* the consignor, he is bound to protect the owner and consignor, and for that purpose to hold the goods, or store them in some proper way for his use. (k) And so he is if the consignee refuses to receive the goods. (1) He would be bound to 211 give notice to the consignor only, if that, under the circumstances, would be reasonable care; and this, it would seem, is a question for the jury. (m) (x) The carrier may also be a factor to sell for the owner; and this by express instructions, or by usage of trade. (n) When this is the case, after the carrier has transported the goods, and is engaged in his duty as a factor for sales, he is responsible only as a factor, or for his negligence or default, and not as a carrier. But after he has sold the property, and has received the price which he is to return to the owner, his responsibility as a carrier revives, and in that capacity he is liable for any loss of the money.(0) exempt him from the necessity of determining the right of the person to whom he delivers the goods, as well as from the necessity of determining the right of the persons from whom he receives the goods?" (k) Stevenson v. Hart, 4 Bing. 476; Duff v. Budd, 3 Br. & B. 177. (1) Crouch v. G. W. R. Co., 2 Hurl. & N. 491. (m) Hudson v. Baxendale, 2 Hurl. & N. 575. (n) Stone v. Waitt, 31 Me. 409; Williams v. Nichols, 13 Wend. 58; The Waldo, Daveis, 161. (0) Thus, where the owners of a steamboat, which ran upon the Ohio River, took produce to be carried and sold by them for a certain freight, and were bringing back in the same vessel the money which they obtained on the sale of the produce, when the vessel and the money were accidentally consumed by fire; it was held that under the usage of trade in the western waters, they were acting as com (x) A common carrier's duty, as such, ends when he has carried the goods to their destination, and there placed them in its own depot or warehouse, whether the consignee is notified or not; this applies also to connecting carriers, the first of whom, though he has so contracted that he is liable for safe delivery at the end of the journey, cannot be made longer liable by the act of the shipper or consignee, who leaves them with a connecting carrier for distribution from time to time. Gregg v. Illinois Cent. R. Co., 147 Ill. 550, 35 N. E. 343; Illinois Cent. R. Co. v. Carter, 165 VOL. II. — 15 mou carriers in going, as factors in selling the produce, and as common carriers in bringing back the money, and were liable for its loss, notwithstanding the accident. Harrington v. McShane, 2 Watts, 443. And per Sergeant, J.: "The return of the proceeds by the same vessel is within the scope of the receipt and of the usage of trade, as proved, and the freight paid may be deemed to have been fixed with a view to the whole course of the trade, embracing a reward for all the duties of transportation, sale, and return. If the defendants, instead of bringing the money home in their own vessel, had sent it on freight by another, there would have been to the plaintiffs the responsibility of a carrier, and there ought not to be less if they chose to bring it themselves. If they had mixed the money with their own, they would have no excuse for non-payment. The defendants can be relieved from responsibility only by holding that the character of carrier never existed between these Ill. 570, 46 N. E. 374. A constructive change of possession from the first to the second carrier may amount to a delivery. Texas & P. R. Co. v. Clayton, 84 Fed. 305. The carrier is bound to deliver the goods safely to the right person, and is liable for a misdelivery not caused by the act or representation of the consignor or his agent. Oskamp v. Southern Express Co., 61 Ohio St. 341, 56 N. E. 13; Sinsheimer v. New York Cent. R. Co., 46 N. Y. S. 887; supra, p. 187, n. (x). 225 *212 *The common principles of agency apply to the carrier; he is liable for the acts of those whom he employs and authorizes to act for him. But a party may contract with the servant alone, and then can hold him only. (p) SECTION XIII. OF THE RESPONSIBILITY OF THE CARRIER BEYOND HIS OWN ROUTE. The question, when the carrier is liable beyond his own route, has been recently much considered, and is not yet quite settled. If carriers for different routes, which connect together, associate for the purpose of carrying parcels through the whole line, and share the profits, they are undoubtedly partners, and each is liable in solido for the loss or injury of goods which he undertakes parties at all, or that if it existed, on the descending voyage, it ceased at its termination, and that of factor began and continued during the ascending voyage. But if the defendants bring back in the same vessel other property, the proceeds of the shipment, whether specific money or goods, they do so as carriers, and not merely as factors." So where a master of a vessel, employed in the transportation of goods between the cities of Albany and New York, received on board a quantity of flour to be carried to New York, and there sold in the usual course of such business for the ordinary freight; and the flour was sold by the master at New York for cash, and while the vessel was lying at the dock, the cabin was broken open and the money stolen out of the master's trunk, while he and the crew were absent; it was held, that the owners of the vessel were answerable for the money to the shippers of the flour, though no commissions, or a distinct compensation, beyond the freight, were allowed for the sale of the goods and bringing back the money, such being the duty of the master, in the usual course of the employment, where no special instructions were given. Kemp v. Coughtry, 11 Johns. 