#### Great Northern Railway Company, Respondent, vs. Hocking Valley Fire Clay Company, Appellant.

*December*5, *1917*

January *5, 1918.*

*Carriers: Liability of consignor for transportation charges: Bill of lading: Liability of consignee: Delivery: Waiver of lien: When note constitutes payment.*

1. The consignor of freight with whom the contract of shipment is made is liable to the carrier for the transportation charges unless there is an express agreement between them exempting him from such liability; and the carrier may also look to the consignee to whom the goods are actually delivered for the payment of the freight charges.

2. A condition, printed on and made a part of the bill of lading, that “the owner or consignee shall pay thie freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery,” does not affect the liability of the consignor for such charges.

3. Where goods had been rejected by the consignee upon their arrival at destination, and had been held at that point for several *466days, an agreement between the consignor, the consignee, and a corporation from which the consignee had ordered the goods, that they should he delivered to the consignee upon his promise to pay the freight and demurrage charges, did not discharge the consignor from liability for the freight charges.

4. Nor did the delivery of the goods, in such case, by the carrier without collecting the freight charges from the consignee, discharge the consignor; it merely released the carrier’s lien on the goods.

5. A finding by the trial court in such case that notes given by the-corporation from which the goods had been ordered, to the carrier, for the amount of the freight and demurrage charges, did not constitute payment of such charges, is *held*to be sustained by the evidence.

Appeal from a judgment of tbc superior court of Douglas county: CiiaRles Smith, Judge.

*Affirmed.*

This is an action by tbe plaintiff railway company to recover freight charges _ and demurrage from the defendant, the *lloclcing Valley Fire Clay Company,*a corporation which manufactures salt-glazed brick at Nelsonville, Ohio.

Three carloads of brick were shipped on October 2/Tth and 28th by the defendant to the Bailey-Marsh Company, contractors at Orookston, Minnesota. The brick was shipped via the Hocking Valley Railway Company, initial carrier, through intermediate carriers, to the *Great Northern Railway Company,*delivery carrier, and by them to Orookston, Minnesota. This brick had been ordered by the Bailey-Marsh Company from the Paine & Nixon Company of Duluth, Minnesota, who, in turn, bought it from the defendant. The brick was ordered by the Bailey-Marsh Company from a sample submitted to it and the school board of Orookston by the Paine & Nixon Company. When the brick arrived on November Jth and 10th it was immediately rejected by the Bailey-Marsh Company because of an alleged difference in the brick sent and that ordered. The Paine & Nixon Company were notified of the rejection, and they in turn notified *467the defendant. The plaintiff never notified the defendant of the rejection.

The brick was left on the usual and customary place of unloading cars upon the tracks of the plaintiff until December 9, 1913, when, through an arrangement between the Bailey-Marsh Company, the Paine & Nixon Company, and the defendant, the brick was delivered to the Bailey-Marsh Company on the latter’s agreement to pay the freight and de-murrage. The Paine & Nixon Company also agreed with the plaintiff that it would see to it that the freight and demur-rage charges were paid, and on February 4, 1915, the Paine & Nixon Company gave the plaintiff a promissory note for the amount of the freight and demurrage charges, and at maturity, a year later, renewed the note. No part of the freight and demurrage charges has ever been paid.

The court found that according to the terms of the bill of lading signed by the defendant and the agent of the plaintiff (Conditions, sec. 8), “the owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery. If upon inspection it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped;” that the freight charges for the brick were $644.76; that the demurrage which accrued on the cars durifog the time they stood unloaded upon the tracks of the plaintiff amounted to $68; that while the brick stood unloaded upon the tracks of the plaintiff an agreement was entered into on or about the 26th day of November between the defendant and the Paine. & Nixon Company by which the defendant was to pay the demurrage on the cars up to November 29th, and that thereafter, on or about the 10th day of December, the Bailey-Marsh Company accepted the ears and caused them to be .unloaded; that neither the original note given by the Paine & *468Nison Company to the plaintiff nor the renewal note was-given as payment of the freight and demurrage charges, but were given as security for the payment thereof; that the defendant did not at any time until after the brick had been, delivered at Crookston notify or advise the initial carrier, the Hocking Valley Railway Company, nor the intermediate-carriers, nor the plaintiff, the delivery carrier, that it. was-acting as agent of the Paine & Nixon Company or of any other firm or corporation; that the brick was sold by the defendant to the Paine & Nixon'Company, and that the order-therefor, signed by the Paine & Nixon Company, specified, the kind and quality of brick desired and the railroads over which it should be carried; that the brick shipped by the defendant was of the kind, quality, and quantity ordered by the-Paine & Nixon Company; that in contracting for the shipment of brick the defendant acted as the agent of the Paine & Nixon Company; that the defendant was in no wise responsible for the temporary rejection of the brick by the consignee at Crookston, nor for the delay in unloading; that the-plaintiff, though notified by the consignee of. the rejection, did not notify the defendant that the brick had been rejected and was being held unloaded on the tracks nor that demur-rage against the defendant would accrue in consequence-thereof; that the Paine & Nixon Company expressly promised and agreed with the plaintiff that in consideration of' the delivery of the brick to the Bailey-Marsh Company ifi would be security for the payment of the freight and accrued demurrage charges, and that such promise was an inducing-cause for the delivery of the brick and to the waiver of the carrier’s lien for its charges.

