D. G. Griffin, for the appellant.

A. H. Sawyer, for the respondent.

204 EARL, J. This action is brought to recover damages against the defendant for the destruction by fire of a large quantity of hay, alleged to have been delivered to it as a common carrier for transportation.

It is admitted that if, at the time of the destruction of the hay, it was in the possession of the defendant as a common carrier, it is liable in this action; and the sole question for our determination is whether the hay had been so delivered to the defendant and placed in its custody as to make it liable as a common carrier. The plaintiff sues as assignee of the shippers and stands in their place.

The hay, at the time of its destruction, was in the defendant's 205 freight-house at Cape Vincent, and had been placed there by the plaintiff's assignors with the consent and under the direction of the defendant's freight agent at that place. It was delivered in bales, and it was the usage and the regulation of the defendant, known and assented to by the shippers, that they were to load it into the defendant's cars. The claim of the defendant is that its responsibility as a common carrier had not attached to it at the time of the fire, for the sole reason that the duty of loading the hay into its cars rested upon the shippers, and that its duty as a common carrier could not attach until the hay was thus loaded.

There is no doubt that it is the duty, generally, of a railroad company to load the freight delivered to it for transportation into its cars, and that it cannot generally devolve this duty by any regulation upon the shipper; and that it cannot legally, as a condition of transportation generally, exact from the shipper a contract to place the freight into its cars. But we know from our own observation that as to hay, lumber, sawlogs, live animals, and other bulky freight, the shipper usually loads the freight into the cars. We need not, however, now decide whether a railroad company can, as to such bulky freight, make a regulation that the shipper shall load it, because here the shippers acquiesced in the regulation and undertook the duty of loading. But we do not think that the fact that the shipper undertakes to load the freight into the cars necessarily postpones the time when the railroad company takes on the character of a common carrier. The rule as to the responsibility of the carrier is

AM. ST. REP., VOL. XLIII. — 48

as com

laid down in varying phraseology in a variety of cases, as follows: To render a common carrier liable for goods to be carried by him, the fact that the goods were actually delivered to him, or to some person authorized to act in his be half, must be established. His liability attaches only from the time he accepts the goods to be carried. To complete the delivery of goods to the carrier it is essential that the property be placed in a position to be cared for, and under the control of the carrier or his agent, with his knowledge and consent. The liability of a railroad company 206 mon carrier of goods delivered to it attaches only when the duty of immediate transportation arises. So long as the shipment is delayed for further orders as to destination of the goods, or for the convenience of the owners, the liability of the company is that of warehousemen. The liability of a common carrier for goods received by him begins as soon as they are delivered to him, his agents, or servants, at the place appointed or provided for their reception when they are in a fit and proper condition, and ready for immediate transportation. If a common carrier receives goods into his own warehouse for the accommodation of himself and his customers, so that the deposit there is a mere accessory to the carriage, and for the purpose of facilitating it, his liability as a carrier will commence with the receipt of the goods. But, on the contrary, if the goods when so deposited are not ready for immediate transportation, and the carrier cannot make arrangements for their carriage to the place of destination. until something further is done or some further direction is given or communication made concerning them by the owner or consignor, the deposit must be considered to be in the mean time for his convenience and accommodation, and the receiver, until some change takes place, will be responsible only as a warehouseman. The party bringing the goods must first do whatever is essential to enable the carrier to commence, or to make needful preparations for commencing, the service required of him, before he can be made liable or subjected to responsibility in that capacity. Where goods are delivered to a common carrier to await further orders from the shipper before shipment, the former, while they are in his custody, is only liable as warehouseman, and his only responsibility as carrier is where goods are delivered to and accepted by him in the usual course of business for immediate transportation. The duties and the obligations of

the common carrier with respect to the goods commence with their delivery to him, and this delivery must be complete, so as to put upon him the exclusive duty of seeing to their safety. The law will not divide the duty or the obligation 207 between the carrier and the owner of the goods. It must rest entirely upon the one or the other, and until it has become imposed upon the carrier by a delivery and acceptance, he cannot be held responsible for them. The entire weight of the responsibility rigorously imposed by law upon a common carrier falls upon him contemporaneously (eo instanti) with a complete delivery of the goods to be forwarded, if accepted, with or without a special agreement as to reward; for the obligation to carry safely on delivery carries with it a promise to keep safely before the goods are put in itinere: Judson v. Western R. R. Co., 4 Allen, 520; 81 Am. Dec. 718; Barron v. Eldredge, 100 Mass. 455; 1 Am. Rep. 126; Grosve nor v. New York Cent. R. R. Co., 39 N. Y. 34; O'Neill v. New York Cent, etc. R. R. Co., 60 N. Y. 138; Redfield on Carriers, 80; Angell on Carriers, sec. 129. In Wilson v. Atlanta etc. Ry. Co., 82 Ga. 386, a case somewhat relied on by defendant's counsel, a quantity of wood was piled along the line of the defendant's railroad for the purpose of having it transported thereon, and the shipper was to place the wood in the defendant's cars. There the action was brought to recover damages on account of unreasonable delay in transporting some of the wood, and, also, for the loss of some portion thereof. The plaintiff failed to recover on the ground that upon all the facts in that case the wood had not been delivered to and accepted by the railroad company for immediate shipment; and no principle was laid down in that case which can be invoked for the protection of the defendant in this. Here the hay was delivered to the defendant for immediate shipment, and it was accepted by it and placed in its freighthouse. It was not stored for the accommodation and conven. ience of the shippers. They were there ready, willing, and anxious to put the hay into the cars as fast as the defendant would furnish them. There was no delay whatever by the request of the shippers or on account of any act or omission on their part. Whatever delay there was in the shipment was due exclusively to the omission of the defendant to promptly furnish cars for the transportation. Although a railroad company may not be 208 able promptly to transport freight delivered to it, and there may be considerable delay

