text:
    Morrow versus Rees.
    1. To sustain an action to recover "back purchase-money on the ground of fraud, there must be an actual rescission by the party defrauded, notice of it to the other party and, unless the subject be utterly worthless, an offer to return it, so as to put the vendor in statu quo.

      2. Evidence for the jury in this case as to rescission.
    October 12th 1871.
    Before Thompson, C. J., Read, A&new, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 167, to October and November Term 1870.
    This was an action of assumpsit, brought March 1st 1867, by James Rees against John Morrow.
    The first count of the declaration averred that the defendant represented to the plaintiff that he was the owner in fee, clear of encumbrances, of an undivided eighth part of a tract of land in Morgan county, Ohio, called the Davis & Porter farm, and agreed to sell.to plaintiff in fee simple one-half of the eighth, for which the plaintiff then paid him $1662.50, for which the defendant was bound to deliver to the plaintiff a deed in fee, clear of all encumbrances, and the defendant had failed so to do; the plaintiff further averred that the defendant was not owner of the one-sixteenth of the Davis & Porter farm, clear of encumbrances, but that there was due by the defendant and others, $15,000 for the purchase-money of the whole farm, for the recovery of which proceedings had been instituted in the Court of Common Pleas of Morgan county, a judgment recovered, and the land sold by the sheriff, which divested the title of the defendant and his co-tenants, and that the defendant therefore was prevented for ever from making a title to the plaintiff; hy reason whereof the plaintiff is entitled to recover back from the defendant the said sum of $1562.50.
    The second count was for $1562.50 money had and received, &c.
    The case was tried March 17th 1870, before Kirkpatrick, J.
    The plaintiff gave in evidence an article of agreement dated February 15th 1865, between Davis & Porter of the one part, and John Morrow (defendant), John Homer, T. W. Fowler and ten others of the other part, by which Davis & Porter agreed to convey the farm mentioned in the declaration in fee to the second party, “ or to such of them as comply with the conditions hereinafter mentioned,” the consideration to be $25,000, viz., $5000 in hand, the remainder in payments of $5000 each, on the 10th days of April, June, August and October, Davis and Porter to make a deed on the payment of these sums; the property to be held in undivided sixteenths, — Morrow the defendant to have one-sixteenth: “ Each shall advance, pay and contribute to said purchase-money his equal share of the same, as required hy the terms above specified; and should any or either of them fail to make good their payments at the times above specified, they shall lose and forfeit all interest in said purchase, and also all interest in any payments previously made without recourse, and the interest so forfeited shall accrue and "go to those who pay up their respective payments of purchase-money. And we do hereby severally authorize- and empower the said Davis & Porter, in case of any such default to he made, to execute and deliver said deed to the parties only who pay up said purchase-money for the entire interest. And we, the said Davis & Porter, hereby appoint and constitute William Burton our agent, to receive the above payments, and his receipt shall be satisfactory evidence of the payment thereof.”
    The plaintiff then gave in evidence the following papers :—
    “ Pittsburg, February 15th 1865.
    “Received of John Morrow, one thousand five hundred and sixty-two dollars, in full for one-sixteenth of the Davis & Porter farm. William Burton, for Davis & Porter.”
    “ Pittsburg, February 16th 1865.
    “For value received, I assign all the benefits of the within receipt to James Rees, for one-sixteenth of the Davis & Porter farm. John Morrow.”
    The plaintiff testified that he paid the plaintiff $806.75 in cash, and $762 by a due-billj these sums including the purchase-money and some expenses. He said also: “Mr. Morrow called at my office and told me he had one-sixteenth of the Davis & Porter farm in Ohio; that he had come into possession of this one-sixteenth by Mr. Fowler being unable to spare the money to pay for it. He wanted me to take it. Told him I did not want it at that time; that I had invested in that kind of stock as much as I could spare for the present. He told me he had purchased that expressly for my use, and paid the cash for it to Mr. Fowler. I asked him to say that upon his word of honor, and I would take it off his hands. I asked him if all of the stockholders had purchased on the same terms, cash, and he allowed that they had, and that I was on the ground floor with the rest of them. He kindly offered to favor me with time on part of it, if I could not spare the money. I accepted that offer, and gave him my due-bill for the balance as above mentioned. He told me I was the owner of one-sixteenth of the whole purchase-money of the farm. After the receipt was given for the purchase-money, he called my attention that there was something to be paid for my share of expenses, and some six or eight dollars were handed to him. Mr. Morrow told me the deed was in the possession of the company, and he would make the representation to the secretary, and have my one-sixteenth properly represented — as to my being an owner of one-sixteenth. He told me who the company were, and I also previously knew it from hearsay.”
    On cross-examination, he said: “ Had a previous conversation with defendant about this same thing. At this conversation previously, I made no complaint to Mr. Morrow, but jocularly remarked to him and Mr. Horner that they had not given me an opportunity to purchase an interest in this farm. Mr. Morrow offered to get me a share, if an opportunity would arise. Told him not to do so, as I did not want any. Morrow told, at the conversation in my shop, that the deed was in the possession of the company. He said this receipt was the same as issued to all the others. * * * The only proof I Had of Morrow reporting me as a,n owner to the.company, was a notice, a month or two after-wards, to attend a meeting of the company, which I did.”
    David Hutchison testified “ that $10,000 of the purchase-money had been paid, each one of the purchasers having paid his proportionate share. The defendant declared in the compa.ny that he had sold his interest, and did not care whether they paid the balance of the purchase-money or not.”
    There was other evidence in corroboration of the plaintiff’s testimony.
    The plaintiff gave in evidence the record of the proceedings in Ohio, under which the land was sold, and rested.
    The defendant testified that he paid the whole amount for his share except $190. He purchased Fowler’s interest, and gave in evidence an assignment from Fowler to himself, and also a receipt from Davis & Porter for $1562 in full for one-sixteenth * * * on account of one share that T. W. Fowler subscribed for on the original purchase.”
    The defendant gave evidence by several witnesses as well as by his own testimony in contradiction of the evidence of the plaintiff. The plaintiff in rebuttal called D. W. C. Carroll, who testified:
    “ I have a very faint recollection of something occurring between Rees and Morrow about this matter in Horner’s office. We had a general war of words between the parties. It was while these meetings were going on. After considerable talking, we all, as one man, charged Mr. Morrow as not acting right towards the stockholders. Can’t remember what was said between Rees and Morrow. The talk was general. To the best of my knowledge, Mr. Rees charged him with a breach of faith in regard to the selling of this one-sixteenth. Mr. Rees understood we were all paying up together, whereas, he was the only one who had paid up. Recollect' nothing else. Both were excited, using strong language. There was a -general difficulty amongst the stockholders at the time.”
    A. Becker testified: “Was present; at the last meeting I attended, general dissatisfaction amongst the stockholders. Rees told Mr. Morrow they had known each other for so long, and he had confidence in his word; but that he had falsely represented the payment of the one-sixteenth of the property. Mr. Morrow told him he had his proper receipt. Mr. Rees' told him it was worthless, and that he would mak.e him suffer for it. They were angry. All were dissatisfied at that meeting.” ' -
    The plaintiff testified: “ Complained to Morrow, at Horner’s office, the first time I heard that this claim was against the property. Asked him for an explanation as to his false representations to me. He said he had paid for the interest in full. Asked him why he had represented the deed in the hands of the company. He made me an indifferent reply, and that brought on angry words. Asked him if he was going to repay me my money. He said he could not do that.”
    The plaintiff submitted, amongst others, this point, which was affirmed:—
    “ 3. If the jury believe, from the evidence, that at the time the plaintiff paid the defendant for said one-sixteenth interest in the land, the defendant stated and represented to the plaintiff that his co-purchasers had paid up their shares in full, and that the company had procured the deed for the same, and that the defendant purchased on said representation, and that said representation was untrue, that then the plaintiff is entitled to 'recover back the purchase-money with interest.”
    The following are points submitted by the defendant with their answers:—

