not authorized to receive them, though they be delivered to him for the consignee or owner, the carrier believing him at the time to be the agent of such consignee or owner, it being held that the carrier must know at his peril that the person to version. The letter claimed as authority was written to Smith, and not to the defendant. It does not purport to be an order for the delivery of the property; it does not state that any butter was sent to Smith, nor in any manner authorize him to receive it. It refers to butter sent, but not to him; nor does it specify the quantity or the number of packages, or the line or agency which transported it, and it was not marked with his name. Assuming that the letter refers to the same butter, which it probably did, the most liberal inference which could be drawn from it was that the plaintiffs intended that Smith would have an opportunity of seeing it, or selling it, or, at most, intimating that the plaintiffs might thereafter give him an order for it; but it is an unwarrant able stretch of construction that it authorized the carriers to deliver it to him. . . . The defendant acted in good faith, doubtless; but to permit carriers to deliver property expressly consigned to the order of the consignor upon an authority to be spelled. out of language not addressed to them, and so uncertain and ambiguous, would encourage laxity and negligence, and lead to great injustice to the owners of property, and would be contrary to law and sound business principles. Common carriers cannot thus easily relieve themselves from responsibility. Their liability continues until the property is delivered according to the consignor's order, and it is no answer for a wrong delivery to say that it was done by mistake, and with no bad intent. The consignor required a delivery to his own order; the delivery was made without such order, and consequently at the risk of the carrier. If the defendant had refused to deliver the butter, and Smith had brought an action to recover it upon the authority of this letter, no court would have tolerated the action for a moment. It was not, therefore, their duty to have delivered it upon this authority, and the most favorable disposition of the case for the defendant would have been to submit the question to the jury upon the letter and all the other facts of the case, to determine whether from the plaintiffs' negligence or otherwise the defendant was excused or justified in delivering the property as it did. . . . It is urged that the plaintiffs' negligence in writing such a letter caused the delivery and produced the injury. The writing of the let ter was not negligence per se. The undisputed existence of a fact sometimes constitutes negligence in law; but when inferences are to be drawn, or it depends upon circumstances, it is a question of fart to be determined by a jury." The Ben Adams, 2 Ben. 445; Collins v. Burns, 63 N. Y. 1. whom he makes such delivery has authority to receive the goods.30 But to justify delivery to an agent no further or other proof of the fact of the agency is required than is necessary in other cases.31 The fact, however, that the consignee does not reside at place of destination and does not expect to be there to receive the goods will not justify a delivery to a general agent, of the consignor resident there.32 Sec. 675. (§ 349a.) Same subject-How where consigned to agent of carrier.-The effect of consigning the goods to the agent of the carrier at the place of destination has been somewhat considered by the courts. Where the goods are consigned to the consignee, in care of such an agent, or where the agent of the carrier can otherwise be deemed to be the agent of the consignee, a delivery to the agent of the carrier for the consignee seems to be a good delivery and to exonerate the carrier from his liability as such.33 Where, however, the property was consigned directly to the agent of the carrier, an express company, who knew who the owner and consignee was, but was not authorized to receive it for him, it was held that the company was not exonerated as carrier by delivery to such agent, but that it continued liable until it had made a personal delivery to the consignee or until after reasonable efforts had been made to find and notify him of its arrival.34 30. Angle v. Railroad, 18 Iowa 555; Willard v. Bridge, 4 Barb. 361; Claflin v. Railroad, 7 Allen, 341; Schlesinger & Sons v. Railroad Co., 85 N. Y. Supp. 372; Sonn v. Smith, 68 N. Y. Supp. 217, 57 App. Div. 372. 31. Wilcox v. Railroad Co., 24 Minn. 269; Wright, etc., Co. v. Warren, 177 Mass. 283, 58 N. E. Rep. 1082; Railroad Co. v. Rothschild & Co., 119 Ga. 604, 46 S. E. Rep. 830. Where an expressman found a note on the consignee's door direct * ing that articles for the consignee should be delivered to the janitress, and he delivered the goods to the janitress, according to the direction, he was not liable for their subsequent loss by theft from the janitress. Ruffin v. Ruggiero, 31 N. Y. Supp. 826, 10 Misc. Rep. 739. 32. Wilson Sewing Machine Co. v. Railroad Co., 71 Mo. 203. 33. Bennett v. Express Co., 12 Oreg. 49. 34. Bennett v. Express Co., 12 Oreg. 49. But where the consignee and owner was not known, it was held that the duty of the carrier was to transport the goods to their destination and there to hold them safely until called for by the owner and delivered to him; that as to the first duty, that of carriage to destination, they were liable as carriers, but as to the latter, they were liable simply as warehousemen.35 Sec. 676. Same subject-How where consigned to consignee in care of another person.