
    THE MANHATTAN OIL CO. against THE CAMDEN AND AMBOY RAILROAD.
    
      Supreme Court, First District; General Term,
    
    
      Dec., 1868.
    Action against Carriers.—Party Defendant.—Special Contract.
    Where merchandise is delivered to one of several connecting railroad companies, under a contract with such company, for its transportation to a point upon the road of another such company, the owner cannot maintain an action against the latter company founded upon the common law liability of carriers.
    
    
      The remedy is only upon the contract, and the latter company are entitled to the benefit of any exceptions in the contract made with the former.
    Appeal from a judgment.
    
      This action was "brought "by the Manhattan Oil Company (plaintiffs and appellants), against the Camden and Amboy Railroad and Transportation Company (appell ants and respondents). The cause was tried at the circuit, before Mr. Justice Clerke, in January, 1SG7. The material facts were as follows :
    
      The defendants were a corporation created hy the laws of the State of New Jersey, and engaged in transporting freight from Philadelphia to New York as carriers for hire.
    
      The plaintiffs’ agent in Cincinnati delivered to the Union Transportation and Insurance Company, a corporation of the State of Pennsylvania, also engaged in the “business of transporting freight as carriers for hire, a quantity of oil for transportation to New York. The receipt, or bill of lading, given by the Union Transportation & Ins. Company, was in the following form :
    
      ■UNION LINE.
    Union Transportation and Insurance Co.’s
    O'
    Fast Freight Line.
    
      Via Little ILiami, Steubenville, and Pennsylvania
    
    
      Railroads.
    
    H. W. Brown, Agent, No. 27 West Third Street,
    ' Cincinnati, Ohio.
    The Union Transportation and Insurance Company, which is Proprietor of the “ Union Line,” and which issues this Bill of Lading, is a Corporation of the State of Pennsylvania, having a real capital. It owns and controls the Cars of its Line, which are new and of “Broad Tread,” intended to run through between the Eastern and Western cities, irrespective of change of gauge. The “ >¡c Union Line” reaches the East over the Pennsylvania Railroad, and is the authorized Fast Freight Line of that Road, and is worked on all the routes over which it undertakes to transport, under contracts which secure to the property entrusted to its charge, the best facilities for fast and uniform movement that the Roads over which it passes possess. D. S. Gray, Gen'l Supt. - - Columbus, Ohio.
    Contents and value of packages unknown MARKS. Cincinnati, June 27th, 1804. Received from James B. Grant, the following packages, (contents unknown,) in apparent good order, viz. :
    M. 0. New York. Consigned to Forty Barrels Lard Oil, Shipped June 25. Manhattan Oil Co., 16 Broadway, New York.
    To be forwarded to New York within-days, (Sundays exc.epted,) subject to a forfeiture of five cents per 100 lbs. for each day over the time specified.
    Marked and numbered as per margin, to be from Chichi- transported by the Union Transportation and nati to New Insurance Company, until the said goods or York. merchandise shall have reached the point named in this "bill of lading, on the following terms and conditions, viz: That the said Union Transportation and Insurance Co. shall not be liable for [here followed a number of excepted risks, including] damage or loss by Fire, or other casualty, while in Depots or places of transhipment; * * * * it being also agreed between the parties hereto, that the said Union Transportation and Insurance Co., and the Steamboats, Railroads or Forwarding Lines with which it connects, shall not be held accountable for any deficiency in packages, if receipted at New York, in good order. * * * And in case of loss or damage to any of the goods named in this Bill of Lading, for which the said Company, or the Railroads, Steamboats, or Fvrt warding Lines, with which they connect, may be liable for, it is agreed and understood that they shall have the benefit of any insurance effected by, or for account of, the owner of said goods. When losses occur, for which the carriers may be responsible under the Bill of Lading, the cost or value of the property at the date of shipment shall govern the settlement of the same. In witness whereof, &c.
    The Union Transportation Company carried the merchandise in its own cars, in charge of its own employees, over the ordinary railroads in its customary route between Cincinnati and New York, including the railroad of the defendants to South Amboy, in the State of New Jersey, a distance of about twenty miles from New York, and there delivered the merchandise for transportation to New York upon the steamboat “Transport,” owned by the defendants, and employed by them as a part of their regular line in the carriage of freight.
    
      The defendants received the merchandise upon their railroad and steamboats for transportation to New York, according to their usual course of business with the Union Transportation and Insurance Company, and upon the understanding and agreement with that company and other carriers who aided in the transportation of the merchandise, that the defendants should collect the entire freight upon the merchandise from Cincinnati to New York, and pay the same over to the Union Transportation and Insurance Company, to be thereafter distributed and apportioned as should be just and equitable. The defendants landed the merchandise on their pier at New York, atter working hours of the day of its arrival ; and, before notice was given to the plaintiffs, it -was destroyed by fire. The -court held at the trial that the defendants were not liable ; and gave judgment in their favor, from \\ hick, the plaintiffs appealed to the court at general term.
    