      5, In order to rescind the contract, and enable the plaintiff to recover back Ms purcbase-money, he was bound either to demand a return of his purchase-money, and offer a re-transfer to the defendant of the said one-sixteenth interest in the land, or to give defendant unequivocal notice of his election to rescind the contract ; and this he was bound to do promptly after he had discovered all the facts.
    Answer: “Affirmed.”
    7. The declarations made by the plaintiff to the defendant, at the meeting in August 1865, as testified by Carroll, Becker and the plaintiff, did not amount to a rescission of the contract.
    Answer: “Refused.”
    “We leave it to the jury to say what was intended by Rees, and understood by Morrow, by the conversation had between them on this occasion.”
    8. There is no evidence in the cause of the rescission, or attempted rescission of the contract, until the bringing of this action.
    Answer: “Refused, with qualification given to point seven.”
    9. Upon the whole evidence in the cause, the verdict should be for the defendant.
    Answer: “Refused.”
    The verdict was for the plaintiff for $2044.17.
    The defendant took a writ of error.
    His 1st specification of error was the answer to his 9th point.
    His 4th specification was the answer to the plaintiff’s 3d point.
    His 5th and 6th specifications were the answers to his 7th and 8th points.

      M. W. Acheson, for plaintiff m error.
    A vendee may buy a title at his own risk; and then does not buy the land: Herrod v. Blackburn, 6 P. F. Smith 103. The action to recover back money on a rescission of a contract is equitable, and when oath is opposed to oath the writing must prevail: Horton’s Appeal, 1 Harris 67; Babcock v. Case, 11 P. F. Smith 427. A party to rescind on the ground of fraud must do so at once on the discovery of the fraud: 2 Parsons on Contract 278-279; Kingsley v. Wallis, 2 Shepley 57; 1 Sugden on Vendors 266. And must return the thing purchased: Murphy v. McVicker, 4 McLean 252; Staines v. Shore, 4 Harris 200; Turnpike v. Commonwealth, 2 Watts 433; Pearsoll v. Chapin, 8 Wright 9; Babcock v. Case, supra.

      J. Barton, for defendant in error.
   The opinion of the court was delivered, October 23d 1871, by

Sharswood, J.

It will not be necessary to discuss the several specifications of error on this record in detail. It was an action of assumpsit brought to recover back the purchase-money paid for an interest in a contract for a farm in Ohio, on the ground of fraud. Nothing is certainly better settled in this state than that it is necessary in order to sustain such an action to show an actual rescission by the party defrauded, notice of the rescission to the other party and in general an offer to return the subject, unless indeed it is utterly worthless at the time, so as to put the vendor in statu quo: Pearsoll v. Chapin, 8 Wright 9; Babcock v. Case, 11 P. F. Smith 427 ; Patton v. Burkholder, M. D., May 1871. Opinion filed, October 4th 1871 (antea, p. 248). The plaintiff in error complains in his fourth specification, that the learned judge below in affirming the plaintiff’s third point — in substance that if the jury believed the alleged fraud the plaintiff could recover— overlooked and in effect denied this well-settled rule. If this point had stood by itself it would undoubtedly have left the instruction to the jury open to this objection. But we must take the affirmance in connection with the answers given by the learned judge to the defendant’s fifth and seventh points. By the fifth the defendant requested the court to instruct the jury, that in order to rescind the contract and enable the plaintiff to recover back his purchase-money,,he was bound either to demand a return of his purchase-money and offer a re-transfer to the defendant of the said one-sixteenth interest in the land, or to give defendant unequivocal notice of his election to rescind the contract; and this he was bound to do promptly after he had discovered all the facts.” It is unnecessary to inquire whether under the circumstances of this case, a rescission did not ipso facto revest the interest in the defendant without any re-transfer or return of the receipt. The learned judge without qualification affirmed the defendant’s point, and it surely cannot lie in his mouth to object or to allege that inasmuch as it was in' the alternative it was inaccurate and that the judge should have gone further than he was requested. The answer to the plaintiff’s third point was therefore qualified by the answer to the defendant’s fifth point, and both being taken together there was no error of which the defendant had any right to complain. The law was given to the jury just as he requested it to be. By the seventh point of the defendant the court were asked to charge “ that the declarations made by the plaintiff to the defendant at the meeting in August 1865, as testified by Carroll, Becker and the plaintiff, did not amount to a rescission of the contract.” . This the court refused, but left it to the jury to determine. So that the only question fairly presented upon,this record is whether the declarations here referred to did amount to sufficient evidence of a rescission to be submitted to the jury. Rees, the plaintiff, testified distinctly that in that conversation he asked Morrow, the defendant, if he was going to repay him his money. Morrow said he could not do that. Now this was certainly evidence of rescission. What could be more unequivocal than a distinct demand for tbe return of the purchase-money? Though neither of the other two witnesses testify with the same distinctness to this demand, yet there is nothing in their testimony which absolutely contradicts it, and if there was it would not be any the less a question for the jury. They both agree that the parties were excited and that strong language was used. Carroll says that' Rees charged Morrow with a breach of faith, and Becker says that when Morrow told Rees that he had his proper receipt, Rees replied that it was worthless and that he would make him suffer for it. The question then was fairly and properly submitted to the jury.

