safety of property not included in the common adventure can neither be an object of the sacrifice nor a ground of contribution. As the sacrifice must be for the benefit of the common adventure, and of that adventure only, so it must be made by some one specially charged with the control and the safety of that adventure, and not be caused by the compulsory act of others, whether private persons or public authorities. CHAPTER III THE COMPLETION OF THE CARRIER'S UNDERTAKING SECTION 1.-PLACE AND MANNER OF TENDER TO CON SIGNEE GIBSON v. CULVER. (Supreme Court of New York, 1837. 17 Wend. 305, 31 Am. Dec. 297.) This was an action on the case against the defendants as common carriers, tried in the Rensselaer circuit in March, 1835. They were the owners of a stage, in which they carried the mail, and also passengers and goods, from Sandlake, in Rensselaer county, to Albany, via Troy, being part of a line from Boston to Albany. The plaintiff put a box of combs in the stage at Leominster, in Massachusetts, directed to "Messrs. Vail & Co., Troy, N. Y.," which arrived safely at Sandlake, and was there taken into the stage of the defendants and carried to Troy, and left at the stage house there, being the only place in Troy where the stage stopped, except at the post office for the delivery of the mail. Notice of the arrival of the goods was not given to, nor were the goods ever received by, the consignees. The stage, in its most direct route to the post office from the stage house, passed the store of the consignees, which was in sight of the stage house, and the consignees were an old-established and well-known firm. The defendants offered to prove that it was the uniform usage and course of business of this line of stages to leave goods or freight transported by it, directed to Troy, at the stage house there, and not to deliver the same at the residence or place of business of the consignee ; that the usage prevailed in the whole course of the line, to leave goods or freight at the usual stopping places of the stage in the towns to which the goods were directed, to be delivered to the consignees when called for, and not to make a delivery of the goods at the places. of business of the consignees; and that such was the general custom of the lines of stages throughout the state and country. This evidence was objected to and rejected by the presiding judge. The jury found a verdict for the plaintiff for the value of the combs. The defendants moved for a new trial. COWEN, J. The offer of the defendants presupposed, what is now 1 Parts of the opinion are omitted. * * conceded, and is indeed extremely well settled, that prima facie the carrier is under an obligation to deliver the goods to the consignee personally.2 * In Barnes v. Foley, 5 Burr. 2711, the question was whether it was the duty of the postmaster at Bath to deliver letters to the inhabitants at their houses. Proof of usage was resorted to, and Mr. Justice Aston said: "The limits of the delivery are to be determined by the usage of the place." [5 Burr.] 2714. And in Rushforth v. Hadfield and Others, 7 East, 224, all the court agreed in the propriety of receiving such evidence to enlarge the rights of carriers. The defendants claimed a lien on the goods, not only for the price of carrying them in particular, but for a general balance due to them for previous carriage. The law denies to the carriers a claim for a general balance; but a long train of evidence was received to show that custom and the course of trade among a particular sort of carriers had overcome the law. The jury found against the defendants; but the evidence was so imposing that they moved for a new trial, as for a finding against the weight of evidence; and the case details all the proofs. The judges proceeded to a full examination of them, and a new trial was denied; but the case shows, and all the judges concur in declaring, the principles on which such evidence is to be received. The cause was tried before Chambre, J., who put it to the jury whether the usage were so general as to warrant them in presuming that the parties who delivered the goods to be carried knew it, and understood that they were contracting with the carriers in conformity to it; if not, the general rule of law would entitle the plaintiffs to a verdict. All the judges concurred that a custom of this kind, which is, quoad hoc, to supersede the general law of the land, should be clearly proved, and the interested encroachments of persons engaged in a particular trade watched with great jealousy. None of them disapproved the qualifications under which the case went to the jury; and Lord Ellenborough, C. J. and Grose, J., put it on the ground of a usage so general, and so uniformly acquiesced in for length of time, that the jury would feel themselves constrained to say it entered into the minds of the parties, and made a part of the contract. But all this has nothing to do with the abstract question of competency. Usage, when it goes to change the law, always comes in subject to the principles declared in that case; yet if counsel propose to prove such a usage, and think they can establish it, I am aware of no rule which forbids the attempt. * * * It would be too much to say that one delivering goods to a carrier by stage may not expressly, or, which is the same thing, if he knows the usage of the stages to be 2 In Hyde v. Navigation Co., 5 T. R. 389 (1793), Grose, J., said: "In general, the carrier appoints a porter who provides a cart for the purpose of delivering the goods; but it would be open to an infinity of frauds, if the carrier could discharge himself of his responsibility by delivering them to a common porter, a person of no substance, a beggar, of whose name the owner of the goods never heard, and against whom, in the event of the goods being lost, there could be no substantial remedy." so, impliedly consent to a delivery at the stopping place, instead of his consignee's place of business. In Hyde v. Trent & Mersey Navigation Company [5 T. R. 389], Lord Kenyon, C. J., went into a very elaborate argument to prove