107. And, per curiam: "Had the property which was put on board this vessel for transportation been stolen before it was converted into money, there could be no doubt the defendants would have been responsible. But the character of common carrier does not cease upon the sale of the property. Ac cording to the testimony in this case, the sale of the goods and return of the proceeds to the owner is a part of the duty attached to the employment, where no special instructions are given. The contract between the parties is entire, and is not fulfilled on the part of the carrier, until he has complied with his orders, or has accounted with the owner for the proceeds, or brought himself within one of the excepted cases. The sale in this case was actually made, and the money received; and had it been invested in other property, to be transported from New York to Albany, there would be no question but the character of common carrier would have continued. It can make no difference whether the return cargo is in money or goods. A person may be a common carrier of money, as well as of other property. Carth. 485. Although no commission or distinct compensation was to be received upon the money, yet according to the evidence, it appears to be a part of the duty attached to the employment, and in the usual and ordinary course of the business, to bring back the money when the cargo is sold for cash. The freight of the cargo is the compensation for the whole, it is one entire concern. And the suit may be brought against the owners of the vessel. master is considered their agent or servant, and they are responsible for the faithful discharge of his trust." See also, Taylor v. Wells, 3 Watts, 65; Emery v. Hersey, 4 Greenl. 407. - It should be observed, however, that Mr. Justice Story has made some strictures upon the case of Kemp v. Coughtry, for which see Story on Bailm. §§ 547, 548. (v) See ante, p. *181, note (a). The to carry, in whatever part of the line it may have happened. (9) So if they connect temporarily, as for an excursion party. (qq)1 And a railroad thus connected with other railroads is a common carrier as to passengers beyond its own limits, and is bound to receive any who offer. (gr) There can be no doubt that a carrier may agree to carry beyond his own regular route; and then, however the agreement be evidenced, the carrier is liable to the point of ultimate destination. (qs) If the carriers be not distinctly associated, but are so far connected that they undertake, or authorize the public to suppose that they undertake, for the whole line, they should be responsible as before. (r) undoubtedly a carrier may receive a parcel to carry as far as he goes, and then to send it further by another carrier. And where this is clearly the case, his responsibilities as carrier and as for * (q) Thus, where A and B were jointly interested in the profits of a common stage-wagon, but, by a private agreement between themselves, each undertook the conducting and management of the wagon, and his own drivers and horses, for specified distances; it was held, notwithstand ing this private agreement, that they were jointly responsible to third persons for the negligence of their drivers throughout the whole distance. Waland v. Elkins, 1 Stark. 272; s. c. nom. Weyland v. Elkins, Holt, 227. See also Fromont v. Coupland, 2 Bing. 170; Helsby v. Mears, 5 B. & C. 504; Collins v. B. & E. R. Co., 1 Hurl. & N. 517; Wilby v. W. C. R. Co., 2 Hurl. & N. 703. So where an association was formed between shippers on Lake Ontario, and the owners of canal boats on the Erie canal, for the transportation of goods and merchandise between the city of New York and the ports and places on Lake Ontario and the River St. Lawrence, and a contract was entered into by the agent of * 213 But such association, for the transportation of goods from the city of New York to Ogdensburg on the river St. Lawrence, and the goods were lost on Lake Ontario; it was held, that all the defendants were answerable for the loss, although some of them had no interest in the vessel navigating the lake, in which the goods were shipped. Fairchild v. Slocum, 19 Wend. 329; s. c. 7 Hill (N. Y.), 292 ; Cincinnati, &c. R. R. Co. v. Spratt, 2 Duvall, 41. (aq) Najac v. Boston, &c. R. R. Co., 7 Allen, 329. (gr) Wheeler v. San Francisco R. R. Co., 31 Cal. 46. (qs) Morse v. Brainard, 41 Vt. 550; Mosher v. Southern Express Co., 38 Ga. 37; Tuckerman v. Stevens, &c. Transportation Co., 3 Vroom, 320; Southern Express Co. v. Shea, 38 Ga. 519. (r) Weed v. The S. & S. Railroad Co., 19 Wend. 534; Peet v. Chicago, &c. R. R. Co., 20 Wis. 594. 