and even long storage of the freight until cars can be furnished, nevertheless it takes on the character of a common carrier the moment the property is delivered and received by it for immediate transportation. It can make no difference whether the railroad company was to place this hay in its cars, or whether the shippers were to do that work. Whoever was to load the hay into the cars, it was delivered and received for immediate shipment, not for storage, not to be kept for the shippers, and not subject to their control, and it was not in their custody. It was simply left in the freighthouse of the railroad company until it could furnish cars for its transportation. It was there for immediate shipment, with nothing more to be done than to place it in the cars, and whether that work was to be done by the railroad company or by the shippers can make no difference in reason or principle. If, however, in such a case the delay in the shipment is caused by some fault of the shippers, if they are not ready to place the freight in the cars when they are furnished, and thus shipment is delayed until the property, without the fault of the carrier, is destroyed, the loss would then fall upon the shippers, because it was due to their default.

In this case, at the time of the fire, the property was stored for the convenience of the carrier, and not for the convenience of the shippers, and its destruction was due to its default, and in no way to any default on their part.

We, therefore, see no reason to doubt that this recovery was right, and that the judgment should be affirmed, with costs. All concur (PECKHAM and BARTLETT, JJ., in result), except O'BRIEN, J., taking no part.

Judgment affirmed.

CARRIERS-WHEN LIABILITY BEGINS-DELIVERY TO.-Delivery to and acceptance by a carrier are essential to make him liable for goods, but acceptance may be either actual or constructive: Merriam v. Hartford etc. R. R. Co., 20 Conn. 354; 52 Am. Dec. 344, and note. Delivery of goods to a carrier by leaving them on the dock near his boat, according to the usual custom, will not render him liable unless accompanied by express notice: Packard v. Getman, 6 Cow. 757; 16 Am. Dec. 475, and note. Delivery of goods to a servant or duly authorized agent of a carrier, who is in the habit of receiving such goods in the ordinary scope of his employment, is a sufficient delivery to make the carrier responsible for their loss: Minter v. Pacific R. R., 41 Mo. 503; 97 Am. Dec. 288, and note. For a further discussion of this subject see the notes to Illinois Cent. R. R. Co. v. Smyser, 87 Am. Dec. 304; Merriam v. Hartford etc. R. R. Co., 52 Am. Dec. 349; Governor v. Withers, 50 Am. Dec. 99, and the extended note to Campbell v. City of Stillwater, 50 Am. Rep. 571.

SANDERS V. POTTLITZER BROS. FRUIT COMPANY.

[144 NEW YORK, 209.]

CONTRACT, WHEN PERFECT THOUGH THE PARTIES CONTEMPLATE ITS BEING REDUCED TO A MORE FORMAL WRITING.-If the correspondence and telegrams between the parties contain all the details of a contract it is enforceable though they intended that their agreement should be formally expressed in a single paper, which, when signed, should be the evidence of what already had been agreed upon. Neither party has the right to insist that such agreement should contain terms not stated in the correspondence and telegrams, and if he does so insist and refuses to sign the agreement or perform the contract without such additional terms, he is answerable for the damages sustained by his withdrawal from his contract.

A CONTRACT To Make and EXECUTE A CERTAIN Written AGREEMENT, the terms of which are mutually understood and agreed upon, is in all respects as valid and obligatory, where no statutory objection interposes, as the written contract itself would be if executed. Neither party is at liberty to refuse to perform or to enter into the agreement as stipulated.

Eugene M. Bartlett, for the appellants.

George W. Daggett, for the respondent.

210 O'BRIEN, J. The plaintiffs in this action sought to recover damages for the breach of a contract for the sale and delivery of a quantity of apples. The complaint was dismissed by the referee and his judgment was affirmed upon appeal. The only question to be considered is whether the contract stated in the complaint, as the basis for damages, was ever in fact made so as to become binding upon the parties. On the 28th of October, 1891, the plaintiffs submitted to the defendant the following proposition in writing: "BUFFALO, N. Y., Oct. 28, 1891. "Messrs. Pottlitzer Bros. Fruit Co., Lafayette, Ind.,

"GENTLEMEN: We offer you ten carloads of apples to be from 175 to 200 barrels per car, put up in good order, from stock inspected by your Mr. Leo Pottlitzer at Nunda and Silver Springs. The apples not to exceed one-half green fruit, balance red fruit, to be shipped as follows:

"First car between 1st and 15th December, 1891.

"Second car between 15th and 30th December, 1891, and one car each ten days after January 1, 1892, until all are shipped. Dates above specified to be considered as approximate a few days either way, at the price of $2.00 per barrel, free on board cars at Silver Springs and Nunda, in refrigera