have pursued the letter of the law, in the matter of advertising and selling the packages or barrels, for the payment of the freight charges. We say the railroad, for all this was the act of the railroad, although in fact done through its agents or employees. To the railroad corporation the freight charges were due, the freight was in the railroad's depot, and the corporation only, or its appointee or agent, could make the sale. Corporations act by their agents or officers. Code of 1876, §§ 2140 et seq.

But in making such sale, good faith and reasonable diligence must be observed. The agent or agents entrusted with the duty, must have employed reasonable diligence in ascertaining the contents of the barrels; and if they had information of what the contents were, or could have acquired such information with reasonable diligence, then it became their duty to give notice of it, so as to effect the best sale they could. This was their duty to the owners of the freight, and to the railroad corporation. If, knowing the contents of the barrels, or having good reason for believing what they were, the agent selling withheld such knowledge, or well founded belief, and the effect was that the barrels were sold to a favorite, having superior knowledge, and at a nominal price, this was a fraud which would subject the perpetrators of it to an action for the damages, at the suit of the party injured. The law will not sanction or excuse such faithlessness in an agent. Sarjeant v. Blunt, 16 Johns. 74; Wright v. Spencer, 1 Stew. 576.

The circuit court ruled, in this case, that the advertisement under which defendants effected the sale was insufficient, in that it did not describe the contents of the barrels; and that in order to give a proper description, "the defendants had the right to examine the contents of the barrels." The description given in the advertisement was "two barrels wet." The testimony was, that this was the description given of the barrels in the bill of lading which accompanied them. We feel justified in inferring that this description was intended to indicate the contents, as distinguished from dry barrels. These were wet barrels, in the classification of freight. In two respects the circuit court erred: First, in holding, as matter of law, that the advertisement was insufficient; and, second, in ruling that the defendants were authorized to examine the contents of the barrels. As we have said, reasonable diligence and good faith were exacted. Reasonable diligence implies that the agent should have examined all external indicia and marks, the odor of the barrels, if they emitted an odor, and all other sources of information, reasonably within his reach. If. from these sources, or from any information he may have received, he knew, or could have known the contents with proximate accuracy, then his conduct in advertising as he did was culpable. He should have informed the public of all he knew, or could have learned with reasonable diligence. He stood in the relation of agent, both

to the railroad corporation and to the owner of the barrels, and he owed to each of them good faith. He had no authority to open the barrels to ascertain their contents. Whether he acted with reasonable diligence in ascertaining the contents-whether he knew, could have learned, or had just grounds for believing what were the contents, and whether he acted in good faith in giving the notice and making the sale, were questions for the jury, under appropriate instructions embodying the principles above declared.

Shivers testifies he bid in the barrels for Fowlkes, at whose instance he advertised and made the sale. Being his agent or employee both to sell and buy, we need not inquire as to the separate liability of Fowlkes. The same duties and liabilities rested on the latter, as did on the mere instrument by which he effected the sale.

Reversed and remanded.

Enforcement of Carrier's Lien.—A carrier cannot independently of statute enforce his lien for freight by selling the goods. Briggs v. Boston & Lowell R. Co., 6 Allen, 246; Indianapolis R. Co. v. Herndon, 81 Ill. 143; Hunt . Haskell, 24 Me. 339; Sullivan v. Park, 33 Me. 438; Lecky v. McDermott, 8 8. & R. 500. See Gavward v. Stevens, 3 Gray, 97.

NEW YORK AND NEW ENGLAND R. R. Co.

V.

SANDERS.

(134 Massachusetts Reports, 53.)

A carrier, having a lien for freight upon an entire cargo of coal, delivered a portion of it, on the order of the consignee, to a person who had purchased the whole cargo from the consignee. Subsequently, the carrier, on the arrival of the remainder of the coal, notified the purchaser that he claimed a lien on the remainder for the freight of the entire cargo, and ordered him not to disturb or unload it. The purchaser, without right, appropriated the remainder of the coal to his own use. Held, that the fact of such taking did not, of itself, as matter of law, import a promise on the part of the purchaser to pay to the carrier the freight of the entire cargo.

F. P. Goulding for the plaintiff.

A. J. Bartholomew & F. T. Blackmer for the defendant.

MORTON, C. J.-The material facts in this case are as follows: The firm of William Edwards's Sons bought a cargo of coal in New Jersey, which was shipped by water to Norwich, consigned to the order of the seller. At Norwich the plaintiff received it and paid the freight, and billed the coal to said Edwards's Sons at Sandersdale. Before any of the coal arrived at Sandersdale, Edwards's

Sons sold it to the defendants, and directed the plaintiff to deliver it to them. The plaintiff accordingly delivered to the defendants, as it arrived, all of the coal except nine car loads, without any demand for the freight. Before the nine car loads arrived at Sandersdale, Edwards's Sons failed, and the plaintiff then notified in writing the defendants "not to disturb or unload from the cars any part of the coal consigned to William Edwards's Sons, as the freight and charges on the same are unpaid.'

Afterwards, on the same day, said nine cars of coal arrived, and the plaintiff placed them on the side track running by the defendants' coal sheds, where it had been the custom to leave cars containing coal for the defendants, and the defendants, without any authority from the plaintiff, unloaded the coal into their sheds and used it. The plaintiff did not contend, before the defendants took the nine car loads of coal, that the defendants were personally liable for the freight upon it, and the defendants did not understand or believe that the plaintiff looked to them for said freight; but they were notified and understood that the plaintiff claimed a lien upon the undelivered coal for the whole freight and the advances upon the whole cargo, and did not intend to deliver it unless such freight and advances were paid.

