"The present case is precisely analogous to that of the deposit of a letter for transportation in the letter-box of a post-office, or foreign packet vessel, and to that of a deposit of articles for carriage in the public box provided for that purpose, in one of our express offices; where it would surely not be claimed, that such a delivery would not be complete, without actual notice thereof to the head of these establishments or their agents.
1 Witbeck v. Holland, 45 N. Y. 13 (1871).
"The only authorities cited by the defendants, to show that an express notice to them was necessary in this case, are Buckman v. Levi, 3 Camp. 414, and Packard v. Getman, 6 Cow. 757. These cases are distinguishable from the present in this respect, that there was not, in either of them, a claim of any particular habit or usage of the defendant, which should vary or modify the general principles of law in regard to the mode of delivering the property. They were, therefore, decided merely on those general principles, unaffected by any special agreement between the parties on that subject, inferable from such usage. But in several of the cases cited, it was held, that where the carrier had been in the habit of receiving property for transportation in a particular mode, a delivery to him in that mode was sufficient."
1 A refusal to deliver to the person rightfully entitled to the goods, unless upon unreasonable conditions, is a conversion. McEntee v. New Jersey Steamboat Co., 45 N. Y. 34 (1871). A carrier is not bound to deliver at the place agreed upon with the consignor and vendor of chattels, if the consignee and vendee direct him to deliver at a different place. London & N. W. Railway Co. v. Bartlett, 7 H. & N. 400 (1861); Cork Distilleries Co. v. Great Southern Railway Co., Irish R. 5 C. L. 177 (1871).
2 Story on Bailm. § 508, 539, 540, 542, 553, and cases cited; Strong v. Natally, 1 Bos. & Pul. N. R. 16; Marsh. Ins. B. 1, ch. 7, § 5, p. 252; Sparrow v. Caruthers, 2 Str. 1236; Bowman v. Teall, 23 Wend. 306; In re Webb, 8 Taunt. 443; 2 Moore, 500; Parsons v. Hardy, 14 Wend. 215; Richardson v. Goss, 3 Bos. & Pul. 119; Scott v. Pettit, 3 Bos. & Pul. 472; Dixon v. Baldwen, 5 East, 181; Rowe v. Pickford, 8 Taunt. 83; 1 Moore, 526; Allan v. Gripper, 2 Cr. & J. 218; 2 Tyrw. 217.
3 King v. Shepherd, 3 Story, 360; Elliott v. Rossell, 10 Johns. 1.
4 Ibid.; Morse v. Slue, 1 Vent. 190, 238; Barclay v. Cuculla y Gana, 3 Doug. 389; Trent & Mersey Nav. Co. v. Wood, 4 Doug. 287.
§ 939. Again, the delivery to the consignee must be within a reasonable time after the arrival of the ship or vehicle.6 And for a wrongful delay, the carrier is responsible for the direct, but not the consequential damages to the consignee.7 The proper remedy, however, for delay in delivering the goods is not trover, unless there has been a demand and a refusal,1 for trover will not lie against a carrier, merely upon proof of non-delivery.2 Of course, if the time be expressly prescribed within which delivery must be made, the agreement in such respect must be exactly fulfilled, and he will be liable, even though such a delivery be rendered impossible.3 So, also, delivery must be made at a reasonable time; and a carrier of specie, undertaking to deliver it to a bank, could not show in defence that he had gone to deliver it out of banking hours, and having found the bank shut, had not employed diligence to discover at what time he could deliver it.4 So, also, a delivery of merchandise to a consignee after business hours, and when the consignee has dismissed his servants, so that he cannot receive it, is not a good delivery.5
1 Story on Bailm. § 542; Bowman v. Teall, 23 Wend. 306; Strong v. Natally, 1 Bos. & Pul. N. R. 16; Abbott on Shipping, pt. 4, ch. 4, § 3, 5th ed.; St. John v. Santvoord, 25 Wend. 660; Catley v. Wintringham, Peake, 150.
2 Hyde v. Trent & Mersey Navigation Co., 5 T. R. 389; Abbott on Shipping, pt. 4, ch. 4, § 3; 2 Kent, Coram. 604, 605; Gatliffe v. Bourne, 4 Bing. N. C. 314, 330; 3 Man. & Grang. 687; Syeds v. Hay, 4 T. R. 260; Chickering v. Fowler, 4 Pick. 371; Cope v. Cordova, 1 Rawle, 203; Kohn v. Packard, 3 La. 225; Story on Bailm. § 544, 545; Ostrander v. Brown, 15 Johns. 39; Pickett v. Downer, 4 Vt. 21.
3 Mayell v. Potter, 2 Johns. Cas. 371; Stephenson v. Hart, 4 Bing. 476; Chickering v. Fowler, 4 Pick. 371; Cope v. Cordova, 1 Rawle, 203; Bourne v. Gatliffe, 3 Man. & Grang. 687. See Mobile & G. R. Co., 46 Ala. 63 (1871); Alabama, etc. R. Co. v. Kidd, 35 Ala. 209 (1859).
4 Thomas v. Day, 4 Esp. 262.
5 De Mett v. Laraway, 14 Wend. 225.
6 Hand v. Baynes, 4 Whart. 209, 210; Parsons v. Hardy, 14 Wend. 215; Bowman v. Teall, 23 Wend. 306; Abbott on Shipping, pt. 4, ch. 4, §3; Gatliffe v. Bourne, 4 Bing. N. C. 314; Story on Bailm. § 545 a; Raphael v. Pickford, 6 Scott, N. R. 478; Favor v. Philbrick, 5 N. H. 358.
7 Waite v. Gilbert, 10 Cush. 177.
§ 940. Delivery must also be made to the right person,6 for otherwise the carrier may be responsible, although the mistake be innocently made,7 because such a wrongful delivery is ordisignee, unless there be some special contract to the contrary, or some implied agreement growing out of usage or previous habits of dealing. This doctrine was strenuously opposed by Lord Kenyon in a celebrated case, but the other judges agreed in differing from him; and Mr. Justice Buller, in delivering the judgment, affirmed the rule above stated.1 It has also met with the approbation of distinguished judges in subsequent cases, and may be considered as established.2 Where there is a general usage, and a fortiori, where there is a particular usage between the carrier and the consignee, to leave the goods at a particular spot, a delivery there will be sufficient; and if no notice be customary, no notice will be required.3
1 Robinson v. Austin, 2 Gray, 564.
2 Bowlin v. Nye, 10 Cush. 416.