1 The tendency of late cases is against regarding a sharing in profits as conclusive evidence of partnership (see chapter on Partnership); and this tendency may be noticed in cases relating to connecting carriers. It is generally admitted that they may contract jointly, if not form a partnership. Thus where eight railroads formed an association called the Erie and North Shore Despatch Fast Freight Line, and transacted the business of transportation between Boston and Chicago under that name, it was held that an action was properly brought against all the companies jointly. Block v. Fitchburg R. R. Co., 139 Mass. 308. And a joint contract by incorporated carriers is not ultra vires, Swift v. Pacific Mail S. S. Co., 106 N. Y. 206. But the mere facts that a fixed price has been received for the entire distance, and that this price is divided between the companies by agreement between themselves, are not sufficient to prove joint liability or a partnership. See Insurance Co. v. Railroad Co., 104 U. S. 146; Montgomery, &c. R. R. Co. v. Moore, 51 Ala. 394; Peterson v. Chicago, &c. Ry. Co., 80 Iowa, 92; Gass v. New York, &c. R. R. Co., 99 Mass. 220; Gulf, &c. Ry. Co. v. Baird, 75 Tex. 256. — W. warder are entirely distinct. (s) (x) The difficulty is in determining between these cases; the weight of authority, until recently, seemed to be in favor of the rule, that a carrier who knowingly received a parcel directed or consigned to any particular place, undertook to carry it there himself, unless he made known a different purpose and undertaking to the owner. (ss) This is still the English doctrine, and in conformity there with it has been decided that the owner has no contract with the second carrier, and cannot recover of him for damage done on his part of the route. (t) But the American decisions have importantly qualified, (s) Garside v. Trent & Mersey Navigation Co., 4 T. R. 581; Ackley v. Kellogg, 8 Cowen, 223; Pennsylvania, &c. R. R. Co. v. Schwarzenberger, 45 Penn. St. 208; Lowell Wire Fence Co. v. Sargent, 8 Allen, 189. (x)"Among connecting lines of common carriers, that one in whose hands goods are found damaged is presumed to have caused the damage, and the burden is upon it to rebut the presumption." Morganton Manuf. Co. v. Ohio River, & Ry. Co., 121 N. C. 514, 28 S. E. 474, 64 Am. St. Rep. 679; Hinkle v. Southern R. Co., 126 N. C. 932, 36 S. E. 348, 78 Am. St. Rep. 685; Texas & P. Ry. Co. v. Barnhart (Tex. Cir. App.), 23 S. W. 801; Mahony v. Waterford, &c. Ry. Co., [1902] 2 Ir. R. 373. Contra, Farmington Merc. Co. v. Chicago, B. & Q. R. Co., 166 Mass. 154, 44 N. E. 131. See Hendrick v. Boston & A. R. Co., 170 Mass. 44, 48 N. E. 835; Moore v. New York, &c. R. Co., 173 Mass. 335, 53 N. E. 816; Frazier v. New York, &c. R. Co., 180 Mass. 427, 62 N. E. 731; Talcott v. Wabash R. Co., 159 N. Y. 461, 54 N. E. 1. A railroad company is bound to inspect the cars of a connecting road, when they are used upon its road, as well as its own. Eaton v. New York Cent. R. Co., 163 N. Y. 391, 57 N. E. 609. Through coupon tickets are distinct tickets for each road, and are sold by the first company as agent of the others, so far as the passenger is concerned; and the fact that each road selling such tickets takes its own share of the fare according to its mileage, does not make them partners. Dresser v. Canadian Pac. Ry. Co., 116 Fed. 281; Chicago & A. R. Co. v. Dumser, 161 Ill. 190, 43 N. E. 698; Chicago & A. R. Co. v. Gates, 162 Ill. 98, 44 N. E. 1118; Chicago & A. R. Co. v. Mulford, 162 Ill. 522, 44 N. E. 861; 35 L. R. A. 599; Omaha, &c. R. Co. v. Crow, 54 Neb. 747, 74 N. W. 1066; Cowen v. Winters, 96 Fed. 929. 37 C. C. A. 628; 37 Am. (ss) So held in Illinois, &c. R. R. Co. v. Johnson, 34 Ill. 389. (t) Coxon v. Great Western Railway Co., 5 H. & N. 274. See also Directors of B. & E. Railway Co. v. Collins, 5 H. & N. 969, where the House of Lords sustain this doctrine. L. Reg. N. s. 586. A carrier may limit its liability to its own line. McWethy v. Detroit, &c. R. Co., 127 Mich. 333, 86 N. W. 827, 55 L. R. A. 306; Gulf, C. & S. F. Ry. Co. v. Clarke, 5 Tex. Civ. App. 547; Coles v. Louisville, &c. R. Co., 41 Ill. App. 607; Illinois Central R. Co. v. Carter, 165 Ill. 570, 44 N. E. 374, 36 L. R. A. 527; Dunbar v. Port Royal, &c. Ry. Co., 36 S. C. 110, 15 S. E. 357. But for through freight, where connecting lines are partners, or where the shipper has not expressly consented to a restriction limiting the contract to the carrier's own line, of goods marked beyond that line, the first carrier's contract for a limitation of its liability to its own line is not binding. Illinois Cent. R. Co. v. Carter, 165 Ill. 570, 46 N. E. 374; Central Trust Co. v. Wabash, &c. Ry. Co., 31 Fed. 247; Dimmitt v. Kansas City, &c. R. Co., 103 Mo. 433, 15 S. W. 761. So the first of several connecting carriers, who are partners, when sued for injury to freight sustained on another of the connecting lines, cannot set up the defence that the partnership was ultra vires. Gulf, C. & S. F. Ry. Co. v. Wilbanks (Texas), 27 S. W. 302. The first carrier is