Nashua Lock Co. v. The Worcester and Nashua Railroad Co.

that when a railroad or other common carrier receives goods marked or otherwise directed for a place beyond the carrier's own line, this alone is prima facie evidence of a contract to carry the goods to their final destination, though the freight money for transportation through is not paid to the carrier that receives the goods, and though he is not shown to have any connection in business with other parties beyond his own line. Muschamp v. The Lancaster and Preston Railway, 8 M. & W. 421; Watson v. The Ambergate, Nottingham and Boston Railway, 3 L. & E. 497; Collins v. The Bristol and Exeter Railway, 11 Exch. 790; S. C., 7 H. L. C. 194; Coxon v. The Great Western Railway, 5 Hurl. & N. 274. These and several other cases show that in England, after the fullest discussion in all the courts, the rule is firmly established that a carrier who receives goods marked for a place beyond his own line is prima facie bound to carry them as directed to their final destination, and it is there held that the contract in such case is entire, and with the first carrier alone; that until some connection in the business, which has the general nature, if not the technical character, of a partnership, appears between him and the subsequent carriers, no action can be maintained against them by the owner, though the goods were lost or damaged on their part of the route.

I have not met with an American case in which the rule has been pressed to the extent of holding that the owner cannot come on any carrier by whose default the loss or damage actually happened. There are, however, numerous authorities in the United States for the general rule of Muschamp v. The Railway, that the receipt of goods marked for a place beyond the line of the carrier who receives them implies a contract to carry them to their final destination, though no connection in business is shown with other carriers beyond, and though the price for transportation through is not paid in advance.

In Foy v. The Troy and Boston Railroad, 24 Barb. 382, the doctrine of the case is stated in the head note to be, that "where a railroad company receives for transportation property addressed to a person at a point beyond the terminus of the road, he will be understood, in the absence of any proof to the contrary, to have agred to deliver the property, in the same order and condition in which it was received, to the consignee." The court say: "It was no part of the plaintiff's business to inquire how many different corporations made up the entire line of road between Troy and Burlington, or,

Nashua Lock Co. v. The Worcester and Nashua Railroad Co.

having ascertained this, to determine at his peril which of said companies had been guilty of the negligence which resulted in the injury to his wagon." In Schroeder v. The Hudson River Railroad, 5 Daer, 55, the agent of the defendants gave the following receipt at New York: "Received of Schroeder six boxes-to be forwarded po Hudson River Railroad freight train to Chicago, Illinois;" and it was held that the defendants under this receipt were bound to transport the goods to Chicago. No connection in business with other carriers was relied on. In Kyle v. The Laurens Railroad, 10 Rich. (Law) 282, the rule of Muschamp v. The Railway was approved. O'NIEL, J., says: "The case of Muschamp v. The Lancaster and Preston Junction Railway states, I think, the true rule." The rule of Muschamp v. The Railway was approved and adopted in the Central Railroad v. Copeland, 24 Ill. 332, in which it was held that "a railroad corporation selling tickets through over its own and other roads is liable for the safety of passengers and their baggage to the point of destination." The case was put on the same ground as when goods are received marked for a place beyond the line of the carrier that receives them. The court say: "We are inclined to yield to the force of the reasoning of the English courts on principles of public convenience, if no other, and to hold when a carrier receives goods to carry, marked for a particular place, he is bound to carry and deliver at that place. By accepting the goods so marked he impliedly agrees so to do, and he ought to be answerable for that loss." In the later case of The Central Railroad v. Johnson, 33 Ill. 382, it was decided in the same state that "when a carrier receives goods to carry marked for a particular place, he is bound under an implied agreement from the mark or direction to carry to and deliver at that place, though it be a place beyond his own line of carriage." In The Detroit and Milwaukee Railroad v. The F. & M. Bank, 20 Wis. 122, the railroad gave a receipt for the goods directed to New York, but the receipt provided that the railroad should not be liable beyond their own road, and it was held that by an express agreement a carrier might limit his liability to his own road when he receives goods marked for a place beyond it. The road was in that case discharged, upon the ground of an express agreement that it should not be liable beyond its own line, from which the inference is plain, that, in the absence of an express agreement controlling the contract otherwise implied from the receipt of the goods marked for a place beyond its line, the road

Nashua Lock Co. v. The Worcester and Nashua Railroad Co.

will be liable for a loss happening beyond. In Angle v. The Mississippi and Missouri Railroad, 9 Iowa, 487, it was decided that "when a common carrier receives goods marked for a particular place beyond the terminus of his route, unaccompanied by any direction as to their transportation and delivery except such as may be inferred from the marks, he is prima facie bound to carry and deliver them according to the marks."