The second and third assignments of error have not been pressed, as indeed they could not be with any show of reason, and the remaining ones are disposed of by the considerations which have been presented.

Judgment affirmed.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    McMasters versus The Pennsylvania Railroad Co.
    1. A custom so long persisted in as to be known and practised by a community, is the law of the particular business in which it exists; and the presumption arises that it is in the view of parties who contract abo.ut its subject-matter.
    2. To establish such custom it should be reasonable, continued and acquiesced in by all acting within its operations.
    3. There was a custom that a railroad company should deliver freight on the platform of minor stations, whose business would not justify a warehouse, &e., to be received there by the consignee on discharge from the car. Held, a good custom.
    4. A custom will control the general law of liability of carriers.
    5. To relieve a carrier, the custom must be clearly proved, and that the employer knew it, or is to be presumed to know it, by reason of its generality in the neighborhood.
    6. Distinction between carriage by rail and by wagon or water-craft stated.-
    October 12th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 159, to October and November Term 1870.
    This was an action brought before an alderman, by John H. McMasters against The Pennsylvania Railroad Company, in which judgment was rendered for the plaintiff for $38.81; the defendants appealed to the Court of Common Pleas: in which court the plaintiff declared in assumpsit.
    The facts upon which the plaintiff’s claim was founded were these: On the 5th of August 1868, the plaintiff, through Arbuckles & Co., grocers, delivered to the defendants at their freight depot in Pittsburg a barrel of sugar to be delivered to him at Turtle Creek, a way station, about twelve miles from Pittsburg, on the line of the defendants’ road.
    The receipt from the company was the following:—
    “ Pittsburg, August 5th 1868.
    “ Received of Arbuckles & Co., in good order, by Pennsylvania Railroad,
    MARKS. ARTICLES AND -WEIGHTS.
    J. M. McMasters, 1 bbl. Sugar, 25c. paid. 265 lb.
    Turtle Creek. Meters.”
    The plaintiff proved that he had not received the barrel.
    Samuel Honz testified: “ Sometime about the first week in August 1868, John H. McMasters told me, I think, that there w,as to be a barrel of sugar to come out on the local freight of that morning, and that I should be at the station to attend to it. I went there before the train was due. I was there when the train stopped. There was no sugar put off for McMasters. Anderson, the painter, who lives at Turtle Creek, was there. Charley Markle was there when the train arrived. Mr. Anderson got some house furniture off the train. I attended there several mornings in succession after that; was there the next morning. There was no sugar put off any of the mornings I was there.”
    There was other evidence tending to show that the sugar had not been delivered at the station.

    The defence was that the sugar had been transported on the “Local Freight” train, which stopped at all the stations along the road, and had been delivered at Turtle Creek station, which is one of the minor stations of the company, at which the business is not of sufficient importance to warrant the erection of warehouses, or to have freight agents; that there is a notorious custom, which had been acquiesced in by all persons in the neighborhood receiving freight, to deliver goods at the station without storing them; and that plaintiff had been in the habit of receiving goods in this way for a long time and was aware of the custom and acquiesced in it.
    They gave evidence by the conductor of the “Local Freight” train, that on the manifest were marks showing the delivery of the sugar; that it was delivered on the platform at Turtle Creek.
    The plaintiff asked the court to charge the jury:—
    1. That in the absence of a special agreement to the contrary, and when the goods do not pass into the hands of the consignee or owner on arrival at their destination, the liability of railways as common carriers does not terminate until a reasonable time after unloading the goods upon the platform, within which time the owner or consignee might, by proper watchfulness, have had an opportunity to remove them.
    2. That in the absence of express notice to the consignee of the arrival of the goods, and when the same have not been taken away by him within a reasonable time the liability of a railway in ceasing to be that of a common carrier becomes that of a warehouseman.
    The court (Collier, J.) refused the points “ as not applicable to the undisputed facts of the case.”
    The verdict was for the defendants.
    The plaintiff took a writ of error; he assigned for error the answer to his points.

      R. E. Stewart, for plaintiff in error.
    The responsibility of the carrier, as such, ceases only when he has deposited the goods in a depot of his own, or some other safe warehouse: Redfield on Railways, ed. of 1869, § 175, pl. 7, 8, 11; Thomas v. Boston and Providence Railway, 10 Met. 472; Chicago and Rock Island Railway v. Warren, 16 Ill. 502; Shenk v. Penna. Steam P. Co., 10 P. F. Smith 109; Ostrander v. Brown, 15 Johns. 39. The usage claimed in this case is invalid, as being contrary to public policy: Hemphill v. Chenie, 6 W. & S. 62; C. & A. Railroad v. Baldauf, 4 Harris 67 ; Duff v. Budd, 3 Brod. & B. 177; Cole v. Goodwin, 19 Wend. 251; Eagle v. White, 6 Whart. 505.

