The cause of action set out in the complaint herein is not for damages arising out of the breach of contract for shipment of goods. Plaintiffs do not seek to recover of defendant as a common carrier for loss of or injury to the goods, or for delay in transporting, or for failure to deliver the same to consignee. They allege that the goods were delivered and the money collected by defendant in accordance with its contract, and that defendant has failed to remit or pay over the same to them.
There is a distinction, uniformly recognized by the courts, between the liability of defendant, as a common carrier, with respect to the shipment of the goods received by it, and its liability under its special *410 contract to collect from tbe consignee upon delivery tbe value of tbe goods as specified in tbe receipts, and to remit tbe money tbus collected to consignor.
“Tbe peculiarity of shipment of goods C. O. D. (meaning collect on delivery), wbicb is usually undertaken only by express companies, is that a condition is attached that tbe carrier, on delivery to tbe consignee, shall collect a specified sum of money, usually tbe purchase price of tbe goods, and shall return tbe sum tbus collected to tbe consignor. Since it is well settled that there is no common-law duty devolving on an express company or other common carrier to act as tbe collecting agent of tbe shipper, such obligation arises only by contract, express or implied, and is one wbicb tbe carrier may enter into or refuse at its option. When a carrier makes a contract to collect on delivery, it stands with reference to it just as any other agent, and is bound to a strict compliance with its undertaking.” 10 C. J., 278.
By its exceptions chiefly relied upon by defendant upon this appeal two propositions are presented for consideration by this Court:
First. Defendant insists that tbe burden of proof is upon tbe plaintiffs to offer evidence from wbicb tbe jury can find, by its greater weight, that defendant 'delivered tbe goods to tbe consignee and collected tbe money. Defendant contends that there is no evidence from wbicb tbe jury could find these facts, and therefore insists very earnestly that there was error in refusing its motion for judgment as of nonsuit, and in refusing to give tbe instruction requested.
Tbe goods having been received by defendant as a common carrier, tbe disposition made of them by defendant was a fact peculiarly within its knowledge. It was defendant’s duty to deliver tbe goods to consignee, and for a breach of this duty tbe defendant was liable to plaintiffs for their value. Tbe law will not presume a breach of duty; but where, from tbe facts admitted or proven, an inference may be drawn in favor of performance rather than of a breach of contract, of rightful rather than wrongful conduct, such an inference is permissible. Upon tbe evidence in this case tbe jury could well infer that defendant performed its contract as a carrier of goods and delivered tbe same to consignee. If tbe fact were otherwise, it was within tbe knowledge of defendant, and tbe burden was upon tbe defendant to meet and overcome tbe prima facie case made out by tbe evidence favorable to plaintiffs’ contention. •
“It is a principle of law, when a particular fact necessary to be proved rests peculiarly within tbe knowledge of one of tbe parties, upon him rests tbe burden of proof.”
Mitchell v. R. R.,
This Court held, in
Brumble v. Brown,
Second. Defendant insists tbat by section 7 of tbe terms and conditions contained in tbe receipt issued by defendant to tbe plaintiff it was stipulated tbat as “a condition precedent to recovery, claims must be made in writing to tbe originating or delivering carriers within four months after tbe delivery of tbe property, or, in case of failure to make delivery, then within four months and fifteen days after date of shipment.” No evidence having been offered tbat such claim was filed within said time, it is insisted tbat no recovery can be bad in tbis action.
The validity of this stipulation as affecting claims against common carriers for loss, or damage to goods or for delay in delivering same, has been sustained by this Court.
Forney v. R. R.,
Section 7 of tbe terms and conditions upon which tbe goods were received for shipment by defendant applies only to claims against tbe defendant arising out of a breach of contract by tbe defendant of its duty as a common carrier with respect to tbe goods. It does not apply *412 to claims for money collected and not remitted in accordance with its special contract with the plaintiff.
There was no error in his Honor’s refusing to render judgment as of nonsuit because plaintiffs had offered no evidence of notice to defendant, as required by said section, nor was there error in refusing to submit the issue tendered by defendant.-
Ve have examined with care the other assignments of error made by defendant. They are not sustained, and the judgment below is affirmed. There is
No error.