that stagemen and other carriers had this right. by the general law. It would, after that, be arrogant to condemn the conventional right as illegal, or contrary to sound policy. I say conventional, because I agree that these cases must be limited by the rule of Rushford v. Hadfield. * In Golden v. Manning, 2 Bl. R. 916, s. c. 3 Wilson, 425, 433 (and) see Storr v. Crowley, 1 McClel. & Young, 129), Gould, J., said he thought that all carriers are bound to give notice of the arrival of goods to the persons to whom they are consigned, whether bound to deliver or not. Prima facie this must be so, unless the notice is also dispensed with by the custom. Gould, J., was speaking of this very case of a land carrier; and I do not well see how the carrier can escape the imputation of gross negligence, if he do not, at least, give notice, in order that the consignee may send for the goods. How is he, otherwise, to find out the fact of the delivery? Lord Kenyon, C. J., in the opinion before cited, thought he was to learn it by a letter of advice which should be sent by the consignor. But that cannot always state the place, much less the exact time, of the delivery at the inn. His Lordship suggested that the business of delivery might be left to the innkeeper, who should send his porter. All these things may, I agree, be possibly explained by the custom proposed to be given in evidence. I do not understand that the defendants here gave any notice to the consignees, although they might have been easily traced by the superscription. They rested everything on the custom. The proposition, therefore, struck me at first as too short. I thought it should have come up to a custom of delivering at the inn, without notice to the consignee. The offer may, for aught I know, be equivalent to that. I should think it essential, either to establish one of the customs as proposed, and follow it with proof of actual notice, [or] to show that the custom dispensed with notice. Such a custom, of such age, uniformity, and notoriety that a jury would feel clear in saying it was known to the plaintiff, I think would be admissible. He would be bound by it, the same as if he had directed a delivery at the inn. And on the offer made and overruled, I therefore think there should be a new trial, the costs to abide the event.3 "The contract of the defendants with the plaintiffs was that they would carry the packages in question from Milwaukee to Madison, and deliver them to the consignee [the State Bank] at the proper time and at the proper place, without loss or failure, except by the act of God or of the public enemy; the plaintiffs at the same time undertaking that the consignee, or some proper person on his behalf, should be at the proper place at the proper time to receive the packages, or in default of which, upon due notice, the liability of the defendants as such carriers should cease. It is not denied that a delivery PACKARD v. EARLE. (Supreme Judicial Court of Massachusetts, 1873. 113 Mass. 280.) Tort against the defendants as common carriers for the loss of a trunk and its contents, intrusted to them to be carried from Providence, Rhode Island, to West Mansfield, Massachusetts, and to be there delivered to the plaintiff. At the trial in the superior court, before Pitman, J., it appeared that the defendants were express carriers over the line of the Boston & Providence Railroad from Providence to Boston, and intermediate stations; that the trunk was delivered to them at their office in Providence, on Saturday, March 2, 1872, to be carried by them as expressmen to the plaintiff at West Mansfield, a station on the railroad; that it was marked "Henry M. Packard, West Mansfield"; that no special directions as to the delivery were given; that the plaintiff did business in Wrentham, during the week, and was accustomed to spend Sundays at his father's house, about one-half of a mile from the West Mansfield station; that the Boston & Providence Railroad Company had had a depot at West Mansfield for about 20 years, where some of their trains had stopped for receiving and leaving passengers and merchandise; that the defendants and other express carriers on the line of the railroad had been accustomed to deliver and receive at that station, parcels, carried and to be carried by them, employing the station agent and switchtender as their agents; that the amount of express business there was very small; that no messenger had ever been employed there by any express carriers for the delivery of goods; that it had been the uniform course of business of all express carriers to deliver all goods and parcels destined for that place to the station agent, who kept them in the baggage-room, notified the consignees of their arrival, and delivered them when called for at the station. * ENDICOTT, J. It was the duty of the defendants, as common carriers of parcels, to deliver the trunk to the plaintiff personally or at his residence at West Mansfield, and until such delivery their liability or tender of the packages at 5 o'clock p. m. would have been good in case of a merchant, hotel keeper, or grocer, because that is an hour at which all ordinary business men in Madison are at their places of business. * * It was, therefore, a fit matter of inquiry for the jury to ascertain by proof what was a proper time, under all the circumstances, to deliver the packages. And we think this matter was properly submitted to the jury." Smith, J., in Marshall v. Am. Exp. Co., 7 Wis. 1, 24, 73 Am. Dec. 381 (1858). "I do not think it * * necessary to form an opinion on the question whether a carrier is bound to bring goods for delivery more than once. My impression, however, is strongly in favor of Mr. Campbell's argument on that point. It appears to me to be sufficiently proved by the cases as a general rule that a carrier, having once tendered, has discharged himself of his obligation; because, otherwise, where is his liability to cease?" Alexander, C. B., in Storr v. Crowley, McCleland & Y. 129, 135 (1825). 4 Parts of the statement of facts and of the opinion are omitted. |