Farmers' & Mechanics' Bank v. Champlain Transportation Co.

23 Vt. 186

• Court: Supreme Court of Vermont
• Decided: May 15, 1851
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

The facts, necessary to a full understanding of the points, now determined by the court, will be found sufficiently detailed in the reports of the same case, 16 Vt. 52, and 18 lb. 131.

The first question is, What was necessary to constitute the defendants common carriers of bank bills 7

The defendants’ charter extends to the’ carrying of all commodities usually carried upon Lake Champlain at the date of the charter, and the proof showed, that bank bills were usually carried by the water craft upon that lake, at the time the defendants’ company took their charter and went into operation. The words of the charter are, “ All other articles and things usually transported by water on said Lake Champlain.” This being so, there could be no doubt, the defendants’ powers, as a corporation, extended to carrying bank bills. And something in the bill of exceptions looks as if the jury were told, that this did, ipso facto, and of necessity, constitute the defendants common carriers of bank bills. But this general proposition we do not think exactly maintainable. For the powers of natural persons, who should erect steamboats, and become carriers upon Lake Champlain, would be equally extensive with those of the defendants; but if they should confine their business to carrying other dissimilar commodities, we do not think they could be compelled to assume the risk of carrying bank bills, or specie. And so the court, in this case, seem to have viewed the subject in another portion of their charge, when they allude to the practice of this company, in carrying bank bills, as a practical construction of their own charter, and of their own obligations to the public under it. But it seems to us, that this case is distinguishable from those, where it has been held incumbent upon the plaintiffs to show, by positive proof, that the company consented to the captain of their boat carrying money on their account, in order to hold the company responsible for the loss of the money. Sewall v. Allen, 6 Wend. 351, reversing the judgment in Allen v. Sewall, 2 Wend. 327, is one of that class of cases, so far as the determination of the court of errors is concerned. And that determination seems to meet with approbation in Angelí on Carriers, § 101, and note 4. And Story, J., in Citizens’ Bank v. Nantucket S. B. Co., 2 Story’s R. 16, and Chancellor Kent, 2 Kent 609, seem also to approve the decision oN the court of errors. But these eases, and the writers named, adopt this view of the subject, upon the ground that the charter of the ! company limits their business to the carrying of “ goods, wares, and merchandize,” and that bank bills are neither, and so the companyj prima facie not liable; and not liable in any event, .unless they have given their consent to their proper business being enlarged, so as to include bank bills ; and also that this was a suit against the stockholders in their individual capacity, under the charter. Upon this narrow view of that case the decision of the court of errors may stand; but, as applicable to a company, whose charter, on the face of it, does include the carrying of bank bills, and in a suit directly against the corporation, it seems to us the reasoning is altogether unsatisfactory and unsound. And unless that case is to be distinguished from the present, upon the ground of the restricted nature of the charter of that company, we should certainly incline to the opinion of the supreme court of New York, in Allen v. Sewall, rather than that of the court of errors. Mr. Justice Story, (in 2 Story, ut supra,) seems to admit, that, upon general principles, the captain’s contract will bind the company to the extent of the charter powers.

It seems to us, that when a natural person, or a corporation, whose powers are altogether unrestricted, erect a steamboat, appoint a captain, and other agents, to take the entire control of their boat, and thus enter upon the carrying business, from port to port, they do constitute the captain their general agent, to carry all such commodities as he may choose to contract to carry within the scope of the powers of the owners of the boat. If this were not so, it would , form a wonderful exception to the general law of agency, and one in ! which the public would not very readily acquiesce. There is hardly any business in the country, where it is so important to maintain the authority of agents, as in this matter of carrying, by these invisible corporations, who have no local habitation, and no existence, or power of action, except through these same agents, by whom almost the entire carrying business of the country is now conducted. If, .then, the captains of these boats are to be regarded as the general agents of the owners, — and we hardly conceive how it can be re-i garded otherwise, — whatever commodities, within the limits of the powers of the owners, the captains, as their general agents, assume' to carry for hire, the liability of the owners, as carriers, is thereby fixed, and they will be held responsible for all losses, unless, from the course of business of these boats, the plaintiffs did know, or upon reasonable inquiry, might have learned, that the captains were intrusted with no such authority. Prima fade the owners are liable ,for all contracts for carrying, made by the captains, or other general agents, for that purpose, within the powers of the owners themselves, and the onus rests «pon them to show, that the plaintiffs had made a private contract with the captain, which it was understood should be kept from the knowledge of th£ defendants, or else had given credit exclusively to the captain. Butler v. Basing, 2 C. & P. 614.

