§ 935. A common carrier is not liable until the goods are delivered, either to him or to his authorized agent,3 for carriage, and accepted. The acceptance may be either actual or constructive; 4 and if goods be deposited for carriage at the proper place, and the fact be known to the carrier, it will be sufficient to render him responsible.5 Nor is it necessary that the goods should be entered on a way-bill or freight-list; for this is only evidence of the contract.6 But if it be unknown to the carrier or his agents, he will not be liable.7 If, however, there be an evident intention not to trust the carrier, - as if the servant of the owner be sent with the goods, to take care of them, the common carrier is not responsible.1 But the mere fact that the servant goes with them will not, of itself, exempt the carrier from responsibility, if the other circumstances show that the carrier was to have the care and custody.2 So, also, if goods be placed in the vehicle of a common carrier without notice or knowledge on his part, he would not be liable.3 So, also, if a passenger assume the care of any portion of his luggage, and take it inside a coach with him, or carry it upon his person, the carrier will not be liable therefor in this country; for some delivery and acceptance, either express or implied, by the carrier, is necessary.4 So where a coat was delivered to the driver of a coach by a person not a passenger, to be delivered at a certain place, and the driver refused to put it on the way-bill, saying he had no right to do so, and the coat was lost, it was held that the proprietor of the coach was not responsible therefor as a common carrier, on the ground that there had been no delivery and acceptance by him.5 Delivery to a clerk of a steamboat company when not at his office,6 and delivery to a deck hand on a steamboat,7 have been each held not sufficient. On the other hand, delivery to the carrier's servants alongside of his vessel, or on a lighter, to be taken to the ship, has been held equivalent to delivery on board.1
1 Scovill v. Griffith, 2 Kern. 509; Hawkins v. Hoffman, 8 Hill, 586; Ward v. New York Cent. R. Co., supra. See Denny v. N. Y. Central Railroad, 13 Gray, 483. A carrier's advertisements, that certain boats named would run on certain days, does not prevent him from taking them off for necessary repairs, and substituting smaller or slower boats in their place; and if goods are thus necessarily left at the warehouse, where they are burned without any negligence, the carrier is not liable. Lawrence v. N. Y., etc. Railroad Co., 36 Conn. 63 (1869).
2 Lipford v. Charlotte & South Carolina Railroad, 7 Rich. 409. 3 See Blanchard v. Isaacs, 3 Barb. 388.
4 See Merriam v. Hartford, etc, Railroad Co., 20 Conn. 354.
5 See Moses v. Boston & Maine Railroad, 4 Fost. 71; Woods v. Devin, 13 I11. 746.
6 Citizens'Bank v. Nantucket Steamboat Co., 2 Story, 16; Parker v. Great Western Railway Co., 7 Man. & Grang. 253.
7 Selway v. Holloway, 1 Ld. Raym. 46; 1 Bell, Comm. 464; Buckman v. Levi, 3 Camp. 414; Packard v. Getman, 6 Cow. 757; Dale v. Hall, 1 Wils. 281; Boehm v. Combe, 2 M. & S. 172; 2 Kent, Comm. 604; Lovett v. Hobbs, 2 Show. 128; Leigh v. Smith, 1 C. & P. 640. Delivery upon the premises of a carrier, without notice to any proper agent of the carrier, is not sufficient to charge the carrier. Salinger v. Simmons, 57 Barb. 513 (1870).
1 East Ind. Co. v. Pullen, 2 Str. 690; Robinson v. Dunmore, 2 Bos. & Pul. 419; Scbieffelin v. Harvey, 6 Johns. 170; Marsh. Ins. B. 1, ch. 7, § 5, p. 252; Rucker v. Lond. Assur. Co., ib.; Gibson v. Culver, 17 Wend. 305; Duff v. Budd, 3 Br. & B. 177; Storr v. Crowley, M'Clel. & Younge, 129, 138; Bodenham v. Bennett, 4 Price, 34; Birkett v. Willan, 2 B. & AL 356; White v. Winnisimmet Co., 7 Cush. 156.