The declaration has three counts. as one, being the same in substance. alleging a promise of the defendants to upon the whole cargo. The third is a sion of the nine car loads.

The first two may be treated They are counts in contract, pay the freight and charges count in tort for the conver

on

At the trial, it was admitted that the plaintiff was entitled to recover on the third count; and the only question was whether, the foregoing facts, it could recover on the counts in contract. The plaintiff asked the court to rule that, "if the defendants, being the owners of said coal subject to the lien, took the coal, having notice that the plaintiff claimed a lien on it for the whole freight and advances, and did not intend to deliver it to the defendants unless they paid such freight and advances, a promise to pay such freight and charges would be implied, and the plaintiff is entitled to recover on his counts in contract." The court refused this ruling, and, the case being tried without a jury, found for the plaintiff on the count in tort for the value of the nine car loads.

The only question before us is whether the superior court was justified in refusing this ruling. In other words, the question is whether the defendants, if they knew that the plaintiff claimed a lien upon the coal for the whole freight, and did not intend to deliver it to the defendants unless they paid such freight, are conclusively presumed, as matter of law, to have promised to pay such freight from the mere fact of taking the coal. It is not contended that there was any express promise to support the counts in contract. The plaintiff contracted with and looked

to said Edwards's Sons for the payment of the freight. It is not contended that the defendants, when they took the coal, were under any obligation to pay the freight. We are unable to see how from the fact of the taking, an implied assumpsit arose. There was no privity of contract shown between the plaintiff and the defendants. The taking of the coal may be evidence of a promise to pay the freight, but the mere fact of taking without right does not in law import such promise.

The plaintiff contends that the defendants cannot be heard to say that they merely intended to convert the property, in violation of the plaintiff's rights. But we know of no principle of estoppel which prevents them from setting up the truth, though it showB their own wrongdoing. The same argument would apply whenever a man obtains property of another by theft, or by any other tort, and would break down the distinction between actions of contract and of tort. There is no reason for adopting the violant fiction that the man who thus obtains property promises to pay for it, because in the cases supposed, as in the case at bar, the rights of the owner are fully protected by recovering in an action of tort the full value of his property. Ladd v. Rogers, 11 Allen, 209; Hills v. Snell, 104 Mass. 173.

The plaintiff relies upon the case of New Haven & Northampton Co. v. Campbell, 128 Mass. 104. The circumstances of that case and the relations existing between the parties were materially dif ferent from those existing in the case at bar; and further, upon a careful examination of that case, it will be seen that the question whether, under the circumstances there existing, the law implied a contract by the defendant to pay the freight sought to be recovered, was not raised or adjudicated. The question before the court was whether in such a case a count in contract could be joined with a count in tort. In discussing this question, the court says, that if the defendant took the flour" with the knowledge that the plaintiff claimed a lien and looked to him for the payment of the freight and charges, a promise to pay would be implied." It would perhaps have been more accurate to have said that "a promise to pay might be implied." It was not the purpose of the opinion to state that, under the facts of that case, a promise to pay would, as matter of law, be implied. That question was not raised or discussed. Judgment on the finding.

Carrier's Lien.-As to the carrier's lien for freight see the following authorities: Potts v. New York & N. E. R. Co., 3 Am. & Eng. R. R. Cas. 424; Marsh v. Union Pac. R. Co., 6 Am. & Eng. R. R. Cas. 359; Vaughan v. Providence, etc., R. R. Co., 9 Am. & Eng. R. R. Cas. 41, and note containing a full collection of the authorities; Knight v. Providence, etc., R. R. Co., 9 Am. & Eng. R. R. Cas. 90; Chicago, etc., R. Co. v. Jenkins, 9 Am. & Eng. R. R. Cas. 113.

ARTHUR

v.

CHICAGO, R. I. & P. R. Co.

(Advance Case, Iowa. October 16, 1883.)

Where grain delivered to a warehouseman by various parties, without any contract of sale, is, without the knowledge or consent of the owners, mixed with other grain of the same quality in one common mass, the owners become tenants in common of the entire amount in store of like quality; and where such grain is destroyed by negligence of a railroad company in setting fire to the elevator in which it has been thus stored and mixed, an owner may recover, in an action against the railroad, the value of the grain delivered by him for storage.

In such action, as the amount of damages is capable of exact computation, plaintiff will be entitled to recover interest thereon.

The mixture of grain of like quality, as delivered by different owners, in one common mass, by a party operating an elevator, will not constitute a wrongful conversion, and will not divest the owners of their property, whether the admixture be made with or without their knowledge.

APPEAL from Keokuk District Court.

This is an action at law to recover the value of certain wheat which the plaintiff claimed he had stored in an elevator at Brooklyn, in Poweshiek county, and which, with the elevator, was destroyed by fire communicated to the elevator by an engine on defendant's road. There was a trial by the court without a jury, which resulted in a judgment for the plaintiff. Defendant appeals.

M. A. Low for appellant.

John T. Scott for appellee.

ROTHROCK, J.-1. The cause was submitted to the district court upon an agreed statement of facts, of which the following is a copy:

"(1) That on the 26th day of May, 1875, the Farmers' Union elevator, at Brooklyn, Iowa, was burned, and wholly consumed, the fire being set out by a spark from an engine of defendant while being operated over its line, and in front of and near to said elevator building.

"(2) That at the time of the burning of said elevator the plaintiff had stored therein, for future shipment, 560 bushels of wheat, of the value of 85 to 90 cents per bushel, and this wheat was also burned and wholly consumed.

"(3) That the elevator was at the time being operated by one William E. Small, for storing and shipping grain, who at the same time had other wheat and grain therein; and the wheat of plaintiff