cannot change destination when known to be mere agent.

737. Same subject-Change cannot be made after transportation completed.

755. The duty and liability of the [ § 766. Goods must be in the posses

sion of some middleman. 767. How long goods will be deemed in transit.

768. Actual or constructive delivery defeats rights.

769. What constitutes a delivery. 770. When transit deemed to be ended.

771. Same subject.

772. Not necessary that vendor obtain actual possession of goods-Notice is sufficient.

773. Duty and liability of carrier after notice.

774. Same subject-Effect of agreed valuation in bill of lading when delivery made by carrier after notice.

775. Course to be pursued by carrier for his own protection.

Sec. 662. (§ 338.) Last duty of carrier is delivery.-The last duty required of the common carrier is that of delivery. This duty the law imposes upon him as soon as he accepts the goods, and whether so expressed or not, it becomes a part of his contract. From that moment he becomes not only responsible for their safety against all accidents, except such as are attributable to the act of God or the public enemy, and not excepted in his contract, but he becomes, also, responsible for their proper delivery, and until this is made, his extraordinary liability continues. It therefore becomes important to ascertain how the law requires this delivery to be made, and what

1. Cavallaro v. Railway Co., 110 St. Rep. 94, citing Hutch. on Carr. Cal. 348, 42 Pac. Rep. 918, 52 Am.

is necessary to constitute such a delivery as will put an end to this liability. No word has the same invariable meaning when used in different connections, and the meaning of delivery, when used in the common affairs of life, does not always determine its meaning when used as a legal term; and even when thus used, what we are to understand by it frequently varies according to the particular subject or relation to which it is applied. So the delivery required of the common carrier has, by usage and legal construction, come to have very different significations, according to the particular kind of business which he undertakes, and the various modes of conveyance which he employs in its transaction; and that which constitutes a delivery in one case, or as to one kind of carrier, will not be considered as sufficient for the purpose when performed by another, the particular nature of whose employment as carrier, or whose mode of carriage may be different. In this regard. the usages of the various kinds of carriers have conformed to the necessities of commerce, and the law, in its turn, seems to have been made to conform to such usages.2

Sec. 663. (§ 339.) Same subject. The law upon the sub-. ject of delivery by carriers to each other, where there are connecting lines, and it becomes necessary that one should transfer the goods to the other next succeeding, for further transportation, has already been treated.3 It was thought that the subject of delivery as between such carriers would be more appropri ately discussed in that connection, as upon it turns the question, so frequently of vital importance to such connecting lines, as to what is necessary to shift the liability for the safety of the goods from one to another. And as this can only be done by a delivery, it became pertinent then to inquire what, as between them, was necessary to constitute such delivery. Occasion was also then taken to give the law and authorities upon the subject of what is known as constructive delivery, as the question when and under what circumstances delivery, which

2. Wilson v. Railroad Co., 94 Cal. 166, 29 Pac. Rep. 861, 17 L. R. A.

3. Ante, § 129, et seq.

was not actual or its equivalent, would be considered as sufficient to change the responsibility for the goods, is of more frequent occurrence between connecting lines of carriers than between the bailor and the carrier. Much of what has been there already stated would not be inappropriate under the head of this chapter. The rule that the carrier is required to carry and deliver the goods within a reasonable time and the excuses which he is allowed to make for delay have been also treated of in the next preceding chapter in relation to his duties in respect to the carriage. Referring to what is there said as belonging also appropriately to the subject of this chapter, it is now proposed to treat of the duty of the carrier in respect to the delivery of the goods when they have reached their destination.

I. OF DELIVERY IN GENERAL.

Sec. 664. (§ 340.) How made in general.—It may be stated, generally, that every delivery must be made to the right person, at a reasonable time, at the proper place, and in a proper manner. These are all requisites of a valid delivery, except in so far as a compliance with them may be waived by the party entitled to the goods. If tendered to the proper person at an unreasonable time, at an improper place or in an improper manner, he may still accept the goods, and by so doing he of course waives all objections which he might have urged against their acceptance under the circumstances, and acquits the carrier of all further liability. But if he refuse to re

4. Jewell v. Railroad, 55 N. H. 84; Lewis v. Railroad, 11 Met. 509; Sweet v. Barney, 23 N. Y. 335; Cleveland, etc., Railroad v. Sargent, 19 Ohio St. 438; Bartlett v. S. B. Philadelphia, 32 Mo. 256; Propeller Mohawk, 8 Wall. 153; Hill v. Humphreys, 5 Watts & S. 123; Richardson v. Goddard, 23 How. 28; Haslam v. Express Co., 6 Bosw. 235; Goodwin v. Railroad,

ceive them, for any of these reasons, and it should turn out that the carrier was in fault, such tender will not relieve him from his responsibility for the safety of the goods.5 Questions of time, place and manner, as well as of the person to whom delivery should be made, are therefore of frequent importance in deciding whether an attempted performance of his duty to deliver has relieved the carrier of his onerous charge.

Sec. 665. (§ 341.) Duty to make personal delivery except where changed by usage.-Formerly, it was understood to be the duty of all common carriers to deliver the goods to the consignee personally, except in the case of goods brought by ships from foreign countries. In such cases, it was established by custom that the duty of the carrier only required him to carry from port to port, and that there was no obligation upon him to make a personal delivery to the consignee. But as to other carriers, it was held that, prima facie, it was their duty to make delivery directly to the person entitled thereto, at his residence or place of business. But it was always admitted that it was competent for the carrier to show that the uniform usage and course of the business in which he was engaged authorized a delivery in a different manner, and if he could show such a usage, of long continuance, uniformity and notoriety, he would be discharged, if he had delivered in accordance with it.7

Sec. 666. (§342.) Same subject. The manner in which, however, the various classes of common carriers are required

5. Eagle v. White, 6 Whart. 505; Hill v. Humphreys, 5 Watts & S. 123; Railway Co. v. Trammel, 28 Tex. Civ. App. 312, 68 S. W. Rep. 716, citing Hutch. on Carr.

6. Gibson v. Culver, 17 Wend. 305; Eagle v. White, 6 Whart. 505; Duff v. Brod. & B. 177; Birket v. Willan, 2 Barn. & Ald. 356; Storr d. Crowley, 1 McClel. & Y. 129; Hyde v. T. & M. Nav. Co., 5 T. R.

389; Bartlett v. S. B. Philadelphia, 32 Mo. 256; Hemphill v. Chenie, 6 Watts & S. 62; Schroeder . Railroad, 5 Duer, 55; Fisk v. Newton, 1 Denio, 45.

7. F. & M. Bank v. Cham. Trans. Co., 23 Vt. 186; Huston v. Peters, 1 Met. (Ky.) 558; Broadwell r. Butler, 6 McLean, 296; Van Santvoord v. St. John, 6 Hill, 157; Loveland v. Burke, 120 Mass. 139.