can be implied unless he accepts the goods;43 nor even then, where the consignee is known to be merely the agent of the shipper, will the law imply a promise on the part of the agent to pay the freight, though from all the circumstances of the case the jury may find that there was an implied promise.44 Such contract may also be implied from the previous course of dealing between the parties, as where the consignee had always previously paid the freight upon the goods delivered to him by the carrier under the same circumstances.45 But the mere acceptance and removal of the goods by the consignee, with knowledge that the carrier is giving up for his benefit a lien upon the goods for a stated amount, does not create an obligation on the part of the consignee to pay charges beyond the amount stated.46 Sec. 808. (§ 449.) Same subject-How when consignee assigns bill of lading before delivery. But if the consignee assigns the bill of lading before the goods are delivered to him, and thus enables his indorsee to receive them, he does not become liable for the freight unless his indorsee received them as his agent.47 The ordinary contract of the carrier is to deliver the goods to the consignee or his assigns, "he or they paying freight," and whoever accepts them under such a contract becomes liable for the freight; and if the carrier delivers them to an assignee of the contract, without relying upon his lien to secure its payment, he must be understood as relying upon the personal liability of the assignee alone, if the assignee does not act as the agent of the assignor. A new contract arises, under such circumstances, between the assignee and the carrier.48 43. Coleman v. Lambert, 5 M. & W. 502; Scaife v. Tobin, 3 B. & A. 523; Davis v. Pattison, 24 N. Y. 317; Hinsdell v. Weed, 5 Denio, 172; Railroad Co. v. MacCartney, 68 N. J. Law. 165, 52 Atl. Rep. 575. 44. Elwell v. Skiddy, 77 N. Y. 45. Wilson v. Kymer, 1 M. & S. 157. 46. Railroad Co. v. MacCartney, 68 N. J. Law 165, 52 Atl. Rep. 165. 47. Tobin v. Crawford, 5 M. & W. 235, 9 id. 716. 48. Cock v. Taylor, 13 East, 399. Sec. 809. ($ 450.) Same subject-Presumption of consignee's liability may be rebutted. The presumption that the consignee is owner of the goods may be rebutted, and a different relation may be shown to exist; and if he be the mere agent of the shipper, or of a third person, and this fact is known to the carrier, or is shown by the bill of lading, no contract will be implied on the part of the consignee to pay the freight, although he does not inform the carrier that he receives the goods as agent. But the consignor, if owner of the goods, will remain solely liable.49 Accordingly, if goods are consigned to the care of one person, for another for whom they are intended, the former does not become liable for the freight, although he may receive them, because he acts merely as the agent of the latter, and the only promise which can be inferred from their receipt under such direction given in the bill of lading or otherwise is prima facie a promise, as agent, only to pay the freight on account of the principal, and not to be personally responsible for it.50 The effect of such special consignment is to vest the title to the goods in the person for whom they are sent, and the action for any loss or damage must be brought in his name, and the consignee for care is merely his agent.51 Nor does a mere intermediate consignee, to whose care the goods. are consigned for further transportation to the ultimate consignee for whom they are intended, the facts being known to the carrier or shown by his bill of lading or receipt, become liable by receiving the goods as a mere forwarder. But in such cases the consignor, or consignee at destination, as the one or the other may be the owner, becomes liable to the carrier.52 Sec. 810. (451.) Same subject-Remedy against consignee not exclusive-Consignee deemed agent of shipper.-But the 49. Amos v. Temperley, 8 M. & W. 798; Boston, etc., R. R. v. Whitcher, 1 Allen, 497; Ward v. Felton, 1 East, 507; Spencer v. White, 1 Iredell Law, 236. 50. Amos v. Temperley, supra; Miner v. Norwich, etc., R. R., 32 51. Grove v. Brien, 8 How. 429. 52. Dart v. Ensign, 47 N. Y. 619; Layng v. Stewart, 1 W. & S. 222; Barker v. Havens, 17 Johns. 234; Spencer v. White, supra. remedy against the consignee is not exclusive, although he may be the owner of the goods. It is held not to be obligatory upon the carrier to collect the freight of him, even when the bill of lading contains the usual clause, "he paying the freight thereon." Such provision, it has been decided, is intended for the exclusive benefit or accommodation of the freighter or shipper of the goods, and imposes no duty upon the carrier to collect the freight of the consignee; but he may even waive his lien upon the goods by delivering them to the consignee, without requiring payment of the freight, and still hold the shipper or consignor liable upon the contract of shipment. So far as the carrier is concerned, the consignee will be considered as merely the agent of the shipper to pay the freight, and if he fails to pay it the party who has reposed the confidence must take the consequences of the breach of duty. It will alter none of the rights of the carrier, to whom the shipper became bound for the freight as soon as the goods were delivered for carriage,53 unless