2 Abbott on Shipping, pt. 2, ch. 2, § 3, 5th ed.; Cobban v. Downe, 5 Esp. 41; Brind v. Dale, 2 M. & W. 775; Hollister v. Nowlen, 19 Wend. 234; Story on Baihn. § 533; Gatliffe v. Bourne, 4 Bing. N. C. 314, 330.
3 Lovett v. Hobbs, 2 Show. 127; Leigh v. Smith, 1 C. & P. 640; Sel-way v. Holloway, 1 Ld. Raym. 46. But see Merriam v. Hartford Railroad Co., 20 Conn. 354.
4 Tower v. Utica & Schenectady Railroad Co., 7 Hill, 47; Boys v. Pink, 8 C. & P. 361; Syms v. Chaplin, 5 Ad. & El. 634; Cohen v. Frost, 2 Duer, 335. As to the rule in England, see post, § 972.
5 Blanchard v. Isaacs, 3 Barb. 388.
6 Cronkite v. Wells, 32 N. Y. 247.
7 Trowbridge v. Chapin, 23 Conn. 595. See Wells v. Wilmington & Weldon Railroad, 6 Jones (N. C), 47.
§ 936. It is ordinarily necessary that a delivery by the bailor should be made at the time and place designated by the notice of the carriers, or by usage, in order to render them responsible. Yet if merchandise be received by them at a different time or place, they will be responsible therefor,2 on the ground that the conditions of time and place are thereby waived. So, in respect to the person to whom delivery is made, the bailor must exercise care and diligence; for if he deliver to a wrong party, without the knowledge of the carrier, the latter will not be responsible, unless he have held out the party to whom delivery is made as his agent,3 in which case the delivery would be good.4
§ 937. But as soon as the goods are fairly delivered, and the duty of immediate transportation arises,5 the responsibility of the common carrier attaches to them, even before they are on the journey.6 Thus, where a puncheon of rum was injured in letting it down into the hold of a vessel, it was held that the carrier was liable.7 So, also, where baggage was received by a railway company, and locked up to be sent by the next conveyance, it was said that the railway company held it as common carriers, and were answerable as such in case of loss.1 In the case of carriers by water, a delivery will be considered as made as soon as they are delivered by the wharfinger and accepted by the carrier, although they remain on the wharf.2
1 See The Bark Edwin, 1 Sprague, 477; 24 How. 386; British Columbia, etc, Co. v. Nettleship, Law R. 3 C. P. 499; Greenwood v. Cooper, 10 La. An. 796. And see further, as to delivery, Gattorno v. Adams, 12 C. B. (n. s.) 560; Merritt v. Old Colony & Newport Railway Co., 11 Allen, 80; Illinois Central Railroad Co. v. Smyser, 38 I11. 354; The Huntress, Daveis, 82; Grosvenor v. N. Y. Central Railroad Co., 39 N. Y. 36; Maybin v. South Carolina Railroad Co., 8 Rich. 240; Wright v. Caldwell, 3 Mich. 51; Ford v. Mitchell, 21 Ind. 54; Lakeman v. Grinnell, 5 Bosw. 625.
2 Pickford v. Grand Junction Railway Co., 12 M. & W. 766; Phillips v. Earle, 8 Pick. 182.
3 Buckman v. Levi, 3 Camp. 414; Selway v. Holloway, 1 Ld. Raym. 46; Walter v. Brewer, 11 Mass. 99; King v. Lenox, 19 Johns. 235.
4 Cobban v. Downe, 5 Esp. 41.
5 Barron v. Eldridge, 100 Mass. 455; Watts v. Boston & L. R. Co., 106 Mass. 466 (1871). Not while the goods are delayed for the convenience of the owner. lb.; see Rogers v. Wheeler, 52 N. Y. 262 (1873).
6 See Fitchburg Railroad Co. v. Hanna, 6 Gray, 539; Grosvenor v. N. Y. Central Railroad Co., 39 N. Y. 36; Lakeman v. Grinnell, 5 Bosw. 625. As to the rule of law where the carrier is under restraint, as by the military, see Illinois Cent. R. Co. v. McClellan, 54 I11. 58.
7 Golf v. Clinkard, cited in Dale v. Hall, 1 Wils. 281. See also Randle-son v. Murray, 8 Ad. & El. 109; Camden & Amboy Railroad Co. v. Belknap, 21 Wend. 354.