But it does not appear to us, that the mere fact, that the captain-was, by the company, permitted to take the perquisites of carrying these parcels, will be sufficient to -exonerate the company from liability. Their suffering him to continue to carry bank bills ought, we think, to be regarded as fixing their responsibility, and allowing the captain to take the perquisites, as an arrangement among themselves, j But we are aware, that the question, with whom was the cSntfact, and to whom the credit was given, will generally be one, to some extent, of fact. Yet it seems to us, that the defendants have no ground of complaint with the general mode, in which this part of the case was disposed of in the court below. The law would have justified the judge, as we have before stated, in putting the case, upon this point, upon grounds far more unfavorable to them. Indeed, it seems to us, that, upon the facts stated, if we are not misinformed in regard to the general nature of the defendants’ charter, there could be very little ground to raise any question, either of law or fact, as to the defendants’ liability, as common carriers of the parcel, so far as they undertook to carry it.

As to the notice, which was attempted to be proved ,£we do not see, but the proof of the loss of the remainder of the hand bill was sufficient^ we are more inclined to adopt the view which the American cases have taken of this subject of notices, by common carriers, intended to qualify their responsibility, than that of the English courts, which they have in some instances subsequently regretted. The consideration, that carriers are bound, at all events, to carry such parcels within the general scope of their business, as are offered to them to carry, will make an essential difference between the effect of notices by them, and by others who have an option in regard to work which they undertake. In the former case, the contractor having no right to exact unreasonable terms, his giving public notice, that he shall do so, where those who contract with him are not altogether at his mercy, does not raise the same presumption of acquiescence in his demands, as arises in those eases, where the contractor has the absolute right to impose his own conditions. And unless it be made clearly to appear, that persons contracting with common carriers expressly consent to be bound by the terms of such notices, it does not appear to us, that such acquiescence ought to be inferred. But if, by the terms of the contract, the risk is in part or wholly, assumed by the owner of the things carried, the carrier would only be liable, probably, for ordinary neglect. The law of this subject will be found fully discussed in Mr. Angell’s chapter upon this subject, § 232, et seq.; see also lb. § 220, et seq. It is certain from the English cases, that since the time of Southcote’s Case, 4 Co. 83, it has always been considered, that any bailee might, by express contract, either increase or limit his common law responsibility. And such is the general current of the American decisions jfek of New York. The cases of Clarke v. Faxton, 21 Wend. 153, Hollister v. Nowlen, 19 Ib. 234, and Cole v. Goodwin, Ib. 251, have undoubtedly settled the law in that state, that it is not competent for a carrier to limit his responsibility, by a notice brought home to the owner of the goods, at the time of delivery to such carrier ; and these cases seem to assume the ground, that it is not competent for the carrier to so limit his responsibility, even by an express contract to that effect, — which we certainly should not regard as law. This express contract ought, perhaps, to be very clearly proved, and in water carriage is usually required to appear in the bill of lading. But a mere general notice, when brought to the knowledge of the owner, ought not, perhaps, to have that effect, unless there is very clear proof, that the owner expressly assented to that, as forming the basis of the contract. But we regard it as well settled, that "the carrier may, by general notice, brought home to the owner of the things delivered for carriage, limit his responsibility for carrying certain commodities beyond the line of his general business, or he may make his responsibility dependent upon certain conditions, as having notice of the kind and quantity of the things deposited for carriage, and a certain reasonable rate of premium for the insurance paid, beyond the mere expense of carriage. Angelí on Carriers, § 245; 2 Greenl. Ev. 215 ; Orange Co. Bank v. Brown, 9 Wend. 85. But all this seems to us to have but a remote bearing upon the present case, as the notice, which was shown, had no reference to this particular boat, and is not shown clearly to have been brought home to the knowledge of the plaintiffs’ agent, at the time of delivering the parcel; and there is not the slightest evidence of any assent upon his part to its terms, but the contrary is fully shown by the testimony of the captain.

