
    Silas Rawson and others against William Holland, Treasurer of the American Express Company.
    The defendants, common carriers, received for transportation goods consigned to A., at "Dryden, Michigan, via Ridgway.” The defendants’ route extended no farther than Detroit, and the common carrier between that point and Dryden was the Grand Trunk Railroad Company, a company which gave bills of lading for goods only in a peculiar form, containing certain exemptions from liability. On the arrival of the goods at Detroit, the defendants stored the goods, and notified the consignees of that fact, and requested the consignees to give them authority to ship the goods on the forms of the Grand Trunk Railroad Company. The consignees made no reply, and fifteen days afterwards the goods were destroyed by five in the warehouse where they had been stored. Held, that the defendants should have forwarded the goods by the Grand Trunk Railway immediately on their receipt at Detroit; and the goods having been lost through their neglect to forward them, they were liable for the loss.
    Appeal from a judgment of the general term of the Marine Court, affirming a judgment of that court entered on the decision of a judge of that court, after a trial before him without a jury.
    'The action was against the defendant, as treasurer of the American Express Company, a common carrier, for the loss of goods delivered to them for transportation.
    On the trial it appeared that the plaintiffs (composing the firm of Rawson, Bulkly & Co.) had delivered to the American Express Company, a common carrier, of which the defendant was the treasurer, a package of goods directed to “Day & Lathrop, Dryden, Mich., via Ridgway.” The defendant’s company transported the package to Detroit, Michigan, and then, for the reasons mentioned in the opinion, stored the package in the company’s warehouse, where fifteen days afterwards it was destroyed by fire.
    At trial term, the judge rendered a decision dismissing the complaint, and the judgment entered thereon was affirmed by the general term of the Marine Court.
    
      D. M. Porter, for appellant.
    
      Beardslee & Cole, for respondent.
   Daly, Chief Justice.

I think the error in this case was the assumption by the judge who tried the cause, that if the defendants had delivered the goods to the Grand Trunk Railroad Company, the connecting carrier, receiving from that company a bill of lading, in their usual form, exempting them from liability in the event of injury, or the loss or destruction of the property by specified causes, that the defendants would have taken upon themselves the responsibility of insurers if the goods were lost or injured while in the custody of the Grand Trunk Railway Company, by any of the causes for which that company declared, in their receipt or bill of lading, that they would not be responsible.

When a carrier is instructed by the consignor to send the goods beyond his own route, by a route or carrier named by the consignor, and the carrier, instead of doing so, sends them by another route, and the goods are lost, he is answerable (Ackley v. Kellogg, 8 Cow. 225; Jackson v. The N. Y. Central R. R. Co. 33 N. Y. 610); but it by no means follows that a carrier incurs a like responsibility, when his own carriage is completed, by delivering the goods to the connecting carrier for further transportation, because he receives a receipt or bill of lading from that carrier, and the goods are lost by causes for which that carrier declared, in the bill of lading, he would not'be responsible.

The judge has found that the Grand Trunk Railroad Company did not require, in the usual course of its business, any bill of lading to be signed by the defendants, nor any special contract to be made, and that no other contract was required to forward the box than such as would have resulted by the delivery of the box and contents, and by receiving a bill of lading of that railroad in terms the same as was required of all others. This was a receipt or bill of lading declaring that the property was received, to be sent by the company subject to the terms and conditions stated upon the other side of the paper, which contained what was entitled “ general notices and conditions of carriage,” followed by a long list, nineteen in number, of stipulations of exemption from liability in the event of loss or injury, preceded by a general statement that it was “ understood and agreed ” that the company were not to be-responsible in any of the cases thus specially excepted.

It was held, in Lamb v. The Camden and Amboy R. R. Co. (46 N. Y. 271), that the carrier to whom goods are delivered, to be carried to the end of his route and then forwarded by him by the usual connecting line of transportation, is not an agent of the owner, with power to bind the owner by any stipulation, in'respect to the further carriage of the goods not embraced in his own contract. I understand both the judge who delivered the opinion of the Court of Appeals in that case, Grover, J., and the judge who dissented, Peckham, J., to agree that this is the law ; which is affirmatory of the view taken by this court, when the case was before us, and of the authorities then cited in support of it (Same case, 2 Daly, 484, 485, 490 to 493). Assuming this, then, to be the law, the Grand Trunk Railroad could not, if the defendants had delivered to them the * 4 box for carriage, have created a special contract binding the plaintiffs by stipulations not embraced in the contract made by the plaintiffs with the defendants, by simply delivering such a receipt as the one above stated. The receipt or bill of lading-given by the defendants to the plaintiffs, which will be assumed to be the contract entered into by them with the plaintiffs, does contain exemption from liability, and such exemptions are to be regarded as extending to all the connecting carriers, who are assumed to have contracted for the further carriage of the goods, upon the same conditions as the first carrier. But the Grand Trunk Railroad’s forms of receipt contain many more stipulations of exemption from liability; and if the defendants had even signed a special contract embracing these additional stipulations, it would not have been binding upon the plaintiffs. Such I understand to be the view expressed by Mr. Justice Grover, who delivered the opinion concurred in by the majority of the court, in Lamb v. C. & A. R. R. Co. (46 N. Y. 271, see p. 277); and if the defendants as carriers had no-power to enter into such a special contract for the plaintiff, none could be created by the simple delivery to them of such a receipt.

