company was then requested by the owner to wait until he could see the party to whom he had sold them, which request was complied with; and the next day the goods, while being so detained, caught fire and were damaged, it was held that from the moment the request was made to detain the goods the liability of the company was as warehouseman only.29 Sec. 114. Same subject-Live stock placed in yards provided by carrier.-Where the carrier has constructed pens or yards in order to facilitate the loading of live stock, the mere placing of the stock in such pens will not be sufficient to impose upon him the duties and liabilities of a common carrier of live stock.30 If, however, he receives the stock into the pens or yards thus provided, for the purpose solely of being loaded for transportation, he will thereby assume the obligation of forwarding the stock in the usual way, and his liability as a common carrier will attach at the time the stock is so received 31 But if the stock, while in the carrier's pens or yards awaiting transportation, is subject to the right of the shipper to remove it when necessary for food and water, it has been held that the carrier's liability will be no greater than that of an ordinary bailee, and that he will be liable only where he has failed to exercise ordinary care.32 Sec. 115. (90.) Constructive delivery-Place fixed by agreement or usage.-But, while it is the undoubted general 29. St. Louis, etc., R. R. v. Montgomery, 39 Ill. 335. Wood piled up along a railroad track, to be loaded by the owner when he could get the cars, is not completely delivered to the company. Wilson v. Railway Co., 82 Ga. 386, citing Wells v. Railroad Co., 6 Jones' L. 47, and distinguishing Central R. R. r. Hines, 19 Ga. 203; Fleming v. Hammond, 19 Ca. 145. 30. Railway Co. v. Byrne, 100 Fed. 359, 40 C. C. A. 402. 31. Lackland v. Railway Co., 101 Mo. App. 420, 74 S. W. Rep. 505, citing Hutchinson on Carr; Cooke v. Railroad Co., 57 Mo. App. 471. Where cattle have been put into the carrier's pen for immediate shipment, and their loading has begun, the carrier is liable as such. Gulf, etc., R'y. Co. v. Trawick, 80 Tex. 270; McCullough v. Ry. Co., 34 Mo. App. 23. 32. Railroad Co. v. Powers, Neb. rule that the delivery, to bind the carrier, must be made either to him or to some one with authority from him, or who may be rightfully presumed to have such authority, it is not to be understood that it is not subject to such conventional arrangements between the parties as they may choose to make in regard to the mode of delivery, or that it may not be varied by usage, or by a particular course of dealing between them. They may make such stipulations upon the subject as they see fit, and when such stipulations are made, they, and not the general law, are to govern. If, therefore, the parties agree that the goods may be deposited for transportation at any particular place and without an express notice to the carrier, such deposit will be a sufficient delivery; and proof of a constant and habitual practice and usage of the carrier to receive the goods when they are deposited for him in a particular place, without special notice of such deposit, is sufficient to show a public offer by the carrier to receive goods in that mode, and to constitute an agreement between the parties, by which the goods, when so deposited, shall be considered as delivered to him, without any further notice. Such a practice and usage are tantamount to an open declaration, a public advertisement by the carrier, that such a delivery should, of itself, be deemed an acceptance by him; and to permit him to set up, against those who had been thereby induced to omit it, the want of the formality of an express notice, which had been thus waived, would be sanctioning injustice and fraud. As where, for instance, the delivery was upon a private wharf or dock, used exclusively by the carrier, and upon which it had been its custom and constant usage to receive goods left there for transportation by it, such a deposit, in the usual and accustomed manner, would be constructive notice, and would be regarded as sufficient delivery, though the goods were not left in charge of any of its servants.33 33. Merriam v. The Railroad, 20 Conn. 354; Converse v. Trans. Co., 33 Conn. 166. See also, Washburn-Crosby Co. v. Railroad Co., 180 Mass. 252, 62 N. E. Rep. 590; Truax v. Railroad Co., 3 Houst. 233, 251. Where a railroad company erects Sec. 116. (§ 91.) Same subject.-And so, where the plaintiff sent her trunk, properly labeled with her name and destination, to the depot of the company, during business hours in the evening, intending to take passage on its train the next morning, and the company's employees being at supper, the drayman put the trunk down in the waiting-room without notice to any of them, as he had often done before, which was proven to have been a custom with passengers intending to leave by the morning trains, it was held that when the trunk was thus deposited it was at the risk of the company, and, it having been burned during the night, the company was held liable. "That the delivery may be made at the proper place of receiving such baggage, under the express assent or authority of the carrier, without notice to its employees, will not, we presume, be disputed," said the court. "It is equally clear, upon principle, that this assent may be presumed from the course of business or the custom of the carrier. Upon evidence of this character, contracts based upon business transactions a platform for the purpose of shipping cotton, and its course of business is