place, and had sent the advice note according to the usual course of his business, he ceased to hold the goods as carrier. That being the case, the question was whether, under the circumstances, the delivery amounted in law to a conversion, or whether the carrier was only bound to act, and did act, with reasonable caution. The cases of Stephenson v. Hart and Duff v. Budd were urged upon the court as sustaining the proposition that, under the proof in the cause, the carrier was, as a matter of law, guilty of a conversion; but this was denied to be the result of these cases. "The plaintiffs contend," said Kelly, C. B., "that this was a misdelivery on the part of the defendants, amounting to a conversion; but no sufficient authority has been cited in support of this position. It is true that a misdelivery by a carrier has been held to amount to a conversion; but the defendants' character of carriers had ceased, and whatever character they filled it was not that. Their position has been not inaptly described as that of involuntary bailees. Without their own default they found these goods in their hands, under circumstances in which the character of carriers, under which they received them, had ceased. Did they then, as involuntary bailees, become subject to an absolute duty to deliver to the proper person, so as to be liable for misdelivery, though without negligence? The only authorities in the courts of this country cited in support of that proposition are Stephenson v. Hart and Duff v. Budd; but in neither case was it held or even contended that the misdelivery amounted as a matter of law to a conversion; but in both cases it was admitted to be a question for the jury, and the question was, in fact, left to them whether, under all the circumstances, the defendants had acted with reasonable care. It is plain then, on the authority of those cases, that misdelivery under such circumstances is not as a matter of law a conversion, but that it is a question of fact for a jury whether the defendants have exercised reasonable and proper care and caution. The jury have answered this question in favor of the defendants, and they are therefore entitled to keep their verdiet." Sec. 684. (354.) Same subject-The rule stated. The law upon this subject may, therefore, be stated to be that, so long as the carrier continues in the relation of carrier to the goods, he is under an absolute engagement that they shall be delivered only to the person to whom they were consigned; but that when, from any cause, he ceases to hold them as carrier, and becomes a mere warehouseman or ordinary bailee, the degree of responsibility resting upon him becomes changed, and from that moment, if the goods are lost by misdelivery or otherwise, it becomes a question of fact whether he has exercised reasonable care and caution. If the relation of carrier has, under the circumstances, ceased, and the carrier stands in the attitude of bailee merely, he is no longer an insurer of the safety of the goods, nor is he precluded from showing that their loss, even though it may have been by misdelivery, has been occasioned by some other cause than his negligence or want of caution. In such cases the law as to the accountability of ordinary bailees becomes applicable. But when the carrier claims exemption on the ground that, under the particular circumstances of the case, he held the goods, not as a carrier, but as an ordinary bailee, it devolves upon him to show, not only that he has done his whole duty to effect a delivery, according to the course of his business, but that he has been guilty of no negligence which has caused or contributed to the loss.3 Sec. 685. ($355.) Liability as warehouseman when goods refused or consignee cannot be found.-Whenever the carrier can show that the delivery was impossible, from inability to find the consignee, or from his refusal to accept the goods, or from his unreasonable delay in taking them away, when that duty devolves upon him according to the course of the business of the carrier, or that from any other cause his obligation as carrier has ceased and the less burdensome one of warehouseman has supervened, he may further show that the loss which 418, 16 N. Y. Supp. 220; s. c. 58 Hun, 347, 11 N. Y. Supp. 871; Diamond Joe Line v. Carter, 76 3. Wilson v. Railroad Co., 94 has occurred was not attributable to his fault or negligence, and thereby exonerate himself from liability. If, for instance, the goods have been destroyed by an accidental fire;5 by an explosion of dangerous goods, of the character of which he was. not aware; by leakage from a defect in a cask; or have depreciated in market value;8 or have been lost by theft or robbery, without the fault or negligence of the carrier, and he can show that his relation to the goods as common carrier had, before such loss, been changed to that of a mere custodian of the goods for the consignor or owner, he will be excused, although he would have been unquestionably liable in his character as carrier. Sec. 686. (§ 356.) Same subject. It therefore frequently becomes a question of importance as well as of difficulty to 4. When the carrier tenders the goods to the consignees who refuse to accept them, its duty as a common carrier ceases and its subsequent liability is that of a warehouseman. Manhattan Rubber Shoe Co. v. Railroad Co., 41 N. Y. Supp. 83, 9 App. Div. 172. A shipper cannot order the railroad's agent at the point of destination to deliver the goods from time to time as he might direct, and