him for carriage was unauthorized. As has been seen,73 where goods are delivered to a carrier for transportation beyond his own line, he has implied authority, in the absence of an apparent limitation, to send them forward by the usual route or by any customary and proper route, and where he does so the succeeding carrier, having no notice of any limitation upon the first carrier's authority, is not to be deprived of his lien because the first carrier, by mistake or otherwise, sends the goods to the wrong place or by the wrong route.75 Where, however, the succeeding carrier knows or has good reason to believe that the goods are delivered to him for carriage in violation of the instructions of the owner, he cannot maintain a lien.76

Sec. 886. (§ 491b.) Whether property of government subject to lien. The property of the United States government, delivered to the carrier for transportation, is held to be subject to the carrier's lien like that of a private person.77

Sec. 887. (§ 492.) Lien discharged by tender.-When a lien consists merely in the right to retain possession of the chattel as security for the performance of a contract or duty to which the owner is bound, it would seem to be the general rule of law that a tender of performance, when refused by the bailee, has the same effect in putting an end to the right to retain the pos

73. See ante, § 129 et seq; Price v. Railroad Co., 12 Colo. 402.

74. Vaughan v. Railroad Co., 13 R. I. 578; Patten v. Railway Co., 29 Fed. Rep. 590; Whitney v. Beckford, 105 Mass. 267; Briggs v. Railroad Co., 6 Allen, 246; Fordyce r. Johnson, 56 Ark. 430, 19 S. W. Rep. 1050, citing Hutch, on Carr.

75. Price v. Railroad Co., 12 Colo. 402; Crossan v. Railway Co., 149 Mass. 196, 21 N. E. Rep. 367.

76. Where goods are sent by one line to be delivered to a particular line designated for further

shipment, but the first carrier wilfully violates the instructions and delivers the goods to a competing line in pursuance of an illegal contract to so turn over to that line all goods received for transportation on the designated line, the second carrier cannot maintain a lien even though he may not have known that in this instance the shipper's instructions had been violated. Denver, etc., Ry. Co. v. Hill, 13 Colo. 35.

77. Union Pac. Ry. Co. v. United States, 2 Wyo. 170, citing United States v. Wilder, 3 Sumn. 308;

session, and therefore to the lien, as if accepted. It has been so held in regard to the lien of the vendor, which, it is said, is merely a right granted to him by the law to obtain payment of the price.78 And where a tender was made to the bailee of the amount of compensation for his work upon the chattel to which its owner thought he was entitled, which was refused because less than the bailee charged for his work, it was held that the question of the amount of compensation, not being settled by the agreement of the parties, was one of fact to be settled by a jury, and that if the amount tendered was found to have been reasonable, though less than the amount claimed, the lien was forever gone, and that the owner could recover the chattel, though he would still be personally bound for the debt.79

Sec. 888. (§ 493.) Lien not assignable. The lien of the carrier, like that of the factor or agent, attaches to the goods strictly as a personal right or privilege, and does not pass with a sale or pledge, or any other tortious transfer of them by him; nor can the person who thus comes into the possession of them avail himself of such lien against the claim of the real owner.' And where the property had been levied upon, as that of the bailor to whom it did not belong, and taken from the carrier, it was held in an action against the person who had thus acquired its possession that the lien of the carrier, even if he had any (which was denied), could not be set up by the defendant, and that no question as to his lien could arise except between the owner of the goods and the carrier himself.80 So if the carrier has delivered the goods to a person wrongfully claiming them, they cannot be detained by the person thus coming into their possession by reason of any charges which the carrier may have had upon them, although such charges have been paid to him by the person who is sued for the goods.81 The

The Siren, 7 Wall. 152; The Davis, 10 Wall. 15.

80. Ames v. Palmer, 42 Me. 197; Everett v. Saltus, 15 Wend. 474;

78. Martindale v. Smith, 1 Q. Rosencranz v. Swofford Bros., 175 B. 389.

9.

79. Moynahan v. Moore, 9 Mich.

Mo. 518, 75 S. W. Rep. 445, 97
Am. St. Rep. 609.

81. Lempriere v. Pasley, 2 T. R.

case would be different, however, if the person from whom the goods are claimed held them as the servant or bailee of the carrier, and subject to his lien.82

Sec. 889. (§ 494.) Carrier cannot sell the goods for his charges. At common law and without some statutory authority, the carrier, as has been seen, cannot sell the goods for his charges upon them. The lien confers no such right. It consists merely in the right to keep or detain the goods; and if the consignee or owner refuse to pay for the carriage and take them, the remedy of the carrier is to have them sold under a judicial order or legal process, to be obtained by a proceeding in equity. A sale without some such authority would be a conversion by the carrier, and he would thereby become liable to whatever damage the owner might sustain by the illegal act, and the purchaser would acquire no title.83 Where there is a statute authorizing the sale, the sale must be fairly conducted, and held at the time and upon the notice provided by the statute.85

84

485; Dewell v. Moxom, 1 Taunt. Briggs v. The Railroad, 6 Allen, 391. 246; Hunt v. Haskell, 24 Me. 339; Grace v. Palmer, 8 Wheat. 605; Chandler v. Belden, 18 Johns. 157; Siefert v. Railway Co. (Tex. Civ. App.) 57 S. W. Rep. 899.

82. Everett v. Saltus, supra; Western Trans. Co. v. Barber, 56 N. Y. 544; Alden v. Carver, 13 Iowa, 253.

83. Fox v. McGregor, 11 Barb. 41; Jones v. Pearle, 1 Strange, 556; 2 Kent's Com. supra; Rankin v. Packet Co., 9 Heisk. 564; Binns v. Pigot, 9 C. & P. 208;

84. Nathan Bros. v. Shivers, 71 Ala. 117.

85. Martin v. McLaughlin, 9 Colo.

153.

CHAPTER XI.

OF CARRIERS OF PASSENGERS.

L OF PASSENGER CARRIERS GEN- § 901. Same subject.

§ 914. Liability of carrier where 3. Duty as to stational facilities. injury is due to an inter- § 928. Duty of railway carriers in