
    *Southern Express Co. v. McVeigh.
    January Term, 1871,
    Richmond.
    Joynrs, J., absent, sick.
    1. Common Carrier—Breach of Implied Duty—Action on the Case.—An action on the case lies against a party who has a public employment—as a common carrier or other bailee—f or a breach of duty which the law implies from his employment or general relation.
    2. Same-Breach of Express Duty— Action on the Case. —When there is a public employment, from which arises a common law duty, an action may be brought in tort, although the breach of duty assigned is the doing or not doing something contrary to an agreement made in the course of such employment, by the.party on whom such general duty is imposed.
    3. Same—Same—Declaration.—Though the declaration does not allege that the defendants are common carriers, yet, if the facts set out constitute them such in law, it is sufficient to sustain the action against them as common carriers.
    
      4. Same—Express Company—Liability.—An express company is to be regarded as a common carrier, and its responsibilities for the safe delivery of the property entrusted to it is tlie same as that of the carrier.
    5. Same — Action on Case — Declaration—What It Must Allege. — Though the declaration in case does not allege the duty of the defendants as common carriers to carry the goods, and the breach of that duty, if it avers facts from which the law infers the duty, and that the defendants, not regarding their said duty, &c., and assigns the breach, that is sufficient.
    6. Same — What Necessary to Liability. — To subject a party to the responsibility of a carrier for goods lost, it must appear that he received the goods, and that they were delivered to and-received by him as a carrier.
    7. Same — What Amounts to Delivery — V, owner of certain goods about to arrive at the depot of a railroad in Charlotte, N. C., wishes them to be carried from thence to Richmond, Va., and an express company, by their agent at Charlotte, undertakes to remove and deposit said goods in their warehouse as soon as possible on the arrival of the goods at the depot in Charlotte, and to carry them from Charlotte to Richmond within a reasonable'time, for a reward paid. The goods arrive at the depot, and *the express company has notice of their arrival. This is a delivery to the express company as carriers.
    8. Express Companies — When Liable as Carriers.— When goods are delivered to parties to be forwarded and transported, and these parties are expressmen, and receive compensation for forwarding and transporting, the goods are in their custody as carriers.
    9. “Forwarders” — Liability for Fire. — If goods are under the control of parties as forwarders and not as common carriers, and are consumed by accidental fire in a warehouse, without any fault or negligence on their part, they are not liable; ‘ unless they had expressly agreed for compensation paid, to insure them, and had failed to do it.
    In December, 1866, ffm. N. McVeigh instituted an action in the Circuit court of Richmond against the Southern Express Company. Thfe declaration contained four counts. The first count set out that the defendants were a corporation doing business in the States of Georgia, North Carolina and Virginia. That they were common carriers, and were engaged in carrying goods and merchandise, for hire, to and from places within said States, and particularly from the town of Charlotte, in North Carolina, to the city of Richmond, in Virginia. And that, on the 25th of November, 1864, the plaintiff was desirous of forwarding and having conveyed from the said town' of Charlotte, to the city of Richmond, certain goods, viz: Sic., of the value of $200,000. And that on the said 2,4th of November the plaintiff delivered to the defendants, they being common carriers, at a certain place in the town of Charlotte, being the place used by them in the way of their business as common carriers, for the receipt of parcels and goods to be by them carried and conveyed as such common carriers, the said goods and merchandise, to be by the defendants carried and conveyed from the town of. Charlotte to the city of Richmond, to be delivered by the defendants for the plaintiff, for certain reward’to the defendants. Yet the said defendants, not Regarding, &c., did not take proper care of *the same, but took such bad care of them that the goods were destroyed by fire at Charlotte.
    The second count sets out that on the 25th of November, 1864, at the town of Charlotte, the plaintiff caused to be delivered to the defendant certain goods, viz: &c., of the value of $200,000, to be taken care of and safely carried and conveyed by them from Charlotte to Richmond, and at Richmond to be safely delivered by the defendants for the plaintiff, within a reasonable time then next following, for certain hire and reward: and although the defendants accepted the said goods for the purpose aforesaid, and undertook the carriage, conveyance and delivery as aforesaid, within such reasonable time; and, though such reasonable time hath long since elapsed, yet the defendants, not regarding their duty, &c., but contriving, &c., did not nor would, within such reasonable time, or at any time afterwards, take care of or safely carry the said goods from Charlotte to Richmond, nor deliver the same at Richmond for the plaintiff ; but had neglected and refused so to do; and by reason of the negligence and improper conduct of the defendants, the goods were not delivered to or for the plaintiff at Richmond or elsewhere, and are wholly lost to the plaintiff at the said town of Charlotte.
    The third count sets out, that on the 25th of November, 1864, at the town of Charlotte, the plaintiff did present to the defendants a list in writing of certain goods then about to arrive at the depot of the Charlotte and South Carolina Railroad Company, in the town of Charlotte, to wit: &c., of the value of $200,000, which the plaintiff was desirous to have conveyed and carried to Richmond and delivered to the plaintiff; and the defendants did then and there undertake to remore and deposit said goods in their warehouse as soon as possible on arrival of the goods at the town of Charlotte, to wit: at the said depot, and to *carry them from Charlotte to Richmond within a reasonable time, for certain hire and reward to the defendants. And the plaintiff, on the 25th of November, 1864, at Charlotte, did pay to the defendants the sum demanded by them of him as reward for freight and insurance of said goods, to wit: the sum of $5,623 50, and the defendants then and there did give a receipt in writing for said money received for freight and insurance. And the plaintiff avers that the said goods afterwards, viz: on the 26th of November, 1864, arrived in Charlotte, viz: at the depot of the Charlotte and South Carolina Railroad Company, therein situate, and were ready for removal by the defendants, ánd that the defendants had due notice of the same. Yet the defendants, not regarding their duty in that behalf, but con^ triving, &c., did not nor would, on the arrival of the goods at Charlotte, ■ nor at any time afterwards, remove said goods from the said depot and deposite the same in their warehouse and carry them to Richmond, and there deliver the same to the plaintiff, but wholly neglected and refused so to do. And by means of the negligence and improper conduct of the defendants, the said goods have not been delivered to or for the plaintiff at Richmond or elsewhere, and are wholly lost to the plaintiff.