The testimony of the teller, as to his purpose and intention at the time of delivery of the parcel, not in any way made apparent to others, we should not regard as of any legal importance towards the proof of the contract; and it does not very clearly appear, that it was intended to have any effect upon the case, or did have any effect, unless, possibly, to preclude one ground of inferential argument, on the part of the defendants ; and it is not, in the course of jury trials, considered competent to introduce distinct evidence, to block up every possible avenue to argument. Such a rule would render trials almost literally endless. But from the view already taken of this portion of the case, perhaps this testimony would be regarded as of less importance in a future trial. At all events, we think it is not strictly admissible. The true remedy in such cases is, undoubtedly, where the judge has good ground to apprehend, that the jury may have been misled from the true points in issue in the case, by the argument of counsel, or in any other way, to set them right in the charge. And sensible lawyers never complain, when all the false issues on both sides are uniformly swept out of all cases, and under such rules of trial they feel no disposition to build up shadows, or to beat them down,, but rather save their breath for more important matters; and this course undoubtedly brings a far greater proportion of the cases to a correct determination by juries, than where the counsel are permitted to contest every possible point, from the origin of matter, to the last discovery in mechanics, without any intimation to the jury by the court, that such things are rather matters of curious speculation, than any thing else. "

It is in vain, we think, to make this a case, where notice to the consignee was required, or if given could have availed any thing. At all events, the notice, which was given after the parcel had been lost, is, according to all the cases, of no avail. For if it was incumbent upon the defendants to give notice, they were bound also to keep the parcel a reasonable time after the notice came to the consignee, to enable him to come and receive it. All the cases, and all the elementary writers, so far as I know, agree in this. So that the very fact of the defendants claiming, that the notice which was given should avail them, is a virtual admission of their liability up to that time, as carriers, which is sufficient to charge them in the action. But this seems to have been merely thrown out as a plank in shipwreck, without much consideration, and from which no cer-'. tain benefit was expected.

What was said to the jury, in regard to the comparative importance of positive and negative testimony, is most undoubted law; and yet, if that was said, and nothing more, it is apparent, it might have operated unjustly against the defendants. It would, somewhat naturally, have led the jury to conclude, thát the case ought to be determined, perhaps, upon the. testimony of Seymour; when in fact it is not very apparent, under the circumstances of the case, how Seymour, or Phillips, should have known, with much certainty, precisely what was said, or was not said, at the time of the delivery and acceptance of the parcel; and it is more than probable now, that either the one, or the other, may very honestly testify to his mental conclusions, at the time, as positive declarations, or denials. But we are perhaps to suppose, that all this was fairly brought to the mind of the jury, together with the very strong improbability, that any special contract, in terms, should have been made, at the time, if the same captain was in the constant practice of carrying similar parcels to the same place, for the same bank, and his practice in regard to the delivery to the wharfinger was made known to the plaintiffs and not objected to by them, as testified by Phillips, — thus making his testimony, in one view, almost as truly positive, as that of Seymour, but in a manner not so obviously so, perhaps.

The only difficulty, which the court, from the first, have ever felt, in this case, has been, in regard to the extent of the defendants’ undertaking to convey the parcel; in other words, as to the extent and termination of the transit or carriage, by the defendants. The county court, in the trial of this case, seem to have assumed, that in the law of carriers there was a general, well defined rule, upon this subject, and that the defendants were attempting to escape from its operation by means of some local usage, or custom, in contravention of the general rules of law upon the subject. In this view of the case, the defendants were justly held to great strictness in the proof of the usage. It becomes, therefore, of chief importance to determine how far there is any such general rule of law, as that which is assumed in the decision of the case in the court below. If the law fixes 'the extent of the contract, in every instance, in the manner assumed, then most undoubtedly are the defendants liable in this case, unless they can show, in the manner required, some controlling usage. But if, upon examination, it shall appear, that there is no rule of'law applicable to the subject, and the extent of the transit is matter resting altogether in proof, then the course of business at the place of destination, the usage or practice of the defendants, and other carriers, if any, at that port, and at that wharf, become essential and controlling ingredients in the contract itself.