such as to induce parties to store cotton on it for shipment by next freight train, and a party does so store it there for shipment, but the train passes and neglects to take it on, and it is destroyed during the delay by fire caught from sparks from the company's engines, the company is liable for the loss. Meyer v. Vicksburg R. R. Co., 41 La. Ann. 639. A deposit of cotton in the street along side of the railroad platform or in the railroad cotton-yard, in pursuance of a custom to deposit it there for shipment, is sufficient. Montgomery, etc., Ry. Co. v. Kolb, 73 Ala. 396, approving text. A shipper having freight to be transported by railroad cannot make a good delivery to the railroad company by simply depositing the goods anywhere along the line. But where, by agreement, freight is deposited at a given point on the line of railroad for the purpose of immediate transportation, such deposit will constitute a delivery to the company, and its liability as a common carrier will commence at the time the goods are so placed. Railway Co. v. Marchman, 121 Ga. 235, 48 S. E. Rep. 961. A deposit of hay for immediate shipment at the usual place of loading hay at the carrier's depot, in pursuance of the usage of the parties, makes the carrier liable therefore as a common carrier. Railroad Co. v. Keith, 8 Ind. App. 57, 35 N. E. Rep. 296. are constantly established. There was evidence tending to show a course of business on the part of the defendant, a custom to receive baggage left at the station-house, as in this case, without notice to defendants' servants. Upon evidence of this character, it was proper that the facts should have been left to the determination of the jury, whether there had been a delivery of the property within the rules above announced,whether a course of business, a custom, had been established, to the effect that a delivery of baggage at the station-house, without notice, was regarded by defendant as a delivery to its servants, and whether plaintiff's trunk was received under this custom. And upon a second appeal to the same court, in the same case, from a verdict and judgment in the inferior court in favor of the plaintiff for the value of her trunk, after the case had been sent back for a retrial upon this view of the law, the court held that the jury was fully justified in finding that there was a delivery of the trunk to the company and an acceptance by it, and the judgment was affirmed.35 Sec. 117. (§ 92.) Same subject-Limitations on rule.-But where the proof was of delivery upon a boat of his trunk by one intending to become a passenger, and it was shown that this was the customary mode for the delivery of the baggage of passengers, but that this usage existed only as to baggage and not as to ordinary freight, it was held that the plaintiff could not recover for the loss of his trunk from the owners of the boat, inasmuch as he had not accompanied it upon the boat as a passenger and had not become under the circumstances the boat's passenger at all. And while it was admitted that a constructive delivery without notice might bind the carrier as to both baggage and freight when the usage was clearly proven, no such usage being shown in this case as to freight, which the trunk without its owner was to be considered, there had been no delivery and the owners of the boat were conse 34. Green v. The Railroad, 38 35. Green v. The Railroad, 41 Iowa, 100. Jowa, 410. quently not responsible.36 But it was decided in a leading case upon this branch of the law, that although, according to the usual custom and understanding of the parties, delivery on the dock by or near the boat might be sufficient, it must, in order to bind the carrier and make him responsible for them, be accompanied by express notice to him; and the defendant being informed that there were four boxes only, which he took on board, could not be held responsible for more, although five boxes had been really deposited on the dock for his boat, he having been informed that there were only four.37 Sec. 118. (§ 93.) Same subject-Rule to be applied with caution.—And it must be admitted that the doctrine of constructive delivery without notice to the carrier is one which should be applied with great caution. It is undoubtedly competent for him to bind himself by such a delivery either by his express agreement that a deposit of goods at a particular place shall be a valid delivery to him, or by so advertising it to the public, or by a well known and established custom to receive the goods in that way, which would perhaps be as binding upon him as to persons who have acted upon the notice or the usage as an express agreement; and cases may arise in which the usage and course of dealing between the parties should undoubtedly have that effect. But, certainly, to do so they should be shown to have existed and to have been uniformly acted upon by the parties, by the most satisfactory proof and for a sufficient length of time to have become an established usage, tantamount to an agreement to that effect, or to a declaration to the public that a delivery in accordance with the usage will be deemed an acceptance by him for the purpose of the transportation; and perhaps it should be shown that a reliance upon the previous course of dealing or the usage or the notice had controlled the action of the shipper in the particular instance. But few cases are to be found in which the rule has been ap 36. Wright v. Caldwell, 3 Mich. 51. 37. Packard v. Getman, 6 Cowen, 757. And see also O'Bannon v. The Southern Express Company, 51 Ala. 481; Buckman v. Levi, 3 Camp. 414. |