    The fourth count sets out that on the 25th of November, 1864, the defendants were ex-pressmen and forwarders of goods, engaged in the business of receiving and forwarding, for those who might offer them, for a reward, goods and merchandise, and the like, from Charlotte to Richmond, and the course and usage of their business was, when requested by their owners, to receive such things destined for Richmond of the Charlotte and South Carolina Railroad Company at their depot in Charlotte, and forward the same to Richmond, storing them in their warehouse in the town of Charlotte until they could be sent off, when *there was delay in sending them off by the railroads connecting Charlotte and Richmond, in cars of the said railroad, the use of which for that purpose was allowed to the defendants by agreement between them and the said railroad companies, the defendants receiving of the shippers entire cost and charges of such transportation from Charlotte to Richmond, so that the latter had nothing to pay for the same to the said railroad companies; and also receiving, when agreed on, of the shippers, in addition to the charge of transportation, a price for insurance of the articles shipped against loss or damage arising from the dangers of railroad transportation, fire, &c. The contract for receiving, storing and carrying the goods, and the arrival of the goods at the railroad depot in Charlotte, is set out as in the third count, except that it charges that the defendants undertook to insure the goods against damage by fire, &c., for a reward; and it avers that the plaintiff had given orders to the railroad company to deliver the goods to the defendants when they might demand the same. And the conclusion of the count is the same, except that it avers that the goods were lost at Charlotte by a fire, which consumed them in the warehouse of the Charlotte and South Carolina Railroad Company.
    The defendants appeared and demurred generally to the declaration and each count thereof; but the demurrer was overruled by the court. They then pleaded not guilty, and it was agreed bjr the parties by their counsel, that the defendants might give in evidence any matter under the plea of not guilty, that might be given in under any proper special plea if filed.
    On the trial the defendants took two exceptions to rulings of the court. The first need not be noticed. The second was to the refusal of the court to give certain instructions asked for by the defendants, and the ^giving of others. The statement of the evidence in the bill of exceptions shewed the relevancy of the instructions asked, and those given ; and it need not be set out. The instructions asked by the defendants are:
    That in order to find a verdict against the defendants as common carriers, the jury must be satisfied that the defendants received the goods, for the loss of which they are charged, and that they were delivered to and received by them as carriers, to be transported for the plaintiff.
    If, from the evidence, the jury shall believe that the goods of the plaintiff were under the control of the defendants as forwarders and not as carriers, and were consumed by accidental fire in a warehouse, without fault or negligence by the defendants, then the defendants are not liable.
    The plaintiff also asked for instructions, but it is not necessary to give them. The court refused to give any of the instructions as asked, and gave the following:
    1. That in order to find a verdict against the defendants as common carriers, the jury must be satisfied that the defendants received the goods for the loss of which they are charged, and that they were delivered to and received by them as carriers, to be transported for the plaintiff. But if .the jury believe that the defendants, through their agent at Charlotte, JST. C., agreed with the plaintiff, on the arrival of the goods there, to take charge of them and to carry them to Richmond for hire, then they are liable, if in any reasonable time after the same reached Charlotte, and they had notice thereof, they failed to take charge of the said goods, and they were lost by reason thereof. If the jury believe the defendants were an express company following the business of carrying goods for hire or reward from Charlotte, N. C., and points south of *it, to Richmond, Va., the goods of such as chose to employ them, they were common carriers.
    2. To entitle the plaintiff to recover of the defendants as forwarders, and not as common carriers, the jury must be satisfied from the evidence that the defendants contracted to take his goods from the railroad depot and forward them to Richmond, and that compensation was received for forwarding said goods, and that the defendants negligently failed to forward the same, whereby they were lost to the plaintiff. But if the jury shall believe that the defendants, at the time they agreed to forward said goods, were expressmen, and when they agreed to forward said goods, also agreed to transport them to Richmond, and received compensation therefor, then they are liable as common carriers.
    3. But if the jury believe, from the evidence, that the defendants made no agreement for the immediate transportation of the goods of the plaintiff, but agreed to forward them as soon as they conveniently could by the railroad, and before they could conveniently forward them they were consumed by an accidental fire, not attributable to the negligence of the defendants, then the defendants are not liable.
    4. If, from the evidence, the jury shall believe that the goods of the plaintiff were under the control of the defendants as forwarders, and not as common carriers, and were consumed by accidental fire in a warehouse, without any fault or negligence of the defendants, then the defendants are not liable.
    The jury found a verdict for the plain tiff, and assessed his damages at four thousand three hundred and thirty dollars and six cents, with interest from the 8th of January, 1865, until paid. The defendants thereupon moved the court for a new trial; but, upon the plaintiff consenting to reduce the verdict to three thousand six hundred and twenty-six dollars and *ninety-two cents, the motion was overruled, and judgment was rendered ■ for the latter amount, with interest. And the defendants applied to this court for a supersedeas to this judgment; which was awarded.
    Wells and Ryons, for the appellants.
    The plaintiffs in error insist that each and every of the counts, excepting the first, is a count in assumpsit, an action ex con-tractu, counting upon a breach of contract, implied from the undertaking, and that including in the declaration any one of the last three counts, with the first, was a mis-joinder, good ground for demurrer, and made the whole pleading defective.
    I. If a declaration contain different counts, some of them sounding in contract and some in tort, there is a fatal misjoinder, for which the declaration will be held bad on demurrer. Nimocks v. Inks, 17 Ohio R. 596; Noble’s Adm’r v. Rayley, 50 Penn. R. 281; Stevens v. Hurlburt Bank, 31 Conn. R. 146; Ederlinv. Judge, 36 Missouri R. 350. See also Copeland v. Flowers, 21 Alab. R. 472; Crenshaw v. Moore, 10 Georgia R. 384; 1 Chitty PI. 200-1; Creel v. Brown, 1 Rob. R. 265. This proposition is, however, so universally conceded and elementary in its character as not to need citation of authorities. If either of the counts are in as-sumpsit, the judgment must be reversed.
    IT. The second count is in assumpsit, because it counts upon the breach of contract implied from the undertaking, and does not rely upon a breach of duty resulting from the relation.
