
    Henry S. Shelton, Respondent, v. The Merchants’ Dispatch Transportation Company, Appellant.
    (Argued December 3, 1874;
    decided December 15, 1874.)
    An agent employed to ship goods to the owner has authority to make such contract with the common carrier as in the honest exercise of his discretion he sees fit.
    Where no particular agreement is made at the time of shipment, the fact that the agent and the carrier have a habitual course of dealing in respect to contracts for transportation is a material and important element in determining the construction to he put upon their acts.
    Plaintiff directed 0. & Oo. to ship to him, at J., certain goods by defendant’s line. The goods were marked with plaintiff’s address, delivered at defendant’s depot, and receipts taken in a hook kept for that purpose by 0. & Oo. No special contract was made at the time for transportation. After shipment of the packages, 0. & Oo., who had been large shippers by defendant’s line, in accordance with á habitual course of business between them, sent the receipts to defendant’s office and received bills of lading, the giving of which was entered upon the receipts. The bills of lading limited defendant’s liability to its own line, which terminated at 0., also excepted them from liability for loss by fire. The goods arrived safely at 0., and were there destroyed by fire. Upon trial before a referee, these facts appearing, he refused to find the facts as to the usual course of business, or that defendant’s route terminated at 0., and did not extend to J., on the ground that they were immaterial. Reid, ■ error; that it was within the authority of 0. & Oo. to contract in this case in accordance with their usual method of business, and they having so done, made the findings refused essential to the disclosure of the actual contract.
    Also, held, that the bills of lading being taken by 0. & Oo. in the exercise of their original authority to contract, displaced the common-law relation between the parties and controlled their rights.
    The fact that the cars containing the goods were unloaded on Sunday, in the absence of proof that by the law of the State where the loss happened such an act was unlawful, was not evidence of fault or negligence on defendant’s part.
    Appeal from judgment of the General Term of the Superior Court of the city of Hew York, affirming a judgment in favor of plaintiff, entered upon the report of a referee.
    This action was against defendant as a common carrier, for failure to deliver goods intrusted to it for transportation.
    
      The referee found the following facts:
    That on the 2d day of October, 1871, the plaintiff purchased at the city of Hew York, of the firm of H. B. Claflin & Co., a quantity of goods, and directed them to ship the same to him at Janesville, Wisconsin, by the, defendant’s line. The goods so purchased were packed by Claflin & Co., were by them marked “ H. S. Shelton, Janesville, Wis.,” and were, on the same day, by them delivered to the defendant, at its depot in the city. At the time of such delivery, H. B. Claflin & Co. received from the defendant three receipts. (A copy of one is contained in opinion.) On the third and fourth days of October, Claflin & Co. presented the receipts at the general office of the defendant, and on the same or following day received bills of lading in the usual and customary form, given by defendant. They contained this clause:
    “ To be forwarded in like good order (dangers of navigation, collisions and fire, and loss occasioned by mob, riot, insurrection or rebellion, and all dangers incident to railroad transportation, excepted) to Chicago depot only, he or they paying freight and charges for the same as below.”
    It was the usual custom of said H. B. Claflin & Co. to mail receipts or bills of lading to their consignees.
    The packages aforesaid were safely and with all due care and diligence transported to Chicago, and arrived there, a part in the evening of Saturday, the seventh day of October, and the remainder thereof on the morning of Sunday, the eighth day of October, and were, upon their arrival, unloaded into a freight house used by the defendants. In the evening of the eighth, a great fire occurred in Chicago, without fault or negligence on the part of the defendant; that said packages and their contents were consumed and entirely destroyed, without negligence of any kind on the part of the defendant.
    The referee was requested to find the following additional facts, which appeared by the evidence:
    
      “ That the said H. B. Claflin & Go. were, on the said 2d day of October, 1871, and for a long time previous thereto had been, large shippers of goods by the defendant’s line, and that it had always been their custom to obtain receipts or bills of lading therefor.”
    “ That the defendants were, at the time mentioned in the complaint, carriers of goods, wares and merchandise for him between different parts of the United States, but that, in October, 1871, the terminus of the route of defendant from the city of Hew York in the direction of Janesville, Wisconsin, was, and had been since the 10th day of March, 1871, Chicago, Illinois, and that transportation beyond Chicago, in the direction of and to Janesville aforesaid, had to be performed by separate and independent carriers, and the charges of transportation beyond Chicago were paid to such carriers by the owners of the property transported, in addition to the amount paid to defendant for transportation to Chicago aforesaid.”
    The referee refused so to find, as immaterial, and defendant’s counsel excepted.'
    