the carrier has entered into a new 53. Railroad Co. v. MacCartney, 68 N. J. Law 165, 52 Atl. Rep. 575; Portland Flouring Mills Co. V. Insurance Co., 130 Fed. 860, 65 C. C. A. 344, affirming Insurance Co. v. Portland Flouring Mills Co., 124 Fed. 855. Where consignors were bound as between themselves and the consignee to pay the freight, and delivered the goods to the carrier under a "consignment note," in which, under the heading of "who pays carriage," they had inserted "consignee," it was held that the consignors were liable for the freight, the consignee having refused to pay it. Great Western R'y Co. v. Bagge, 15 Q. B. Div. 626, distinguishing Dawes v. Peck, 8 T. R. 330, and Davis v. James, 5 Burr. 2680. See also, Drew . Bird, 1 Mood. & M. 156; Cork Dis tillefies Co. v. Railway Co., L. R. 7 H. L. Cas. 269. But where there is no bill of lading or receipt signed by the carrier and accepted by the consignor and the way bill does not contain the consignor's name, and the freight charges are made to the consignee and the bills for freight are sent to the consignee, it cannot be held as a matter of law that the consignor contracted that he should be liable for the freight.. Union Freight Co. t. Winkley, 159 Mass. 133, 34 N. E. Rep. 91, 38 Am. St. Rep. 398. If a bill of lading is issued containing a provision that the consignee shall pay the freight, and the carrier thereafter relies on a special promise of the consignor to pay, the bill of lading is properly admitted in evidence as one contract with the consignee, by which he may forfeit his right to resort to the consignor;54 as if, without insisting upon present payment, he voluntarily, or for his own convenience, take a bill of exchange or promissory note from the consignee for the amount, payable at a future day, or in any manner extend the time for the payment, relying upon the personal responsibility of the consignee.55 The mere taking of a check, however, for the freight from the consignee, which is dishonored, without laches on the part of the carrier by which the shipper has been damaged, will not deprive the carrier of the right to the freight from the shipper.56 Sec. 811. (§ 452.) Same subject-Agency must be known. -But in order that the foregoing rule that the consignee, when acting as agent for the owner, cannot be held liable for the freight, may be available to such consignee when the demand is made upon him, it must appear that the fact of such agency step of the transaction in an ac- Nor would such 54. Shepard v. De Bernales, 13 East, 565; Tapley v. Martens, 8 Westcott, 43 Me. 445; Wooster . Tarr, 8 Allen, 270; Blanchard . Page, 8 Gray, 281; Jobbitt v. Goundry, 29 Barb. 509; Collins v. The Union Trans. Co., 10 Watts, 384; Fox v. Nott, 6 H. & N. 630; Miner v. Norwich, etc., R. R., 32 Conn. 91; Barker v. Havens, 17 Johns. 234; Thomas v. Snyder, 39 Penn. St. 317. 55. Strong v. Hart, 6 B. & C. 160; Tapley v. Martens, supra. But see Atlas S. S. Co. v. Colombian Land Co., 102 Fed. 358, 42 C. C. A. 398, in which it was held that the taking of a note, subsequently dishonored, will not deprive the carrier of the right to the freight from the shipper. 56. Davison v. City Bank, 57 N. Y. 81. was in some manner disclosed to the carrier.57 In Davison v. The City Bank,58 drafts upon the real consignee, with the bill of lading of the cargo attached, were sent to the bank for collection. The party for whom the cargo was intended was not named as consignee in the bill of lading, but upon its margin was written, "Acct. T. L. Baker, to City Bank," Baker being the party who had advanced the money for the purchase of the cargo, and to whom the drafts belonged, and the bank being a mere agent to collect them. But it was held that the words upon the margin of the bill made the bank ostensibly the real consignee, and that, as the facts were unknown to the carrier, the bank, which had received the cargo by directing it to be deposited subject to its order, was liable for the freight upon the subsequent failure of the intended consignee, who had assumed to pay it by giving his check to the carrier for the amount, which was, however, dishonored. Sec. 812. (§ 453.) The rule when the freight is to be paid by measurement.-Where freight is to be charged by measurement of bulk, and there are no special stipulations upon the subject in the bill of lading, it has been held in several cases that the measurement at the time of shipment, and not at the time and place of delivery, is to be adopted for the purpose of estimating its amount. In Gibson v. Sturge,59 the cargo consisted of wheat, a portion of which, on the voyage, became heated, in consequence of which its bulk became increased before its delivery, and it was claimed that the freight was payable on the quantity delivered. "The first question is," said Pollock, C. B., "Is this claim supported by the terms of the bill of lading? And it appears to me that it is not. From the terms of the bill of lading, I infer that the freight was to be paid for the commodity shipped, carried and delivered; and that all these must concur to create a title to freight. If shipped and carried, but not delivered, freight would not be payable; so, I think, if delivered but not shipped; and this agrees with the decisions (very few in number, and none of 57. Sheets v. Wilgus, 56 Barb. 58. Supra. 662. 59. 10 Exch. 622. |