    “The real test by which to determine whether a count is in case or assumpsit is,_ does it count upon the defendant’s undertak-’ ing or upon the obligation which results from the relation. ” Wilkinson v. Moseley, 18 Alab. R. 288. A count charged that the plaintiff delivered to the defendant property to be taken care of, which the latter agreed to take care of and redeliver. The *court held that this was to be considered a count in assumpsit. Corbett v. Packingham, 6 Barn, and Cress. 268-274; also, 9 Dow. and Ry. 265.
    The third and fourth counts of a declaration set forth promises of the defendant not connected with any common law duty arising from the relation. The last count was in trover, declaration was held bad for misjoinder. Courtenay v. Earle, 1 Eng. Raw and Eq. R. 333 ; 4 American Raw Regt. 1855-6, p. 769.
    A declaration contained two counts, one in trespass, “for putting filthy substances in a quart of rum, whereby it was rendered valueless,” the other in case, “for putting noxious substances in a quart of rum, intending to cause the plaintiff to drink thereof, ’ ’ which he did, and was made sick. Held, that the causes of action were different, could not be joined, and that the mis-joinder was fatal on writ of error. Boerum v. Taylor, 19 Conn. R. 122.
    An inspection of the form of a count in assumpsit against a carrier, and one in case, will show that this count is clearly in assumpsit, and not in case. The characteristic of the count in case is, that it charges that the defendants were common carriers, that they received the goods as such, to be safely carried for reward, but, disregarding their duty as such common carriers, they did not safely deliver them. See 2 Chitty’s PI., 652. The feature which identifies the count in assumpsit is, that ■being a carrier he received the goods, and for a reasonable reward undertook to safely carry them. 2 Chitty’s PI., 356.
    The second count does not, like the first, rely upon the duty imposed by law, and charge a violation of that duty; but it sets out the contract, and alleges nothing but a violation of it by the plaintiffs in error. The language is, “they accepted the goods, and undertook the carriage. ” * * * * “Yet, not regarding their duty in that behalf, did not securely carry.” If a *count be for nonfeasance and breach of contract, and is substantially in assumpsit, though it omit the words, “undertook and promised,” yet it will be considered as framed in assumpsit, and if joined with other counts for torts, the mis-joinder will invalidate the whole declaration. 1 Chitty’s PL, p. 199; 3 Barn. & A. 208; Brill v. Neele, 1 Chitty’s R. 619.
    III. The third count is in assumpsit, and must be held so for the reasons applicable to the second count, and because a count in case could not be framed upon the facts disclosed in it, for no duty imposed by law was violated. The responsibility and duty of a carrier does not begin until the goods are delivered to him, or to his proper servant, authorized to receive them for carriage. Redfield on Carriers, p. 80, sec. 95; 2 Parsons on Contracts, p. 177; Story on Bailments, p. 532; Redfield on Railways, p. 245, sec. 129; Maybin v. South Carolina Railway, 8 Rich. R. 246. “In order to charge a common carrier, it must be shown that the goods were delivered to him for transportation.” Trowbridge v. Chapin, 23 Conn. R. 595; Blanchard v. Isaacs, 3 Barb. R, 388; Merriam v. Hartford and N. Haven R. R. Co., 20 Conn. R. 354. In the case of Tower v. Utica and Schen. R. R. Co., 7 Hill R. 47, an action in case was brought to recover the value of a coat stolen from the defendant’s cars; it was placed upon a seat by the owner; the conductor of the train had his attention called to the coat by another passenger. It was held that the defendant was not liable, because there was no delivery. Nelson, Judge, says: “I am of opinion that the nonsuit was properly granted; the overcoat was not delivered into the possession or custody of the defendants, which is essential to their liability as carriers.” In the case of Cronkite v. Wells, 32 New York R. 247, where a package was delivered to the clerk of the agent of the Express Company, outside of the office of the agent, it was held that the defendant was not liable, that not being such a delivery *as was necessar3' to create the liability. Wells v. Wilmington R. R. Co., 6 Jones’ Raw (N. C.) 47, is peculiarly applicable to this case. Goods were deposited by the side of the road where there was no station and no agent, but the conductor of the freight train had agreed to stop and take the goods on; they were destroyed; the defendants held not liable, because there was no delivery.
    “A railroad compan3r is not liable as a common carrier for property deposited in their warehouse to await orders for transportation.” Mich. E. & N. Ind. R. R. Co. v. Shurtz, 7 Mich. R. 51S. In South Car. R. R. Co. v. Bradford, 10 Rich. Raw (S. C.) 307, it was proven that the goods were delivered to another railroad company, terminating at the defendants’ road, and consigned to them, but no proof that they came into the possession of the defendants : Held, that the action could not be maintained. In Kimball v. Rutland and Burlington Railroad Co., 26 Verm. R. (3 Deane) 247, the plaintiff declared in case against the defendant as a common carrier upon a special contract. Held,that ‘ ‘such contract changed the relation, and that an action must be brought on the contract and not against the defendants as common carriers.”
    This count does not pretend that there was any delivery, actual or constructive, but that the plaintiff “exhibited a list of goods about to arrive” at the depot of the Charlotte and South Carolina railroad, and that the defendants undertook to remove and deposit said goods in their warehouse as soon as possible after their arrival, and to carry them to Richmond. Now, a carrier is bound by law to carry such goods as may be offered to him, and if he refuses, may be sued in case, because it is part of his common law duty to carry all goods brought to him for carriage; but if he makes a contract to send for goods upon their arrival at a particular place, this being no part of the duty imposed *upon him by virtue of his public employment, and he violates that contract, he must be sued as any private person would be, in assump-sit and not in case, which is precisely what has been done in this count.
    An examination of the count shows not only that it ought to have been in assump-sit, but that it plainly is so upon its face. The language is, “the defendants did then and there undertake to remove, deposit and carry.” Their liability is founded, claimed and stated to be upon a contract and undertaking, and not as the result of the relationship, nor one imposed by law. It is true that this count and the alleged contract relates to the same subject matter as that referred to in the first count, but that is not enough to warrant the joinder.
