Dixon, C. J.
It was not error to receive evidence as to the practice of shippers in giving directions, and the nsage of the company in complying with those directions, in forwarding goods consigned, as the goods in question were, from Chicago to their place of destination, by delivering them to the next carrier in the line of transportation directed. The bill of lading was silent upon that subject, and it was not, therefore, testimony to vary or contradict it. It was consistent with the bill of lading that such should have been the agreement or intention of the parties. The bill contained nothing to the contrary — no express provision on the subject, and none from which any different agreement or intention was to be implied It merely provided that the goods were to be forwarded from Johnson’s Creek, the place of delivery to the company, to Chicago station, but what next was to be done with them it did not say. It was fairly to be inferred from the face of the bill (it appearing thereon that the consignees resided in Boston and not at Chicago), as well as from the nature of the transaction, that the goods were to be transferred by the company or its agents, from Chicago station and delivered to some other connecting carrier, to be transported thence to Boston or over such carrier’s route in that direction. Such, we think, was the fair and reasonable inference from the bill of lading itself; but if not, then certainly it was not open to the opposite inference, that the parties agreed or intended that the goods were to be transported only to Chicago station, and there deposited until called for by the consignees or some agent of the consignees or shipper, and by him or them to be taken and again put in course of transit to their place of destination. And the latter must have been the inference from the language of the bill, in order to [89]*89have excluded tlie testimony on the ground stated by counsel. The testimony was properly admitted.
And these considerations likewise disprove the second position taken by counsel for the company, which is, that the contract only required the company to transport the goods to Chicago and there deposit them in its warehouse, and that when it had done so, its duties as carrier ended, and it was thenceforth liable in the capacity of warehouse-keeper merely. In view of the evidence, which was properly received, as well as of the hill of lading, this construction seems quite inadmissible. And the testimony of the company’s agents at Chicago, introduced by the company, also shows that such was not their understanding of the contract. They considered it their duty, or the duty of the company, to transfer and deliver goods thus consigned to the next carrier on the route beyond, and such was their constant practice. The general usage of the company in this respect, and with reference to which it was shown the plaintiff acted in the shipment of the goods, was likewise clearly established by the depositions of the same witnesses.
The next position assumed in defense is, that Hun-toon was a common carrier of goods between the terminus of the company’s road, its depot in Chicago, and the places where other lines of transportation commenced, and, in this case, the docks where the flour was to be delivered to the succeeding carrier by water; and that the depositing of the flour in that part of the company’s warehouse where Huntoon was accustomed to receive and take all goods to be transferred by him, was a delivery to Huntoon as the next carrier in the course of transportation, and full performance of the contract on the part of the company. This, it is said, discharged the company from all further liability as carrier, and cast the burden of loss upon Huntoon as the next carrier in order, in whose custody the goods were at the time of their destruc[90]*90tion by fire. If the evidence showed that Huntoon was a common carrier of goods in the way suggested, then it might become necessary to consider the effect of depositing the goods in the warehouse, as testified by the witnesses, or whether that was a delivery to him. But the evidence does not show that he was such carrier. On the contrary, the evidence shows that he was a mere transfer agent of the company, or carman employed by it to deliver the goods to the next carrier in the line of transportation designated. The depositions of the agents of the company at Chicago very clearly prove this, and there is no contradictory testimony. It is true that the mode of doing the business was, for Huntoon to advance the charges of the company and give receipts for the goods, and then to collect these charges, together with his own, from the next carrier. But this was for convenience merely, and did not change his character as agent. One of the witnesses for the company, at that time its local freight agent in Chicago, says: “ Said Hun-toon was held, by the company, to a strict accountability for the safe delivery of property entrusted to his charge.” This, as well as the entire testimony of both the Chicago agents, very clearly shows the character of Huntoon’s employment. He was a transfer agent of the company, and not a common carrier, as .contended.
The fourth and last position taken is, that the plaintiff was not the owner of the flour at the time of the loss, and cannot sue, but that the title was in the consignees, who alone can maintain an action. In Blanchard v. Page, 8 Gray, 281, it was held, after a most elaborate examination, that the shipper named in a bill of lading may sue the carrier for an injury to the goods, although he has no property, general or special, therein. jThis it was held might be done by force of the original contract for safe carriage, made by the carrier with him. Such right of action upon the con[91]*91tract is not affected by the provision of the Code which requires every action to he brought in the name of the real party in Ínteres^ The shipper is a party in interest to the contract, and it does not lie with the carrier who made the contract with him, to say, upon a breach of it, that he is not entitled to recover the damages, unless it be shown that the consignee objects; for, without that, it will be presumed that the action was commenced and is prosecuted with the knowledge and consent of the consignee, and for his benefitj The consignor or shipper is, by operation of the rule, regarded as a trustee of an express trust, like a factor or other mercantile agent who contracts in his own name on behalf of his principal. Grinnell v. Schmidt, 2 Sandf. S. C. 706; Robbins v. Deverill, 20 Wis. 148. Such is the true relation of the consignor; for by the bill of lading it appears that he made the contract in his own name for the benefit of his consignee.