There was, then, no excuse for the defendants’ not delivering the goods to the Grand Trunk Railroad, it being well settled that it is the duty of the carrier, when the goods are transported to the end of his route, to deliver them to the next connecting line or carrier, and that his liability as carrier continues until he has discharged that duty; or where he cannot do so, has divested himself of his common law liability by storing the goods and notifying the consignors, where, as in this case, he knows who the consignor is (Mills v. The Mich. C. R. R. Co. 45 N. Y. 622; McDonald v. Western R. R. Co. 34 Id. 97; Ladue v. Griffith, 25 Id. 364; Goold v. Chapin, 20 Id. 259; Williams v. Holland, 22 How. Pr. 137; Northrup v. The Syracuse R. R. Co. 5 Abb. Pr. N. S. 425; Redfield on Carriers, 222, § 302).

This box, when received by the defendants in this city, was marked, Day & Lathrop, Dryden, Michigan, and was acknowledged in the defendant’s bill of lading to have been received from the plaintiffs so marked. The defendant’s route extended only to Detroit, Michigan, and Dryden was a point beyond that. From Detroit there were two modes of forwarding ; by team or by railroad, to Ridgway, a station on the Grand Trunk Railroad, about forty miles from Detroit, Dryden being twenty-six miles from Ridgway. When the box arrived at Detroit, the defendant did not forward it, because the Grand Trunk Railroad would not receive it except on these forms. No request was made to them to carry the box, nor did the defendants forward it by team. They placed it in the warehouse of the Great Western Railway, and sent a letter to the consignees at Dryden, asking them to sign the form of the Grand Trunk Railroad, inclosing one of the forms in the letter; with a further request that the consignees would give them an order to sign for them, for future lots, releasing them after they (the goods) were out of their possession, and to prevent future delays. They also stated in the letter that they only contracted to carry goods to Detroit, and that the Grand Trunk Railroad forms made them responsible, after the goods were out of their possession.

The consignees did not sign the forms sent to them, nor reply to the letter from the defendants; but on receiving it, they sent a letter to a Mr. Smith, the agent of the Grand Trunk Bailway at Bidgway, inclosing an order for the goods ; which they did for the reason that Bidgway was the usual and most convenient point for them for receiving the goods, and they supposed that Smith, the agent there, would, on.receiving their letter, send and get the goods up. to his station,” so that they could get them with their team. In this way the box was delayed at Detroit, and fifteen days after the defendants sent the letter to the consignees, the goods were consumed in the destruction by fire of the warehouse of the Great Western Bail way.

When the defendants received the box from the plaintiffs for carriage, they knew of the regulation established by the Grand Trunk Bailway, for they had to change their forms in consequence of it, and the regulation had existed for eight years. If they were unwilling, without special instructions, to deliver the box to the Grand Trunk Bailway, under the apprehension of personal responsibility beyond their route, they should have asked for such instructions when they received the box; for even where the circumstances are such as to warrant the presumption on the part of the carrier, that the consignee is the owner of the goods, the consignor, where he is, as was the case here, known to the carrier, is to be treated as the agent of the consignee for the purpose of shipping and consigning the goods (Nelson v. The Hudson River R. R. Co., 48 N. Y. 507 ; London &c. Railway v. Bartlett, 7 H. & H. 400 ; York Co. v. Central R. R. Co., 3 Wall. 107; Squire v. N. Y. Central R. R. Co., 98 Mass. 239). If therefore the defendants would not forward the goods by the Grand Trunk Bailroad, which was the connecting railroad line, without special instruction, they should have so advised the consignor, he having authority to make the contract in respect to their transportation, and any contract he had entered into would have been binding upon the consignee (York Co. v. Central R. R. supra). This according to the recent cases, is the rule where the consignor is not the owner, the property in the goods having entirely passed from him, and vested in the consignee by the delivery to the carrier. But in this case the consignors were the owners. Day & Lathrop purchased the goods from the plaintiffs, and1 instructed them to forward them by the Grand Trunk Railway. The plaintiffs delivered them to the defendants without any such instruction, and having brought an action against Day & Lathrop for the price of the goods, the plaintiffs were defeated because they did not ship the goods as Day & Lathrop had directed them to do. Day was examined as a witness upon the-'present trial, and testified that if the plaintiff had obeyed his-instructions, the goods would have gone through by the Grand Trunk Railroad to Ridgway without going to Detroit, and escaped the accident which caused their destruction. "Where the buyer orders the goods purchased to be sent by a particular mode of conveyance, and they are delivered to the carrier specified by him, the delivery on the part of the • vendor is complete, and the title to the goods passes by the delivery from the consignor to the consignee. But that was not this case, and the plaintiffs, both at the time of the shipment and when the goods were destroyed, were the owners. If the goods were not to be forwarded by the connecting railroad at Detroit without special instructions, the plaintiffs were the persons to be advised of it, when they shipped the goods, and the defendants, in my judgment, did not divest themselves, of their responsibilty as carriers, by placing the goods-in the warehouse at the railroad depot -at Detroit, and notifying the consignees by letter, who were sixty miles from Detroit-, that the goods would be sent to them by the Grand Trunk Railroad,, if they would sign a form releasing the railroad from liabilities to ■ a greater extent than the exemptions contained in theorginal contract of shipment. If the defendants desired to comply with the wishes of that" company, or to avoid embarrassements or difficulties with it, the simpler course, and the more just one to all parties, would have been to have added to their own contract, a stipulation authorizing them to-forward by that line, subject to the terms and conditions of the company, so that a consignee, whether the owner of the-goods, or acting as the agent of the consignor, in the shipment of them, might exercise the right of determining whether he-would send them by the defendants as carriers, subject to such conditions or not.

For these reasons I am of the opinion that the judgment should be reversed.

Robinson, J.

I concur in holding the defendants liable for the breach of their duty as forwarders.

Larremore, J.

I think the defendants are liable as for■warders, and that the judgment should be reversed.

•Judgment reversed.  