January Term. V. McVeigh. him. Redf. on Railw. p. 48; L. Ellenborough, 2 Maul. 1871. & Sel. 172; Southern Express Co. v. Newby, 36 Georgia R. 635. Is not the legal effect the same, if the place was designated before the delivery, and the plaintiff in- Southern Exp'ss Co. structed to deliver them there; or the defendants contracted to receive them there, and were duly notified of the delivery? It would seem so in reason. The agreement only substitutes the place agreed on for the delivery, for the usual place of delivery. We have seen that they are in charge of the carrier, when delivered at the usual place, upon notice. And they are as much in his charge, when delivered at the place agreed on, upon notice. Can it make any difference whether the goods are delivered at the usual place, or the place agreed on, provided the carriers have notice of the delivery. We think not. When railroad companies contract to receive, or deliver goods at other places than their stations, it has been repeatedly held, that they are undoubtedly bound by such undertakings. Redf. on Car. p. 86, sec. 104, citing Farmers' & Mech. Bank v. Chaplain Transportation Co., 23 Verm. R. 186, 209; Noyes & Co. v. Rut. & Bur. Railway Co., 27 Verm. R. 110; 1 Pars. on Cont. 661. Redfield on Railways says, p. 25, sec. 34: "Instructions given antecedently to the delivery of the goods, but in contemplation of such delivery, on part of both the owner and carrier, are of the same binding force as if given at the very time of the delivery." But, were the goods delivered for carriage or warehousing? The main and leading object, undoubtedly was, to get the goods from Charlotte to Richmond. The defendants were public carriers between those cities. The plaintiff applied to them to carry them. The defendants agreed to carry them, and to receive them at the depot, on delivery by the railroad, and move and deposit them in their warehouse, and deliver them, in a reasonable time, safely to Term. 1871. the plaintiff in Richmond; and received the reward January for transporting and insurance. The depositing of the goods in their warehouse, seems to have been as means Southern to an end; as ancillary to their undertaking to carry Exp'ss Co. the goods to Richmond, and there safely deliver them McVeigh. to the plaintiff. V. When a common carrier is also a warehouseman, questions of difficulty may often arise, in which character he received the goods. In this case it does not appear that the defendants were engaged in warehousing as a distinct employment. It only appears that they were common carriers, and had a warehouse. The establishment of warehouses by express companies or railways, may be considered as a part of their business as carriers, and for their own convenience and advantage. Redf. on Car. p. 92, sec. 109. And it is a fact of public notoriety, that express companies have their warehouses or offices, where they receive goods for transportation, and where they deposit goods which they have sent out for, and brought in, to be transported. They have them for their own convenience. I do not think, therefore, that, because express companies have a warehouse, it follows, necessarily, that they are warehousemen. But, whether the defendants in this case were warehousemen or not, they were common carriers, and they had a warehouse, where the goods were to be deposited for carriage. In such cases, is there any test, or well-defined rule, by which it can be determined, in what character the parties charged with the goods are liable? It seems to be well settled, that the responsibility of a carrier attaches upon the delivery of the goods at his warehouse, unless there are special directions given by the owner. Redf. on Car. p. 92, citing McCarty v. New York & Erie R. R. Co., 30 Penn. R. 247. And it is his duty, not only to carry safely, but also, if no time is stipulated, in a reasonable time. 1 Smith's Leading Term. Southern Exp'ss Co. V. McVeigh. Cases, p. 304. What can relieve him from this obliga- 1871. tion and liability? Nothing but the act of the owner January of the goods. He may relieve him from his common law liability, by directing him to do that which is incompatible with his common law duty as carrier. As, for example, if the owner directs him to "keep back the goods," or not to forward them "until further orders," or until "he hears from his consignee," he is relieved by such instructions by the owner, from his liability as carrier; because it is impossible for him, if he obeys the instructions, which the owner has a right to give, and he is bound to obey, to discharge his duty of carrier, to forward the goods presently, or in a reasonable time. And the goods remaining in his custody, he is not liable as carrier, but only as an ordinary bailee, as long as the special instructions are operative. But when they are revoked, and the owner gives orders to forward the goods, his liability as carrier