But the bill of lading is not conclusive evidence as to the ownership of the goods. It may raise a presumption of title in the consignee, but such presumption is open to be explained or repelled by parol evidence to the contrary. It may be shown by such evidence that the consignor, and not the consignee, was the real owner. Edwards on Bailments, 562, and authorities cited; Congar v. Railroad Co., 17 Wis. 486. In this case the proof was that the flour was “ sold to arrive at Boston.” By such contract there was no completed sale or title vested in the consignees until arrival at Boston. Benjamin on Sales, 432-436 ; Story on Sales, § 289. It was a sale upon that condition, and the property remained in the plaintiff, in whose name as owner the action was properly brought.
It follows from these views that the verdict and judgment in the court below were correct.
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Dixon, C. J.
It was not error to receive evidence as to the practice of shippers in giving directions, and the nsage of the company in complying with those directions, in forwarding goods consigned, as the goods in question were, from Chicago to their place of destination, by delivering them to the next carrier in the line of transportation directed. The bill of lading was silent upon that subject, and it was not, therefore, testimony to vary or contradict it. It was consistent with the bill of lading that such should have been the agreement or intention of the parties. The bill contained nothing to the contrary — no express provision on the subject, and none from which any different agreement or intention was to be implied It merely provided that the goods were to be forwarded from Johnson’s Creek, the place of delivery to the company, to Chicago station, but what next was to be done with them it did not say. It was fairly to be inferred from the face of the bill (it appearing thereon that the consignees resided in Boston and not at Chicago), as well as from the nature of the transaction, that the goods were to be transferred by the company or its agents, from Chicago station and delivered to some other connecting carrier, to be transported thence to Boston or over such carrier’s route in that direction. Such, we think, was the fair and reasonable inference from the bill of lading itself; but if not, then certainly it was not open to the opposite inference, that the parties agreed or intended that the goods were to be transported only to Chicago station, and there deposited until called for by the consignees or some agent of the consignees or shipper, and by him or them to be taken and again put in course of transit to their place of destination. And the latter must have been the inference from the language of the bill, in order to [89]*89have excluded tlie testimony on the ground stated by counsel. The testimony was properly admitted.
And these considerations likewise disprove the second position taken by counsel for the company, which is, that the contract only required the company to transport the goods to Chicago and there deposit them in its warehouse, and that when it had done so, its duties as carrier ended, and it was thenceforth liable in the capacity of warehouse-keeper merely. In view of the evidence, which was properly received, as well as of the hill of lading, this construction seems quite inadmissible. And the testimony of the company’s agents at Chicago, introduced by the company, also shows that such was not their understanding of the contract. They considered it their duty, or the duty of the company, to transfer and deliver goods thus consigned to the next carrier on the route beyond, and such was their constant practice. The general usage of the company in this respect, and with reference to which it was shown the plaintiff acted in the shipment of the goods, was likewise clearly established by the depositions of the same witnesses.
The next position assumed in defense is, that Hun-toon was a common carrier of goods between the terminus of the company’s road, its depot in Chicago, and the places where other lines of transportation commenced, and, in this case, the docks where the flour was to be delivered to the succeeding carrier by water; and that the depositing of the flour in that part of the company’s warehouse where Huntoon was accustomed to receive and take all goods to be transferred by him, was a delivery to Huntoon as the next carrier in the course of transportation, and full performance of the contract on the part of the company. This, it is said, discharged the company from all further liability as carrier, and cast the burden of loss upon Huntoon as the next carrier in order, in whose custody the goods were at the time of their destruc[90]*90tion by fire. If the evidence showed that Huntoon was a common carrier of goods in the way suggested, then it might become necessary to consider the effect of depositing the goods in the warehouse, as testified by the witnesses, or whether that was a delivery to him. But the evidence does not show that he was such carrier. On the contrary, the evidence shows that he was a mere transfer agent of the company, or carman employed by it to deliver the goods to the next carrier in the line of transportation designated. The depositions of the agents of the company at Chicago very clearly prove this, and there is no contradictory testimony. It is true that the mode of doing the business was, for Huntoon to advance the charges of the company and give receipts for the goods, and then to collect these charges, together with his own, from the next carrier. But this was for convenience merely, and did not change his character as agent. One of the witnesses for the company, at that time its local freight agent in Chicago, says: “ Said Hun-toon was held, by the company, to a strict accountability for the safe delivery of property entrusted to his charge.” This, as well as the entire testimony of both the Chicago agents, very clearly shows the character of Huntoon’s employment. He was a transfer agent of the company, and not a common carrier, as .contended.
