Silas Rawson et al., Respondents, v. Alexander Holland, Treasurer, etc., Appellant

Silas Rawson et al., Respondents, v. Alexander Holland, Treasurer, etc., Appellant. (Argued December 4, 1874; decided January 26, 1875.) Where a common carrier accepts goods directed to a place beyond the terminus of his route, the law, in the absence of special circumstances, implies an undertaking on his part to deliver them at the end of his route to the next succeeding carrier; if the latter refuses or neglects to receive them the former, after a reasonable time, may store them, and thereafter his liability as carrier ceases and is simply that of warehouseman. Plaintiffs delivered to defendant at New York goods “ to be forwarded to Det. (Detroit) only; ” the goods were marked “ Day & Lathrop, Dryden, Michigan via Ridgway.” The G-. T. R. Co. was the customary and usual carrier of goods from Detroit to Ridgway. A regulation of that company was to the effect that it would not accept goods for transportation unless the shipper would take a receipt limiting its comm'on-law liability. Up to a short time prior to the shipment in question the G-. T. R. Co. had not exacted of defendant a compliance with this regulation. Prom the time of its enforcement, defendant had been accustomed to detain goods destined to points on the route of that road, and to notify consignees awaiting their directions; this was not known to plaintiff. Upon arrival of the goods at Detroit, they were deposited in defendant’s warehouse without being offered, or notice given of their arrival to any other carrier beyond that point. Notice was given to the consignees, who gave no instructions. About twenty days thereafter they were destroyed by an accidental fire. In an action to recover the damages, held, that defendant was not excused from tendering the goods to the G. T. R. Co., on account of such regulation, as he would have been justified in delivering them, and in accepting the usual contract required of that company; that no custom was established superseding the general obligation to make delivery to the next carrier; and that defendant held the goods as a common carrier and was liable. Lamb v. C. and A. R. R. Co. (46 N. Y., 271) distinguished. The bill of lading contained a clause exempting defendant from liability for loss by fire. Held, that if the exemption applied to the goods after their arrival at Detroit, the violation of duty in not delivering them to the next carrier deprived defendant of the benefit of it. Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of Hew York, reversing a judgment of the General Term of the Marine Court of the city of Hew York, which affirmed a judgment in favor of defendant, entered upon 'a decision of the court upon trial without a jury. In March, 1866, the firm of Day & Lathrop purchased of Rawson, Buckley & Co., the plaintiffs, at New York, a quantity of merchandise with instructions to ship the same to Day & Lathrop, at Dryden, Michigan, by the Grand Trank Railway to Dryden, via Ridgway. The plaintiffs instead of following these instructions shipped them by the American Express Company, of which defendant is treasurer. The package was marked “ Day & Lathrop, Dryden, Michigan, via Ridgway.” The bill of lading acknowledged receipt of package describing marks thereon and stated it was “ to be forwarded, in like good order (dangers of navigation, collisions and fire, and loss occasioned by mob, riot, insurrection or rebellion, and all dangers incident to a time of war excepted), to Det. only,” meaning Detroit, which was the terminus of their route. The goods arrived safely at Detroit on the 4th, 5th or 6tli of April, 1866. The means of transportation at that time between Detroit and Dryden were by teams and by the Grand Trunk Railway. Ridgway is a station on the railway, and when goods arrived by the defendant’s line at Detroit marked for Dryden, via Ridgway, it was the custom of the defendant to notify the consignee of their arrival and request instructions as to forwarding for. the reason that the Grand Trunk Railway required the defendant to sign a contract in relation to all goods shipped by it over that railway, which contained various restrictions and limitations upon the common-law liabilities of carriers. This regulation of the Grand Trunk Railway had been enforced but a short period prior to the shipment of the goods, and such custom was only thereafter adopted. The defendant notified Day & Lathrop, the consignees of the goods, of their arrival and requested them to sign the Grand Trunk Railway form in order that the goods might be shipped. This notice was sent April seventh. Day & Lathrop paid no attention to the notice. The defendants stored the goods in a warehouse, and on April twenty-sixth the goods were destroyed by a fire