      Edwards & Odell, for the plaintiffs, appellants.
    —I. The receipt does not constitute an agreement between the company and the shipper'. It is only a receipt, with notice of the terms on which the company is willing to undertake the transportation of the goods (De Barre v. Livingston, 48 Barb., 511; Belger r. Dinsmore, 34 Blow. Pr., 421). (1.) The common law liability of a common carrier can only be abridged by express contract. (2.) Notice of a restricted liability, however distinct, though brought home to the actual knowledge of the shipper, is not sufficient—is not evidence of the shipper’s assent—nor can a special agreement be inferred therefrom (Hollister v. Nowlen, 19 Wend., 234; Nevins v. Bay State Co., 4 Bosw., 225 ; Rawson v. Railroad Co., 2 Abb. Pr. N. S., 220 ; Dorr New Jersey Co., 11 N. Y. [1 Kern.], 485 ; Bissell v. R. R. Co., 25 N. Y, 442; F. and M. Bank v. Transportation Co., 23 Vt., 186, 205; York Co. v. Central R. R. Co., 3 Wall. U. S, 113; 10 N. H., 487; 10 Met., 479 ; Prentice v. Decker, 49 Barb., 21; Limburger v. Westcott, Id., 283; Woodruff, J., in Mercantile Ins. Co. v. Chase, 1 E. D. Smith, 138). Whenever a carrier has "been released from liability by the terms of a receipt or bill of lading, the evidence has shown “ a special contract limiting his liability at time of acceptance,” or “a notice brought home to the knowledge of the owner of the goods at the time, or before the delivery of the goods, and assented to by him” (Redf. on Railways, 2 ed., 270 ; cases supra; Moriarty v. Harden’s Express, 1 Daly, 227; Moore v. Evans, 14 Barb., 524).
    II. There was no such agreement between the Union Ex- ’ press Co. and the plaintiffs in this case, nor can an agreement be implied. The receipt was not issued to plaintiff’s agent until June 27, two days after delivery of the goods, and probably after they had been sent forward from Cincinnati.
    III. The only agreement made by the plaintiffs for the carriage of the oil was made with the Union Company. To that the defendants are not parties. It was not made by their agent, nor by their authority, nor for their benefit, except as hereafter stated ; nor does the case show that it came to their possession, or that they had knowledge of it, at any time prior to the commencement of this suit. The Union Company was not the defendant’s agent in procuring this oil for transportation, or in contracting with the plaintiffs in reference to it. It was the plaintiffs’ agent, entrusted with the plaintiffs’ goods, and undertaking to deliver those goods safely at Hew York (New Jersey Navigation Co. v. Merchant’s Bank, 6 How. U S., 344; Stoddard v. Long Island R. R. Co., 5 Sandf., 180). The Union Company might have bound the plaintiffs by a special contract with defendants ; but no such contract was made. The bill of lading was only intended to define the nature, the terms, and the liabilities of the Union Company" s agency.
    IV. A receipt, bill of lading, or notice, is construed strictly against the" carrier, and liberally in favor of the shipper; and exceptions are to be taken most strongly against the party for whose benefit they are introduced (Curtis, J., in Avery v. Merrill, 2 Curt., 11). The language must be taken most strongly against the defendants. The instrument was drawn up with care, in language selected by themselves, and the restrictions were for their benefit, The owners of packages sent by express rarely have an opportunity to examine the terms of the receipt presented to them (Sawyer, J., in Hooper v. Wells, 5 Am. Law Reg. N. S., 23, citing Ch. J. Gibson, in Atwood v. Trans. Co., 9 Watts, 88).
    V. These general principles aid the construction of this bill. (1.) A carrier may contract to transport goods beyond the terminus of his own route. (2.) He may stipulate for a restricted liability for himself, and leave the common law liability of connecting carriers unaffected. (3.) Or he may provide that the qualified liability shall extend to the connecting carriers. (4.) Or that it shall extend to some, fully, or to all, partially, etc.
    VI. This bill of lading contains whatever agreement was made by the plaintiffs. It expresses the conditions limiting the liability of the Union Company. It assumes the necessity of the use of “ connecting lines,” and specifies to what extent the general liability of such “connecting lines” shall be qualified. (1.) All the conditions and exemptions are made applicable to the Union Company. (2.) Those that relate to loss or damage in transit, are confined to the Union Company in express terms. (3.) A receipt for the oil, in “good order,” shall discharge the “connecting lines” from liability for “deficiency in packages.” If liable for loss, they “ shall have the benefit of any insurance” upon the property destroyed. No further stipulation in their behalf was asked for by the Union Company, or assented to by the plaintiffs.
    VII. If the bill of lading had provided that its several provisions should extend to any party who might undertake the carriage of the oil over any portion of the route, the only question would be—Is the loss within any of the exceptions % Or, if it had referred to the Union Company alone, and been silent as to other carriers, it would have afforded a plausible argument in favor of these defendants. But the terms of the agreement are explicit. The Union Company shall not he liable for leakage, delay, collision or lire. The defendants shall not, in a certain event, be liable for deficiency, and, in case of loss, shall be entitled to insurance held by plaintiffs. Why was special provision made for the defendants’ indemnity in these two particulars, if all the stipulations of the agreement were intended to’ be for their benefit and protection % Exprés sio unius, <£c. “ Where parties have entered into written agreements with express stipulations, the presumption is, that having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument” (Broom's Maxims, 582, marg.).
    
