| Ill. | Jun 15, 1855
The evidence very clearly shows the delivery, by defendants, of 1,716 lbs. of rags, put up securely in bags, at Joliet, to the plaintiffs, to be carried as common carriers by them, and delivered at Chicago.
On demand of the rags at Chicago, plaintiffs offer some 500 lbs. of rags, lying loosely about outside their depot, which were refused, and this suit is brought to recover the value of the whole lot.
I can see no grounds for the defense, neither in the facts nor the principles of the law regulating their liability as common carriers. They show that the bags were old and tender of thread, that the goods were not weighed at either end, that they were billed as a lot of rags, and tallied out as such at the place of destination. But how this can acquit them of a responsibility to carry safely, and deliver the goods, I am not able to perceive. The ground assumed is, that the tender, or pointing out the loose rags, was a delivery pro tanto, and discharges their liability as common carriers to that extent. I do not recognize this as presenting the first feature of a delivery.
An offer to deliver 500 lbs. of rags, without showing them to be the same rags, and in such condition, is no delivery; nor : will it be regarded as an offer to deliver.
The.defendants were entitled to their own rags. The bags were destroyed, as a means of identification, and plaintiffs have not shown that these were defendants’ rags, even had the condition been no objection to receiving them.
Defendants were entitled to their own rags, and wore not bound to take other rags in their stead.
But the condition of the rags was a substantial objection. I do not pretend that every failure to carry safely and in like good order, as received,.will subject a common carrier to liability for the full value, and compel him to answer as a purchaser. Nor is a shipper bound to take any and every remnant of his. goods, in whatever condition it may be identified and offered to him, short of total destruction. There is a medium, defining their mutual rights in this respect.
The responsibility of a common carrier does not end or change into that of a warehouseman, by mere delivery at the usual dock or wharf of a vessel, landing of a steamer at the way station, or railroad at its way station or final depot. There must,bo_ such actual delivery as satisfies and fulfills the contract for carriage and delivery, to the owner or consignee. The carrier’s liability cannot end until that of the owner’s, consignee’s or warehouseman^ begins, and it can make no difference that the carrier, by discharging his liability as such, assumes the new relation of storer. Merely reaching the end of the voyage or transportation, and delivering the goods out of the vessel or vehicle in which they were carried, will not fulfill the one duty, nor create the other. Craw et al. v. Clark et al., 15 Ill. R. 564. There must be an actual or legal constructive delivery to the owner or consignee, or to a warehouseman for storage.
Railroad companies may, and doubtless do, act in relation to the same goods, both as common carriers and warehousemen, and these relations and liabilities are very different in the strictness and extent of responsibility. We cannot sanction the idea for a moment, that the duties and obligations of carriers, end the instant a train stops, either at the way or final station of its route. This would open the door to endless frauds, thefts and destruction or loss by the way, and a change of the carrier’s liability into that of mere storage, without any possibility of the owner proving that they did not arrive safe. The carrier’s servants employed, in the transportation, are seldom the same charged with the care and custody of the same articles, when and while in their charge on storage. But even had the same servant charge of the goods for the carrier in both characters, and under both liabilities, there should bo some open act of delivery, capable of proof of this change of relation and liability. This proof must, of necessity, rest upon the carrier. If in the course of the particular line of transportation, the carrier stores at the station in the same car in which goods are transported, he would be able, and ought to know that the car had been separated from the train, and placed in a proper, or its usual station for storage, and put in charge of the proper person. Goods may not be thrown down in a station house, or on a platform at their destination, in the name and nature of delivery. The responsibility of the carrier must last until that of some other begins, and hejnust show it. The case before us is a good illustration. The shipping of the goods is shown, but their transportation to and arrival at Chicago, is nowhere in the record to be found. The plaintiffs prove that the “ rags wore billed on the freight list” “ as a lot of rags, and were tallied out at the depot” in Chicago. How, when and where, and how many of them ? The record answers some of these inquiries. They were thrown loosely outside the depot, (a small part only) and before the defendant could reach the depot to receive them, after notice, supposing those shown to be the same that were shipped.
. See Ostrander v. Brown ancl Stafford, 15 John. R. 39; Chickering v. Fowler, 4 Pick. R. 371; Hyde v. Trent and Mersey Nav. Co., 5 Term R. 387; Story on Bailments, Secs. 509, 538 to 542 ; Angell on Carr., Secs. 282 to 288; 2 Kent Com. 604 and 605 ; Hill v. Humphreys, 5 Watts and Serj. R. 123 ; Gibson v. Culver and Brown, 17 Wend. R. 305.
Such a delivery is no delivery at all in law, according to the above and numerous other authorities.
Judgment affirmed.