in Detroit without fault or negligence on the part of the defendant. Judgment was directed for the defendant, which was entered accordingly. Further facts appear in the opinion. Hamilton Cole for the appellant. Any liability of a common carrier beyond his established route, can only be imposed by special contract. (2 Redf. on Rways., 114, and notes ; F. and M. Bk. v. Ch. Tr. Co., 16 Vt., 52; Hempstead v. N. Y. C. R. R. Co., 28 Barb., 485 ; Van Santvoord v. St. John, 6 Hill, 158; Jennison v. C. and A. R. Co., 4 Am. L. Reg., 234; Condict v. G. T. R. Co., 54 N. Y., 500; Root v. G. W. R. Co., 45 id., 524.) In the absence of proof, plaintiffs must be presumed to have ■ contracted in accordance with the established custom of defendant. (Nelson v. H. R. R. R. Co., 48 N. Y., 498.) If a carrier is bound to forward beyond its line, and the connecting carrier refuses to receive the goods, the first carrier may terminate his liability by storing the goods, even without notice to the owner. (Johnson v. N. Y. C. R. R. Co., 33 N. Y., 610 ; Forsyth v. Walker, 9 Barr, 148 ; Fisk v. Newton, 1 Den., 451; Goold v. Chapin, 20 N. Y., 259; Mills v. M. C. R. R. Co., 45 id., 622.) A carrier cannot be called upon to make any extraordinary and unusual contract continuing his liability after the goods had passed out of his control. (Lamb v. C. and A. R. R. Co., 46 N. Y., 271.) The consignees are the presumptive owners of goods, and in this case were the proper persons to whom to give notice. (Fitz Hugh v. Wiman, 5 Seld., 559 ; Sweet v. Barney, 23 N. Y., 335; Thompson v. Fargo, 49 id., 188 ; Krulder v. Ellison, 47 id., 36.) Hpon refusal of the consignee to receive the goods the carrier was not bound to give notice to the consignor. (Williams v. Holland, 22 How. Pr., 137.) Defendant did all that could be reasonably asked in the premises. (Nelson v. H. R. R. R. Co., 48 N. Y., 498.) The bill of lading in evidence constitutes the contract between the parties relating to the carriage of the goods in question. (Wolf v. Myers, 3 Sandf.; Dow v. N. J. S. Nav. Co., 1 Kern., 485 ; Magee v. C. and A. R. Co., 4 Alb. L. J., 113; Grace v. Am. Ex. Co., 100 Mass., 105 ; Guillaume v. H. and A. P. Co., 42 N. Y., 212; Long v. N. Y. C. R. R. Co., 50 id., 76; Belger v. Dinsmore, 51 id., 166; Wetzell v. Dinsmore, Com. Pleas, Gen. Term, 1871; Steinway v. Erie R. Co., 4 Hand, 123.) The title to the goods had passed to the consignees before delivery to defendant. (Wheeler v. Terry, 25 N. Y., 520 ; Olyphant v. Baker, 5 Den., 379.) D. M. Porter for the respondents. Plaintiffs having sent the goods by the defendant contrary to the orders of the purchasers, are the owners of the claim sued for. (Hills v. Lynch, 3 Robt., 42; Hicks v. Cleveland, 48 N. Y., 84; Dubois v. D. and H. Canal Co., 4 Wend., 290 ; 2 Pars, on Con. [5th ed.], 675 ; Hague v. Porter, 3 Hill, 141; Kelly v. Upton, 5 Duer, 336 ; .2 Greenl. Ev., § 212 ; Coats v. Chaplin, 3 Ad. & Ell. [N. S.], 483.) Defendant did not relieve itself from liability by unloading the goods at the end of its route and storing them without delivery or notice. (McDonald v. West. R. R. Co., 34 N. Y., 497; Mills v. Mich. C. R. R. Co., 45 id., 622; Northrup v. Syr., etc., R. R. Co., 5 Abb. [N. S.], 425 ; Lawrence v. W. and St. P. R. R. Co., 15 Minn., 390.) If another bill of lading was required defendant should have given notice to plaintiffs, who were agents-of the consignees for that purpose. (Nelson v. H. R. R. R. Co., 48 N. Y., 507; Lond., etc., R. Co., v. Bartlett, 7 H. & N., 400 ; York Co. v. Cent. R. R. Co., 3 Wall., 107; Squires v. N. Y. C. R. R. Co., 98 Mass., 239.) The delivery of the-goods to defendant authorized it to deliver them to the next carrier upon the usual terms. (Moriarty v. Harnden's Exrx., 1 Daly, 227; McDonald v. West. R. R. Co., 34 N. Y., 497 ; Whitbeck v. Holland, 45 id., 13; Read v. Spaulding, 5 Bosw., 395; Belger v. Dinsmore, 34 How. Pr., 421.) A carrier must not be in default. (Read v. Spaulding, 5 Bosw., 395 ; S. C., 30 N. Y., 630; Michaels v. N. Y. C. R. R. Co., id., 564.) [MAJORITY — Andrews, J.] Andrews, J. The defendant was a common carrier of the goods in question, 'from the city of New York to Detroit, Michigan. It received them at New York “ to be forwarded to Detroit only,” and the express terms of the undertaking "exclude any inference or implication that it was to carry them further. But Detroit was not the final destination of the property. The box was marked “ Day & Lathrop, Dryden, Michigan, via Bidgway,” clearly indicating that Dryden was the ultimate destination, and that the transit was by some agency to be continued, from Detroit via Bidgway, to the place of consignment. The defendant was not bound to carry the goods beyond Detroit. It performed its contract in respect to the actual carriage upon carrying