Lawrence v. The Winona and St. Peter Railroad Company. as the act of A., it must be proved that B. was the agent of A. Starkie, Pt. 4, p. 55. The plaintiff claims, indeed, that the evidence in question itself tends to prove this; but the agency of a party must be proved from other evidence than his acts before it can be shown that his acts are binding upon his alleged principal. Scott . Crane, Conn. 255. B.'s authority to act for A. may be inferred from the habit and course of dealing of A. and B., but not of B. alone, even though his acts be done in A.'s name. Starkie, Pt. 4, pp. 55, 59. In this case Phelps did not assume to act in the name of the defendants. Plaintiff would infer Phelps' agency, from the fact that the way-bill, which he usually left with the goods, was signed by defendants' freight agent, and included a charge for team, as well as railroad charges. The bearing of the way-bill was Phelps' act; its delivery to him was the act of defendants' freight agent. On its face it purports to be for transportation to Waseca only, and its delivery, receipted by the station agent, to Phelps (it appearing, according to the evidence introduced by plaintiff himself, that the freight was delivered to Phelps by the station agent, upon his receipting therefor, and either paying or becoming personally responsible to defendants for the freight money and back charges due them), tends of itself to prove that such goods and way-bill were delivered to him, not as defendants' employee, but as the agent of the consignees. It appears, however, that these way-bills usually, but not always, included a charge for "team," additional to defendants' dues, which is said, though of this there is no proof, to be for hauling from Waseca to Mankato. Whether added by the freight agent, and, if so, at whose direction or request, or by Phelps himself, does not appear; but, at all events, there is no inference from the circumstances that Phelps received the bill as defendants' agent, to collect the amount for them, and on their account, for the plaintiff has himself introduced positive testimony that the defendants had no interest in, nor received any part of, the moneys received on the transportation of freight between Waseca and Mankato. The evidence of Palmer was inadmissible, for the further reason that he testified only to facts occurring after the fire; and Phelps' way of doing business at Markato in May could have no tendency to prove what it was in March. Mead's declarations, though of themselves, indeed, they rather go to show that defendants had no control over the rates of freight between Waseca and Mankato, yet were inadmissible in any view. They Lawrence v. The Winona and St. Peter Railroad Company. did not tend to prove any contract with plaintiff, or any usage of defendants. There is no evidence, either that the matters in question were within the scope of his agency, or that the declarations were in regard to a transportation then depending so as to be part of the res gesta. 1 Greenleaf Evid., sub. 113. We thus, however, that there is competent evidence in the case ending to show that Phelps was an independent common carrier. In that case defendants were intermediate carriers between Fort Howard and Mankato. If they were, were they under any responsibility to plaintiff at the time of said fire in respect to such goods? If so, what was it? It is held in England, and in some of the states, and is laid down by Mr. Angell, that persons receiving goods as common carriers. continue to be responsible, in that capacity, until the goods are delivered at the place to which they are directed, though it is beyond the limits of the place to which they are accustomed to carry and deliver (Angell on Carriers, § 95 [4th ed.], 1868; Muschamp 7. Lancaster & Preston Railway, 8 M. & W. 421; Bennett v. Filya 1 Fla. 403; Choteaux v. Leach, 18 Penn. St. 224; Ill. Cent. R. R. 7, Johnson, 34 Ill. 389); that by receiving goods marked for placea beyond their route they are impliedly bound to see them carried to their destination. Muschamp v. Lancaster and Preston Railway 8 M. & W. 421; Watson v. Ambesgate, Nottingham and Boston Railroad Co., 3 Eng. Law and Eq. Rep. 497; Ill. Cent. Railroad v. Johnson, 34 Ill. 389. But this rule applies to the first carrier only, and not to any subsequent or intermediate carrier. The contract is held to be exclusively with the first carrier, and there is no right of action in favor of the owner against any of the subsequent carriers on the route, even where the loss is shown to have occurred on one of the subsequent roads on the route. Bristol and Exeter Railway v. Collins, 5 Hurl. & Norm. 969. It is said in an able article, in support of the rule, that "this liability of the first carrier who receives the goods may truly be called the bond upon which the consignor invests, and as the first carrier is the only party he deals with, so he must be the only party to whom he can resort for the condition of his bond." 2 Am. Law Rev. 440. Upon this view of the law, as plaintiff's contract was with the Chicago and Northwestern railroad, his only remedy would be against them, even though the terms of their receipt would be a bar to any VOL. II.-18 Lawrence v. The Winona and St. Peter Railroad Company. action against them. Coxon v. G. W. R. R. Co., 5 Hurl. & Norm. 274; Bristol & Exeter Railway v. Collins, id. 969. On the other hand, it is stated by Judge Redfield, that the general view of the American cases, and the more just and reasonable rule, and the doctrine which seems likely to prevail in this country, is that laid down in the earlier English cases, viz.: that, in the absence of special contract, the carrier is only liable for the extent of his own route, and for the safe storage and delivery to the next carrier. 