3 Hand v. Baynes, 4 Whart. 214; ante, Conditional Contracts; post, Performance. But see Dows v. Cobb, 12 Barb. 310: Lowe v. Moss, 12 I11. 477.
4 Merwin v. Butler, 17 Conn. 138; Young v. Smith, 3 Dana, 92.
5 Hill v. Humphreys, 5 Watts & Serg. 123; Eagle v. White, 6 Whart. 505. Of course a railway carrier has no right to charge a party for transporting goods between the station and the consignee's place of business, in the absence of any contract, express or implied, employing them to do that service. Garton v. Bristol & Exeter Railway Co., 6 C. B. (n. s.) 639 (1859). And see Baxendale v. Great Western Railway Co., 5 ib. 336; Garton v. Great Western Railway Co., ib. 669.
6 If the carrier's agents by mistake refuse to deliver to the proper person, and the goods are destroyed by fire, in the warehouse, the carrier is liable. Meyer v. Chicago & N. W. Railway Co., 24 Wis. 566 (1869). And see Jeffersonville Railroad Co. v. Cotton, 29 Ind. 498. It is no defence for non-delivery by a carrier that the goods were taken out of his possession by an officer on a writ of attachment against a third person alleged to be the owner, but who was not so in fact. Edwards v. White Line Transit Co., 104 Mass. 159 (1870), distinguishing Stiles v. Davis, 1 Black, 101.
7 But there may be cases where a wrong delivery has been made, without want of ordinary care in the carrier, and in the usual course of business, when the carrier would not be liable for a conversion. Such was the very recent case of M'Kean v. M'lvor, Law R. 6 Exch. 36 (1870). In that case the narily held a conversion of the property.1 Ordinarily the carrier is bound to deliver the goods personally to the conplaintiffs, being imposed upon by a fictitious order sent by H., a person employed by them to obtain orders, forwarded goods by the defendants, who were carriers between Liverpool and Glasgow, addressed to C. Tait & Co., 71 George Street, Glasgow, that being the name and address given them by H. In fact there was no such firm as C. Tait & Co.; but H. had made arrangements at 71 George Street for receiving letters, etc, addressed there under that name. On the arrival of the goods at Glasgow, the defendants, following the course of business usual with carriers between Liverpool and Glasgow, sent a notice to the address appearing on the goods, requesting their removal, and stating that the notice must be produced, indorsed as a delivery order. This notice was received by H., who indorsed it "C. Tait & Co.," and, upon presenting it so indorsed, obtained delivery of the goods. In an action against the defendants as carriers for misdelivery, the court held that the defendants were not liable. Much stress was laid upon the fact that the defendants had followed the usual course of business, and that the usual course of business being presumptively known to the plaintiffs, must be construed as incorporated in their directions to the defendants. Martin, B., said: "But if the carrier delivers at the place indicated, or does what is equivalent to a delivery there, he does all that he is bound to do; he obeys the sender's directions, and is guilty of no wrong. To make him liable, there must be some fault; it is a question of fact whether there has been any such negligence as makes him guilty of a conversion; and where he has carried out the directions of the sender, the mere fact that he has delivered the goods to some person to whom the sender did not intend delivery to be made, is not sufficient to support the allegation that he has converted them." See, however, as being apparently somewhat in conflict, Winslow v. Vermont & Massachusetts Railroad Co., 42 Vt. 700 (1870). A carrier is not liable if the goods are delivered to the person to whom the goods are addressed, and for whom they were intended by the consignor, although there is reason to believe that a fraud had been perpetrated by the consignee upon the consignor. Price v. Oswego & Syracuse Railroad Co., 58 Barb. 599 (1871); M'Kean v. M'lvor, Law R. 6 Exch. 36.
1 See ante, Bailees for Hire; Stephenson v. Hart, 4 Bing. 476; Duff v. Budd, 3 Br. & B. 177; Youl v. Harbottle, Peake, 49; Devereux v. Barclay, 2 B. & Al. 702; Stephens v. Elwall, 4 M. & S. 259; Powell v. Myers, 26 Wend. 591; Bradley v. Dunipace, 7 H. & N. 200; 1 H. & C. 523; Price v. Oswego & S. R. Co., 50 N. Y. 213 (1872). See also Bowlin v. Nye, 10 Cush. 416, and cases cited. If goods are lost because not properly marked, the carrier is not liable. Congar v. Chicago & N. W. Railway Co., 24 Wis. 157 (1869). But if wrongly marked by the agent of the carrier, fie is liable for a wrong delivery. Meyer v. Chicago & N. W. Railway Co., 24 Wis. 566 (1869).
§ 941. Where, however, the consignee is dead, or, after due diligence, cannot be found, the carrier may discharge himself from liability, by storing the goods with a third person,4 for and on account of the owner, and the storekeeper will then become the bailee of the latter.6 If the consignee cannot be found, or refuses to receive the goods, the carrier thenceforward becomes an involuntary bailee, or depositary, and is liable only for negligence.6 It is his duty to take reasonable care of the goods, and in some cases to return them to the consignor.1 Mere delivery on a wharf in such case would not be sufficient, where there was no one to take charge of them.2 But this doctrine would only apply to cases where there was no distinct usage or custom of trade contravening it, and making a material portion of the carrier's contract. If, therefore, it be the common and established usage for the carrier to deposit the goods in a certain warehouse or on a certain wharf, a delivery there would seem to be sufficient, if notice be previously given,3 and the carrier's responsibility would either be ended, if the warehouse or wharf did not belong to him, or if it did, he would be responsible merely as warehouseman or wharfinger.4 Such a usage, however, must be clearly made out to be well established and known.5 For example, where a common carrier between Stourport and Manchester was employed to carry goods to Manchester, thence to be forwarded to Stockport, and he landed them at B., and deposited them in his own warehouse, where they were consumed by fire, it was held, that as the warehousing of the goods was according to the known and established custom in such cases, the common carrier's responsibility was only that of a warehouseman, after the delivery in the warehouse. Mr. Justice Buller said: "The keeping of the goods in the warehouse is not for the convenience of the carrier, but of the owner of the goods, for whom the voyage to Manchester is performed. It is the interest of the carrier to get rid of them directly, and it was only because there was no person ready at Manchester to receive these goods, that the defendants were obliged to keep them."1 A still more important expression of the same doctrine is to be found in a late case in Massachusetts. The defendants, a railway corporation, were charged as common carriers for the loss of a roll of leather, which had been transported by them over their road and deposited in one of their warehouses, where it was lost. It appeared that a teamster employed by the plaintiff called, before the loss, with the bill of freight, and inquired for the leather, which was pointed out to him; that he took away some of the rolls, and afterwards called again and inquired for the others; that he was directed where to look for them, but on looking, found only one. Notices also, it appeared, had been posted up by the defendants, containing this expression: " Merchandise, while in the company's storehouse, is at the risk of the owners thereof." It appeared also, that it was the well-known and established usage on the part of the railway company to store goods in their warehouses, after the carriage was completed, there to wait the convenience of the consignee. Under these circumstances, and in view of the usage and the notice, it was held, that the railway company were only liable as warehousemen, and not as common carriers.