them to that place. But the obligation of a carrier is not fully discharged by transporting the goods from the place of shipment to the place of consignment, or in case of an intermediate carrier, from the place of shipment to the end of his route. The undertaking to transport the goods to a particular place, includes the duty of delivering them there in safety. (De Mott v. Laraway, 14 Wend., 225.) What is due delivery depends upon the nature of the carriage; whether by ship, rail or other conveyance, and also upon the facts whether the carrier in the particular case is an intermediate carrier, or is the one who transports the goods to their final destination, and the mode of delivery may, in some cases, be controlled by custom and usage. In all cases, however, there must be a delivery by the carrier, or something tantamount to a delivery, before he rids himself of his responsibility as such. In the case of an intermediate carrier, who accepts goods to be carried to a point short of their final destination, directed to a place beyond the termination of his route, the law from such direction, in the absence of other special circumstances, implies an undertaking on his part to deliver them, at the end of his route, to the next succeeding carrier in the line of transportation, and if such carrier refuses or neglects to receive them, the first carrier may, store the goods, and then the nature of the bailment changes and he is relieved from, the stringent responsibility originally assumed, and the liability of a- warehouseman is substituted. (Van Santvoord v. St. John, 6 Hill, 157; Goold v. Chapin, 20 N. Y., 259; McDonald v. Western R. R. Co., 34 id., 497; Root v. The Great Western R. R. Co., 45 id., 524; Mills v. Michigan Cen. R. R. Co., id., 622; Nutting v. Conn. River R. R. Co., 1 Gray, 502.) In this case the defendant did not, on the arrival of the goods at Detroit, offer them to any other carrier for transportation beyond that point, or give notice to any other carrier of their arrival. They were deposited in the defendant’s warehouse and remained there for about twenty days, when they were destroyed by an accidental fire which happened without fault or negligence of the defendant. The failure to deliver to another carrier did not result from the fact that there was no carrier on the route designated by the direction, to whom delivery could be made. The Grand Trunk Railway Company operated a line of railway from Detroit to Ridgway, a station on that road, and was the customary and usual carrier to Ridgway, of goods sent from Detroit to Dryden via Ridgway, and, so far as appears, there was no other public carrier between these places. The defendant not having delivered or tendered the goods to the Grand Trunk Railway, is, under the general rule of law, liable for the loss, and it must be so adjudged unless the case is taken out of the rule by the special circumstances relied upon. There are, however, two grounds upon which it is claimed that the defendant was excused from delivering the goods to the Grand Trunk Railway: first, that by a regulation of that company of which the defendant had notice it would not receive goods for transportation unless the shipper would accept a receipt containing certain exemptions from the liability imposed upon carriers at common law; and, second, that by a custom of the defendant, goods carried by its line to Detroit destined to points on the Grand Trunk Railway, were detained until notice .was given to consignees, and their direction taken as to sending them by that road, and that such notice was given in this case, and the goods were destroyed before any direction had been given. We do not think that either of these answers is sufficient, under the circumstances of this case, to relieve the defendant from liability. The direction on the box was a clear indication that Raw-son, Buckley & Co., the shippers, designed that it should be sent from Detroit to Dryden via Ridgway, and was in effect a direction to the defendant to send them by the usual mode of carriage from Detroit to that point. The defendant wTas entitled to regard the shippers as authorized to direct as to the mode of transportation, whatever their actual relation to the goods may have been, whether in fact they or the consignees were the owners. The direction that the goods should be sent via Ridgway, coupled with the fact that the Grand Trunk Railway was the usual carrier between Detroit and that place, authorized the defendant to deliver the goods to that company, upon the usual contract required, and in case of loss after such delivery and while they were in possession of that company, the defendant would not have been liable, although the Grand Trunk Railway under its contract might have been exempted from liability also. (Nelson