. v. Great Western Rail. Co. (1871), L. R., 6 Q. B. 776, Ex. Ch. (y) Per Lord Ellenborough, C.J., CH. XV. s. 1. be guilty of negligence or not; for the warranty, safely to carry Bailment for and deliver, is broken merely by his not conveying, or not deliverCarriage (Liability as ing the goods entrusted to him (2). At common law, therefore, Insurer). he is not excused or discharged in case of the loss of or injury to goods entrusted to him, unless such loss or injury be occasioned immediately by the act of God or of the King's enemies (a). Nor, if loss or damage to the goods ensues by the carrier's default in omitting to take reasonable and necessary care thereof, will he be excused, although the act of God may have been the immediate cause of the mischief (b). And so the carrier is liable, at common law, though he be robbed (c); or (unless he be the owner of a British sea-going ship) although the goods be destroyed by an accidental fire (d), or be wrongfully seized by third persons (e). Robbery. Fire. Forward v. "Act of God." Smith. Delay. Carrier may limit his liability by contract. How far exemption from liability protects carrier where loss, &c. arises from his own negligence. The "act of God" may be defined as a natural accident which it is practically impossible to foresee or guard against, as an extraordinary storm (ƒ). But a common carrier is not responsible for delay in the delivery of goods, where such delay is occasioned by causes which are beyond his control (g). And a carrier may limit his responsibility, by receiving the goods subject to certain conditions, or in any other manner making a special contract with his customer (h). A condition that the carrier shall not be liable "for leakage or breakage," only exempts him from liability for leakage or breakage which is the result of accident, and not where it is caused by his negligence or want of care (i). So, where a railway company received the plaintiff's goods, under a contract by which the baggage of certain troops-of which baggage the plaintiff's goods formed part-was to remain in charge of a guard provided by Lyon v. Mills (1804), 5 East, 428, 437; (z) Per Wilde, C.J., Richards v. Lon- 372. (a) Bourne v. Gatliff (1844), 11 C. & F. 45, H. L.; Oakley v. Portsmouth, dc., Steam Packet Co. (1856), 11 Exch. 618; Coggs v. Bernard (1704), 2 Ld. Raym. 918; Riley v. Horne (1828), 5 Bing. 212. (b) See Nugent v. Smith (1876), 1 C. P. D. 423, C. A. (c) Morse v. Slue (1673), Vent. 190; Jones on Bailm. 103; 1 Inst. 89 a; 1 Roll. Ab. 2. (d) Forward v. Pittard (1785), 1 T. R. 27; 1 R. R. 422; Hyde v. Trent and Mersey Navigation Co. (1793), 5 T. R. 389; 2 R. R. 620. As to exemption from liability of owner of British sea-going ship, see sect. (c), post. (e) Gosling v. Higgins (1808), 1 Camp. 451; 10 R. R. 726. (f) Nugent v. Smith (1876), 1 C. P. D. 423, C. A. (g) Taylor v. Great Northern Rail. Co. (1866), L. R., 1 C. P. 385. (h) Scaife v. Farrant (1875), L. R., 10 Ex. 358, Ex. Ch. ; and see the Carriers' Act, post, sect. 2, and the Railway and Canal Traffic Act, post, sect. 3 (e). (i) Phillips v. Clark (1857), 2 C. B., N. S. 156; and see Czech v. General Steam Navigation Co. (1867), L. R., 3 C. P. 14. |