Loveland v. Burke, 120 Mass. 139

120 Mass. 139 | Mass. | 1876

Ames, J.

The usage which the defendant attempted to prove was not unreasonable in itself, nor was it in contravention of any rule of law. It was not an attempt to establish, for the purposes of this case, any special or peculiar rule of interpretation of terms, conflicting with their recognized and ordinary legal meaning. It was offered merely to prove, as a matter of fact, that there was an established mode of doing a certain business in the locality where the parties reside, so web known to them as to justify the conclusion, that they both expected and understood that the business, which the defendant undertook to do on this occasion, was to be done in that manner. The defendant, upon receiving the goods for transportation, must be understood to have contracted to deal with them according to the regular, known and ordinary course of his business. St. John v. Van Santvoord, 25 Wend. 660. His liability to deliver them to the owner in person could be modified by contract, by general usage, or even by his own particular usage, if understood or known by the other party. Farmers’ & Mechanics’ Bank v. Champlain Transportation Co. 18 Vt. 131. The parties may make any agreement they please as to the time, place and manner of delivery, and in the absence of any express contract, the limits of delivery may be determined by a local usage. Barnes v. Foley, 5 Burr. 2711. Thus it has been held that a carrier may show a usage to deliver at certain stopping places only. Gibson v. Culver, 17 Wend. 305. A usage, so long established, uniform and notorious, as to justify the presumption that both parties knew it, becomes a part of the contract, and may determine when the transit is over, and what is a sufficient delivery. That is to say, the extent of the transit may be matter resting altogether in proof; and the course of business at the place of destination, and the usage of carriers at that place, may be controlling ingredients of the contract itself. Farmers’ & Mechanics’ Bank v. Champlain Transportation Co. 23 Vt. 186.

The ruling given by the court as to the effect of the alleged usage, if proved, did not meet the exigencies of the case. The jury should have been instructed that, if they were satisfied of the existence of a long continued, established and notorious usage for grocers, in that locality, to furnish the planks or wooden supports for unloading at their shops heavy articles from carriers’ wagons, and if the damage in this instance was occasioned by defects in the appliances furnished for that purpose by the plaintiffs, especially if those defects were not so manifest that the defendant saw, or with reasonable attention would have seen them, the action could not be maintained. A usage to furnish the skids must mean suitable and proper skids, capable with reasonable use of sustaining the weight of the articles which were to rest upon them.

But, independently of the question of usage, there is another difficulty in the plaintiffs’ case which we find to be insurmouni able. It may he conceded that the defendant’s obligation t j transport the goods to their place of destination included an obligation to unload and deliver them safely, and that ordinarily the transit is not at an end until such a delivery is accomplished. But the place and manner of delivery may always be varied with the assent of the owner of the property; and if he interferes to control or direct in the matter, he assumes the responsibility. Lewis v. Western Railroad, 11 Met. 509.

In the case at bar, it is expressly found that the plaintiffs, on the arrival of the goods, and at the request of the carrier, furnished the skids upon which he was to roll' the hogshead into their warehouse. He certainly had a right to suppose that they knew whether the skids were sufficient to support its weight. His duty was to deliver the article as the plaintiffs should direct. If the plaintiffs themselves took part in the delivery, and furnished the skids to be used in the process of unloading, it was equivalent to a direction to him to unload in that manner, or at least to a consent that he should do so. He is entitled to say that he has delivered the goods to the plaintiffs and in accordance with their directions; and it is little short of a legal solecism to say that he can be held responsible for the latent insufficiency of the unloading apparatus which they voluntarily furnished for his use. Exceptions sustained.