v. The Hudson River R. R. Co., 48 N. Y., 507; Squire v. New York Central R. R. Co., 98 Mass., 240; Burnett v. Lond, and N. W. R. R. Co., 5 Hurl. & Nor., 604.) There is nothing decided in the case of Lamb v. Cam. and Amboy R. R. Co. (46 N. Y., 271), which conflicts with this view. In that case there was no indication in the contract of the first carrier, as to the particular route or company by which the goods were to be sent from Chicago, nor so far as it appears was it necessary that the first carrier should consent to a restricted liability in order to procure the goods to be carried from that point, and as he had guaranteed that they should be carried to the final destination at a specified through rate, it perhaps might justly be inferred that they were to be carried from Chicago under a contract as favorable as that made with the first carrier. We, however, confine our decision to the case presented on this record, and are of opinion that the defendant was not excused from tendering the goods to the Grand Trunk Railway, and that he would have been justified in delivering them to that road, and in accepting the usual contract required by the company. The defence founded upon the alleged custom is we think wholly insufficient. The proof is that up to a short time before the shipment of these goods, the Grand Trunk Railway had not exacted of the defendant a compliance with the general rule of the company, but had received its goods on thqforms used by the defendant. This had been changed in 1865, or 1866, and the regulation was thereafter enforced as to goods received from the defendant. The defendant from that time was accustomed to detain goods destined to points on the Grand Trunk Railway', and advise the consignees, and await their direction before sending them forward, and in this case written notice was sent to “ Day & Lathrop ” of the arrival of the goods, but they gave no instructions. It is said in Van Santvoord v. St. John (6 Hill, 160), that a carrier who receives a box marked in a particular way, without any directions, except such as may be inferred from the marks themselves, has a right to presume that the consignor intends that he shall transport and dispose of them in the usual and customary way. That was the case of a carrier by tow boats on the Hudson river, who received a package marked, “ J. Petrie, Little Falls, Herkimer county,” and it was held that the first carrier was justified in delivering it at the end óf his route to a succeeding carrier by canal, and was discharged thereby from further responsibility; it being shown that there was a general, established and uniform usage in the business, that such delivery might be made; and it was also held that the consignor was bound by it whether he knew it or not. And in Gibson v. Culver (17 Wend., 305) it was held that the general obligation created by law in respect to the mode of delivery by a carrier, may be controlled by a uniform usage and course of the business in which he is engaged. In this case the proof falls far short of establishing a custom. superseding the general obligation of the defendant to make delivery of the goods to the next carrier. At most it was a usage recently established, and confined to the particular business of the defendant at a particular place, not known to the plaintiffs, and which they were not bound to ascertain. The usage relied upon in this case lacks the essential elements of a valid usage. It is neither general, established, uniform, or notorious. It would be unreasonable to give it effect in this case, to defeat a recovery by the plaintiff. The parties did not make their contract in reference to it, and cannot be presumed to have done so. It is the general rule, that a local usage must be shown to have been known to a party before he will be held to be bound by it. (Smith v. Wright, 1 Caines, 43; Stevens v. Reeves, 9 Pick., 198; Krechner v. Venus, 12 Moore's P. C. C., 361; Bartlett v. Pentland, 10 B. & C., 760; 1 Smith L, C., 836; 2 Parsons on Cont., 541, note.) The conclusion is, that the defendant, at the time of the fire, held the goods as a common carrier, and is responsible for the loss under the general rules of law. If the exemption in the bill of lading from liability for loss by fire can be construed as applying to" the goods after the transit to Detroit was ended, the delay -in delivering them to the Grand Trunk Bail way was a violation of duty which deprived the defendant of the benefit of it. (Michaels v. N. Y. Central R. R. Co., 30 N. Y., 564; Read v. Spaulding, id., 630; Maghee v Cam. and Amboy R. R. Co., 45 id., 514; Condict v. The G. T. R. R. Co., 54 id., 500.) The judgment of the General Term should be affirmed. All concur, except Grovek, J., dissenting; Allen, J., not sitting. Judgment affirmed.