Judgment was entered against the defendant awarding the plaintiff the freight charges, $885.84, and $51.75 costs and disbursements, and dismissing the plaintiff’s cause of action as to demurrage charges. This is an appeal from such judgment.

*46917. *M. Steele*of Superior, for tbe appellant.

Eor the respondent there was a brief by *J. A. Murphy*and *B. I. Tipton*of Superior, and oral argument by *Mr. Tipton.*

SiebecKee, J.

The law is well established that the consignor of freight with whom the contract of shipment is made is liable to the carrier for the transportation charges unless there is an express agreement between the consignor and carrier exempting the consignor from such liability. The carrier may also look to the consignee to whom the goods are actually delivered for the payment of the freight charges. The consignor’s liability rests upon the agreement of the parties arising out of the transactions between them. In *Blanchard v.*Page, 8 Gray (74 Mass.) 281, 290, it is said:

> “. . . Upon the ordinary contract of shipment, manifested by a bill of lading, made by one party and accepted by the other, . . . mutual obligations arise between the contracting parties, on the one side to carry the goods, and on the other to pay the stipulated compensation for that service; that these are mutual considerations for each other, and make them legal obligations on which actions will lie.”

Cases dealing with the consignor’s liability are collected in a note to *Coal & Coke R. Co. v. Buckhannon River C. & C. Co.*(W. Va.) 87 S. E. 376, L. R. A. 1917A, 665 *et seq.*

Applying this rule of liability to the instant case upon the facts found by the court, it follows that defendant is liable as consignor of the shipment of brick unless it appears that it was relieved therefrom under the facts and circumstances of the case.

It is contended that condition 8 (see above statement), printed on the back of the bill of lading and made a part thereof, is an express agreement by which the owner or consignee of the brick is made liable for the freight charges, and operates to release the consignor from liability. The benefits accruing to the carrier under the terms of this condition *470of tbe bill of lading do not embrace an agreement releasing tbe consignor. Tbe condition confers on tbe carrier tbe right to collect tbe freight from tbe owner or consignee without changing tbe liability of tbe consignor. See *Coal & Coke R. Co. v. Buckhannon River C. & C. Co., supra.*

Tbe court held that tbe agreement made between tbe Paine & Nixon Company and tbe defendant for delivery of tbe brick to tbe Bailey-Marsh Company after tbe shipment bad been held at Crookston for several days, upon tbe promise of tbe Bailey-Marsh Company to pay tbe freight and demurrage charges, did not operate to discharge tbe defendant as consignor from liability for tbe freight charges. We think tbe record fully supports this conclusion of tbe trial court. These transactions disclose nothing to warrant tbe inference that the plaintiff intended to release tbe defendant from its obligation to pay tbe freight charges. Nor does tbe delivery of tbe brick by tbe plaintiff to tbe Bailey-Marsh Company without collecting tbe freight charges discharge the defendant. This delivery, under tbe facts shown, did no more than release tbe carrier’s lien upon tbe freight. Tbe carrier retains tbe right to collect tbe claim against tbe other parties liable therefor..

• It is urged that tbe court erred in finding that tbe giving of a note by tbe Paine & Nixon Company for tbe amount of the freight and demurrage charges to the plaintiff oil February 4,. 1915, and,tbe renewal thereof at the expiration of a year, did not constitute payment thereof. Upon tbe evidence adduced we cannot say that the court’s conclusion on this issue of fact is clearly wrong. Tbe transactions of tbe parties leading to tbe execution of these notes tend to show that they were given to evidence tbe plaintiff’s claim against tbe maker for the freight and demurrage charges, but there is nothing in tbe transaction to warrant tbe inference that tbe notes were taken in payment of tbe claim.

We find tbe evidence in harmony with tbe court’s finding that defendant did not notify tbe original or other carriers *471that it acted only as agent for the Paine & Nixon Company in making the delivery of the brick to the carrier at Nelson-ville, Ohio, and that such carrier received the brick for shipment upon such understanding, and hence the defendant is liable for the freight charges. Under the facts and circumstances of the case there is no express release by the carrier of the defendant’s liability for the freight charges as consignor. We find no reversible error in the record.

*By the Qourt.*— The judgment is affirmed.