There is no doubt, from the history of the carrying business in England until a late period, that the carriers employed their own porters to deliver their parcels, at the several stopping places on the route. A common carrier, by land, was then, in that country, of a distinct, well known, and well defined class of men, almost as much so as any public officer. And their character, responsibility and course of business being well settled and well known, those who dealt with them acted upon the faith of their making a personal delivery of their parcels, at their several stopping places. Hyde v. Tr. and M. Nav. Co., 5 T. R. 387, is decided upon this ground, and upon the additional fact, that the carriers charged for cartage to the house of the consignee, thus showing that they so understood the contract. Stephenson v. Hart et al., 4 Bing. 476, assumes the same general rule, as applicable to carriers by land. But in this case it was considered a fair inquiry for the jury, “ Whether the defendants had delivered the box according to the due course of their business, as carriers.” There is also a class of cases, where the carrier has been held liable in trover, as for a tort, for delivery to a wrong person. Duff v. Budd, 3 Brod. & B. 177, is of this number. But in this case it was held to be matter of fact, for the jury, whether the defendant was guilty of negligence.

But this class of carriers, (by land and with wagons,) it must be borne in mind, is the very extreme case in the books, where the obligation to a personal delivery is held. And here even that rule, is not regarded as altogether uniform and matter of course, but only the natural inference, in the absence of proof to the contrary. But this rule of law, if it may be called so, has never been applied to stage-coach proprietors, even who carry parcels, in this country, or certainly not uniformly. Gibson v. Culver, 17 Wend. 305, decides, that in such case, the obligation of the carrier only extends to the delivery of the parcels, according to the course of his business, at his usual stopping places.

There has been an attempt to push one department of the law of carriers into an absurd extreme, as it seems to us, by a misapplication of this rule of the carrier being bound to make a personal delivery. That is, by holding the first carrier, upon a route consisting of a succession of carriers, liable for the safe delivery of all articles at their ultimate destination. Muschamp v. The L. & P. Railway Co., 8 M. & W. 421, is the only English case much relied upon in favor of any such proposition, and that case is, by the court, put upon the ground of the particular contract in the case; and also that “ All convenience-is” in favor of such a rule, “ and there is no authority against it,” as said by Baron Rolfe, in giving judgment. St. John v. Van Santvoord, 25 Wend. 660, assumed similar ground. But this court, in this same case, (16 Vt. 52,) did not consider that decision as sound law, or good sense; and it has since been reversed in the court of errors, Van Santvoord v. St. John, 6 Hill 158, and this last decision is expressly recognized by this court. 18 Vt. 131. Weed v. Schenect. & Sar. R. R. Co., 19 Wend. 534, is considered, by many, as having adopted the same view of the subject. But that case is readily reconciled with the general rule, upon this subject, that each carrier is only bound to the end' of his own route, and for a delivery to the next carrier, by the consideration that in this case there was a kind of partnership connection between the first company and the other companies, constituting the entire route, and also that the first carriers took pay and gave a ticket through, which is most relied upon by the court. But see opinion of Walworth, Ch., in Van Santvoord v. St. John, 6 Hill 158. And in such cases, where the first company gives a ticket and takes pay through, it may be fairly considered equivalent to an undertaking to be responsible throughout the entire route. The case of Bennett v. Filyaw, 1 Florida 403, is referred to in Angelí on Carriers, § 95, note 1, as favoring this view of the subject.

The rule laid down in Garside v. Tr. & M. Nav. Co., 4 T. R. 581, that each carrier, in the absence of special contract, is only liable for the extent of his own route, and the safe storage and delivery to the next carrier, is undoubtedly the better, the more just and rational, and the more generally recognized rule upon the subject. Ackley v. Kellogg, 8 Cow. 223. This is the case of goods carried by water from New York to Troy, to be put on board a canal boat, at that place, and forwarded to the north, and the goods were lost, by the upsetting of the canal boat, and the defendants were held not liable for the loss, beyond their own route. The cases all seem to regard this as the general rule upon this subject, with the exception of those above referred to; one of which, (8 M. & W. 421,) considers it chiefly a matter of fact, to be determined by the jury as to the extent of the undertaking; one (25 Wend. 660,) has been disregarded by this court, and reversed by their own court of errors, (6 Hill 158;) one, (19 Wend. 534,) is the case of ticketing through, upon connected lines; and one, (1 Florida 403,) I have not seen.