      J. Dalzell (with whom was J. H. Hampton), for defendants in error.
    The question as to where the duty of the carrier ends, is one of contract, to be determined from all that was said at the time of the delivery and acceptance of the goods, the course of the business, the practice of the carrier, and all other attending circumstances, as in any other contract, in order to determine the intention of the parties: Southcote’s Case, 4 Reports 84; Mors v. Slue, 1 Vent. R. 238; Gibbon v. Payntin, 4 Burr. 2301; Leeson v. Holt, 1 Stark. R. 186; Nicholson v. Willan, 5 East R. 507 ; Anonymous v. Jackson, Peake’s Add. N. P. Cas. 185; Angell on Carriers 227, 316; Riley v. Horne, 5 Bing. 217; 2 Redfield on Railways, p. 51, pl. 2; 53, pl. 4; F. and M. Bank v. Champlain Transportation Co., 23 Vt. R. 186; Story on Bailments, § 543. If there is any local custom, or usage of trade on the subject, that will govern. The carrier may prove, that the uniform usage and course of business in which he is engaged, is to leave the .goods at his usual stopping-pla ces, in the towns to which they are directed, without notice; and if such usage has been of so long continuance as to justify a jury to find that it was known to the employer, the carrier will be discharged: Angell on Carriers, pl. 316; Gibson v. Culver, 17 Wend. 305; Van Stantwood v. St. John, 6 Hill 157; Beckman v. Shouse, 5 Rawle 179; Bingham v. Rogers, 6 W. & S. 475; Laing v. Colder, 8 Barr 479. From either notice or custom there results a special contract, and under this contract the carrier is an insurer only to the extent of its terms: Farnham v. C. & A. Railroad Co., 5 P. F. Smith 53; Cope v. Cordova, 1 Rawle 203; Hemphill v. Chenie, 6 W. & S. 62; Graff v. Bloomer, 9 Barr 114. A common carrier is not bound to he also a warehouseman: Thomas v. B. & P. Railroad Co., 10 Metc. 476; McCarty v. N. Y. & Erie Railroad Co., 6 Casey 252. Where the carrier is bound to store, when he has provided a warehouse the shipper knows that fact, and thereby there is “ created an expectation” that his goods will be stored a reasonable time, if necessary: 2 Redfield, § 175, pl. 7, 8, 11. The usage proven is reasonable. To apply the same rule of law to a local train, carrying small freight to way stations that is applied to a through train carrying heavy freight in great quantities, from city to city, would work great injustice: Morris and Essex Railroad Co. v. Ayres et al., 5 Dutcher 393.
    The points of the plaintiff were not applicable to the facts of this case: McKnight v. Ratcliff, 8 Wright 156. In this case there was no “ absence of a special agreement;” on the contrary, it was fully understood by each party, shipper and carrier, what was to be his duty, to wit, what in a long course of dealing had always been the duty of each.
   The opinion of the court was delivered, October 30th 1871, by

Thompson, C. J.

The important question of this case is, whether the common liability'bf common carriers, in its application to carriers by rail, has been or is subject to be modified by usage or custom. That it has been materially modified in its application to the mode of carrying from what it was and is, under the old modes of transit by wagons or by water-craft, every one knows. By the former, the carrier’s liability only ceased with a delivery of the goods to the person, or at the residence or place of business of the consignee; and by the latter, on giving.notice of their arrival at the usual place of delivery to the consignee, and care of j the goods for a reasonable time to enable him to take them away. Custom has modified this, as is shown in 2 Red. on Railways 51, 52; 5 Dutcher (1 N. J.) 393; 10 P. F. Smith 109; manifestly because of the inapplicability of the old system to the new mode of transit. Every day the old rule is being gradually modified by contract, usage or notice, to fit it to the new order of business in that line. Indeed, the whole system of the law of common carriers grew out of customs moulded into form and made practical by the courts in England, and hence for a long time, when suits were brought against persons engaged in the carriage of goods and merchandise, the action was called an action upon the custom of the realm. In modern times the practice is to sue upon the contract. It would be strange if the process of improvement by custom and usage is to stop just here and go no further. I regard it as a matter not debateable at this day, that a custom so long persisted in as to be known and practised by a community, shall not become the law of the particular business in which it exists in the community, from which the presumption will arise that it is in the view of the parties who contract about the subject-matter of it, and depend that it will be the interpreter of their contracts whenever they leave room for a resort to it. In other words, where the express terms of the contract do not exclude it, usages of this kind in trade, which have a like effect when clearly established, are generally found in practice to exhibit a superior adaptedness to the convenience and wants of the community to those which are superseded by them, and in this way development and progress results. It is hardly necessary to say that all usages that become customs must be reasonable; for it is not likely in modern times that anything else would be suffered to grow into a custom, nor that it must be continued, for otherwise .it would never become a custom; still both these elements are requisites, and also that they be peaceably acquiesced in by all acting within the scope of their operations. Let us now, therefore, endeavor to apply these generalizations to the case in hand, so far as they are applicable to it.

On the 8th of August 1868, the plaintiff bought a barrel of sugar at the city of Pittsburg, and directed his merchants to ship it to him at Turtle Creek, a way-station on the defendants’ road, some dozen or fourteen miles from the city, the next day. They did so, and paid freight, but the plaintiff never got the sugar, although he sent for it, but from the evidence most likely not on the day it was shipped, but on the second day. It became a question, therefore, on the trial, whether the defendants’ servants actually delivered the sugar on the platform of that station on the day it should have arrived there. The verdict of the jury was a finding that it was so delivered as stated by defendants’ witnesses.

The defendants had no warehouse at that place, and gave no notice to the consignee that the sugar had been delivered at that place, but insisted that it was the custom for consignees to be present themselves, or by somebody for them, to receive goods shipped for them by rail to that place. This custom was testified to by the plaintiff himself, and also by the conductor of the local. freight-train, and the proof was not at all controverted. Was this uncontroverted custom sufficient excuse for the want of ware-. housing, and of notice to the consignee by defendants? The learned judge thought it was, and so instructed the jury, and there was a verdict for the defendants. In other words, he held a delivery on the platform a good delivery under the custom.