immediately attaches. This is reasonable, and I think it will be found to be the principle which underlies all the decisions which have been made upon the subject. See Clarke & als. v. Needles, 25 Penn. R. 338; Blossom v. Griffin, 3 Kern. 569; 2 Redf. on Railw. p. 49; Redf. on Carriers, p. 81, sec. 97. In the case before us, the defendants' undertaking to carry the goods in a reasonable time to Richmond, was only what the common law duty of the carrier required. Hence, there was nothing in the instructions of the owner, or in their agreement, to interfere with their duty as carriers, and, consequently, nothing to relieve them from their liability as such. It is true the goods were not delivered to them, at their warehouse, but they were delivered at the place where they agreed to receive them, and from thence to move them to their warehouse themselves: which we have seen, is the same in effect, as the delivery at their usual place of receiving. Term. 1871. As common carriers, then, the defendants were liaJanuary ble for the safe delivery of the goods to the plaintiff at Richmond, and were insurers, independently of their Exp'ss Co. express agreement: and consequently the action V. against them is properly conceived in case. Southern McVeigh. But it is contended for the plaintiffs in error, that the second, third and fourth counts do not proceed in case, but are in assumpsit, because they do not aver a duty, or a breach thereof. It is true that they do not aver, totidem verbis, the duty of the defendants. But they aver facts, from which the law infers a duty, which is all that is necessary. Lancaster Canal Co. v. Parnaby, 39 Eng. C. L. R. 54. Each of them sets forth facts, from which the law infers a duty; and then, averring that the defendants not regarding their said duty, assigns the breach. The court is, therefore, of opinion, that each count in this declaration contains allegations sufficient to support it in case. And though they may be sufficient in assumpsit, as in Church v. Munford, 11 John. R. 480, they are nevertheless good in case; and that, therefore, the court below did right to overrule the demurrer. The second assignment of error is, that the court erred in refusing the instructions to the jury moved by the defendants' counsel, and in the instructions which it gave, and in overruling the motion for a new trial. It is not in the power of this court to say whether the verdict ought to have been set aside, and a new trial awarded, on the ground that it was not supported by the evidence, as the facts are not certified. But, if the court erred in refusing, or in giving instructions to the jury, that was good ground for setting aside the verdict. We will now inquire whether this objection is good. The first instruction moved by defendants' counsel was, "That, in order to find a verdict against the defendants as common carriers, the jury must be satis 1871. January Southern V. McVeigh. fied that the defendants received the goods, for the loss of which they are charged, and that they were deliv- Term. ered to, and received by them, as carriers, to be transported for the plaintiff." This instruction was given Exp'ss Co. by the court verbatim. Of course they do not object to that; but to the additional instruction, given by the court, which immediately follows, and is in these words: "But, if the jury believe that the defendants, through their agent at Charlotte, North Carolina, agreed with the plaintiff, on the arrival of the goods there, to take charge of them, and to carry them to Richmond, for hire, then they are liable, if, in a reasonable time after the same reached Charlotte, and they had notice thereof, they failed to take charge of said goods, and they were lost by reason thereof. If the jury believe the defendants were an express company, following the business of carrying goods, for hire or reward, from Charlotte, North Carolina, and points south of it, to Richmond, Va., of such as chose to employ them, they were common carriers." The court is of opinion, that the propositions of law contained in both branches of this additional instruction, are correctly stated. Nor does the instruction undertake to decide any fact in the case, or to charge the defendants with any contract, which is not proved to the satisfaction of the jury. The instruction, it seems to the court, does not assume any facts or any contract to have been proved; which would have been error; but only declares the legal consequences, if the jury should believe, from the evidence, that such a contract, or such facts, were proved. And the court is of opinion, that the law is accurately declared. Whether the peculiar facts of the case were ignored, it is not perceived how this court could undertake to decide, unless the facts had been spread upon the record. But, if it is meant by the objection, that the instructions were upon an abstract point of law, having no rele-. |