2 Redfield on Railways, ch. 26, sec. 14, §§ 180, 182, and cases cited; Garside v. Trent & Mersey Nav. Co., 4 T. R. 581. So STORY states, "That the American rule probably is, that if the carrier receiving the goods has no connection in business with another line, and receives pay for transportation only on his own. road, he is not liable, in the absence of any special contract, for a loss beyond his own line; and the simple receipt of goods directed to a place beyond does not, prima facie, create a contract to carry such goods to their final destination." Story on Bailments (ed. 1863), § 538. The rule laid down in Garside v. Trent & Mersey Nav. Co., that each carrier, in the absence of special contract, is only liable to the extent of his own route, and the safe storage and delivery to the next carrier, is said by the supreme court of Vermont (23 Vt. 186) to be "undoubtedly the better, the more just and rational, and the more generally recognized rule upon the subject," and what is called the "American rule," seems to be based on that case. See 2 Redfield on Railways, supra, and Thomas v. Bost. & Prov. R. R., 10 Met. 472. The question is new in this state, but, after giving it all the consideration due to its great interest and importance, we feel ourselves constrained to take our place with the adherents to the "American rule," as above stated. But though he is not liable beyond his own route, yet, if, at the end of the route, the carrier stores the goods in his own warehouse, without delivery, or notice, or attempt to deliver to the next carrier, he is not, by such mere act of storage, released from liability as a carrier. McDonald v. W. R. R., 34 N. Y. 497, 500. In Garside v. Trent & Mersey Nav. Co. the defendants were common carriers between Stonepoint and Manchester. Plaintiff's goods were taken at Stonepoint to be carried to Manchester, and from Manchester by another carrier to Stockport, and, by agreement, they were to be kept in defendants' warehouse without charge, and to be kept till called for by the carrier for Stockport; and it was held, that Lawrence v. The Winona and St. Peter Railroad Company. their duties as carriers ended with the storage of the goods and that they were thereafter in the situation of warehousemen only. BULLER, J., remarked: "The keeping of the goods in the warehouse is not for the convenience of the carrier, but the owner, for when the voyage to Manchester is performed, it is the interest of the carrier to get rid of them directly, and it was only because there was no person at Manchester ready to receive these goods, that the defendants were obliged to store them." The defendants contend that the facts in the case at bar bring it strictly within the doctrine in the above case. Though the defendants did not deliver the goods, there was, they say, no opportunity to deliver them; for Phelps did not call for any while they were stored in their warehouse; nor had he any place for their receipt. The goods, it is said, were stored, not for defendants' convenience, but because there was no one to receive them, or to whom they could be delivered. But this, it seems to us, assumes the very point upon which the question turns. In Garside v. Trent & Mersey Nav. Co., the storage was for plaintiff's convenience, because, by agreement with him, the defendants had precluded themselves from delivering them to the next carrier elsewhere than at their warehouse. They were bound to keep them there till called for. It is true, that the defendants in the case at bar had a right to presume that the plaintiff in ended they should transport and dispose of the goods in the usual way, and that the contract between them would be implied to be, that defendants were only bound to transport and deliver them according to the established usage of the business, whether plaintiff knew it or not (Van Santvoord v. St. John, 6 Hill, 157); that established usage, too, included the storage in defendants' warehouse, until enough freight having been accumulated for a load, Phelps should call for them. It may be said then to have been by agreement with the plaintiff, that the defendants so stored the goods; but it would not follow from that circumstance that such storage was for his convenience. They were as much bound in respect to Phelps, by the custom of conducting business, as the plaintiff to them. By their agreement with Phelps they had precluded themselves from delivering the goods to any other carrier than himself, and by their customary mode of doing the business with him under that agreement they were bound to keep such freight for him as aforesaid. Phelps never received the goods till enough had accumulated Lawrence v. The Winona and St. Peter Railroad Company. for a load, and was not bound to receive them sooner. Defendants never delivered, and could not insist on delivering, them sooner, and the plaintiff's goods were destroyed because of this arrangement; for the case finds that Phelps had not called until after the fire, because there was not enough for a load. It makes no difference, if the fact were so, though that does not appear, that there was no other carrier at Waseca than Phelps to whom the goods could have been sooner delivered. There was another independent line for Mankato connecting with defendants' road by rail at Owatonna; but defendants' established usage was to forward them by Phelps, via Waseca. By this usage plaintiff of course was bound; but was this custom, and this agreement with Phelps under which plaintiff's goods were so disposed of, for plaintiff's convenience? Surely not. The arrangement with Phelps was made by defendants in their interest, and for their benefit, viz.: to procure the consignment of a larger amount of Mankato freight over their road. 66 The general interest of carriers is, as Mr. Justice BULLER says, to get rid of the goods directly the journey is performed." But here the expected benefit above mentioned had made it defendants' interest to make arrangements which necessarily included a temporary retention of the goods by them. It is as if defendants, on receiving plaintiff's goods, had said: "we intend, instead of sending your goods to Mankato, via Owatonna, to transport them to Waseca, keep them in our warehouse till enough of such freight has accumulated for a load, and then deliver them to Phelps, to whom alone we have agreed to deliver them, in consideration of his putting oL teams, and engaging in the transportation of freight between Waseca and Mankato, at our request and for our benefit;" and plaintiff assents. But it is not his convenience that is consulted in this arrangement, but that of the defendants. They carried the goods past Owatonna to Waseca, and stored them there for their own couven ience, and for the purpose of, and until, delivery to Phelps, under their arrangement with him; such storage was but an accessory to defendants' carriage; simply one step on their established course of the transport and delivery of such goods, which were still in transit, and defendants' liability as carriers in respect thereof still existed when they were burned. 3 Kern. 569; 34 N. Y. 497, 506; 6 Hill, 157. With regard to the release set up in the answer, we do not think the case discloses any evidence tending to show that the plain |