liable, though it has thus limited its liability, if its servant's negligence, as by misdirecting a way-bill, causes unreasonable delay on another line. Illinois Cent. R. Co. v. So. Seating Co., 104 Tenn. 568, 58 S. W. 303, 50 L. R. A. 729. In Missouri, it is held that a carrier who contracts for through delivery cannot exempt himself from liability for the negligence of connecting carriers. McCann v. Eddy, 133 Mo. 59, 33 S. W. 71; Redmon v. Chicago, &c. R. Co., 90 Mo. App. 68. The pre if they have not overthrown, the English authorities. vailing rule in this country may now be said to cast upon the carrier no responsibility as a carrier beyond his own route (requiring, of course, due care in forwarding the parcel) unless the usage of the business, or of the carrier, or his conduct or language, shows that he takes the parcel, as carrier, for the whole route. (u) And his receipt of payment for the whole (u) The leading English case upon this point is Muschamp v. The L. & P. Junction Railway Co., 8 M. & W., 421. The defendants were the proprietors of the Lancaster and Preston Junction Railway, and carried on business on their line between Lancaster and Preston, as common carriers. At Preston, the defendants' line joined that of the North Union Railway. The plaintiff, a stone mason, living at Lancaster, had gone into Derbyshire in search of work, leaving his box of tools to be sent after him. His mother accordingly took the box to the railway station at Lancaster, directed to the plaintiff at a place beyond Preston, in Derbyshire, and requested the clerk at the station to book it. She offered to pay the carriage in advance for the whole distance, but was told by the clerk that it had better be paid at the place of delivery. It appeared that the box arrived safely at Preston, but was lost after it was despatched from thence by the North Union Railway. The plaintiff brought this action to recover for the loss of the box. Rolfe, B., before whom the case was tried, stated to the jury, in summing up, that where a common carrier takes into his care a parcel directed to a particular place, and does not, by positive agreement, limit his responsibility to a part only of the distance, that is prima facie evidence of an undertaking to carry the parcel to the place to which it is directed; and that the same rule applied, although that place were beyond the limits within which he, in general, professed to carry on his trade of a carrier. On a motion for a new trial, the Court of Exchequer held the instruction to be correct. Lord Abinger said: "It is admitted by the defendants' counsel, that the defendants contract to do something more with the parcel than merely to carry it to Preston; they say the engagement is to carry it to Preston and there to deliver it to an agent, who is to carry it further, who is after wards to be replaced by another, and so on until the end of the journey. Now that is a very elaborate kind of contract; it is in substance giving to the carriers a general power, along the whole line of route, to make at their pleasure fresh contracts, which shall be binding upon the principal who employed them. But if, as it is admitted on both sides, it is clear that something more was meant to be done by the defendants than carrying as far as Preston, is it not for the jury to say what is the contract, and how much more was undertaken to be done by them? Now, it certainly might be true that the contract between these parties was such as that. suggested by the counsel for the defendants; but other views of the case may be suggested quite as probable; such, for instance, as that these railway companies, though separate in themselves, are in the habit, for their own advantage, of making contracts, of which this was one, to convey goods along the whole line to the ultimate terminus, each of them being agents of the other to carry them forward, and each receiving its share of the profits from the last. The fact that, according to the agreement proved, the carriage was to be paid at the end of the journey, rather confirms the notion that the persons who were to carry the goods from Preston to their final destination were under the control of the defendants, who consequently exercised some influence and agency beyond the immediate terminus of their own railway. Is it not, then, a question for the jury to say what the nature of this contract was; and is it not as reasonable an inference for them to draw that the whole was one contract, as the contrary? I hardly think they would be likely to infer so elaborate a contract as that which the defendants' counsel suggest, namely, that as the line of the defendants' railway terminates at Preston, it is to be presumed that the plaintiff, who intrusted the goods to them, made it part of his bargain that they should employ for him a fresh agent, both at that place and at every subsequent change of railway or conveyance, and on each shifting of the goods give such a document to the new agent as should render him responsible. Suppose the owner of goods sent under such circumstances, when he finds they do not come to hand, comes to |