not parted with his title, and that it is to vest in the consignee only upon the performance of certain conditions, as, for instance, the payment of their price, a delivery at any place appointed by the consignee will discharge the carrier from his liability, even though it should not be the place appointed by the consignor. Thus, the plaintiff having sold wheat by sample, to be delivered to the purchaser at his mill, sent it by the defendants' railway. On the arrival of the wheat at a station, two miles from the mill, the defendants kept it there under instructions given to them by the consignee that wheat arriving for him at that station should not be forwarded to the mill without his written order. The consignee examined the wheat at the station, but refused to accept it, and while it remained there it became deteriorated in quality and value. It was held that the consignor could not recover the loss from the defendants, as the non-delivery was by order of the consignee.7 Sec. 736. (§ 395.) Same subject-Consignee cannot change destination when known to be mere agent.-But where the carrier is informed that the goods belong to another, and that the consignee is merely his agent, he will be liable to such owner 7. The London etc. Railway v. signor. The goods are intended Bartlett 7 H. & N. 400. to reach the consignee, and provided they reach him to his satisfaction it is immaterial where. that place may be, and the consignor cares very little whether it be at one place or another. The obvious meaning of the contract is to deliver to the consignee at the place mentioned, unless the consignee chooses, and the carrier is willing, that they should be delivered somewhere else." Pollock, C. B. said in substance: "It is, I think, quite clear that the consignee of goods may receive the goods at any stage of the journey; and I think that, if the consignor directs the goods to be delivered at a particular place, it is no contract to deliver the goods at that place and not elsewhere. The contract is to deliver the goods there, unless the consignee shall require them to be delivered at some other place." Bramwell, B.: "I think it would probably create a laugh anywhere except in a court of law if it was said that a carrier could not deliver to the consignee short of the particular place specified by the con See also, Railway Co. v. Frankel Bros., (Can.) 33 S. C. R. 115, 2 Canadian Ry. Cases, 155; Express Co. v. Williams, 99 Ga. 482, 27 S. E. Rep. 743, citing Hutch. on Carr.; Tebbs v. Railway Co., 20 Ind. App. 192, 50 N. E. 486. if, after the goods are once delivered to him for shipment, consigned to the agent at a particular destination, he permits such agent to take back the goods or delivers them to another upon his order at the place of shipment, or at any other place than the one to which they are consigned. This was the question and it was so decided in the case of The Southern Express Company . Dickson.8 There the agent of the plaintiff had delivered the goods to the company to be carried, consigned to himself at destination, at the same time informing the company's agents that they belonged to the plaintiff, and that he was acting merely in the capacity of agent. After the company had received the goods and given its receipt for them to the agent, and before they were started upon their journey, the company, upon the order of the agent and without the authority of the owner, delivered them to another person. The plaintiff thereupon sued the company for a conversion. "In the case before us," said the court, "the proof was given, and the jury found that the goods did not belong to the consignees, but were the property of the shipper, and that this was known to the carrier. The question is, rather, where it is known that the goods are the property of the shipper and have been shipped by him for delivery to the consignees as his agents at a distant place, can the carrier deliver the goods to such consignees or to their order at another place, or without starting them on their journey? We think the rule is that, where the consignor is known to the carrier to be the owner, the carrier must be understood to contract with him only, for his interest, upon such terms as he dictates in regard to the delivery, and that the consignees are to be regarded simply as agents selected by him to receive the goods at a place indicated. Where he is an agent merely, the rule is different. "9 8. 94 U. S. 549. 9. "This is illustrated," continued the court, "by the case of Thompson v. Fargo, 49 N. Y. 188. Thompson had, as the agent of White, collected certain moneys belonging to White, and, inclosing them in a package directed to White at Terre Haute, Ind., sent the package from Decatur, in the same state, by the express company. Various attempts were Sec. 737. (§ 395a.) Same subject-Change cannot be made after transportation completed. So it is said that any change in the destination must be made while the goods are in transitu, and that it cannot be required after the goods have reached The made to deliver the package to White, but he could not be found; and Thompson, the shipper, at length demanded the return to him of the package, and, on refusal, brought an action to recover its value. The court of appeals of New York held that if the case had been one of a sale by the consignor, with no directions from the consignee how to ship the goods, the former, as the title would remain in him, might maintain an action, but not when he was the mere agent, having no interest in the property, but acting pursuant to the orders of the owner in shipping it; that a delivery to him would be no defense to an action by the owner. case of Duff v. Budd, 3 Brod. & B. 177, holds the same rule. The numerous cases cited by the plaintiff in error, to the effect that any delivery to the consignee which is good as between him and the carrier is good against the consignor, are cases where the carrier has no notice of the ownership of the property