That a custom or usage will control the general law of liability of carriers is shown by many cases. I will quote, briefly from a few of the decisions to that effect, as also from some of our most reliable text-writers. Amongst the clearest and strongest of the decisions on the point, is, The Farmers’ and Mechanics’ Bank v. The Champlain Transportation Company, 23 Vt. 186. The question arose on the sufficiency of the delivery of a package of money carried by the transportation company for the bank. The ease was before the Supreme Court of Vermont three times, and that court, says Parsons, in his note to it, “ has uniformly held, that in the absence of any special contract, a delivery to the wharfinger, without notice, if warranted by the usage of the place, was sufficient, and discharged the defendants fiom all liability.” Judge Redfield appends this as a note to section 2, p. 51, 2d volume of his work on Railways, where he says, “ That transportation being confined to a given line, according to the ordinary and reasonable course of business, goods must be delivered and received at the stations of the company.” Angell on Carriers, sect. 316, 3d ed., lays it down thus: “ But the carrier may be permitted to prove that the uniform usage and course of business in which he is engaged is, to leave goods at his usual stopping-places in the town to which they are directed, without notice, and if such usage has been so long continued as to justify a jury to find that it was known to the employer, the carrier will be discharged.” The text of this placitum, is supported to the letter, almost, by the case of Gibson v. Culver, 17 Wend. 305. In that case also, there are two English cases cited, which give very clear countenance to the doctrine announced, namely, Garside v. The Proprietors of the Trent and Mersey Nav. Co., 4 T. R. 581, in which it was held that the usage and course of business were properly received to determine whether the defendants, at the time when the goods were lost, held them as common carriers, or were wharfingers for the plaintiffs. The proof was confined, too, to the course of business of that particular line of stages, and on this ground the cause was determined in favor of the defendants. The other case is Hyde v. Same, 5 T. R. 389, and it was agreed by the judges that carriers by canal must, by the general law, make a personal delivery to the consignee, but that this obligation might be affected by the custom of the trade. This is very clearly shown in Van Santuhood v. St. John & Toussey, 6 Hill 157, where the same doctrine is clearly maintained. Our own case of Cope v. Cordova, 1 Rawle 203, is full to the same effect. Rogers, J., in delivering the opinion of the court, among other things, said: “ If a special verdict had found a uniform usage the one way or the other, we should have held ourselves bound by the custom ; for I fully accede to the principle, that the mode of delivery is regulated by the practice of the place. The contract is supposed to be made in reference to the usage at the port of delivery. But if no usage had been found, we hold it equally clear, that we should be governed by the general custom.” This is a clear recognition of the power of custom to regulate the liability of common carriers, and I need not further multiply cases to prove a matter so consonant to reason as this. The cases cited by the plaintiff in error are good law, but relate to adjudications on the law of carriers, without any reference to the question here, viz., how far it is within the usage and course of business to modify the duties and liabilities of common carriers. But in all cases where this is relied upon by the carrier, the custom or usage must be clearly proved, and that the employer knew it, or is presumed to know it, by reason of its generality in the neighborhood where it is claimed to exist.

The case below was well ruled. Both points, the delivery of the sugar and the custom, were found, on proper instructions, in favor of the defendant. There being no error in the record,

The judgment is affirmed.


author: Sharswood, J.