    was of the Union Company only, and intended to be limited to it. It was an Express Company—running over various routes,—owning its own cars, but wholly dependent for motive power upon the companies over whose roads it operated. Its. cars could move only as and when those carriers chose to move them. Its freight was deposited in places which. those carriers'provided or selected. The time consumed-—the means employed—the dangers incurred in the use of those means—in the transit of freight, were alike beyond its regulation or control. Collision and fire were perils to which it was apt to be exposed by the mismanagement or neglect of other parties. It is not strange, therefore, that the Union Company should contract for its own exemption from liability as Insurers against casualties, which, though not inevitable, it could not even attempt to prevent. And it is significant, that the exemption from loss by fire is -limited to places where the merchandise would be least under the control of the employees of the Union Company, and most exposed to danger.
    
      Charles F. Sanford,.for the defendants, respondents.
    I. The bill of lading, issued by the Union Transportation and Insurance Company constituted a special contract, 
      
      by the terms and conditions of which both parties thereto were bound in law. (1.) A carrier may, "by special agreement, secure exemption from liability not arising from his own fraud, or culpable negligence (Harris v. Packwood, 3 Taunt., 264; N. J. Steam Nav. Co. v. Merchant’s Bank, 6 How. U. S., 382; Parsons v. Monteath, 13 Barb., 353 ; Moore v. Evans, 14 Barb., 524; Dorr v. N. J. Steam Navigation Co., 1 Kern., 485 ; Wells v. Steam Navigation Co., 4 Seld., 375; Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y., 173; Wells v. N. Y. Central R. R. Co., 24 Id., 181; Bissell v. N. Y. Central R. R. Co., 25 Id., 442; Peninsular & Oriental Steam Navigation Co. v. Shand, 11 Jur., 771). (2.) In all the cases where the questions involved have arisen upon a bill of lading, issued by the carrier, and accepted by the shipper, concurrently with the delivery of the goods, such bill of lading has been held to constitute a special contract between carrier and shipper. See Great N. R. Co. v. Morville (21 L. J. R., Q. B., 319); York, &c. R. Co. v. Crisp (14 C. B. R., 527). The stipulation of the parties, and the findings of the court, recognize and establish the fad of an “ agreement contained in said bill of lading.’’
    II. The Union Transportation and Insurance Company undertook the transportation of the plaintiffs’ merchandise from the place of shipment to the place where consigned. (1.) The terms of the contract are explicit; and it is admitted that the carrier undertook the tr.msportatation of the plaintiffs’ merchandise from Cincinnati to New York. (2.) The contract contains a charge for the carriage of the merchandise to New Yook. And wherever a carrier agrees to a rate of charge (whether payable at the beginning or end of the journey), for which the goods are to be transported to a particular place, he is, in law, held as undertaking the carriage of the goods to, and as responsible (subject to the restriction contained in the contract), for their safe delivery at, the place so designated (Weed v. Saratoga and Schenectady R. Co., 19 Wend., 534; Merchant’s Bank v. Champlain Tr. Co., 23 Vt., 186, 209 ; Muschamp v. Lancashire and Yorkshire R. C., 8 M. & W, 421; Wilcox v. Parmelee, 3 Sandf., 610 ; Malloy, v. Burrett, 1 E. D. Smith, 248 ; Hart v. Rensselaer & Saratoga R. R. Co., 8 N. Y. [4 Seld.], 37; Krender v. Wilcott, 1 Hilt., 223 ; Dillon v. N. Y. & Erie R. R. Co., Id., 231; Tallent v. South Staffordshire R. Co., 8 Exch., 341; Collins v. Bristol & Exeter R. Co., 25 L. J. R. [Exch.], 185; Ex. Chamb. 26 L. J. R. [Exch.], 103 ; 1 H. & N., 517; House of Lords, 29. L. J. R. [Exch.], 41; 7 House of Lords Cases, 194; Welby v. West Cornwall R.. Co., 27 L. J. R. [Exch.], 181 ; Mylton v. Midland R. Co.,. 28 L. J. R. [Exch.] 385; 4 H. & N., 615 ; Coxon v. Great Western R. Co., 29 L. J. R. [Exch.], 165 ; 5 H. & N., 274).
    The bill of lading being a through contract, the defendants, equally with the Union Transportation and Insurance Company, are entitled to all the exceptions and immunities which the contract contains (Scotthorn v. South Staffordshire Railway Company, 8 Exch., 341 ; Muschamp v. Lancaster R. R. Co., 8 " M. & W., 421; Watson -y. Ambergate R. R. Co., 15 Jur.,, 448 ; Hart v. Rensselaer and Saratoga R. R. Co., 4 Seld., 37; Mallory ■y. Burrett,' 1 E. D. Smith, 234; ’ Collins -y. Bristol and Exeter Railway Company, 25 L. J. R. [Exch.], 185, and cases supra).
    