    In Howe v. Cook & Maxwell, 21 Wend. R. 29, the true rule on this subject is stated with precision and clearness. Bronson, Judge, in delivering the opinion of the court, says : 1 ‘It is not enough that the counts may relate to the same subject matter; * * * that the evidence is the same to support them. The counts to stand together must be in the same form of action. * * Although the plaintiff has two modes of framing his principal count, and the evidence to support the declaration may be the same in both, yet other counts can only be joined when they belong to the same form of action. In actions against a carrier the plaintiff cannot declare in case for the loss and add a count in assumpsit.” In speaking of the declaration in that case he says: ‘ ‘Two counts are plainly founded upon contract. They set forth a promise and the breach of it as the cause of action, and then add a count in trover, which is a fatal mis-joinder.” * * * “The manner in which the breach is alleged does not determine the form of the action. In assumpsit it is not unusual to allege for breach that the defendant contriving and fraudulently intending, subtly deceived, &c., and this form is allowed *in actions against bailees in cases where as-sumpsit is the only remedy. In declaring upon contracts it is always sufficient breach to show that the defendant did not perform his engagement; and if the plaintiff goes farther, and alleges that the defendant fraudulently and deceitfully violated his undertaking, it neither changes the form of the action nor varies the proof. ” “This verbiage of the count will not convert it into a count in case if it be clearly founded upon a breach of promise, as distinguished from a breach of duty, incumbent upon a bailee.” Which is precisely the case here. See opinion in Orton v. Butler, 18 Eng. C. R. R. 361.
    IV. The fourth count is, like the third, in assumpsit. It merely states promises by the defendants, and their non-performance of them. An action in form ex delicto could not be founded on the facts stated therein. An action on the case does not lie for the non-performance of promises. Smith v. White, 37 Eng. C. R. R. 353. See same case in 6 Bing. N. C. 218; 8 Dowl. P. C. 255. In this case the defendant obtained possession of the property under a contract, but tortiously disposed of it, and for that reason it was held that case was the proper remedy, for, when the carrier is sued for an injury ex delicto, the action should be case and not assumpsit, because it is founded on the wrong and not on the contract. Bretherton v. Wood, 6 Moore R. 141.
    This count does not undertake to charge the defendants as common carriers, but simply as expressmen and forwarders of goods; it states the course of their business, and alleges that the plaintiff exhibited to them a bill of goods about to arrive, and. that the defendants then and there undertook to remove and deposit said goods, and to insure them against loss by fire, and that the plaintiff had given to the railroad company an order to deliver the goods to the defendant *when they might demand the same, but that the defendants would not and did not receive the goods. Can it be, for one moment, contended that an action ex delicto could be founded upon the breach of such an undertaking? Is it not peculiarly a liability ex contractu, and does not this count go upon the breach of the contract?
    The rigid rules of the common law makes the carrier assume the liability of an insurer, whilst the forwarder is ' answerable only as a bailee for ordinary neglect. 2 Parsons on Contracts, p. 78-9.
    Can it be- maintained that an action in case could be sustained upon such a contract to receive and insure, when the breach alleged is not receiving? We think that this count is clearly in assumpsit, and the court seems, in its charge to the jury, to have so regarded and treated it. The language used is: “If the jury believe that the defendants, through their agent at Charlotte, N. C., agreed with the plaintiff, on the arrival of the goods there, to take charge, of them and carry them to Richmond for hire, then they are liable, if in .a reasonable time after the same reached Charlotte and they had notice thereof, they failed to take charge of the said goods.’’
    • On any other hypothesis than one which treats this count as in assumpsit, this portion of the charge delivered by the learned court becomes palpably and utterly erroneous, while, if we regard this count as in assumpsit, then the charge is in this particular entirely correct, and it is also clear, that upon this count alone, and as a count in assumpsit, the verdict of the jury was founded; for the proof shows that the goods were never delivered to the defendants; that they never received them as forwarders or bailees; that no common law liability had accrued; that no right of action ex delicto had arisen; but, if charged at all, it must have been in an action ex contractu, for the, non-performance *of the promise and undertaking to receive, take charge of and carry the goods.
    We think that each of the counts, excepting the first, is a count in assumpsit, and that in the very nature of the facts stated they must have been so; but, if any one of them is in assumpsit, then the defect is fatal to the whole declaration. Henderson v. Stinger, 6 Gratt. 130, and cases there cited.
    V. It is also respectfully submitted, that the court erred in the instruction it gave to the jury, first, in affirming the liability of the defendants upon a contract made with an agent, whether it was within the scope of his authority or not.
    The.principal is bound by the acts of the agent, only when they are within the scope of his employment. Story on Agency, sec. 126, 134; 1 Parsons on Contracts, 41-2-4.
    The agent of a common carrier, while he has authority to ship goods, and-to sign bills of lading for goods, has no authority to enter into a special contract to receive goods and store them before their arrival, nor to create any liability beyond that which belongs to the undertaking or business of a common carrier. 1 Parsons on Contracts, p. 45; Opinion of Comstock in Mech. Bank v. JST. York & JST. Hav. R. R. Co., 3Kern. R. 599; Grant v. Norway, 10 C. & B. 665. In that case the agent signed a bill of lading for goods not yet received: Held, that “he exceeded his authority, and the principal was not bound, although the act, judged of by its appearance, was strictly within his authority. ’ ’
    It will be remembered that in this case the question of the agent’s authority was not only raised, but there was proof to show that the money was received by the agent, not on behalf of the defendants, that it was not mingled with their money, but kept in separate packages, and marked as the money of the plaintiff, and for the plaintiff’s accommodation ; that the transaction was an ^individual matter of the agent, and entirely beyond the scope of his agency. The instruction given was calculated to mislead. “Where an instruction is given on an abstract question, which may mislead the jury, the judgment will be reversed.” Pasley v. English, 10 Gratt. 236.
    Instructions given by the court are defective, if they fail to declare to the jury, in explicit terms, accurateljr and intelligibly, the law upon the point raised. Pell’s Point Savings Inst. v. Weedon, 18 Mary. R. 320; Snively v. Pahnestock, 18 Id. 391. The question here was the authority and scope of the agency. In a case involving the authority of the agent, it was held that the court erred in not calling the attention of the jury to the- distinction between a general and special agent. McDonell v. Dodge, 10 Wise.- R. 106.
    Secondly. The court erred in submitting to the jury, in its charge to them, the question of the defendant’s liability for a matter arising from special contract in an action ex delicto. The plaintiff below claimed that his suit was in case; the first count confessedly was so; the court in fact held that each of the counts was in case: this being so, the whole subject of the special contract should have been withdrawn from the consideration of the jury. The court in fact charged the jury, that if they believed that the defendants through their agents at Charlotte agreed with the plaintiff, on the arrival of the goods there, to take charge of them, and, after notice they failed to do so, then the defendants were liable.