-Goods shipped to one person as consignee in care of another should be delivered to the consignee, and, in case he can not be found, then to the one in whose care they are shipped.36 Nor is the right of the consignee. to the goods changed by the goods being shipped "in care of" another person, and by that other person refusing to receive them, if the carrier knows, in fact, who the real party in interest is. When it clearly appears that the carrier refuses to deliver the goods shipped to the owner and real party in interest, with a knowledge of the fact that the party claiming the goods is the identical person to whom they are addressed and consigned, the right of the owner to the possession is removed from the possibility of doubt. If the carrier persists in his refusal to deliver, the owner may maintain replevin.37 Sec. 677. (§ 349b.) Same subject-How where goods are misdirected. The carrier cannot be held liable for losses caused, without his negligence, by the misdirection of the goods.38 But if notwithstanding the misdirection, he knows 35. Alabama, etc. R. Co. v. Kidd, 35 Ala. 209. See, also, Mobile, etc. R'y Co. v. Prewitt, 46 Ala. 63, commented upon in Bennett v. Express Co., supra. Short, etc. R. Co. v. Hodapp, 83 Where by mistake a shipper of goods directed them to the consignee at Philadelphia, N. Y., in 36. Schlesinger v. Railroad Co., stead of Philadelphia, Pa., and 88 Ill. App. 273. 37. Express Co. v. Hammer, 21 Ind. App. 186, 51 N. E. Rep. 953. 38. Southern Ex. Co. v. Kaufman, 12 Heisk. 161; Erie R'y Co. v. Wilcox, 84 Ill. 239; Stimson v. Jackson, 58 N. H. 138; Congar r. Railroad Co., 24 Wis. 157; Lake they were carried by the railroad company to the point designated and held for several months without any one calling for them, the carrier was held not liable for their loss by fire while at such point, in the absence of proof that the fire was due to its failure to the true direction,39 or if, by the use of ordinary diligence, he could ascertain the true direction, 40 he will not be excused for a misdelivery. Where, at the time the goods are tendered to him for carriage, the carrier knows that they are misdirected, as where they are directed to a place which does not exist, he should not accept them, but await correct directions; and if he does accept the goods and sends them forward he will be liable for their loss.41 It may happen that the addresses on a package and that given in the receipt of the carrier are different. The question then arises whether the address given in the receipt is conclusive on the rights of the parties. If the address on the package has been correctly printed by the shipper, and a mistake made in the receipt by the carrier, it would be manifestly unjust to allow the carrier to escape liability for non-delivery by showing that the consignee could not be found at the address appearing in the receipt. But if the address has been incorrectly printed on the package by the shipper, and the exercise ordinary care; and its liability in such respect was not altered by the fact that the agent at the point of shipment, when notified of the error, agreed to forward them to Philadelphia, Pa., since there was no consideration for his undertaking, and at most it amounted to only a gratuitous agency on the carrier's part. Treleven v. Railroad Co., 89 Wis. 598, 62 N. W. Rep. 536. So where two or more consignments of goods are sent at the same time by the same shipper under separate bills of lading, any loss arising from misdelivery through the shipper's neglect to sufficiently mark his goods falls on the shipper and not on the carrier. Feldstein v. Steamboat Co., 46 N. Y. Supp. 897, 21 Misc. 60. Where the misdirection is due to the carrier's own negligence, he will be liable for any loss occurring in consequence thereof. Railroad Co. v. Neimann, 84 Ill. App. 272. But as a succeeding carrier never sees the bill of lading till it is surrendered, and a delivery of the goods made, the waybill is a complete defense to it for delivery at a wrong destination. Hayman v. Railroad Co., 86 N. Y. Supp. 728, 43 Misc. 74. 39. Mahon v. Blake, 125 Mass. 477. 40. Guillaume v. Transportation Co., 100 N. Y 491. 41. O'Rourke v. Railroad Co., 44 Iowa, 526. Carrier is not liable where, while waiting correct directions, the goods are destroyed by accidental fire. Erie R'y Co. v. Wilcox, 84 Ill. 239. correct address is given in the receipt by the carrier, in an action against the carrier for failure to deliver it is error not to admit evidence that the address on the package was incorrect and that the carrier had made an effort to deliver at that address. However cogent as evidence the receipt may be as to the actual address which the package bore, it is nevertheless not conclusive, and other evidence is admissible to show the address upon the package.42 Sec. 678. (§ 349c.) Same subject-Carrier not liable where wrong delivery induced or ratified by owner.-Obviously the carrier cannot be liable, though he has delivered the goods to a person not entitled to them, if such delivery was caused or induced by the owner of the goods.43 And so a wrongful delivery may be ratified by the owner, thereby relieving the carrier from liability therefor.44 42. Cappel v. Weir, 92 N. Y. Supp. 365; s. c. 90 N. Y. Supp. 394. 43. Dobbin v. Railroad Co., 56 Mich. 522; Brasher v. Railway Co., 12 Colo. 384; Schwarzschild & Sulsberger Co. v. Railway Co., 76 Mo. App. 623; Carroll v. Express Co., 37 S. C. 452, 16 S. E. Rep. 128. In Wernwag v. Railroad Co., 117 Penn. St. 46, plaintiffs' agent had taken an order for goods from L. B. which he sent to plaintiffs. Not knowing L .B., and supposing it to be intended for A. B., whom they knew, they sent the goods to A. B. by defendant's road. A. B. had, however, gone out of business. L. B. claimed the goods. Defendant inquired of plaintiffs' agent whether he had sold goods to L. B., and was told he had. Defendant delivered to L. B., who was insolvent, and defendant was held liable for delivery to L. B., who was not the consignee. The inquiry of the agent did not dis close that he had sold these goods to L. B., and nothing in the conduct of the consignors justified a delivery to other than the consignee. In Conley v. Railway Co., (Can.) 32 Ont. R. 258; affirmed 1 Ont. L. R. 345, plaintiffs shipped goods to "The International Chemical Company" which was not incorporated. They did not intend that the carrier should deliver the goods until the company was incorporated. The carrier delivered the goods in the usual of business under that course The court held that the carrier was not liable for the consequent loss as the shippers knew the company was not incorporated when the goods were shipped. 44. Dobbin v. Railroad Co., 56 Mich. 522; Reynolds v. Railroad Co., 3 N. Y. Suppl. 331; Converse v. Railroad Co., 58 N. H. 521; |