payment and acceptance, the carrier will hold the goods in the character of warehouseman.38 Nor is a carrier who is bound to make a personal delivery required to offer the goods more than once, no matter what may be the excuse for not taking them.39 But if the consignee peremptorily refuse them, the carrier would of course be justified in returning them immediately to the consignor. He is not under any obligation to do so, however, in any event, until he is so instructed. He may . give notice to the consignor of their refusal, and await his instructions in regard to them.40 Sec. 730. (392a.) Same subject-Right to recover goods delivered without payment.-Where goods have been sent forward upon the condition that they shall be paid for upon delivery, and they are procured by the consignee without payment, either through the artifice of the consignee or the negligence of the carrier, they may undoubtedly be recovered by the consignor or by the carrier acting promptly and before the rights of a bona fide holder have intervened; but where, by the negligence of the carrier, goods contracted to be sold to the consignee upon payment on delivery have been delivered to the consignee without payment and he has sold them to one who purchased them in good faith for value and without notice, neither the consignor nor the carrier can recover them from such bona fide purchaser.41 Sec. 731. (§ 392b.) Same subject-Liability of carrier for return of money. It would appear from the authorities, though the question seems never to have been directly decided, that when the money is received for the goods, which have been 38. Hasse v. Express Co., 94 Mich. 133, 53 N. W. Rep. 918, 34 Am. St. Rep. 328, citing Hutch. on Carr. 39. Storr v. Crowley, McClel. & Y. 129; Marshall . The American Exp. Co., 7 Wis. 1. 40. See Adams Exp. Co. v. McConnell, 27 Kan. 238; Railway Co. v. Heilprin, 95 Ill. App. 402, citing Hutch. on Carr. If the consignee refuses to accept the goods, and the shipper on notice thereof directs the carrier to hold them until called for, the carrier is liable to the consignor only as a warehouseman. Byrne v. Fargo, 73 N. Y. Supp. 943, 36 Misc. 543. 41. Norfolk, etc., Railroad Co. v. Barnes, 104 N. C. 25. sent with the understanding that the carrier is to collect for them and bring back the money, he becomes responsible for its return to the consignor as a common carrier as soon as he has received it, whether he receives any distinct compensation for carrying it or not.42 42. Kemp v. Coughtry, 11 Johns. 107, was a case in which the carrier was directed to sell the goods and bring back the money. In this case it was said that "it can make no difference whether the return cargo is in money or goods. A person may be a common carrier of money as well as of other property. Although no commission or distinct compensation was to to be received upon the money, yet, according to the evidence, it appears to be a part of the duty attached to the employment, and in the usual and ordinary course of the business when the cargo is sold for cash. The freight of the cargo is compensation for the whole; it is one entire concern." So where the contract of the carrier is that persons sending grain over the route are to have the empty bags returned without charge for freight, it is not to be deemed a gratuitous bailment of the empty bags, so as to exempt the carrier from liability for their loss. The consideration paid for the carriage of the full bags will be considered as compensation, both for the transportation of the full bags and the return of the empty ones. Pierce v. The Milwaukee, etc., R. R., 23 Wis. 387. That empty packages are returned free of charge is one of the inducements held out to the public to send full packages by the carrier. Aldridge v. The Railway Company, 15 Com. B. (N. S.) 582. In both these cases the carriers were held liable as such for the loss of the empties whilst being returned by them. The principle upon which Kemp v. Coughtry was decided was approved in Harrington v. McShane, 2 Watts, 443; Taylor v. Wells, 3 id. 65, and Emery v. Hersey, 4, Greenl. 407. In the first-named case the owners of a steamboat, which ran upon the Ohio river, took produce to be carried and sold by them for a certain freight, and were bringing back in the same vessel the money for which it had sold, when the vessel and money were accidentally destroyed by fire, which was exactly the same case as Kemp v. Coughtry, except that in the latter case the money was lost by robbery. The owners of the boat were held liable for the money as carriers. "The question of the defendants' responsibility in the present case," said Sergeant, J., "depends on the character in which they held this money when the loss occurred. If they were merely factors they are not responsible; if they were mere carriers the reverse must be the case. Had the flour been lost on the descending voyage by a similar accident there could be no doubt whatever of the defendants' liability; they were certainly transporting it in the character of carriers. On their arrival at the Sec. 732. In the absence of express authority agent of carrier cannot guaranty price of goods. In the case of the agent of a railroad company it has been held that he has no authority to guaranty the payment to the shipper of the price of the goods shipped, and the railroad company, in the absence of any express authority to its agent to enter into such a promise, is not liable on the agent's undertaking. Whether or not the port of destination and landing the liability of the vessel in rem the flour there, this character ceased and the duty of factor commenced. When the flour was sold and the specific money, the proceeds of the sale, separated from other moneys in the defendants' hands and set apart for the plaintiffs, was on its return to them by the same boat, the character of carrier re-attached." The other cases cited were substantially the same and were decided in the same way. The question as to the character in which the carrier holds the money which he has collected on C. O. D. consignments, in the performance of his duty to return it to the former owner of the goods, has several times arisen in courts of admiralty, in proceedings to enforce its