A private carrier may or may not carry for another, as he prefers. But a common carrier is bound to receive and carry all the goods offered for transportation, subject to all the responsibilities incident to his employment; and is liable to an action in case of refusal. (b) But he is entitled to his pay; he may demand it, and if it be refused, he may refuse to carry the goods. The owner of the goods may tender him the freight-money; or, if the money is not demanded by the carrier, he may aver and prove that he was ready and willing to pay the freight-money, and this will be equivalent to a tender. (c) * Payment * 174

(b) Lane v. Cotton, 12 Mod. 472, 484; Jackson v. Rogers, 2 Show. 327; Johnson v. Midland Railway Co. 4 Exch. 367; Pickford v. The Grand Junction Railway Co. 8 11 & W. 372; East Tennessee R. R. Co. v. Nelson, 1 Cold. 271. Contra, Costa R. R. Co. v. Moss, 23 Cal. 323.

(c) Pickford v. The Grand Junction Railway Co. 8M.&W. 372; s. c. 12 id. 766. So if the carrier demands payment before he receives the goods, and demands a larger sum than he is entitled to receive, the owner of the goods may pay him such sum as he demands, under protest, and recover back the excess in an action for money had and received. And to entitle him to recover in this action, it is not necessary that he should make a tender to the carrier of such sum as he is entitled to receive. Parker v. The Great Western Railway Co. 7 Man. & G. 253, 8 E. L. & E. 426, 11 C. B. 545; Edwards v. The Great Western Railway Co. 8 E. L. & E. 447; s. c. 11 C. B. 588; Crouch v. The London Railway Co. 2 Car. & K. 789;

- v. Pigott, cited in Cartwright v. Rowley, 2 Esp. 723; Parker v. The Bristol & E. Railway Co. 7 E. L. & E. 528; s. c. 6 Exch. 184, 702. The same rule holds where the carrier, not having received his pay in advance, nor made any special agreement, refuses to deliver the goods at the end of his transit until he is paid a larger sum for the carriage than he is entitled to receive. Thus in Ashmole v. Wainwright, 2 Q. B. 837, the defendants, common carriers, refused to deliver the plaintiff's goods, which they had carried for him, except on payment of £5. 5s. charges. He insisted that he was not liable to pay any thing; but ultimately, the defendants having said that they would take nothing less than the whole sum, he paid the whole to regain his goods, protesting that he was not liable to pay any thing, and that if he was liable, the charge was exorbitant. He had not tendered or named any smaller sum. Afterwards, without having demanded the return of any surplus, he of the fare has been inferred without proof, from the mere usage to pay; (d) but we doubt whether this could safely be adopted as a general rule.

Carriers are not bound to adopt every contrivance invented or supposed to promote the safety of the goods they carry, but are bound to apply any apparatus known to be useful and in common use. (dd) 1

An act of Congress was passed March 3,1851, entitled uAn act to limit the liability of ship-owners and for other purposes;" and under the provisions of this act it is held that a carrier by water is not liable for the baggage of a passenger destroyed by fire without the carrier's default. (de) But this statute does not apply to a common carrier who ships goods over a part of his route on a vessel which he neither owns nor charters; and he is liable for injury to goods caused by an accidental fire on such a vessel. (df)

It is a good excuse for the carrier's refusal that his carriage was full, (e) or that the goods would endanger him, or incur themselves extraordinary danger, (f) or are not such as he carbrought assumpsit for money had and received, claiming by his particular the whole sum, as having been paid in order to obtain possession of his goods, under protest that he was not liable to pay the same, or any part thereof, or, if he was liable to pay some part, that the sum was exorbitant. The jury having found that the defendant was entitled to charge £1 10s. 6d., the court held, that the plaintiff was entitled to recover the difference in this form of action; and that it was not necessary to his right of recovery that he should have tendered any specific sum. But, semble, per Patteson, J., that if a party, simply denying that any thing is due, tenders a sum which is accepted, out which exceeds the sum legally demand-able, he cannot recover back the excess. This case was doubted by Pollock, C B., in the case of Parker v. The Bristol & E. Railway Co. 7 E. L. & £. 528; s. c. 6 Exch. 184, 702, on the ground that the action for money had and received, must be brought for a definite, clear, and certain sum, and not for some unknown sum, which is to depend upon the verdict of the jury, who are to decide whether the defendant has received the money or not. He stated, however, that the doubt belonged exclusively to his own mind, and not to that of the rest of the court, who were satisfied with the decision, and altogether agreed with it, not merely as a binding authority, but as agreeable to their own opinion and judgment.

(d) McGill v. Rowand, 3 Penn. St. 451.