text:
    Maffitt’s Administrator et al. versus Rynd et al., for the use of Lamb.
    1. Although a conveyance of land with a parol trust to hold for the benefit of the grantor be not enforceable under the Act of April 22d 1856, yet a parol declaration of trust by the grantee after its conversion into money, will impress the proceeds with the trust.
    2. The act does not raise a bar to enforcing a parol declaration of trust as to personal estate.
    3. Creditors of a debtor bought real estate in their name under a mutual agreement that the debtor should take charge of it at a salary, and when their advances and debts should be paid from it, the surplus should be the debtor’s. It was afterwards conveyed to Maffitt, he agreeing by parol to hold it upon the same condition. The real estate was sold and a surplus remained, which Maffitt acknowledged was subject to the trust. Held, that from this, the law implied a promise by Maflitt to pay the debtor.
    4. Notwithstanding the Act of 1856, an absolute deed can be shown by parol to have been a mortgage.
    5. A mortgage may be given to secure future advances, whether for the mortgagor or third persons.
    6. Suit was brought by the debtor against Maflitt: during the trial the court allowed an amendment by inserting the names of the creditors “ to the use of ” the debtor. Held, not to he error.
    7. The refusal of the court to grant a continuance on an allegation of surprise on account of the amendment, is not reviewable in the Supreme Court.
    8. When an amendment in the names of the parties is allowed after the jury are sworn, they should be resworn according to the amended condition of the record.
    October 13th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 189 to October and November Term 1870.
    This was an action of assumpsit brought April 2d 1869, by Lewis Lamb against Minas Tindle, administrator, &c., of John Maffitt, deceased, and James Old, surviving John Maffitt, late partners as Maffitt & Old.
    The claim of the plaintiff was, that having been in embarrassed circumstances, certain of his friends, who were also his creditors, desiring to do something for his benefit, advanced money and purchased real estate to set him up in business in a planing-mill, for conducting which he was to receive a salary, and after their advances and his indebtedness to them should be paid, the property purchased should be for his benefit. By changes in the original arrangement, detailed in the evidence, the real estate was conveyed to Maffitt & Old, by absolute deed, with the understanding that they should carry out the original agreement; they ¡.sold the land, leaving a surplus, after paying the liabilities, amounting as he alleged to about $3400, of which he had received $1700 or thereabouts from Old. This suit was brought to recover the remainder. Maffitt died in 1866.
    The case was tried November 10th 1869, before Kirkpatrick, J.
    The plaintiff gave in evidence an agreement, dated January 1st 1857, viz.: — ■
    “ Whereas, Lewis Lamb is indebted to the undersigned persons in various sums of money, and is unable to pay the same; and the undersigned, a portion of his friends and creditors, desire to furnish the said Lewis Lamb with employment by means whereof he may support his family, do hereby agree to and among ourselves, and to and with the said Lamb, as follows, viz.: That in addition to said Lamb’s present indebtedness to us, we will advance an additional amount, so that Brewer, Rynd & Co.’s, Maffitt, Old & Bailiff’s, J. & A. Patterson’s, J. & H. Forrester’s, Wm. P. Eichbaum’s, Robert H. Davis’s, William Stroud’s entire claims shall be, &c., (setting out each claim).
    “ The money so advanced shall be vested in the purchase or lease of a certain lot or lots in Allegheny City, and in the erection of a building and machinery thereon suitable for a planing-mill, to be called the Union Planing-Mills, wherein shall be carried on the usual business that appertains to a planing-mill; that said Lewis Lamb shall have the management thereof at a compensation of $500 per year, he giving his undivided attention to the business, and * * * be subject to the absolute control of a committee, to be appointed by the parties thereto. The said Lewis Lamb shall keep a correct account of all the receipts and expenses of the concern. * * * At the end of every six months from the first day of January 1857, and oftener, if required by the committee, he shall render a just and true account of all the receipts, expenses and disbursements * * * that it may be ascertained if it be for the interest of the parties furnishing the means to continue the business, and if a majority in interest of the parties shall decide that it is not for their interest to continue, then the business shall be closed, and all the property sold off to the best advantage, and after paying all debts the proceeds divided fro rata, according to the sums which each :may have in the concern as heretofore stated. In case of any profits having been made, they shall be divided from time to time in the same pro rata proportion. * * * In case the parties who shall have furnished means to carry on said business, shall have received from the profits of the concern moneys sufficient to repay them the entire amount of their advancements, together with the amount of said Lamb’s indebtedness to them, including all interest on said amounts, then they will convey to Monila, the wife of said Lamb, their entire interest in the concern. The general supervision of the concern shall be under a committee of five, which, until otherwise directed, * * * shall consist of James B. Rynd, R. II. Davis, James Old, W. P. Eichbaum, and A. Patterson, to whose direction the said Lamb shall always be subject, and for any sufficient cause he may be dismissed from employment altogether.” * * *
    James Rynd, one of the parties, testified for the plaintiff: That the company purchased three lots and erected on them a planing-mill with the machinery; it was called The Union Planing-Mill. It was arranged that A. Patterson, one of the parties, should take charge of the mill; Lamb’s son was to go in with him, and Lamb himself was to attend to it. Afterwards (about April 1862), the other parties bought out Patterson for $3000.
    On the 19th of May 1863, they conveyed the real estate to James Maffitt and James Old, by absolute deed in fee-simple.
    This deed being given in evidence, the plaintiff offered to prove, that it was in fact a'mortgage and was made as security for the payment of all the debts of Lamb; and that the surplus money was to be for him, and that the deed had been given and received for that purpose. The defendants objected to the offer, as being incompetent of proof by parol; it was admitted by the court and a bill of exceptions sealed.
    The witness said :—
    “My understanding was and is up to this day, from the parties and the tenor of the transaction, not from Mr. Maffitt, Old seemed to be the representative of Maffitt & Old; that Mr. Maffitt was to take this property and pay off Mr. Patterson, and carry it on for Mr. Lamb; we did not want Mr. Lamb to appear in it; he had been burnt out, and there were many small debts, and we wanted to keep the control of it, and after the debts were paid to transfer the property to Mrs. Lamb, as we supposed these small debts would follow Lamb; I suppose he has paid the most of these debts during our administration; the concern was burnt down after this deed was made; Lamb gathered up the old materials and made about $1000 out of it, which he paid to Mr. Old; those carrying on the business got the insurance of the concern about $4O0O; we came to the conclusion that Mr. Patterson was not carrying on the business profitably, and we concluded that one person should take the concern; Mr. Old finally agreed to take the concern and run it on for the benefit of Mr. Lamb; of course he was to be protected as to bis $3000, paid to Patterson; after be was paid I don’t know what was to be done with tbe property; Maffitt, Old and Bailiff were in partnership at tbe time of this agreement; Old represented tbe firm; tbis arrangement was for the purpose of paying tbis indebtedness, and after it was paid off the balance was to go to Mrs. Lamb; it was to protect bim from bis outside creditors; * * * Mr. Old took tbis conveyance wdth the understanding that be was to pay off A. Patterson; my understanding was that tbe business was carried on for tbe benefit of Mr. Lamb; * * * I think tbe last account there was something yet due tbe firm of Brewer, Rynd & Co., which I made a gift of to Mr. Lamb; I have no claim on Mr. Old or Mr. Lamb now.”
    James Old testified under objection and exception: “ Lamb was not indebted to us at tbe date of tbis agreement; one object of entering into this agreement was to dispose of some trade we bad; another object was to assist bim; Maffitt and Old furnished bim an engine about 1857 or 1858 ; amount $1250; tbe maker charged Maffitt & Old, and we charged the Union Planing-Mill; anything we furnished to that mill was charged in that way. Mr. Lamb hadn’t succeeded, and tbe Union Mill was embarrassed; after consultation we signed all our claim against tbe mill to A. Patterson and L. Lamb; we deferred giving tbe deed until be bad lifted the obligations, and I talked to Mr. Maffitt and we purchased from Mr. Patterson; a deed was made from Rynd and others to us, with tbe understanding that when we got our money back we would transfer it over to Louis Lamb ; shortly after this arrangement tbe mill burnt down, and we drew the insurance; we agreed to sell tbe lot to the Pittsburg and Connellsville Coal, Coke and Gas Company; I sold tbe lot for $3000, viz., $2000 in mortgage and $1000 in stock of company; Mr. Tindle has since received the money on the mortgage; Mr. Maffitt was charged with the stock; Mr. Maffitt and I agreed to this arrangement, and we agreed to transfer tbe property after we were paid to Mr. Lamb; the understanding when we took tbe property was that we were to take tbe property, and when we got our money back then transfer tbe balance to L. Lamb; we bad two accounts, one against tbe Union Mill and tbe other against L. Lamb; Maffitt & Old have been paid tbe amount advanced by them. This understanding was between Mr. Maffitt, Mr. Lamb and myself, before tbe deed, was made; Mr. Lamb paid no money for tbis deed; we receive no consideration from Mr. Lamb for tbis; understanding it was entirely gratuitous on our part and for the purpose of saving ourselves; * * * it was worth double the amount; we bad no understanding with-Rynd and tbe grantors in tbe deed that after we bad been paid the amount we advanced and the amount we paid to Patterson, that we would transfer tbe surplus to Mr. Lamb, except that I stated to them we would do that; there was no indebtedness at that time except the amount of Mr. Patterson’s claim to the amount of $3000, which we agreed to pay and have paid, as the consideration of this conveyance; at the time this deed was made neither the Union Mill nor Lamb owed us anything; we had surrendered all claims against it on condition that Mr. Patterson would pay the claims against the mill; there was no indebtedness to us except the $3000 which we agreed to pay Patterson as the consideration for the deed.”
    He testified that there was an indebtedness of about $700 against the mill, incurred under the management of Patterson and Lamb, against which, Maffitt & Old agreed to indemnify Patterson before he would join in the conveyance to them; this was an after consideration of Patterson, after all the terms and conditions for which the conveyance was to be made had been agreed to.
    The witness further said that Lamb was present at the arrangement for the sale to Maffitt & Old,* and knew all about it, and that Maffitt assented to it; that the deed was taken by Maffitt & Old on the conditions stated, “ to be carried out in good faith ;- * * * I have paid Mr. Lamb something over $1700 on this claim sued on in this action; what I supposed to be my proportion * * * the balance coming to him is $1719.42.”
    There was much other evidence from the parties to the agreement of 1857, substantially the same as that of the preceding witnesses; that the whole understood object of the conveyance to Maffitt & Old was to carry out the original agreement.
    After much of the evidence had been received, the plaintiff moved to amend the record so as to read “James Rynd (and the other parties to the agreement naming them) to the use of Lewis Lamb.” The amendment was allowed, against the objection of the defendants. The defendants alleged surprise and asked a continuance, which was refused. A bill of exceptions was sealed for the defendants.
    There was evidence of repeated acknowledgments by Maffitt to Oscar Lamb (the son) and others, after the sale of the property, that there was a surplus which belonged to Lamb, and of Maffitt’s promises to pay this surplus.
    The defendants gave in evidence an agreement, dated June 4th 1863, by which Maffitt & Old agreed to indemnify Patterson against all liabilities of the planing-mill.
    The defendants submitted a number of points, involving the questions : 1. Whether since the Act of April 22d 1856, § 4 (Pamph. L. 533, Purd. 497, pi. 3), an absolute deed can be shown by parol to be a mortgage, and 2. Whether there was sufficient evidence for the jury that the deed to Maffitt & Old was a mortgage. The court decided both these questions against the defendants.
    The verdict was for the plaintiff for $1738.61, subject to the question reserved: “ Whether or not the plaintiff is precluded from his recovery by virtue of the provisions of the 4th and 6th sections of the Act of 22d of April 1856.”
    The court afterwards entered judgment on the verdict for the plaintiff on the reserved point.
    The defendants took out a writ of error.
    They assigned 15 errors; 13 related to the rulings of the court on the trial as to evidence, and the points submitted; the 1st was ordering the amendment of the record, and the 15th was the entry of judgment for the plaintiff on the reserved question.