But the rule of law and the course of business, in regard to carriage by water, have always been considered different from land carriage. In regard to foreign carriage, it is perfectly well settled, that a delivery at the wharf, even without notice, unless there be some special undertaking in the bill of lading, is sufficient. The consignee is presumed to have received, from his correspondent, a copy of the bill of lading, and he is bound to take notice of the time of the arrival of the ship. Cope v. Cordova, 1 Rawle 203. Ang. on Car. § 312, 313, et scq. 2 Kent 604, 605, and notes. The cases are all one way in regard to foreign carriers, by water, upon this point.

But a distinction is attempted, in most of the cases, between the foreign and the internal and coasting carrying business, in regard to the delivery or landing upon the wharf being sufficient to exonerate the carrier. Ostrander v. Brown, 15 Johns. 39, holds, that such a deposit is not sufficient. The carrier must continue his custody, till the consignee has had sufficient time, after the landing of the goods, and notice to him to come and take them away. After that the carrier may put them in storage. But we apprehend the rule here laid down will be found to have been very essentially qualified by the course of business, and the -decisions since that time. The steamboats and railways now almost monopolize the carrying business. And the largest amount is perhaps, already, in this section of the country, done by railways. Their course of doing the business is, as is well known, to build storehouses of their own at all the stations, and upon the arrival of the goods put them immediately in storage, without giving notice to any one. In Thomas v. The Boston and Prov. R. R. Co. 10, Met. 472, it is clearly -shown, that the carrier was not liable, as such, after the goods were -put in storage. And this decision seems to >us to rest .upon the ¡most satisfactory grounds.

And in regard to water carriers, a somewhat -similar course is, almost of necessity, now pursued. The rapidity of the operations, and the vast amount of business necessary to be done, upon these great thoroughfares, almost absolutely preclude the possibility of securing a personal delivery, or notice to the consignee, without a most disproportionate increase of the expense of freight, which the owners do not wish to incur. It would then, as it seems to us, be most unjust and unreasonable, to require this labor to be performed by carriers without compensation. When the water carrying business, at a particular point, is in the hands of one company exclusively, there is no reason to doubt, that they might erect their own storehouses and conduct the business much as the railway companies do. But this is seldom the case. And the owners of the wharves usually erect their own storehouses, and appoint some one to take charge of goods and parcels, delivered at their wharf by the different water craft. This person, denominated the wharfinger, is as much a public person, as the carrier himself; and when the carrier, by steamboat, or other vessel, in the due and common course of his business, delivers his goods or parcels, into the custody of the wharfinger, upon the wharf, we have no doubt, unless there is some practice or usage to the contrary, the transit is ended, and his responsibility, as carrier, ceases. That was so considered by this court, in Sawyer v. Joslin, 20 Vt. 172, in a case where every member of the court considered that the justice of the case required the transit to be prolonged to its utmost legal extension. And still we felt compelled to say, that upon the delivery upon the wharf, where the consignee was accustomed to receive his goods, the transit was at an end, and the goods, in contemplation of law, had reached the consignee.

The case of Chickering v. Fowler, 4 Pick. 371, shows, that a delivery at the wharf, in the due course of business, is a delivery to the consignee. Quiggin v. Duff, 1 M. & W. 174, and Packard v. Getman, 6 Cow. 757, indirectly favor the same view of the subject. And all the cases, almost without exception, regard the question o£ the time and place, when the duty of the carrier ends, as one of4 contract to be determined by the jury, from a consideration of all 'that was said by either party, at the time of the delivery and acceptance of the parcels by the carries, the course of the business, the practice of the carrier^and all other attending circumstances, the same as any other contract, in order to determine the intention of the parties. The inquiry, then, in tlse present case, must come to this before the jury, whether it was reasonable-'for the plaintiffs, under the circumstances, to expect the defendants to do more than to deliver the parcel to the wharfinger ? If not, then that was the contract, and that ended their responsibility, and the plaintiffs cannot complain of the defendants, because the wharfinger was unfaithful. The-defendants, unless they have, either expressly or by fair implication, undertaken, on their part, to do something more than deliver the parcel to the wharfinger, are no more liable for its loss, than they would have been, had it been lost upon ever so extensive a route of successive carriers, had it been intended to reach some remote destination in that mode. But if the plaintiffs can satisfy the jury, that from the circumstance attending’ the delivery, or the course of the business, they were fairly justified in expecting the defendants to make a personal delivery at the bank, they must recover ; otherwise it seems to us the case is with the defendants.