    This error is in a matter the most vital; for it is apparent, from the inspection of the record, that there was an utter failure to establish any common law liability — any liability resulting from the business of a common carrier — any liability resulting from a misfeasance — or any for which a recovery could be had under the first count of the declaration. The real point x'of the controversy was, in fact, whether the defendant had made a special contract to receive the goods which had been violated by him in not receiving them, and whether, as a consequence of that violation, they rendered themselves liable for the loss of the goods by an accidental fire.
    We respectfully submit that the whole subject of the violation of the contract should have been withdrawn from the jury.
    John Howard and J. Alfred Jones, for the appellee.
    The appellants are common carriers. But there are various common carriers, with duties peculiar to each of them. The appellants are an express company ; and this fact is ignored by the counsel on the other side, and they are treated as if they were a railroad company. We charge that they only undertook to do for us what it was a part of their business to do. Redfield on Carriers, $ 61, p. 47, describes their business: It is to go out, gather up, and distribute. When notified of freight within convenient limits to be carried by them, they send out their wagon, and take it into their possession at that place.
    We say that this is an action on the case, and that all the counts are in case.
    In 3 Rob. Prac. 439, 440, he reviews the cases and deduces this broad, general principle: “The contract creates a duty, and the neglect to perform that duty, or the nonfeasance, is a tort.” “Wherever there is a contract, and something to be done in the course of the employment which is the subject of that contract, if there is a breach of duty in the course of that employment, the plaintiff may recover either in'tort or in contract.” Boorman v. Brown, 43 Eng. C. E. R. 843; S. C. 11 Clark & Ein. R. 1. See Thorne v. Deas, 4 John. R. 84, where Judge Kent discusses the whole subject. And it will be seen that where the gravamen of the ^complaint arises out of a breach of duty arising tinder a contract, a count may be case though good in assumpsit, or assumpsit though good in case. 4 Rob. Prac. 875; Church v. Munford, 11 John. R. 480. See, also, New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 0. S. R. 344, 410, 411, 412.
    The second count, which it is insisted on the other side is in assumpsit, merely sets up the contract as inducement, not as the gravamen of the action. Brown’s Eegal Maxims, p. 158, 159; 1 Chitty’s PI. 136 marg. ; Boorman v. Brown, 43 Eng. C. R. R. 843. 850; S. C. 11 Clarke & Ein. R. 1; Courtenay v. Earle, 1 Eng. R. & E. 333. The true principle underlying all the' cases, is, that the liability arises from negligence. This applies to all cases, common carriers and all others. In the case of common carriers there is always a contract. There is no liability upon them until the contract is entered into: This is shewn by the fact that assumpsit may be brought against him. And yet it is the negligence in performing the duty that is the gravamen of the action. Judin v. Samuel, 4 Bos. & Pul. R. 43.
    But it has long since been established that there is a class of cases in which case will lie, though no common law duty attaches to the contract. Coggs v. Bernard, 1 Smith’s Read Cas. 82, marg. p. 304; Dickson v. Clifton, 2 Wils. R. 319; Mast v. Goodson, 3 Id. 348; Govett v. Radnidge, 3 East’s R. 62, 70; Samuel v. Judin, 6 Id. 333; Mazetti v. Williams, 20 Eng. C. R. R. 412; Godefroy v. Jay, Id. 183; Burnett v. Rynch, 12 Id. 327; Smith v. White, 37 Id. 353; Stoyell v. Westcott, 2 Day’s R. 418; Robinson v. Threadgill, 13 Ired. R. R. 39; The Philadelphia and Reading R. R. Co. v. Derby, 14 How. U. S. R. 468; Trice v. Cockran, 8 Gratt. 442; Harvey v. Skipwith, 16 Id. 393, 403.
    These authorities shew that the declaration is good if the defendant was a private carrier. It is equally so as against the defendant as a common carrier. The ^description of the defendant in the first count, is to be read in connection with each count. Express companies are common carriers ex vi termini. Redfield on Railways, 15, 16 and sequel; Hooper v. Wells, Eargo & Co., 5 Amer. Raw Reg. N. S. 16; Russell v. Rivingston, .19 Barb. R. 346; Sherman v. Wells, 28 Barb. R. 403; Southern Express Co. v. Newby, 36 Georg. R. 635; Belger v. Dinsmore, 51 Barb. R. 69; Mercantile Mutual Ins. Co. v. Chase, 1 E. D. Smith N. Y. R. 116, 126. But it is not necessary to state that the defendant is a common carrier, or to state the custom of the realm. 1 Chitty’s PI. 221; 3 Id. 378; Pozzie v. Skipton, 35 Eng. C. R. R. 578: and this case was approved in Wj-ld v. Pickford, 8 Mees. & Welsh. K. 458, 459; Bretherton v. Wood, 7 Eng. C. R. R. 346.
    Then is the second count a good count in case. If it is not a count in case it is because Chitty has given us a wrong form. 2 Chitty’s PI. 653 a top paging. The only difference between the count and the form is that Chitty does not allege that the carriage was done for reward, the second count does, which certainly makes no difference in the nature of the count. And Chitty says, at the special instance áte., of the defendant, which would more strongly indicate a count in assumpsit. We further refer to 3 Chitty’s PI. 375-6, marg. ; and Code edi. 1860, p. 710, | 11, p. 712, ¿ 31. The first count In Courtenay v. Earle, 1 Eng. R. & E. R. 333, is very much like this; and the same may be said of the first count in Orton v. Butler, 18 Eng. C. R. R. 361; and Corbett v. Packingham, 6 Barn. & Cress. R. 268.
    Then upon the third and fourth counts. When we brought the goods to the railroad depot and gave the defendant notice of the fact, that was a delivery. If the goods had been there and the plaintiff had said to the defendant, take the goods now, and the defendant had said I take them, that would have been a delivery. *Then what is the difference, when they came the next day and the defendant had notice of their arrival. 2 Redfield on Railroads, p. 46, 47, 48; Wells v. Wilmington and Weldon R. R. Co., 6 Jones Eaw R. 47; Southern Express Company v. .Newby, 26 Geo. R. 635; Redfield on Carriers, \ 99, 100, 1Ó1. It seenls always sufficient if the goods are put in the charge of the carrier. Brien v. Bennett, 8 Car. & Payne R. 724. And this question of delivery is a question of law. Merriam v. Hartford and New Hav. R. R. Co., 20Conn. R. 3S4; Story on Bail, 'i 533, 534.
    But it is not necessary to aver or prove a delivery of the goods; the liability of the defendant was independent of the delivery. Coggs v. Bernard, 1 Smith’s Head. Cas. notes 334, top paging. In the case of an unpaid agent, possession is necessary, but it is not necessary in the case of a paid agent.
    Upon the instructions, the case of Southern Express Co. v. Newby, 36 Georg. R. 635, is expressly in point. It is said that the agent of the company may not have had authority to enter into the arrangement made with the plaintiff. The agent was placed at Charlotte to manage their business at that place, and the company is liable for his acts. Pickford v. Grand Junction R. R. Co., 12 Mees. & Welsh. 766.
    