    
      
       When a cause of action has accrued against carriers by reason of loss of goods or baggage, or injury to passengers, or other breach of carrier’s duty or contract, upon a route composed of two or more connecting lines, it often becomes a matter of considerable embarrassment for the practitioner to determine against which of the several connecting companies lie should proceed.
      The questions of fact are not easy to determine; it is not always practicable to trace the course of goods, and ascertain at what point they were lost or injured, so as to bring home actual negligence to the servants of either company. Nor is it always easy to ascertain clearly the relations sustained by the connecting companies with each other with reference to the business.
      To these difficulties is added another,—that of the uncertain state of the law in reference to the liability of connecting carriers. The following cases will illustrate the course of decision upon this subject in England and in this country, and may be profitably referred to in connection with the authorities cited in the case in our text. It will be observed that they are not harmonious. Each is fully stated, and the jurisdiction in which it was determined is mentioned, in order that the practitioner may compare it with the others, and give due weight to the different mies laid down.
      A carrier who takes into his care a parcel directed to a particular place, and does not by positive agreement limit his reponsibility to a part, only of the distance, undertakes prima facie to carry the parcel to its destination; and the rule is not varied by the fact that the place is beyond the limit within which the carrier professes to carry. Thus, where a parcel was delivered at Lancaster, to the Lancaster & Preston Railway Company, directed to a person at aplace in Derbyshire, and the person who carried it to the station offered to pay the transportation, but the book-keeper said it had . better be paid by the person to whom it was directed, on the receipt of it, and the parcel was lost after it was forwarded from Preston, where the L. & P. railway connected with other lines;—Held, that the railway company that first received the parcel from the owner were liable for its loss (Exch., 1841, Muschamp v. Lancaster & Preston Junction Railway Co., 8 Mees. & W., 411).
      [This case of Muschamp is the leading English case on the subject. It holds the receiving carrier to a stricter responsibility than most of the American cases do; but some of the recent decisions in our courts show an inclination to adopt the principle, there laid down, rather than those usually applied by the American courts.]
      If carriers receive a package to carry to a particular place, whether they themselves carry it all the way or not, they must be said to have the conveying of it to the end of the journey, and the other parties to whom they may hand it over are their agents, and the company are clearly liable, unless the facts show that their responsibility has determined. Their not having taken the amount of the carriage is immaterial, if explained by the fact of their notknowing what that amount would be (Q. B., 1851, Watson v. Ambergate, Nottingham & Boston Rw. Co., 3 Eng. Law & Eq., 497; 15 Jur., 448).
      The rule that railway companies who receive goods and book them for a certain destination, are carriers throughout the entire route, has been extended in England to common carriers who carry from a place within to a place without the realm. The rule that one holding himself out as a carrier between two termini is hound to carry, within reasonable limits, all goods tendered to him, applies, though one of the termini is a place out of the realm (C. P., 1854, Crouch v. London & Northwestern R. R. Co., 25 Eng. L. & Eq., 287 ; 14 C. B., 255; 23 Law J. N. S., 73 ; 18 Jur., 148; 2 Com. Law R., 188).
      If a carrier contracts to carry goods to, and deliver them at, a particular place, his duty at that place is precisely the same, whether his own conveyance goes the entire way, or stops short at an intermediate place, and the goods are conveyed by another carrier; and the carrier, or his clerk, at the place of destination, is the agent of the original carrier for all purposes connected with the conveyance and delivery and dealing with the goods, as his own clerk would have been at the place where his own conveyance stops (Exch., 1857, Crouch v. Great Western Railway, 29 Law Times, 
        354; distinguishing Collins v. Bristol & Exeter Railway Co., Exch., 1 H. & N.).
      