still hold the railroad to the strict liability of a common carrier during the indefinite period in which he undertakes to leave them in the hands of the carrier for distribution. The railroad's liability in such case terminates with the safe carriage and warehousing of the property at the point of destination, and the carrier's agent, for the purpose of its distribution, becomes the agent of the consignee. For loss of the goods in such case after the liability of the railroad has terminated as a common carrier, the shipper must look to the warehouseman for redress whether the warehouseman be the initial carrier, a connecting carrier or some one with whom the carrier has stored the goods pending their removal by the consignee. Railroad Co. v. Carter, 165 Ill. 570, 46 N. E. Rep. 374, 36 L. R. A. 527, reversing 62 Ill. App. 618. 5. Fenner v. Railroad Co., 44 N. Y. 505; Stapleton v. Railroad Co., 133 Mich. 187, 94 N. W. Rep. 739; Hasse v. Express Co., 94 Mich. 133, 53 N. W. Rep. 918, 34 Am. St. Rep. 328; Treleven v. Railroad Co., 89 Wis. 598, 62 N. W. Rep. 536; Adler v. Weir, 96 N. Y. Supp. 736. 6. Weed v. Barney, 45 N. Y. 344. 7. Hudson v. Baxendale, 2 Hurl. & N. 575. 8. Kremer v. Southern Express Co., 6 Cold. 356; Fisk v. Newton, 1 Denio 45. 9. Neal r. Railroad Co., 8 Jones (Law) 482; Byrne v. Fargo, 73 N. Y. Supp. 943, 36 Misc. 543. determine when and under what circumstances the relation of carrier to the goods has ceased and their custody has become a mere bailment. It may be stated as a general proposition that when the carrier has done all that the law requires of him towards accomplishing a delivery, and from any cause fails to effect it, and the goods are of necessity continued in his possession, he from that time becomes responsible only as a depositary.10 But the circumstances required to produce this change of relation and responsibility are very different in respect to different kinds of carriers. As they are not all required to make delivery of the goods in the same manner, so the steps taken by one to perform his duty in this regard which would change the measure of his liability would have no such effect upon that of another engaged in a different branch of the business. The great majority of those who come under the denomination of common carriers are presumed, as we have seen, to undertake to deliver to the person for whom the goods are intended, personally, and in order to avoid that responsibility they must show that the long habitual and well known course of their business authorizes a departure in that respect from the ordinary mode. II. DELIVERY BY CARRIER BY WATER. Sec. 687. (§ 357.) Carriers by water not required to make personal delivery. But there are several classes of carriers who, without regard to custom or usage, have been excepted from the operation of this general rule, because, owing to the mode of transportation which they employ, a personal delivery by them would be wholly impracticable. These are carriers by railway and carriers by water. It has been already stated that, from the earliest times, ships which brought goods 'from foreign countries under bills of lading were understood to 10. Gregg v. Railroad Co., 147 Ill. 550, 35 N. E. Rep. 343, 37 Am. St. Rep. 238, citing Hutch. on Carr; Railway Co. v. A. B. Frank Co. (Tex. Civ. App.), 48 S. contract to carry only from port to port, and that they were never required to make a personal delivery of the goods, but were only required to land them upon the wharf, or other proper place, and give notice to the consignee or owner.11 The reasons for this exception obviously apply to all carriers by water. They are confined to the limits and courses of the waters upon which they navigate their vessels, and cannot leave them with their vehicles of transportation to seek the consignee or other person entitled to the goods, upon the land. To require of them, therefore, a delivery to the consignee personally would oblige them to employ land as well as water carriage, at every point at which they had a delivery to make, which would impose upon them an intolerable hardship. The same rule, as to the mode of delivery, has therefore been extended to all such carriers; and if the consignee is not present to receive the goods, they may land them and give him notice of their arrival. It then becomes his duty to come or send for them, and take them away. Sec. 688. (§ 358.) Must provide suitable place and land goods at proper time-Duty if consignee refuses to accept.But when such carriers undertake to divest themselves of their charge in this less onerous mode, they must provide a suitable and safe place for the landing of the goods. They cannot put them off at an exposed place and there leave them without further attention at an unreasonable hour, as in the night-time, nor during tempestuous weather, to which they would thus be exposed; nor can they leave them exposed and unprotected upon a wharf, and claim that they have divested themselves of their liability as carriers by having landed the goods and given notice to the consignee to come and get them. If such consignee is not present and ready to receive them, they must be put in a place of safety and kept for him until he has had a reasonable time after notice to call for them. "Such a delivery, to be effectual, should not only be at a proper place, which is 11. Hyde v. Trent Mersey Nav. ler, 4 Pick. 371; Union S. B. Co. Co., 5 T. R. 389; Cope v. Cordova, v. Knapp, 73 Ill. 506. 1 Rawle, 203; Chickering v.. Fow |