      Hamilton Cole for the appellant.
    A consignor of goods has power to contract for their carriage and bind the consignee. (Nelson v. H. R. R. R. Co., 48 N. Y., 498; Mills v. Mich. Cent. R. R. Co., 45 id., 622.) If the bills of lading had been given to and received by Claflin & Co. when the goods were shipped, they would form the contracts for the carriage of the goods. (Long v. N. Y. C. R. R. Co., 50 N. Y., 76; Belger v. Dinsmore, 51 id,, 166 ; Blossom v. Dodd, 43 id., 264; Hopkins v. Westcott, 6 Blatch., 64; French v. Buff., N. Y. and E. R. R. Co., 4 Keyes, 108; Grace v. Adams Ex. Co., 100 Mass., 105.) Under the evidence the effect of these bills of lading is the same as though they had been received by Claflin & Co. when the goods were shipped. (Bishop v. Em. Tr. Co., Spec. T. Supr. Ct. [Van Vorst, J.]; Bostwick v. B. and O. R. R. Co., 45 N. Y., 712.) When plaintiff named the carrier he gave the shippers power to make any contract required. (Nelson v. H. R. R. R. Co., 48 N. Y., 498.) Plaintiff, by retaining the bills of lading, ratified the contract made by his agent. (Cairnes v. Bleecker, 12 J. R., 300; Rich. 
      
      Mfg. Co. v. Stark, 4 Mason, 296.) Defendant was exempted by the bills of lading, from liability for loss by fire. (Lamb v. C. and A. R. R. and T. Co., 45 N. Y., 271.) The fact that the goods were unloaded on Sunday could not operate to the prejudice of the defence. (Boynton v. Page, 14 Wend., 425; Botsford v. Every, 44 Barb., 618; Miller v. Roessler, 4 E. D. S., 234; Greenbury v. Wilkins, 9 Abb. Pr., 206, note; Merritt v. Earl, 31 Barb., 38.) There was no through contract to Janesville. (Van Santford v. St. John, 6 Hill, 158; Jameson v. C. and A. R. R. Co., 4 Am, L. Reg., 234; Condict v. G. T. R. R. Co., 54 N. Y., 500.) Defendant is .not liable if, the loss happened through the act of God. (Colt v. McMechen, 6 J. R., 166; Williams v. Grant, 1 Conn., 487; Roll. Abr., 808, pl. 6; Jones on Bail., 104, 105; Story on Bail., 525, § 515 ; Waters v. Mer. L. Ins. Co., 11 Pet., 213, 223; Ang. on Car., § 156.)
    
      Wm. Henry Arnoux for the respondent.
    Defendant is a common carrier of goods for hire, and is responsible as such for the-safe delivery of property intrusted to it. (Sweet v. Barney, 23 N. Y., 335, 337; Russell v. Livingston, 19 Barb., 346; Sherman v. Wells, 28 id., 403; Belger v. Dinsmore, 51 id., 77; S. C., 34 How., 428 ; S. C., 51 N. Y., 166; Pro. Civ. Code, § 1134; Simmons v. Law, 3 Keyes, 220; Blossom v. Griffin; 13 N. Y., 569.) As the testimony failed to show any •qualified or conditional acceptance of the goods by defendant, its liability as common carrier was unlimited. (Blossom v. Griffin, 13 N. Y., 569; Grosvenor v. H. R. R. R. Co., 39 id., 34; Nelson v. H. R. R. R. Co., 48 id., 504; Long v. N. Y. C. R. R. Co., 50 id., 76.) Eire resulting from the acts of man is not the act of God. (McArthwr v. Sears, 21 Wend., 194; Smith’s Abb. on Ship., pt. 3, chap. 4, § 1; Trent Nav. v. Wood, 3 Esp., 127; Forward v. Pittard, 1 T. R., 27; Miller v. Steam Nav. Co., 10 N. Y., 431; Story on Bail., §§ 507, 511, 528 ; Hyde v. Nav. Co., 5 T. R., 389; Gatliffe v. Browne, 4 Bing. [N. C.], 314; 2 Kent’s Com., 602; Hollister v. Nowlen, 19 Wend., 234; Merritt v. Earle, 29 N. Y., 115; Michaels 
      v. N. Y. C. R. R. Co., 30 id., 571.) The unloading of the goods on Sunday rendered defendant liable. (1 R. S., 675, § 170 ; Crim. Code of Ill., § 144 ; Johnson v. People, 31 Ill., 469.) Defendant is liable under the contract for the safe delivery of the goods at their destination. (Peyroux v. Howard, 7 Pet., 324; Quimby v. Vanderbilt, 17 N. Y., 306 ; Hart v. Rens., etc., R. R. Co., 8 id., 37; Schroeder v. H. R. R. R. Co., 5 Duer, 55 ; Wilcox v. Parmelee, 3 Sandf., 610; Mallory v. Burrett, 1 E. D. S., 234; Moore v. Evans, 14 Barb., 524; Fairchild v. Slocum, 19 Wend., 329 ; Weed v. Sar., etc., R. R. Co., id., 534; Perkins v. Portland, 47 Me., 573; Meyer v. Rut. R. R. Co., 27 Vt., 110; McGregor v. Gilmore, 6 Ohio, 358; Fitch s. Newberry, 1 Doug. (Mich.), 1; Muschamp s. Lan., etc., R. Co., 8 M. & W., 421; Watson s. Am. R. Co., 15 Jur., 448; S. C., 3 E. L. and Eq., 497; Burnell s. N. Y. C. R. R. Co., 45 N. Y., 184; Maghee v. Cam. R. R. Co., id., 514; Dunsrath v. Wade, 2 Seam., 285; Simmons s. Law, 3 Keyes, 220; Buffit v. Troy R. R. Co., 40 N. Y., 198;. McKyring v. Bull, 16 id., 297.)
   Johnson, J.

