Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-06-24

/ action 10 r6EON6E lilc -fdlOG VI tllS
goods, or if not their value, then the
damage that he has sustained in con-
sequence of the failure of the defend
ant to notify him at once ofthe refusal
of the eonsignee to accept the goods.
There was no refusal on the part OF
the defendant to delk5er the goods,
or any other evidence of a conversion
and the only damages which the
plaintiff can claim, under the circum-
stances proved in this case, are such
as he may have sustained by the fall
ure of the defendant to perform some
duty in regard to the goods. Sc6vill
V. Griffith, IL NY. 500.
Was the Express Company guilty
Of any breach of duty, in not sooner
giving notice to the plaintiff, that the
cOnsignee had refused to accept the
goods? q 11Tr4
A leading case upon this subject in
this country is that of Fisk V. New
ton, l Denis, 45. In that case the
! carrier was unable after reasonable
effort to find the cOnsignee, and there
fore deposited the goods with a ware
house man in good credit, and took
his receipt for the same, but gave no
notice to the coTsignor. The ware
house man kept the goods for several
months and then sold them, and
credited the proceeds to the carrier,
and then became insolvent.
The Supreme Court held that the
carrier was not responsible for the
loss. The rule established in the
case is recognized in Chitty on carriers
p. 50, note, Angel ON carriers
z 29l. Story Bailments z 53S, 543.
Pars. on Courts, 9Th ed. 30, Smith
Lead cas-. pit. vol. l, p. 304, 9Th ed,
GoOld Us. Chaplin, 20 \. g. 269, and
johnson vs.. \. y. c. r. II. CO.. 80
w. y. 6l2 In Hudson VS.. Baxen-
dale, Aalstd, 575, the defendants, on
the refusal by the consigned to receive
a puncheOn of gin which the plaintiff
had employed them to carry to him,
put il into a warehouse and left ii
there for two months, without giving
notice to the plaintiff. At the end of
this period it was found that portion
of its contents was gone. The jury
found that the defendants had acted
in a reasonable, manner, and gave
verdict in their favor, and the verdict
was upheld The doctrine of this case
is stated a. the true rule by Judge
Redfield in his work on railways, 3d
ed, p. 65, and | think upon the whole
that it is sound and reasonable.
When goods sent by common car
rier have arrived at their destination,
and have been rendered to, and re-
fused by the cOnsignee, the contract
for their carriage has been performed.
The carrier may then retain in store
the goods for the use of the owner;
but if he retain the custody of them,
it is as depository and moi as carrier.
As such depository, there being no
agreement for compensation, he Is
liable only for gross negligence in re-
gard to them. But he has not the
right TO abandon the goods to destruc-
ton, or unnecessarily to expose them
to loss or damage. And there might |
possibly be cases in which the nature
of the property conveyed, or the cir
cumstances attending the particular |
case, would render it a want of Ordi-
nary care and diligence to fail to give |
notice to the COnSignOr of the accept |
ance of the property by the cOnSignee. |
But if the obligation TO give such mo-
tiee exist in any case, it arises, not
from the contract of carriage, but
from the fact that the goods being |
lawfully in the custody of the carrier |
for particular purpose, and that pur-
pose having failed through an untOre- |
seen contingency, the law throws |
upon the party who has assumed the |
custody, the duty of exercising reason |
able diligence to protect the property |
50 long as his custody continues.
But there is no rule of law which |
requires the carrier to give such notice |
in ordinary cases. The fact that the
property transported has fuctuated, |
or is liable S2huctuate in price, would |
not ordinarily take the case out of the |
general rule. Such fluctuations are
constant, and within the cOntempla- |
tiOn of all business men. The liability |
of the carrier for failure to give such |
notice, could only arise where such !
failures would be evidence of gross |
negligence on his part in the discharge |
of the duty above mentioned, of pro- |
tecting the property in his custody. |
And there might be eases, as for in |
stance the undertaking to transport |
and demand payment of a bill or note, |
in which an undertaking would be !
implied from the contract of agency |
to give the notice necessary in case Of |
non-payment TO bind the endorsers.
l do not think the fact that the ElN- |
press Company, in the present in |
stance, assumed the duty Of collecting |
the price of the goods, in addition to |
its duty as a carrier, adds to or quail |
fes this obligation, as to giving notice |
of non-acceptanee. A duty of agency
was thereby superadded to The obli- |
CATION to transport and deliver; but |
general agency was not created there |
BY. | see no evidence in this record |
which, upon the principle above ex- |
planned, would have authorized q !
Judgment for the plaintiff, and the |
Judgment must be affirmed.