      W. W. Thomson and R. Reed, for plaintiff in error.
    The deed to Maffitt & Old was not a mortgage, but a deed of trust: 2 Black. 157; 1 Hilliard on Mortgages 2, 362, 366; 1 Washburne on Real Prop. 475-495, 553-554; Coote on Mortgages 514; Taylor v. Cornelius, 10 P. F. Smith 187; McMenomy v. Ferrers, 3 Johns. R. 71; Hewitt v. Huling, 1 Jones 27. Since the Act of 1856 a trust in lands can be proved in no other way than by writing; Barnet v. Dougherty, 8 Casey 371; except in the case of resulting trusts, raised from fraud in obtaining the title, or from payment of the purchase-money: Kellum v. Smith, 9 Id. 158.

      J. H. Hampton (with whom were J. Dalzell and A. H. Miller), for defendants in error.
    Maffitt & Old, having got the title to the property, under the terms of the verbal agreement, cannot now defend solely upon the ground that the deed is absolute on its face. It was proved that the surplus, after payment of the debts, was to be held in trust for Lewis Lamb: Todd v. Campbell, 8 Casey 250; De France v. De France, 10 Id. 385; Beegle v. Wentz, 5 P. F. Smith 369; Williard v. Williard, 6 Id. 119; Clark v. Trindle, 2 Id. 492; Stoever v. Stoever, 9 S. & R. 434. They cited also Holdship v. Patterson, 7 Watts 547; Norris v. Johnston, 5 Barr 287; Eyrick v. Hetrick, 1 Harris 488 ; Rees v. Livingston, 5 Wright 113.
   The opinion of the court was delivered, January 9th 1872, by

Sharswood, J.