      Where a company give a receipt for goods, specifying they are to bo delivered at a point beyond their own terminus, on the route of another road, on presentation of the receipt, they are liable for a loss beyond their terminus (S. C. Ct. of Appeals, 1857, Kyle v. Laurens Railroad Co., 10 Rich. Law, 382).
      Although the power of a railroad company to make a contract for the transportation of persons or property beyond their own lines is not expressly granted by the act of incorporation, it may be conferred by implication, as necessary to the proper and profitable excercise of the power, specifically enumerated in the charter (Me. Supreme Ct., 1859, Perkins v. Portland, &c. R. R. Co., 47 Me., 573).
      The N. Y. Act of 1847 (Laws of 1847, ch. 270, § 9),—providing that where two or more railroads are connected, any company owning either of said roads so connected, shall be liable as common carriers for the delivery of such freight at such place,—applies as well where one of the connecting roads is beyond the State, as where all are within it. It also enables a company to bind itself by a special contract for the delivery of goods within a limited time, at a place on a connecting route, in another State (N. Y. Court of Appeals, 1862, Burtis v. Buffalo & State Line R. R. Co., 24 N. Y., 269).
      Railway companies, as common carriers, may make valid contracts to receive freight at, or convey it to, points beyond the limits of their own road, and thus become liable for the acts or neglects of other carriers, not under their control. In regard to matters not altogether beyond the general objects of their incorporation, and which, upon a liberal construction, may fairly be considered as embraced within them, it is not competent for the company to adopt the acts of their agents and officers so long as they prove beneficial, and, when they prove otherwise, shield themselves from responsibility, by resorting to a more limited and literal construction of their corporate powers (Vt. Supreme Ct., 1855, Noyes v. Rutland, &c. R. R., 27 Vt. [1 Wms.], 110).
      A railroad company, chartered with full power and authority to do such corporate acts as arc permitted to other companies incorporated' for similar purposes, is authorized to contract to deliver freight at points which could be reached only by passing it over connecting roads: but it has no power to bind the companies owning the connecting roads, without their consent or acquiescence (Ga. Supreme Ct,, 1858, Rome R. R. Co. v. Sullivan, 25 Ga., 228).
      
        A railroad corporation receiving goods lor transportation to a pliice situated beyond the line of their road, on another railroad, which connects with theirs, but with the proprietors of which they are not shown lo have any connection in business, and taking pay for the transportation over their own road only, are not liable, in the absence of any special contract, for the loss of the goods, after their delivery to the proprietors of the other railroad (Mass. Supreme Ct., 1854, Nutting v. Connecticut River Railroad, 1 Gray, 502. And see Elmore v. Naugatuck R. R. Co., 23 Conn., 473).
      The American rule is that when goods are delivered to a carrier marked for a particular place, but unaccompanied by any other directions for their transportation and delivery, except such as may be inferred from the marks, the carrier is only bound, as to the transportation beyond his own terminus, to deliver them according to the established usage of the business in which he is engaged, whether that usage were known to the parly from whom they were received or not (Phil. Disl. Ct., 1856, Jenneson v. Camden & Amboy R. R. Co., 4 Am. Law Reg., 234).
      A railroad company, who receive goods marked for delivery at a place beyond their terminus, are not, without an express contract, liable for -the destruction of the goods by fire after they have duly delivered them at the end of their own road to other carriers to complete the transportation (Conn. Supreme Ct., 1856, Naugatuck Railroad Co. v. Waterbury Button Co., 24 Conn., 468).
      .In the absence of any special contract, a railroad company is not bound, as a matter of course, to carry freight beyond the terminus ofits road; but if it is directed to a place beyond, it is bound to deliver it over to the proper custody, to insure its due transportation (Ga. Supreme Ct., 1853, Rome R. R. Co. v. Sullivan, 25 Ga., 228).
      A railroad company receiving merchandise, and undertaking to cause it to be transferred over its own and other connecting roads, assumes I ho responsibility of forwarding merchants, as'well as of common carriers; and in the former capacity they are bound to supply, for the guidance of ihe successive carriers, suitable way-bills, with the needful directions as to the destination of the goods, so expressed as to be free from ambiguity, and intelligible to persons of ordinary capacity conversant with the business. If they forward the goods with way-bills that are substantially sufficient, they are not liable for a misappropriation of the goods by some of the connecting companies (Mass. Supreme Ct., 1863, Northern R. R. Co. v. Fitchburg R. R. Co., 6 Allen, 254).
      That where a company receives freight to be transported over several connecting lines, the burden is upon them to show delivery by them to the next lines (Vt. Supreme Ct., I860, Brintnall v. Saratoga & Whitehall R. R. Co., 32 Vt., 665).
      A carrier who undertakes to forward goods beyond the terminus of his own route, is bound by any instructions given by the owner, as to the selection of carriers beyond his route (N. Y. Ct. of Appeals, 1865, Johnson v. N. Y. Central R. R. Co., 33 N. Y., 610).
      A carrier received goods to be carried to Albany, and to be forwarded thence to New York, with instructions to forward them by the P. line. On the arrival of the goods at Albany the proprietor of the P. line refused to receive them; and the carrier forwarded them by a freight barge, on board which they were lost.—Held, that the carrier was liable for the loss. On the refusal of the steamboat proprietors to receive the property, the carrier should cither have communicated the fact to the plaintiff, and awaited further instructions, -or should have relieved himself from liability by depositing the goods for safe-keeping in a suitable warehouse. The facts in this case disclosed no such emergency as warranted the carrier in deviating from his instructions on the ground that the safety of the property required it. lb.
      