collection as a maritime lien upon the vessel, and the claim has been allowed, which could have been done only upon the ground that the money was held by the owners of the vessel for return to the owner in the character of carriers. This was the opinion of Hill, J., in Zollinger v. The Steamer Emma, reported in Vol. III, Central Law Journal, p. 285. This question in the case was disposed of by him in the following, language: "The next and last exception offered by the mortgagee is as to upon what are styled C. O. D. bills, that is, where the master of the vessel contracted to deliver goods to the consignees to whom they had been sold, and collect and bring back the price thereof to the shipper. There can be no doubt of the liability of the vessel for the safe transportation and delivery of the goods upon these contracts. The more difficult question is as to the liability of the vessel for the failure of the master to return the money received to the shipper. It is, I believe, a settled rule, that where a cargo of goods is delivered to a vessel upon a contract that the master shall convey them to some market, and there sell them for account of owner, until he makes a sale and delivers the goods he is acting as the master of the vessel, and not as the agent of the shipper; but that after he sells and receives the money, he is agent of the shipper, and consequently that for any breach of contract of affreightment the vessel is liable, but for any default in payment of the money to the shipper the master is personally liable only. "But there is a marked distinction between such a case and one in which the consignor has already sold the goods to the con company would be liable if it received some of the benefits and profits of the transaction was not determined.1 Sec. 733. (§ 393.) The consignee's right to inspect the goods. The consignee is entitled to an opportunity to inspect the goods, and this opportunity the carrier is bound to afford him, even though he may have instructions not to deliver them until they are paid for.2 The carrier may even permit the consignee, upon depositing with him the charges upon the goods, to take them away, with the understanding that, in case they do not answer to the quality of the goods ordered by him, he may return them and take back his money. This was the case where the consignee had ordered a coat of a certain description and paid the price to the carrier, upon condition that if upon examination it should prove unsatisfactory he might return it and receive back his money. In an action against the carrier by the consignor, it was held that the carrier had done. only what by law he was required to do, in giving the consignee an opportunity to examine the coat, and that therefore he was not liable. So, if the consignor attempt to practice a fraud upon the consignee, the carrier may return him his money, even without any agreement or understanding that he "The immense commercial business now transacted in this way can only be protected by this rule, which can be applied without infringing upon any established principle of admiralty, and is fully sustained in the case of The Hardy, decided by Judge Nelson, 1 Dill. 460. The claims so far as proved must therefore be allowed as liens upon the vessel." signee upon an agreement that deliver any other character of money is to be paid upon delivery freight. of the goods. In such case the contract is entirely one of affreightment. The master contracts for a certain sum to be paid as freight to transport the goods to the consignee and transport the money delivered to him by the consignee back to the consignor, or, if the money is not placed upon the vessel by the consignee, to re-transport the goods themselves to the shipper. The duties assumed are entirely those of a common carrier, and a common carrier is as much liable for a failure to transport and deliver money received by him for transportation as he is for a failure to 1. Weikle v. Railway Co., 64 Minn. 296, 66 N. W. Rep. 963. 2. Brand v. Weir, 57 N. Y. Supp. 731, 27 Misc. 212, citing Hutch. on Carr.; Sloan .v. Railway Co., 126 N. Car. 487, 36 S. E. Rep. 21. 3. Lyons v. Hill, 46 N. H. 49. shall do so. As where the consignee was induced by fraudulent representations that he had become the lucky drawer of valuable prizes in a lottery to order them to be sent to him, and a package was accordingly sent to him, with instructions. to the carrier to collect a certain amount of money from him before delivery, on the pretense that this was the amount of discount to which the lottery was entitled, and when the package was opened it was found to contain nothing but waste paper, it was held that the carrier was right in returning him. his money.4 Sec. 734. Same subject-Consignee's right to return damaged goods. By demanding or requesting payment for goods sent C. O. D., the carrier affirms by implication that he has no notice of facts which exonerate the consignee from receiving the goods or making payment for them. But if the carrier has knowledge that the goods have been damaged in transit, and he fails to inform the consignee of that fact, the consignee will be entitled to return the goods to the carrier within a reasonable time after the discovery of such damage and recover back what he has paid; and what will be considered a reasonable time will be a question for the jury. The carrier, however, will have the right to be reinstated in his lien, but he cannot escape repayment to the consignee on the ground. that he has paid the money over to the consignor, unless it appear that notice of the damage was not given him within a reasonable time.5 Sec. 735. (§ 394.) The consignee's right to change the place of delivery-Consignee presumed to be the owner. It has been shown in the last chapters that the owner of the goods may at any time change his instructions to the carrier as to their destination, and may, if he chooses, countermand his previous orders in regard to them; and this he may do at any time during the transit. But the consignee is the presumptive owner, and unless the carrier is advised that the consignor has 4. Herrick v. Gallagher, 60 Mass. 328, 65 N. E. Rep. 375, 59 Barb. 566. L. R. A. 731. 5. Hardy v. Express Co., 182 6. Ante, § 660. |