This was the view taken of this case, when it first came before this court, and distinctly expressed, as we supposed, by the learned chief justice, — who then said, “ But when it is understood by the contracting parties, that the carrier is to deliver them to another,” (that is, the wharfinger,) “ or at a place certain,” (that is, the wharf,) “the duty of the carrier terminates at that particular place; and the responsibility ceases on the delivery, at that place, to and the receipt by any person authorized there to receive them.” And the same is substantially re-affirmed by the learned judge, who delivered the opinion of this court in 18 Yt 131.

A great deal more might be said, undoubtedly, in regard to the just ground of expectation in the present case, that the defendants would make a personal delivery at the bank, aside from any special contract to that effect. It is true, the parcel was a valuable one, but one like others constantly carried on the same route, as it would seem. The plaintiffs had no right to expect the defendants to delay their boat sufficient time to go to the bank, if the usual course was merely to touch at the wharf sufficient time to unload and load passengers and freight. The claim, thk the defendants should delay sufficient time to make a personal delivery of this parcel, implies, also, that they should do the same as to all their freight, which might take, in some instances, perhaps, a large portion of the day. Then, as to their taking the responsibility of the faithfulness of the wharfinger, we see no reason in it whatever, unless they so contracted to do, any more than that they should be. bound for the safe delivery of all their freight at its ultimate destination, however remote. This is a risk, which, in the absence off. all contract, should naturally and justly fall upon the plaintiffs, for- whose benefit the wharfinger was acting.

It might be consoling to the carriers and to others, if we could lay down a rule of law somewhat more definite in this case. But from the almost infinite diversity of circumstances, as to steamboat carriage, that is impossible. There will usually be, at every place, some fixed course of doing the business, which will be reasonable, or it would not be submitted to, and which will be easily ascertained on inquiry, and with reference to which contracts will be made, and which it is equally the interest and the duty of both parties to ascertain, before they make contracts, and which it would be esteemed culpable negligence in any one not to ascertain, so far as was important to the correct understanding of contracts, which he was making.

The fact, that the wharfinger made no charge to any one for delivering these parcels, and that he expected similar favors from the steamboat captain in return, so to speak, does not seem to us decisive at all, upon the question of the undertaking of the defendants, although, no doubt, entitled to consideration, in connection with the other facts. If he had made a charge, he might have demanded it upon the delivery of the parcel, or if the captain of the boat had actually received the whole freight in advance, expecting to pay a portion to the wharfinger, it would certainly not be decisive, as to the termination of the liability of the carrier, as such. On most of our routes, it is common sometimes to take pay in advance, even beyond the first route. And in such cases, where there is no connection between the two routes, in the way of business, if the first carrier delivers his parcel, at the end of his route, to the next carrier, and pays him what remains of the advance pay, he is no doubt exonerated. But it does seem to us, that this portion of the case makes more strongly in favor of the plaintiffs, than any thing else in the case, at present.

Judgment reversed and case remanded.

Note by Redfieed, J. A more minute examination of some of the cases, referred to in the foregoing opinion, will serve, we think, to confirm the views, which we have taken of this case, and the result to which we have come.

St. John v. Van Santvoord, 25 Wend. 660, was the case of a box of merchandize, marked “ J. Petrie, Little Falls, Herkimer County,” put on board the defendant’s tow-boat of the Svviftsure line, at New York, the defendant executing a general receipt describing the box by its marks .The defendant’s boat only went to Albany. This was not known to the plaintiff, but would have been readily ascertained upon inquiry. The box was carried safely by the defendant, and put on a canal boat at Albany, for Utica, Little Falls being on the route. Before the box reached its destination, it was rifled of its contents.

At the trial in the lower Court the jury were told, that the custom of the trade determined the rights of the parties, there being no contract, expressed or implied, to carry beyond Albany. The Supreme Court held, that the fair import of the defendant’s undertaking was to deliver the box at Little Falls, whether their route extended there or not. But had the defendant expressed in the receipt the true nature of the facts known to them, they would have been liable, as carriers, only to Albany, and as forwarders from that point. It seems, then, that the difference chiefly consisted in the view, which the Supreme Court took of the necessity of the defendant’s bringing home to the knowledge of the plaintiff the course of their business.