      A receipt note specifying the station to which the goods are to be carried, with notice printed thereon that the company will not be responsible for loss, &c., of goods forwarded by them, beyond their termini, by other carriers, amounts to a contract to carry to the station specified only, although the owner of the goods, at the time of taking the receipt note, writes in pencil the address of the consignee, which is at a place beyond the company’s terminus (Exch., 1853, Fowles v. Great Western R. R. Co., 16 Eng. L. & Eq., 531; 22 Law J. N. S., 76; 8 Exch., 699; 7 Railw. Cas., 421).
      Where there is an express stipulation in the receipt to deliver at the terminus of the road of the company who receive the goods, a memorandum in the opposite margin “ to be shipped for C.” from thence, does not enlarge the agreement, so as to render the carrier liable for a loss after he has put the goods in a proper way of such transportation by delivering them to a proper railroad company for the purpose (Phil. Dist. Ct., 1856, Jenneson v. Camden & Amboy R. R. Co., 4 Am. Law Reg., 234).
      When it does not appear that the carrier receiving goods “for througli transportation” contracted in behalf of the company whose railroad forms an ulterior portion of the route, nor that such company had a joint interest in the contract, the consignees may interpose and countermand the transportation as to the latter part of the route; and such company cannot insist on carrying so as to earn the charges therefor ( Ga. Supreme Ct., 1866, Withers v. Macon & Western R. R. Co., 35 Ga., 273).
      
        Where the company exact excessive charges for the carriage of goods, both by their own line and the connecting line, it being paid under protest, the person so paying may recover back the excess upon the whole charge from the company to whom he paid it (Exch., 1858, Parker v. Bristol & Exeter R. R. Co., 6 Exch., 702; 6 Eng. Railw. Cas., 776). By the act of Congress of June 15,18GG (14 U. S. Slat, at L., 66), authority was conferred upon “ every railroad company in the United States, whose road is operated by steam," * * * “ to carry upon and over its road, boats, bridges and ferries, all passengers, troops, government supplies, mails, freight, and property on their way from any State to another State, and to receive compensation therefor, and to connect with roads of other States so as to form continuous lines for the transportation of the same to the place of destination: Provided, That this act shall not affect- any stipulation between the government of the United States and any railroad company for the transportation of fares without compensation, nor impair or change the conditions imposed by the terms of any act granting lands to any such company to aid in the construction of its road, nor shall it be construed to authorize any railroad company to build any new road or connection with any other road without authority from the State in which said road or connection may be proposed."
      The foregoing cases relate directly to the liability of the company who first receive the goods.
      The liability of the connecting company by which the goods may be forwarded, has been the subject of discussion in the following cases:
      Goods were shipped by sea to Charleston, directed to a consignee in the interior, in the care of the railroad company whose road ran from Charleston.—Held, that the company were not liable as carriers, without proof that the goods came to their possession. Their liability for a loss before that must rest upon some contract to receive the goods, and default in respect thereto (S. C. Ct. of Appeals, 1855, Maybin v. South Carolina R. R. Co., 8 Rich. Law, 240; 1857, S. C. R. R. Co. v. Bradford, 10 Id., 307).
      Where one of several connecting roads receives goods and pavmient of freight, and gives a receipt, stipulating that the goods shall be transported over the others, and it is shown that such freight was divisible between'the several roads, these facts do not necessarily show a joint contract. But where the one of such companies receiving the goods, had advertised that all the roads had made a joint arrangement for transportation over their lines, and that a duplicate receipt must be taken and forwarded to the agent of the connecting road, in order to fix responsibility upon that company; 
        —Held, that under these circumstances a joint contract between the companies might be inferred, and one of them was liable for a loss which did not occur upon its road (S. C. Ct. of Appeals, 1857, South Carolina R. R. Co. 7 Rich., 201).
      