other than that implied from the relation of the parties to each other as consignor and consignee. This gives to the consignee the implied ownership of the property, and hence justifies the carrier in taking his direction as to the manner of delivery. In addition to those authorities, reference may be had to Sweet v. Barney, 23 N. Y. 335, where a bank in the interior of New York sent by express a pack age of money directed to "The People's Bank, 173 Canal street, New York.' The package was delivered to an agent of the People's Bank at the office of the express company, and was stolen from such agent. The bank in the interior brought its action against the express company, and the question was whether the express company was authorized to deliver the package at any other place than 173 Canal street. The court held that, as there was no notice to the express company that the money was not the property of the People's Bank in the city of New York, nor any circumstances to weaken the presumption that the money belonged to that bank, any delivery that was good as to that bank discharged the carrier. Of the character mentioned is the case of the London & Northwestern Railway Co. v. Bartlett, 7 H. & N. 400, which is much relied on by the plaintiff in error. The consignee in that case was the purchaser of the wheat in question, and consequently any delivery to him or his order, wherever it might be, would be a discharge to the carrier. The same fact existed in Mitchel v. Ede and others, 11 A. & E. 888. The plaintiff recovered the value of the sugars shipped from Jamaica for the reason that, under the circumstances stated he was held to be the owner of them. Upon the same principle is Foster r. Frampton, 6 B. & C. 107, where their destination and the carrier's contract has been thereby performed.10 VI. EXCUSES FOR NON-DELIVERY. Sec. 738. (§ 396.) Carrier excused when goods taken from him by legal process. For what losses the carrier will not be held responsible, when he is not protected by his contract, has been stated in a previous chapter upon the subject of the legal exceptions to his liability in the absence of its limitation by such contract.11 It was there shown that he will be sometimes excused from such liability when the loss has been occasioned otherwise than by the act of God or of the public enemy, as when it has been caused by the inherent tendency of the goods to decay, or by some infirmity or vice against which the carrier cannot guard, or by the fraud or officious intermeddling of the owner. Cases also sometimes occur in which the carrier will be excused from a delivery of the goods where there has been no loss. This occurs when, while being safely kept or carried by him for the owner, they are taken out of his possession by process of law, either mesne or final. That this will excuse the carrier from delivery to the consignee or owner is now almost universally conceded by the courts, in the absence of connivance or collusion on the carrier's part; and it seems to make no difference by or against whom the process is sued out, if it be valid. Sec. 739. ($397.) Same subject.-In Stiles v. Davis 12 the plaintiff's had shipped goods by the defendant as carrier. An attachment writ was sued out by the creditors of parties to the goods were received from the carrier by the actual vendee, and it was held that the transitus was at an end. We do not perceive anything adverse to the principles we have stated in the learned opinion delivered by Chief Justice Shaw in Blanchard v. Paige, 8 Gray, 281; nor in Lee v. Kim ball, 45 Me. 172, which holds that where a vendee of goods sells the same before reaching their destination, the right of stoppage in transitu is ended." 10. Melbourne v. Railroad Co., 88 Ala. 443. 11. Ante, ch. vi. whom the goods had formerly belonged, but who now had no further interest in them. Under this writ the sheriff seized the goods and took them out of the possession of the carrier. They were held by him until judgment and execution were obtained, and were then sold. In the meantime, however, and a few days after the attachment, the plaintiffs made a demand upon the carrier for the goods, which was refused because they had been attached and taken from him; and thereupon they sued him. Verdict having been given for them under the instructions of the district judge, the case was carried to the supreme court of the United States, in which it was held by Nelson, J., that the court below had erred. "After the seizure of the goods by the sheriff under the attachment," it was said, "they were in the custody of the law, and the defendant could not comply with the demand of the plaintiffs without a breach of it, even admitting the goods to have been, at the time, in his actual possession. The case, however, shows that they were in the possession of the sheriff's officer or agent, and continued there until disposed of under the judgment upon the attachment. It is true that these goods had been delivered to the defendant as carrier by the plaintiffs, to be conveyed for them to the place of destination, and were seized under an attachment against third persons; but this circumstance did not impair the legal effect of the seizure or custody of the goods under it, so as to justify the defendant in taking them out of the hands of the sheriff. The right of the sheriff to hold them was a question of law, to be determined by the proper legal proceedings, and not at the will of the defendant nor that of the plaintiffs." And the case of Verrall v. Robinson13 was cited as directly in point. Sec. 740. (§ 398.) Same subject. The law as thus stated seems to be generally concurred in by the courts of both this country and of England.14 And none of the reasons generally 13. Tyrwhitt's Dowling, 242. Exch. 1069, 14. Bliven v. Railroad, 36 N. Y. 403, 35 Barb. 188; Van Winkle v. 4 Steamship Co., 37 id. 122; Burton v. Wilkinson, 18 Vt. 186; Savannah, etc. R. R. v. Wilcox, 48 Ga. 432; Edson v. Weston, 7 Cow. |