      
       Breach of Express Duty—Action on the Case.—In Perrill v. Brewis, 25 Gratt. 767, the court said: “In determining the character of the first count in the declaration here, it is proper to bear in mind there is a class of cases (among them that of bailment) in which the foundation of the action springs out of the privity of contract between the parties, but in which, nevertheless, the remedy for the breach or non-performance is indifferently in assumpsit, or in case upon tort. Boorman v. Brown, 3 Adol. & Ellis 525; Southern Express Co. v. McVeigh, 20 Gratt. 264.
      “In all these cases the contract is of course referred to to ascertain the rights of the parties and the measure of redress; but the wrongful act of the defendant is relied upon as the gravamen of the action. This is peculiarly true with regard to attorneys, surgeons, carriers and the like. The principle is, however, not confined to employments of a public character, but to all bailees, whether public or private. In cases of mere gratuitous bailment, as no consideration is paid, it has been generally considered that an action ex delicto is peculiarly appropriate.” See also, principal case cited, as to this point, in Spence v. Norfolk, etc., R. R. Co., 92 Va. 115, 22 S. E. Rep. 815.
    
   ANDERSON, J.,

delivered the opinion of the court.

This is an action on the case against an express company. There are four counts in the declaration. The first is the usual count in case against a common carrier. The other counts, the plaintiffs in error contend, are in assumpsit, and therefore improperly joined with the first count in case for tort. The question is raised bj' a general demurrer to the declaration, and to each count thereof, which was overruled by the Circuit court. This is the first error assigned.

The first count is properly conceded to be in case for *tort. If the other counts are not in tort, the declaration is clearly bad for misjoinder, and the demurrer well taken.

It is contended for the defendants in error, that all the counts are properly in case, and that consequently the demurrer was rightly overruled. The case has been elaborately argued, and much learning evolved upon the interesting question. I have carefully looked into nearly all the numerous cases cited, as well as others. To state and go through them all would be tédious and unnecessary. Whatever else may be drawn from them (which it is not necessary now to inquire), I think the following conclusions, which have an important bearing upon the case in hand, are clearly deducible: Eirst, that an action on the case lies against a party who has a public employment — as, for example, a common carrier or other bailee, for a breach of duty, which the law implies from his employment or general relation. This is not disputed. And second, that where there is a public employment, from which arises a common law duty, an action may be brought in tort, although the breach of duty assigned is the doing or not doing of something, contrary to an agreement made in the course of such employment, by the party on whom such general duty is imposed.

In the leading case of Boorman v. Brown, 43 Eng. C. L. R. 843, it was held by the Court of Exchequer Chamber, on error from Queen’s Bench, that the duty resulted from express contract described in the declaration, and not simply from defendant’s character of broker. On a writ of error to the House of Eords, it was objected that the ground taken in the judgment was too broad. But the House of Eords affirmed it. “You cannot (says Eord Campbell) confine the right of recovery merely to those cases where there is an employment, without any special contract. But wherever there is a contract, and something to be done in the course of *the employment, which is the subject of that contract, if there is a breach of duty in the course of that employment, the plaintiff may either recover in tort or contract. This case has never been overruled that I am aware of. The case of Courtenay v. Earle, 1 Eng. L. & E. R. 333, decided in 1851, recognizes its authority. Maulé, J., says: “The older cases may have decided that if an action be brought in breach of a stipulation made by one on whom a common law duty is cast, in modification of the duty implied by law, a count on such a breach could not be joined with a count in case. The case of Boorman v. Brown, has certainly overruled such an opinion, if any such there was.” This principle seems to be well settled in England and America. Many of the cases go much further, and none I think can be found in conflict with it. I will refer to Coggs v. Bernard, Ld. Raym. R. 909; Samuel v. Judin, 6 East R. 333; Stoyel v. Westcott, 2 Days R. 418; Burnett v. Lynch, 12 Eng. C. L. R. 327; Mazetti v. Williams, 20 Eng. C. E. R. 411; Brown’s Legal Maxims, p. 159; 3 Rob. Prac. 439 (new edition) ; Harvey v. Skipwith, 16 Gratt. 393, and Robinson v. Threadgill, 13 Ired. R. 39.

Eor the appellee it is claimed that all the counts proceed against the defendants as common carriers. Eet us see whether the 2d, 3d and 4th counts proceed against them in that character. The 4th count, as well as the 1st, sets out the public character of the defendants, substantially, as common carriers. They are described as expressmen and forwarders, engaged in receiving goods from those who might offer them, and transporting them for reward from Charlotte, North Carolina, to Richmond, Virginia, in cars of the railroads, the use of which was allowed to them by agreement between them and the railroad companies; the defendants receiving from the shippers entire costs and charges of such transportation; so that the shippers had nothing to pay to the railroad companies for transportation. *It is true that in this description of the character and relation of the defendants, they are not expressly alleged to be common carriers. But the facts set out constitute them to be such in law. 2 Redf. on Railw. p. 16; Southern Express Co. v. Newby, 36 Georgia R. 635. An express company is to be regarded as a common carrier, and its responsibilities for the safe delivery of the property entrusted to it, is the same as that of the carrier. Belger v. Dinsmore, 51 Barb. R. 69. Numerous other cases might be cited, but more are not needed.

The second and third counts do not set out the character of the defendants as common carriers. Held, on general demurrer, not to be necessary. Pozzi v. Shipton, 8 Adol. & El. 574. But they are sued as an express company, which is prima facie a common carrier. Redf. on Carriers, p. 45, sec. 58; and they are consequently, as such, declared against in all the counts.

The question now arises, do the facts, as set out in the declaration, which upon demurrer must be taken to be true, show that the goods were delivered to the defendants, so as to charge them as carriers? The first and second counts expressly allege a delivery of the goods to the defendants. According to the third and fourth counts, an actual delivery was not made. But the goods were delivered at the place where the defendants agreed to receive them. And the defendants had due notice of their delivery at that place. Does this constitute in law a delivery to them in their public character of carriers?