      The same company afterwards gave notice that they would be liable for merchandise after it came into their possession, but no farther, and their receipts given contained a clause to similar effect.—Held, that they were then not liable as joint contractors (S. C. Ct. of Appeals, Bradford v. S. C. Railroad Co., 10 Rich. Law, 221).
      An arrangement or course of business existed between two railroad companies whose roads were upon the same general route, but did not actually connect with each other, by which goods, which had been carried to the termination of one road, and were destined to some point upon or beyond the line of the other, were delivered to the second company with a bill of the expenses already incurred, from which, if found to be correct, a way-bill was made out.—Held, that the second company were only responsible as warehousemen, and not as common carriers, for goods so received and stored by them, until the delivery of the bill of expenses (Mass. Supreme Ct., 1862, Judson v. Western R. R. Corporation, 4 Allen, 520).
      When goods are delivered to a railroad company, by a connecting railroad company, to be transported to the owners, and the same are received by such company for that purpose, it becomes its duty to send them off immediately ; and it cannot justify the detention of the goods on the ground that, by its regulations, goods received from a connecting road are not to be forwarded until the receipt of a bill of back charges, and that no such bill accompanied the goods (N. Y. Ct. of Appeals, 1864, Michaels v. N. Y. Central R. R. Co., 30 N. 7, 564).
      A common carrier cannot, by a generil notice, exonerate himself entirely from his legal duty and liability for property which is delivered to him' for transportation, or fix the amount beyond which he will not be held responsible, in case of injury or loss; although such property is delivered to him by another carrier, to whom the notice has been made known, and who received the same from the owner under an agreement to carry it over his own line, and then, as agent of the consignor, to send it forward by a carrier (Mass. Supreme Ct., 1863, Judson v. Western R. R. Co., 6 Allen, 480).
      Where goods were delivered to one railroad company, and their receipt for them was delivered to the agent of two other companies, whose roads formed a part of a continuous route, and the agent gave a receipt for the goods, agreeing to transport them,—Ileld, that the latter companies were liable for loss of the goods resulting from their being sent in a wrong direction from the point at which they should have been taken under the engagement entered into by the agent, unless they could show that the miscarriage of the goods was under circumstances that-would relieve them from responsibility (N. Y. Com. Pl., 1863, Le Sage v. Great Western Railway Co., 1 Daly, 306).
      The liability imposed by 2 N. Y. Rev. Stat., 5 ed., 693, § 67,—making companies owning connected roads liable as carriers,—does not extend to charge one company for the act or neglect of another which previously received the goods and injured them. It applies only to the company originally receiving and undertaking to convey the goods (N. Y. Supreme Ct., 1864, Smith v. N. Y. Central R. R. Co., 43 Barb., 225).
      Railroad companies forming in connection one entire route,—Held, not partners, under the circumstances, so as to render one liable for goods lost on the road belonging to another (Straiton v. N. Y. & New Haven R. R. Co., 2 E D. Smith, 184).
      A contract specifying that the goods are to be carried “ to Toledo for Detroit.” is performed by carrying them to Toledo, and delivering them to a connecting company there to be forwarded ; and such connecting company, if no connection in business is shown, receives the goods under a common law liability, and not under the special contract; though it would be otherwise if the contract in terms applied to the carriage for the whole distance (Mich: Supreme Ct., 1867, McMillan v. Mich. S. & N. I. R. R. Co., 16 Mich. [3 Jenn.], 79, 123).
      Where goods are received by a railroad company, and a receipt given specifying that they are to bo sent to, and delivered at a place on the route of a connecting company, and one price is charged for the entire transportation, the connecting company are not liable for a loss upon their own route, by a peril which'the receiving company stipulated in the receipt that they would not be liable for. The contract is entire, and if the connecting company are liable at all to the owner, they are entitled to the benefit of any exception in the contract (Ho. of Lords, 1859, Bristol & Exeter Railway Co. Collins, 7 Ho. of L. Cas., 194; 29 Law J. N. S. [Exch.J, 41).
      A railroad company, which receives the cars of another company upon its track, placing them under the control of its agents and servants, and drawing them by its locomotive power, assumes towards the passengers the liability of common carriers of passengers (Mass. Supreme Ct., 1851, Schopman v. Boston & Worcester Railway, 9 Cush., 24).
      A railroad company which advertises that stages will run from their station to other places- oil' the line of the railway, and sells tickets, at their stations, for such places, that is, to carry upon the railway to the nearest station and then by stage, will not 'become liable to a passenger receiving injuries upon the stage, after he leaves the railway, the company having no ownership, or interest in the stages. Neither the tickets nor the advertisement constitute a special contract to carry as far as the ticket reaches (Conn. Supreme Ct., 1862, Hood v. N. Y. & N. H. R. R. Co., 22 Conn., 1).
      Where a company advertises to sell tickets including passage to places beyond their route by means of a connecting line of stage coaches, and the ticket bears the name of the conductor of the railway, the jury cannot infer from merely these facts, that the purchaser of the ticket made a special contract with the company for liis safe transportation over such connecting line. It is well understood by the public that the through ticket in such a case is only for convenience of payment, and that the passenger is to look to each line as the carrier on its own road. It might be otherwise where a participation in profits or joint control is shown (Conn. Supreme Ct, 1852, Hood v. N. Y. & New Haven R. R. Co., 22 Conn., 1).
      A railroad company by giving permission to another railroad company to use a portion of their track, do not bind themselves to make their track safe, nor to put it in repair, nor to make any change in its existing state j nor are they under any obligation to the passengers of the other railroad to furnish safe means of transit; and the claim of passengers who may be injured for damages is on the company with whom he immediately contracts (N. H. Superior Ct, 1854, Munch v. Concord R. R. Corporation, 9 Fost., 9).
      A railroad company are responsible for an injury sustained by a passenger in their cars, in consequence of the careless management of a switch, by which another railroad connects with and enters upon 'their road, although the switch is provided by the proprietors of the other road, and attended by one of the servants, and at the expense, of such other company (Mass. Supreme Ct., 1849, McElroy v. Nashua & Lowell R. R. Corp., 4 Cush., 400).
      The undertaking of a company in carrying the owner of a drove of cattle in a car provided for the purpose in the cattle train, is only that of ordinary passenger carriers, and does not render them liable for injuries to the person occurring on the track of another road over which the trains of both companies ran, and solely by the fault of the other company (Vt. Supreme Ct., 1857, Sprague v. Smith, 29 Vt. [3 Wms.], 421).
      Although the rule may be different for freight, through passenger tickets for a trip over connecting lines, issued in the form of coupons for each successive company, are to be regarded as distinct tickets for each road. The first company is looked upon as merely the agent of the others for selling (Vt. Supreme Ct., 1857, Sprague v. Smith, 29 Vt. [3 Wms.], 421).
      Where a railway company employed an individual to carry passengers to and fro between a village and a station on their railroad, such individual furnishing liis own conveyances, teams, and drivers,—Held, 1. That the business being promotive of the objects of incorporation, and not against public policy, was a lawful one, and that the company was estopped from denying the validity of a contract to carry a passenger in that mode. 2. That were it otherwise, the company was nevertheless liable in damages for an injury caused to a passenger going from the village to the station, by the overturi ing of the vehicle through the negligence of the owner or his servant [19 Wend., 534; 8 N. Y., 37; 29 Barb., 35; 22 N. Y., 258, 494.] (N. Y. Supreme Ct., 1862, Buffitt v. Troy & Boston R. R. Co., 26 Barb., 420). .
      Where a passenger bought tickets of a railroad agency providing for passage over two separate roads, and after a delay of two months from the time of using one of the tickets commenced his journey over the second road,—Held, that the tickets, although printed on the same piece of paper, were distinct contracts and vouchers for separate journeys, as they contained no restrictions; and the validity of the last ticket was unaffected by the delay (Mich. Supreme Ct, 1867, Brooke v. Grand Trunk R. W. Co., 15 Mich., 332).
      Where a railroad company sells a through ticket to a passenger, and gives her a through check to transport herself and trunk to a point outside the State, by a specified route, over lines of road belonging to other companies in other States, with a right on the passenger’s part to choose by which of two routes she will go from an intermediate point to the terminus,— a re-checking of her trunk at that intermediate point, in consequence of an exercise of that choice, does not constitute a new contract on the part of the company, but that act must be held to have been done in pursuance of the original agreement (Wis. Supreme Ct., 1867, Candee v. Pennsylvania R. R. Co., 21. Wis., 502).
      A “through ticket" and baggage-check, imply a special undertaking on the part of the company issuing them, to transport the passenger and his baggage as far as the tickes entitles him to go, whether over the company’s road or another; and it is immaterial that there is a change of cars at the terminus of the first road (Ill. Supreme Ct, 1860, Illinois Central R. R. Co. v. Copeland. 24 Ill., 332).
    