In the Court of Errors, the Chancellor, who delivered the leading opinion, in favor of reversal, (the case being reversed "Hi to 5,) places stress upon the consideration, that there was no connection in business, between the defendant’s line and the remainder of the route. He says, also in addition to what is quoted from his opinion by Kellogg, J., in this case, when last before this court, “If the owner of the goods neglects to make the necessary inquiries as to the usage and custom of the business, or to give directions as to the disposal of the goods, it is his own fault, and the loss, if any, after the carrier has performed his duty according to the ordinary course of his trade and business, should fall upon guch owner and not upon the common carrier.” The Chancellor argues farther, that, from the circumstances, the plaintiffs had no right to expect a personal delivery by the defendants, and therefore the law did not require one. The Chancellor also regards the case of Weed v. Saratoga and Schenectady R. R. Co., 19 Wend. 534, as influenced a good deal by the consideration of the connection in the routes. But the court, in deciding that case, seem to put the case more upon the fact of taking fare and giving a ticket for the whole route, which in practice is seldom or never done, except when there is a quasi partnership throughout the route.

Upon farther examination of the case of Gibson v. Culver, 17 Wend. 305, it will appear, that Justice Coweií seems to suppose, that the carrier by stagecoach is, in the first instance, bound to a personal delivery, and that, in order to exonerate himself from that obligation, he must show a custom, or usage, of such notoriety, as to justify the jury in finding, that it was known to the plaintiffs, and that was all it was necessary to hold in that case to excuse the carriers. But in 6 Hill 158, this view is altogether overruled, and the more rational one established, that if one is ignorant of the course of business on the route, he is bound to make inquiry, and cannot make a contract with his eyes shut, and thereby impose a greater obligation upon the other party, in consequence of his own blindness! Ackley v. Kellogg, 8 Cow. 223, was the case of carrying, by sloop, from New York to Troy, and then forwarding to Granville, N. Y., by canal boat. The goods were lost by the upsetting of the canal boat. It was held to be a question of fact for the jury, whether the defendants had forwarded the goods, according to the expectation of the parties, at the time of delivery. Chickering v. Fowler, 4 Pick. 371, was the case of receiving and giving a receipt for 193 barrels of onions. The obligation of the contract was in these words, “ Which I promise to deliver to Mr. Thomas Haven of Portsmouth, he paying freight for the same,” as express as could well be conceived. The defendant went to the Pier wharf in Portsmouth, “ where vessels very frequently go to deliver goods,” and “ gave [Haven] notice that the onions were there for him.” Haven told the defendants he must deliver them at his wharf in P., or he would not receive them, which defendant refused to do, and put them on that wharf, where they were frozen. It was held to be a question of fact for the jury, whether the plaintiff’s contract was such with the consignor of the onions, that he was bound to receive and take care of the onions. If so, the court held, that he was bound to take them, where they were landed, unless there was some contract shown to deliver them at a particular wharf. Thomas v. The Boston & Prov. R. R. Co., 10 Met. 472, was where one roll of leather, out of four, which had been carried on the defendant’s road to Boston, and put in the depot, and two of them delivered to the plaintiff’s agent, was lost, only one being then to be found. The court held, that the important question was, “ How long the relation of common earlier continued ?” “ Carriers,” say the court, “ are bound to deliver goods according to their contract.” “ From the very nature and construction of the road, the proprietors cannot deliver goods at the warehouse of the owner. They must deliver at the depots.” “And after such delivery at the depot, the carriage is ended,” and the liability as common carriers ceases after depositing the goods in the company’s warehouse. Garside v. Tr. & M. Nav. Co., is cited and approved, as the true basis of the present law upon that subject. The extent of the transit was, in the common pleas, submitted to the jury by Ch. J. Wells, and no objection was made to this course by either court or counsel. It seems to have been conceded, that that was a question of fact, under proper instructions, when there is any conflict in the evidence as in the present case there undoubtedly is. In Citizen’s Bank v. The Nantucket Steam Boat Company, 2 Story’s R. 16, while in terms Storv J., does approve the reasoning of the Court of Errors in Sewall v. Allen, he also assumes propositions in the law of agency, as well settled, in the course of his opinion, which seem to me fully to justify the opinion of the Supreme Court, if the charter had conferred general powers upon the company to carry bank bills and all other commodities. The learned judge admits, that the captain is to be regarded as the general agent of the company, and as such can bind them to the extent of their general powers, which is all we hold in the present case.