The fourth and last position taken is, that the plaintiff was not the owner of the flour at the time of the loss, and cannot sue, but that the title was in the consignees, who alone can maintain an action. In Blanchard v. Page, 8 Gray, 281, it was held, after a most elaborate examination, that the shipper named in a bill of lading may sue the carrier for an injury to the goods, although he has no property, general or special, therein. jThis it was held might be done by force of the original contract for safe carriage, made by the carrier with him. Such right of action upon the con[91]*91tract is not affected by the provision of the Code which requires every action to he brought in the name of the real party in Ínteres^ The shipper is a party in interest to the contract, and it does not lie with the carrier who made the contract with him, to say, upon a breach of it, that he is not entitled to recover the damages, unless it be shown that the consignee objects; for, without that, it will be presumed that the action was commenced and is prosecuted with the knowledge and consent of the consignee, and for his benefitj The consignor or shipper is, by operation of the rule, regarded as a trustee of an express trust, like a factor or other mercantile agent who contracts in his own name on behalf of his principal. Grinnell v. Schmidt, 2 Sandf. S. C. 706; Robbins v. Deverill, 20 Wis. 148. Such is the true relation of the consignor; for by the bill of lading it appears that he made the contract in his own name for the benefit of his consignee.
But the bill of lading is not conclusive evidence as to the ownership of the goods. It may raise a presumption of title in the consignee, but such presumption is open to be explained or repelled by parol evidence to the contrary. It may be shown by such evidence that the consignor, and not the consignee, was the real owner. Edwards on Bailments, 562, and authorities cited; Congar v. Railroad Co., 17 Wis. 486. In this case the proof was that the flour was “ sold to arrive at Boston.” By such contract there was no completed sale or title vested in the consignees until arrival at Boston. Benjamin on Sales, 432-436 ; Story on Sales, § 289. It was a sale upon that condition, and the property remained in the plaintiff, in whose name as owner the action was properly brought.
It follows from these views that the verdict and judgment in the court below were correct. The action was rightly brought, and upon the evidence, as to which there was no conflict, the goods were in the possession of the company as carrier, and not as bailee [92]*92for custody merely, at the time of their destruction. It follows also that the three several instructions asked by the company were properly refused. The first, assuming it to have been correct as a proposition of law, was inapplicable to the case. The goods were in transit at the time, and had not been carried to the end of the route or to their place of destination, and so the Illinois decisions had no influence. The second was improper, because there was no evidence to be submitted to the jury that Huntoon was a common carrier, by wagon, between the warehouse of the company in Chicago and other freight lines. The third requires no explanation beyond what has already been said.
The rule above held respecting the continuing liability of the company as carrier under the circumstances of this case, is directly sustained by the following authorities: McDonald v. Western Railroad Corporation, 34 N. Y. 497; Goold v. Chapin, 20 N. Y. 259; Van Santvoord v. St. John, 6 Hill, 167; 3 Kern. 569; 6 Seld. 431; 25 N. Y. 364. And the doctrine of the lex loci being out of the case, because the Illinois decisions apply only to goods which have reached the depot of final destination, the following cases also give much support to the rule: The Morris & Essex Railroad Co. v. Ayers, 29 N. J. Law R. (5 Dutch.) 393; Blumenthall v. Brainard, 28 Vt. 413; Moses v. Boston & Me. R. R., 32 N. H. 523; Wood v. Crocker, 18 Wis. 345; McMillan v. M. S. & N. J. R. R. Co., opinion of Cooley and Christiancy, JJ., 16 Mich. 100-123; Brintnall v. S. & W. R. R. Co., 32 Vt. 665; Ouimit v. Henshaw, 35 Vt. 604; The F. & M. Bank v. The Champlain Transportation Co., 23 Vt. 211. The two last cases are valuable as showing the importance of the course of business or practice of the carrier in determining when the transit ends. And the case of Converse v. N. & N. Y. Transportation Co., 33 Conn. 166, cited by counsel for the company, is not at all in conflict. The deci[93]*93sion there was upon the ground that the property in question, had been safely delivered to, and was in the actual custody and possession of, the next carrier. The case is clearly distinguishable.
By the Court. — Judgment affirmed.