   By the Court. —Mullin, J.

—The oil, which is the subject-matter of the action, was delivered to the Union Transportation and Insurance Company, at Cincinnati, under a contract between it and the plaintiffs’ agent to receive said oil, and carry the same to the city of Hew York for certain hire and reward in such contract specified.

It was provided in and by said contract that the said Union Transportation and Insurance Company should not be liable for damage or loss by fire or other casualty while said property was in depots or places of transhipment.

The said oil was carried on the cars of said Union Company over, the railroad between Cincinnati and Philadelphia, at which place it was delivered to the defendant to be carried to, and delivered at the city of New York. It was carried- over the defendants’. railroad to South Amboy, and there put on board a steamboat owned by the defendants, in the usual course of business, and by such vessel carried to New York, and stored in the freight house of said defendants, on Sunday evening, July 10th, and between that and the morning of the 11th of the same month, the said freight house and the said oil were destroyed by fire, without any negligence on the part of the defendants.

No notice of the arrival of said property was given to the plaintiff before the destruction thereof by said fire.

If this action was against the Union Company, it is quite clear that no recovery could be had "against it, as this property was, within the exception of the contract, destroyed while in a depot awaiting delivery to the owner. The liability of the carrier was not terminated at the time of the fire. No notice of the arrival of the property had been given ; and until that was done the responsibility of the carrier continued.

This being so, the question is whether the defendant was liable for the loss ’ of the property as carrier, wholly irrespective of the contract with the Union Company. The contract with the Union Company provided for the transportation of the oil from Cincinnati to New . York, and until the expiration of a reasonable time for its removal after notice to the owner of its arrival. The defendant is not liable on that contract. ' It was not a party to it.

Upon what principle then, is it liable ?

It is said that being a common carrier, and receiving the property as such, to be carried, the law authorizes the owner to elect to pursue it, instead of the company with which the .contract was made. . Such a proposition should rest upon the clearest principles or the highest authority. No case has been cited, nor can one be found, establishing any such proposition.

The defendant received the goods from the Union Company to be carried, under its contract with the owner, and it was entitled to the benefit of all stipulations in such contract affecting its liability.

As the Union Company would not, on the facts proved, be liable for the property, neither would the defendant.

The judgment must therefore be affirmed.

Judgment affirmed. 
      
      Present, Ingraham, P. J., and Barnard and Mdllin, JJ.
     