(dd) Steinweg v. Erie R. R. Co. 48 N. Y. 123; Case v. Northern, etc R. R. Co. 59 Barb. 644.

(de) Chamberlain v. Western Transportation Co. 44 N. Y. 305.

(df) Hill Manufacturing Co. v. Boston, etc. R. R. Co. 104 Mass. 122.

(e) Lovett v. Hobbs, 2 Show. 127. But not, it seems, if he has issued a ticket for the journey, and has put no condition to his liability. Hawcroft v. Great Northern Railway Co. 8 E. L. & E. 362.

(f) Edwards v. Sherrat, 1 East, 604; Pate v. Henry, 5 Stew. & P. 101. But where, to an action against the defendants as common carriers for refusing to carry a package of the plaintiff, the defendants pleaded that when the package was tendered they requested the plaintiff to inform them of its contents, and that the plaintiff refused to do so, wherefore and because the defendants did not know what the package contained, they refused to receive and carry it; the plea was held bad, ries in the known and usual course of his business; (g) 1 or that he cannot, at the time and in the way proposed, receive them without unreasonable loss and inconvenience. And he is not * obliged to receive them until he is ready to set forth on his route. (h) And if perishable goods are offered him by one owner, and goods non-perishable by another owner, and he cannot take all, he may take the perishable goods, as they will suffer most by the delay. (hh)

1 See also Caldwell v. New Jersey Steamboat Co. 47 N. Y. 282.

A common carrier may make what contract he will as to his compensation; but a tender of his usual, or of a reasonable compensation, obliges him to carry;(i) and when he carries without special agreement, this is all the compensation he can recover. If he carries articles, as for example, bags of grain, for freight, and is to return the empty bags without charge for freight, this is not a gratuitous carriage of the bags, as the freight paid for the full bags is compensation also for the return of empty bags. (ii) In the absence of special agreement, he must treat all persons alike; but it is said that he is under no obligations at common law to charge equal rates of carriage to all his customers. (j) Where required by statute to make reasonable and equal charges against all, he cannot, by by-laws or rules, discriminate as to amounts or modes of computation between persons according to their occupations, but must carry the same amount, the same distance, for the same price, for all persons. (k) 2

All carriers are held to act by their agents, and to be responsible for the acts of their servants and agents, under the common rules of agency. (l) for that a carrier has no general right, in any case and under all circumstances, to require to be informed of the contents of packages tendered to them to be carried.

(g) Sewall v. Allen, 6 Wend. 335; Tunnell v. Pettijohn, 2 Harring. (Del.) 48; Citizens Bank v. Nantucket Steamboat Co. 2 Story, 16; Johnson v. The Midland Railway Co. 4 Exch. 367.

(h) Lane v. Cotton, 1 Ld. Raym. 646, 652; 8. c. 1 Comyns, 100, 105.

(hh) Marshall v. New York, etc R. R. Co. 45 Barb. 502.

(i) Harris v. Packwood, 3 Taunt. 264.

(ii) Pierce v. Milwaukee, etc. R. R. Co. 23 Wise. 387.

(j) Baxendale v. Eastern Counties Railway Co. 93 Eng. C. L. 63.

(k) Pickford v. Grand Junction Railway Co. 10 M. & W. 399; Parker v. Great Western Railway Co. 7 Man. & G. 253, 8 E. L. & E. 426, 11 C. B. 545; Edwards v. Great Western Railway Co. 8 E. L. & E. 447 ; s. c. 11 C. B. 588; Crouch v. The London Railway Co. 2 Car. & K. 789.

(l) See Machu v. Railway Co. 4 Exch.

1 A carrier, in the absence of improper concealment by the shipper, must inquire as to the nature and value of goods shipped, failing to do which he cannot escape liability. Merchants', etc. Co. v. Bolles, 80 Ill. 473.

2 See McDuffee v. Portland, etc. R. Co. 52 N. H. 430; Messenger v. Penn. R. Co 8 Vroom, 531; Stewart v. Lehigh, etc. R. Co. 9 Vroom, 505.

If the character of the goods carried is substantially changed by a cause for which the carrier is responsible, the owner need not receive them, and the carrier is responsible for their whole value, and a recovery thereof from him vests the property therein in him; but if only partially injured, the carrier is liable only to the extent of the injury, and the property in the goods remains in the owner. (m)

It is now common to send articles by a carrier, who is to receive the price on delivery of the goods. He is the agent of the sender for this purpose. From the cases it would seem that if the carrier undertakes to collect the price, he must do so, and if he delivers the article without receiving the price, he makes himself liable therefor. (mm) l But it is also held that merely marking the article C. O. D., or Cash on Delivery, is not enough to make him liable without some undertaking on his part; but this may be proved directly, or inferred from a usage. (mn)