If the goods were delivered for carriage, of which they had notice, and the place where they were delivered was their usual place of receiving similar articles, the company would be responsible to the end of their route. Redf. on Car., p. 80. And, though the place, where the goods were delivered, was an unusual place, the acceptance by the carrier will be sufficient to charge *him. Redf. on Railw. p. 48; E. Ellenborough, 2 Maul. & Sel. 172; Southern Express Co. v. Newby, 39 Georgia R. 635. Is not the legal effect the same, if the place was designated before the delivery, and the plaintiff instructed to deliver them there; or the defendants contracted to receive them there, and were duly notified of the delivery? It would seem so in reason. The agreement only substitutes the place agreed on for the delivery, for the usual place of delivery. We have seen that they are in charge of the carrier, when delivered at the usual place, upon notice. And they are as much in his charge, when delivered at the place agreed on, upon notice. Can it make any difference whether the goods are delivered at the usual place, or the place agreed on, provided the carriers have notice of the delivery. We think not. When railroad companies contract to receive, or deliver goods at other places than their stations, it has been repeatedly held, that they are undoubtedly bound by such undertakings. Redf. on Car. p. 86, sec. 104, citing Farmers’ & Mech. Bank v. Chaplain Transportation Co., 23 Verm. R. 186, 209; Noyes & Co. v. Rut. & Bur. Railway Co., 27 Verm. R. 110; 1 Pars, on Cont. 661. Redfield on Railways says, p. 25, sec. 34: ‘ ‘Instructions given antecedently to the deliver}^ of the goods, but in contemplation of such delivery, on part of both the owner and carrier, are of the same binding force as if given at the verj- time of the delivery. ’ ’

But, were the goods delivered for carriage or warehousing? The main and leading object, undoubtedly was, to get the goods from Charlotte to Richmond. The defendants were public carriers between those cities. The plaintiff applied to them to carr}r them. The defendants agreed to carry them, and to receive them at the depot, on delivery by the railroad, and move and deposit them in their warehouse, and deliver them, in a reasonable time, safely to *the plaintiff in Richmond; and received the reward for transporting and insurance. The depositing of the goods in their warehouse, seems to have been as means to an end; as ancillary to their undertaking to carry the goods to Richmond, and there safely deliver them to the plaintiff.

When a common carrier is also a warehouseman, questions of difficulty may often arise, in which character he received the goods. In this case it does not appear that the defendants were engaged in warehousing as a distinct employment. It only appears that they were common carriers, and had a warehouse. The establishment of warehouses by express companies or railways, may be considered as a part of their business as carriers, and for their own convenience and advantage. Redf. on Car. p. 92, sec. 109. And it is a fact of public notoriety, that express companies have their warehouses or offices, where they receive goods for transportation, and where they deposit goods which they have sent out for, and brought in, to be transported. They have them for their own convenience. I do not think, therefore, that, because express companies have a warehouse, it follows, necessarily, that they are ware-housemen. But, whether the defendants in this case were warehousemen or not, they were common carriers, and they had a warehouse, where the goods were to be deposited for carriage. In such cases, is there any test, or well-defined rule, by which it can be determined, in what character the parties charged with the goods are liable?

It seems to be well settled, that the responsibility of a carrier attaches upon the delivery of the goods at his warehouse, unless there are special directions given by the owner. Redf. on Car. p. 92, citing McCarty v. New York & Erie R. R. Co., 30 Penn. R. 247. And it is his duty, not only to carry safely, but also, if no time is stipulated, in a reasonable time. 1 Smith’s Beading *Cases, p. 304. What can relieve him from this obligation and liability? Nothing but the act of the owner of the goods. He may relieve him from his common law liability, by directing him to do that which is incompatible with his common law duty as carrier. As, for example, if the owner directs him to “keep back the goods,” or not to forward them “until further orders,” or until “he hears from his consignee,” he is relieved by such instructions by the owner, from his liability as carrier; because it is impossible for him, if he obeys the instructions, which the owner has a right to give, and he is bound to obey, to discharge his duty of carrier, to forward the goods presently, or in a reasonable time. And the goods remaining in his custody, he is not liable as carrier, but only as an ordinary bailee, as long as the special instructions are operative. But when they are revoked, and the owner gives orders to forward the goods, his liability as carrier immediately attaches. This is reasonable, and I think it will be found to be the principle which underlies all the decisions which have been made upon the subject. See Clarke & als. v. Needles, 25 Penn. R. 338; Blossom v. Griffin, 3 Kern. 569; 2 Redf. on Railw. p. 49; Redf. on Carriers, p. 81, sec. 97.

In the case before us, the defendants’ undertaking to carry the goods in a reasonable time to Richmond, was only what the common law duty of the carrier required. Hence, there was nothing in the instructions of the owner, or in their agreement, to interfere with'their duty as carriers, and, consequently, nothing to relieve them from their liability as such. It is true the goods were not delivered to them, at their warehouse, but they were delivered at the place where they agreed to receive them, and from thence to move them to their warehouse themselves: which we have seen, is the same in effect, as the delivery at their usual place of receiving.

*As common carriers, then, the defendants were liable for the safe delivery of the goods to the plaintiff at Richmond, and were insurers, independently of their express agreement: and consequently the action against them is properly conceived in case.

But it is contended for the plaintiffs in error, that the second, third and fourth counts do not proceed in case, but are in assumpsit, because they do not aver a duty, or a breach, thereof. It is true that they' do not aver, totidem verbis, the duty of the defendants. But they aver facts, from which the law infers a duty, which is all that is necessary. Lancaster Canal Co. v. Parnaby, 39 Eng. C. B. R. 54. Each of them sets forth facts, from which the law infers a duty; and then, averring that the defendants not regarding their said duty, assigns the breach. The court is, therefore, of opinion, that each count in this declaration contains allegations sufficient to support it in case. And though they may be sufficient in assumpsit, as in Church v. Munford, 11 John. R. 480, they are nevertheless good in case; and that, therefore, the court below did right to overrule the demurrer.

The second assignment of error is, that the court erred in refusing the instructions to the jury moved by the defendants’ counsel, and in the instructions which it gave, and in overruling the motion for a new trial.

It is not in the power of this court to say whether the verdict ought to have been set aside, and a new trial awarded, on the ground that it was not supported by the evidence, as the facts are not certified. But, if the court erred in refusing, or in giving instructions to the jury, that was good ground for setting aside the verdict. We will now inquire whether this objection is good.