The referee refused to find that, previous to the shipment in question, H. B. Claflin & Co. had been large shippers by the defendant’s line, and had been always accustomed to obtain bills of lading for the goods shipped; and also that the defendants were carriers upon a route terminating at Chicago, and not extending to Janesville, Wisconsin; and that between the latter points transportation had to be performed by separate and independent carriers. These matters the referee refused to find, on the ground that thqy were immaterial to the-rights of the parties. In this we think he erred, and for the following reasons: Claflin & Co. were the agents of the plaintiff in respect to the transportation of the goods in question. His directions to them were to ship the goods to him at Janesville, Wisconsin, by the defendant’s-line. The extent of the authority thus conferred, was considered in Nelson v. Hudson River Railroad Company (48 N. Y., 498). It necessarily extends to the making of such contracts as the agents, in the honest exercise of their discretion, see fit to make. The fact that the carriers and the agents employed have a habitual course of dealingin respect to contracts for transportation, is a material and important element in determining the construction to be put on their acts in any particular case. (Mills v. Mich. Cent. Railroad, 45 N. Y., 622.) The delivery by the agents of the plaintiff, to the carriers, was made upon no particular agreement made at the time. The packages were marked with the address of the plaintiff, and receipts were signed by the agents of the defendants, at their receiving depot at Mew York. These receipts were in a bound receipt book belonging to Claflin & Co., filled up by them, and signed by the agents of the defendants. They purport to be receipts, and not contracts for carriage. They were in the following form: Mew York, Oct. 2,1871. Received from H. B. Claflin & Co., in good order on board the M. D. for-the following packages, one case D. G-. marked H. S. Shelton Janesville, Wis.” and were signed lt Gleason.” In a day or two, but after the packages had been started on their way, the agents of the plaintiff, acting in accordance with the habitual mode of doing this business, sent the receipts to the defendant’s office, and procured bills of lading for the goods, the giving of which was entered on the several receipts. These bills of lading expressed the actual contract of carriage between the parties who in fact made the contract, the defendants on the one hand, and H. B. Claflin on the other. When the goods were delivered and the primary receipts given, each of the parties was acting in a habitual method, and with a habitual understanding of what they were engaged in doing. The receipts were presented and signed with the view and expectation on both sides, that bills of lading were in the usual course to be subsequently issued, expressing the intentions and engagements of the parties. This was their method of dealing, distinctly in their contemplation from the beginning, reasonable in itself and completely within the authority committed by the plaintiff to his agents, H. B. Claflin & Co. Any attempt on their part to claim a different agreement, would have been- an act of bad faith ; because it would have been a departure from the understanding based upon the previous course of dealing of these parties. In the view we take of the relations and acts of these parties, the matters of fact which the • referee held to be immaterial, were plainly material, because they were essential to the disclosure of the actual contract of the parties. The bills of lading were obtained by the plaintiff’s agents, in the exercise of their original authority to contract with the defendants for transportation, and these controlled the rights of the parties and displaced the common-law relation, which otherwise might have existed between them.

The order of time in which the business was actually transacted, cannot be allowed to affect the rights of the parties. If H. B. Claflin & Co. were originally authorized to ship on bills of lading limiting the common-law liability of the defendants, the fact that receipts were taken in one stage of the business, intended by neither party as completing their dealing or contract," did not exhaust the authority. It was never so intended and cannot have that effect. The acts-of the parties must have operation as they were intended by the parties when they were done. The bills • of lading-excepted the risk of fire, and as it was by that danger that the property in question was destroyed, the defendants are free from liability, at least unless the loss was due to their negligence or fault. The only suggestion of fault is that the cars containing these packages, were unloaded on Sunday in Chicago. The case does not inform us that by the law of Illinois, where the loss happened, unloading- cars on Sunday was unlawful, and we have no means of knowing- such to be the fact, in respect to the laws of that State.- The common law, at least, teaches no such doctrine.

The judgment should be reversed and a new trial ordered, costs to abide the event.

All concur.

Judgment reversed.  