St. John v. Van Santvoord, 25 Wend. 660, is a strong authority for the rule that, when goods are received by a carrier marked for a place beyond his line, he is bound to carry them to their final destination, if there is nothing to control the contract implied by the receipt of the goods so marked. NELSON, C. J., delivering the opinion of the court, says: "It appears to me such a contract is fairly to be inferred from the receipt of the captain in the absence of any explanation. The box was directed to J. Petrie, Little Falls, Herkimer county, indicating plainly to whom the plaintiffs were desirous of sending it, and was delivered on board for the express purpose of transhipment to him; and without any qualification or explanation the agent received the article and gave his receipt, in effect saying to the plaintiff, I will take and deliver it at the place of destination according to the direction. So the plaintiffs must have understood the contract. It is the plain interpretation of the transaction. If the defendants had intended to limit their duty as common carriers short of the place of destination, they should in some way have indicated to the plaintiff this intent." The judgment of the supreme court in this case was reversed by the senate (6 Hill, 157), upon the ground that the court should have received evidence of a custom controlling the general effect of the receipt of the goods marked for the place of destination, though the custom was not known to the plaintiff; leaving the doctrine untouched that the receipt of the goods so marked, in the absence of evidence to explain and control the transaction, would imply an agreement to carry to the place for which they were marked.

The American authorities above cited sustain the doctrine of Muschamp v. The Railway, that, when a carrier receives goods marked for a place beyond his own line, he is, prima facie and in absence of other evidence, bound by an implied contract to carry the goods to the place for which they are marked, though he has no connection in business beyond his own line, and though he does not receive pay for transportation through.

Nashua Lock Co. v. The Worcester and Nashua Railroad Co.

There is another class of American cases which hold that the mere receipt of goods marked for transportation beyond the line of the party that receives them is not evidence of a contract to carry beyond his own line, if he has no connection in business with carriers beyond; but that, if several carriers associate in a continuous line, carry goods for one price through, and divide the freight money among them in an agreed ratio, though they may not be technically partners, but only quasi partners, yet, as to third persons who intrust goods to them for transportation, they are jointly liable for a loss that happens in any part of the continuous line, though the freight money is not paid to the first carrier on delivery of the goods to him.

In Champion v. Bostwick, 11 Wend. 571; S. C., 18 id. 174, several proprietors of different sections in a connected line of stage coaches divided the receipts of the whole route in proportion to the miles run by each; and it was held that they were jointly liable as partners for an injury to a third person, not a passenger, caused by the negligence of one of them. It is to be observed, that in this case the receipts of the way as well as the through travel were brought into the account; and on this a distinction has been taken between that case and one where the receipts of the through travel only are divided; and for that reason it has been said that, in a case like the present, there is no partnership and no joint liability. But as to parties who deal with the through line, it is of no consequence how the other business is managed, or whether any other business is done by the associated carriers. At most, the distinction is merely technical and has no substance. Nor am I acquainted with any legal principle to prevent one engaged in a general business from having a partner in one distinct part of it, like the through business in this case, without bringing all his business of the same kind into the partnership account. I take it to be no uncommon thing for a trader to have a partner in his business done at one place, who has no concern in his business of the same kind transacted at other places; that attorneys form partnerships limited to certain parts of their business, and merchants, in the voyages, or in a single voyage, of one ship.

Hart v. The Rensselaer & Saratoga Railroad is to the point that "where three separate railroad companies, owning distinct portions of a continuous railroad route between two termini, run their cars over the whole road, employing the same agents to sell passenger VOL. II.-32

Nashua Lock Co. v. The Worcester and Nashua Railroad Co.

tickets, and receive luggage to be carried over the entire road, an action may be maintained against any one of them for loss of luggage received at one terminus to be carried over the whole road.” SMITH, J., delivering the opinion of the court in McDonald v. The Western Railroad, 34 N. Y. 501, 502, says: "We may judicially take notice of the fact that the vast business of inland transportation of goods is carried on mainly upon routes formed by successive lines belonging to different owners, each of whom carries the goods over his own line and delivers them to the next. Many of these routes extend over thousands of miles. Their proprietors unite and receive goods for transportation upon the promise, express or implied, that they shall be carried safely to the place of delivery. The owner has lost sight of his goods when he delivers them to the first carrier, and has no means of learning their whereabouts till he or the consignee is informed of their arrival at the place of destination."

In Wibert v. The Erie Railroad, 12 N. Y. 256, it was said, that, "where a carrier is in the habit of receiving and forwarding goods directed to any particular place, an agreement on his part to take them there has been presumed; but where these operations are entirely disconnected, there is no partnership. In Bradford v. The Railroad Company, 7 Rich. (L.) 201, it was held that "an advertisement of a through line and the course of the business is evidence to charge all the roads engaged in the continuous line of transportation as jointly liable for carriage through the whole route." REDFIELD, C. J., in delivering the opinion of the court in The F. M. Bank v. The Transportation Company, 23 Vt. 131, speaking of Weed v. The S. & S. Railroad, 19 Wend. 534, says: "That case is readily reconciled with the general rule that such carrier is only bound to the end of his own route, by the consideration that in this case there was a kind of partnership connection between the first company and the other companies constituting the entire route, and also that the first carrier took pay and gave a ticket through, which is most relied on by the court; and in, such cases where the first company gives a ticket and takes pay through, it may be fairly considered equivalent to an undertaking to carry throughout the entire route." In a note to this case by REDFIELD, C. J., he says: "In that case (Weed v. The Railroad) the court seem to put the case more upon the fact of taking fare and giving a ticket through, which, in practice, is seldom or never done, except where there is a quasi partnership throughout the route." This would seem to be a