The first instruction moved by defendants’ counsel was, “That, in order to find a verdict against the defendants as common carriers, the jury must be satisfied *that the defendants received the goods, for the loss of which they are charged, and that they were delivered to, and received by them, as- carriers, to be transported for the plaintiff.” This instruction was given by the court verbatim. Of course they do not object to that; but to the additional instruction, given by the court, which immediately follows, and is in these words: “But, if the jury believe that the defendants, through their agent at Charlotte, North Carolina, agreed with the plaintiff, on the arrival of the goods there, to take charge of them, and to carry them to Richmond, for hire, then they are liable, if, in a reasonable time’ after the same reached Charlotte, and they had notice thereof, they failed to take charge of said goods, an'd they were lost by reason thereof. If the jury believe the defendants were an expréss company, following the business of carrying goods, for hire or reward, from Charlotte, North Carolina, and points south of it, to'Richmond, Va., of such as chose to employ them, they were common carriers.’’

The court is of opinion, that the propositions of law contained in both branches of this additional instruction, are correctly stated. Nor does the instruction undertake' to decide any fact in the case, or to charge the defendants with any contract, which is not proved to the satisfaction of the jury. The instruction, it seems to the court, does not assume any facts or any contract to have been proved; which would have been error; but only declares the legal consequences, if the jury should believe, from the evidence, that such a contract, or such facts, were proved. And the court is of opinion, that the law is accurately declared. Whether the peculiar facts of the case were ignored, it is not perceived how this court could undertake to decide, unless the facts had been spread upon the record. But, if it is meant by the objection, that the instructions were upon an abstract point of law, having no relevancy *to the case then before the jury, we cannot concur in that view. We think the pleading's in the cause, and the bill of exceptions, show that the points upon which the instructions were given, were involved in the issues, and, therefore, that the objection cannot be sustained. We are also of opinion, that in instructing the jury as to what would constitute the defendants common carriers, it was proper to say, from Charlotte to Richmond, without designating “the railroad depot, ’ ’ within the limits of the former place; for, if they were common carriers from Charlotte to Richmond, and agreed to accept the delivery of the goods at that depot, to carry to Richmond, their liabilities attach from their delivery at that place and notice.

Another objection urged by counsel for plaintiffs in error, to this instruction is, that it affirms the liability of the defendants under a contract made by the plaintiff with an agent, whether it was within the scope of his authority or not; and that the instruction was defective, in not explicitly declaring what the law was on the question as to the scope and authority of the agency, which was the point in the case.

As to the first branch of this objection, the court does not understand the instruction as affirming any contract made by the plaintiff with an agent. The instruction does not assume that there was any such contract. The case is put hypothetically. If the jury should believe, from the evidence, that the defendants, through their agent, agreed, the jury must be satisfied that the defendants agreed. If the defendants contracted through another, the instructions require that the jury must be satisfied that he was the agent of the defendants, and, consequently, that he was acting within the scope of his authority.

As to what was necessary to constitute such an agency, no instruction was given. If the counsel for the defendants regarded it as the point in the case, he '^might have moved an instruction upon it. This was not done; and it is not ground for reversal now, that the court did not instruct upon it. The bill of exceptions cannot be treated as a demurrer to evidence, and a point be raised which was not asserted in the motion for instructions to the jury. A party moving an instruction ought to lay his finger on the point. Baldwin, J., in Trice v. Cockran, 8 Graft. 450.

With regard to the second instruction, we have had more difficulty. But upon further consideration we do not think there is any error in it to the prejudice of plaintiffs in error, of which they can complain. The first branch of it is in these words: “To entitle the plaintiff to recover of the defendants as forwarders and not as common carriers, the jury must be satisfied, from the evidence, that the defendants contracted to take his goods from the railroad depot and forward them to Richmond, and that compensation was received for forwarding said goods, and that the defendants negligently failed to forward the same, whereby they were lost to the plaintiff. ’ ’

If the defendants had agreed to insure the goods against fire &c., from the time of their being put into their charge at the railroad depot, until they were safely delivered to the plaintiff at Richmond, as is alleged in the 3d and 4th counts of the declaration, and as is stated in the bill of exceptions, evidence was offered tending to prove, it would seem, that the instruction is not broad enough. But as it is not prejudicial to the plaintiffs in error, and is not complained of by the defendants in error, the judgment cannot be reversed for that cause.

The second branch of this second instruction is, “But if the jury shall believe that the defendants, at the time they agreed to forward said goods, were expressmen, and when they agreed to forward said goods also agreed to transport them to Richmond, and received '^compensation therefor, they are liable as common carriers.” We think the proposition is true, that when goods are delivered to parties to be forwarded and transported, and those parties are expressmen, and receive compensation for forwarding and transporting, the goods are in their custody as carriers. And that is substantially the instruction given. The court does not understand this instruction as confounding the distinction between common carriers and mere forwarders, or as affirming that the liabilities of both are the same, as was ingeniously argued by counsel; but as only affirming that when the forwarder is an expressman and receives the goods not only to forward, but to transport, and receives the reward for transporting, he is liable as a common carrier: which we believe to be true. But lest the jury might infer, from the foregoing instruction, that an expressman could not receive goods as a mere forwarder, and incur only the liabilities of a warehouseman, the court gives the 3d instruction: “But if the jury believe, from the evidence, that the defendants made no agreement for the immediate transportation of the goods of the plaintiff, but agreed to forward them as soon as they conveniently could by railroad; and before they could conveniently forward them they were consumed by an accidental fire, not attributable to the negligence of the defendants, then the defendants are not liable. ” This instruction goes fully as far as the defendants had any right to require; and we think can only be supported upon the hypothesis that the defendants did not expressly undertake to insure the goods after they were to be in their charge, until delivered to the plaintiff in Richmond, nor receive compensation therefor, as the plaintiff alleged in the 3d and 4th counts of the declaration, and offered evidence tending to prove, as shown by the bill of exceptions. And the instruction, it seems to me, ought to have been given with such qualification. The *4th instruction is in the language of the 2d instruction moved by defendants’ counsel, except one word, “common,” which is put before “carriers,” and does not alter the sense. This instruction is liable to the same objection which we have mentioned in regard to the 3d instruction ; because if the goods were under the control of the defendants as forwarders, and not as common carriers, and were consumed by accidental fire in a warehouse, without any fault or negligence of the defendants, they would still be liable if they had expressly agreed to insure against fire &c., as is alleged. But if it was error to give those instructions, without such qualification, it is not to the prejudice of the plaintiffs in error; and the defendant in error, who only could be prejudiced bjT them, does not complain. We are therefore of opinion that there is no error in the judgment of the Circuit court, for which it should be reversed.

Judgment affirmed.  