Packard v. Earle

113 Mass. 280 | Mass. | 1873

Endicott, J.

It was the duty of the defendants, as common carriers of parcels, to deliver the trunk to the plaintiff personally or at his residence at West Mansfield, and until such delivery their liability as carriers continued. This liability they under took to limit by proof of a usage in their business to leave pack ages sent to West Mansfield at the station, with notice to the consignee, as a substitute for personal delivery. This was not a general usage of such a character, that a presumption of knowledge arises by mere force of its existence, and which enters into and becomes part of the agreement of the parties. It was a particular usage, local in its application and character, and confined to this station, and in order to bind the plaintiff, it must be proved that he knew it, when he made the contract with the defendants to carry the trunk. The instructions on this point were sufficiently favorable to the defendants. Stevens v. Reeves, 9 Pick. 198. Berkshire Woollen Co. v. Proctor, 7 Cush. 417.

The case is clearly distinguishable from Sullivan v. Thompson, 99 Mass. 259, relied on by the defendants. There the question was whether evidence was admissible to show a certain usage in regard to the delivery of parcels at the government bakery in Washington, to persons employed therein in the military service of the United States, and was decided upon the peculiar circumstances and facts of the case, and has no application to the questions raised here.

The bill of exceptions does not raise the question of law, whether upon the facts as stated there was a delivery of the trunk to the plaintiff. There is no ruling reported on that question, and there is nothing to show that the attention of the court was called to it during the trial. It is not open therefore to the defendants to argue upon the general recital of facts in the bill, that there was in law a delivery to the plaintiff.

Exceptions overruled.