This case might have been presented to the court and jury on the trial below in a way which would have precluded all question. Had the offer of the parol evidence in regard to the alleged trust or mortgage (in whichever light the transaction might be viewed) arising on the conveyance from James Bynd and others to Maffitt & Old, dated May 19th 1863, been as introductory only to evidence with which it was to be followed, that after Maffitt & Old had sold the land to the Pittsburg and Connellsville Coal, Coke and Gas Company on the 5th of January 1865, and received in payment $1000 in stock of the company, and their mortgage on the property for $2000, they sevei’ally and distinctly acknowledged that they held the personal property into which the realty had thus been converted for Louis Lamb — that it was his property — there would have been no doubt to raise about its admissibility. For assuredly it cannot be disputed that if a deed of land be made to A. and B. upon a parol trust that they will hold for the benefit of the grantor, or a third person — which parol trust cannot be enforced against the land, in consequence of the 4th section of the Act of April 22d 1856, Pamph. L. 533 —yet if they sell the land and convert it into money, a parol declaration made by them, subsequently to such sale and conversion, will be entirely effectual. The statute raises no bar as to the enforcement of a parol declaration of trust in respect to personal estate. From the acknowledgment that the personal property realized from the sale belonged to Louis Lamb, the law would imply a promise, supported by the moral obligation, resulting from the original engagement, to pay the money when its actual conversion into money took place to him, or to the grantors in the deedlo them, for the use and benefit of whoever might be beneficially entitled thereto. If the case had been made to turn upon this state of the facts, instead of drawing in other questions really extraneous, there never was a clearer or more conclusive one upon all the evidence, and that without contradiction, submitted to a jury. James Old, one of the defendants called by the plaintiffs to the witness stand, acknowledged the trust, and testified that he had paid to Louis Lamb his half of the money, the proceeds of the land. If James Maffitt had been living he would doubtless have done the same, but unfortunately he was deceased, and his administrator thought it necessary for his own protection to make this defence, and to remove the cause to this court for review. Oscar Lamb, however, testified to Mr. Maffitt’s distinct and clear acknowledgment to him after the sale to the coal company, “ that the surplus arising from the sale of these lots, after the mortgage was paid, and the Patterson debt was paid, belonged to my father; he once offered to transfer this mortgage to my father, and he offered at one time to pay in the stock of this company ; he always acknowledged there was a balance coming to my father, at least the amount of the sales of these lots, $3000 ; he acknowledged it at least six times.” There was no evidence in the cause, from the beginning to the end, which cast a shadow upon this testimony, but everything sustained and confirms it.

We must deal with the case, however, as presented on the record, and determine whether the learned judge below committed any error of which the plaintiffs have the right to complain. Fifteen errors have been assigned, but it will be found that they may all be disposed of by the consideration of two questions. First, whether since the Act of April 22d 1856, an absolute conveyance can be shown by parol evidence to have been a mortgage ? Second, whether the evidence in this case-was sufficient to submit to the jury that the deed of May 19th 1863 was a mortgage ?

As to the first of these questions, it is to be observed that in England, where the 7th and 8th sections of the statute 29 Car. II., cap. 3, are almost literally identical with the 4th section of the Act of April 22d 1856, it has always been considered not to be inconsistent with their provisions to show by parol evidence that an absolute deed was intended by the parties as merely a security for the payment of money. In truth, in every instance in which this is made to appear, there is necessarily implied an agreement by the grantee to execute a written defeasance, whenever required, and this is ruled in several of the earlier cases to be a sufficient ground for the interposition of a court of equity: Maxwell v. Montacut, Prec. in Ch. 526; Walker v. Walker, 2 Atk. 99; Johnes v. Stytham, 3 Id. 389. Other authorities are collected in 3 Leading Cases in Equity 608, 628, by Hare and Wallace, where the learned American editor discusses the question. In Russell v. Southard, 12 How. 139, Mr. Justice Curtis, delivering the opinion of the Supreme Court of the United States, remarks: “ To insist on what was really a mortgage as a sale is in equity a fraud, which cannot be successfully practised under the shelter of any written papers, however precise and complete they may appear to be.” And again: “It is the doctrine of this court, that when it is alleged and proved that a loan on security was really intended, and the defendant sets up the loan as a-payment of purchase-money, and the conveyance as a sale, both fraud and a vice in the consideration are sufficiently averred and proved, to require a court of equity to hold the transaction to be a mortgage.” It cannot be maintained, therefore, that the Act of April 22d 1856 has made any alteration in what has always heretofore been the established rule on this subject in Pennsylvania, where equity is part of the law, whether administered through common-law forms, or by bill and answer: Wharf v. Howell, 5 Binn. 499; Kunkle v. Wolfersberger, 6 Watts 126; Morris v. Nixon, 1 How. (S. C.) 118; Todd v. Campbell, 8 Casey 250; Rhines v. Baird, 5 Wright 256.

The second question presents no real difficulty. It appears to have been assumed by the learned counsel of the defendants below in their points in writing presented to the court, that unless the grantors in the conveyance of May 19th 1863 were indebted to the'grantees it could not be a mortgage, but could only be a trust, which, not being manifested by writing, was utterly void by the act. But this was evidently a mistake. It has been long settled that a mortgage may be executed to secure future advances, and it matters not whether such advances be for the use of the mortgagor or of a third person: Lyle v. Ducomb, 5 Binn. 585; Irwin v. Tabb, 17 S. & R. 419; Garber v. Henry, 6 Watts 57. The conveyance by Rynd and others to Maffitt & Old, was to secure them for the $3000 paid to Patterson for his interest in the Union Planing-Mill Company, some $700 which Mr. Lamb was indebted to that concern, and $1250 of an old indebtedness of Mr. Lamb to Maffitt & Old, which they had released without payment, and they were to hold the property until they realized their entire money out of it. The mortgagors were trustees for Mr. or Mrs. Lamb by the written agreement which had been previously executed between the parties, of which Maffitt & Old had full notice. So far as the question before us is concerned, it matters not whether the trust was for Mr. or Mrs. Lamb. We think there was evidence which justified the learned judge in leaving it to the jury to determine whether the deed of May 19th 1863 was or was not a mortgage.

There was no error in allowing the amendment in the names of the parties: Lycoming County Mutual Ins. Co. v. Schreffler, 8 Wright 273; Barnhill v. Haigh,'3 P. E. Smith 165; Downey v. Garard, 12 Harris 52; Walthour v. Spangler, 7 Casey 523. If the defendants were taken by surprise and were not prepared to meet the case in this new aspect of it, they rightly applied for a continuance, but the refusal of it is not reviewable here. It seems, however, proper to remark, that wherever an amendment is allowed in the names of the parties, after the jury have been sw.orn, it is the most regular practice to re-swear the jury according to the amended style of the action.

Judgment affirmed.


author: Williams, J.

text:
    McGregor and Wife versus Sibley & Stoops.
    1. M., a married woman, had been selling sewing-machines as agent for H.; her husband transferred her personal property as his own to H. in payment of her debt to him; he sold to S. In a suit by M. against S. for the value of the property, she testified that II. had said to her that he wished her to continue in the business, would give her credit, &c. Evidence of subsequent expressions of dissatisfaction by II. as to the amount of indebtedness, not in her presence were not evidence in contradiction.
    2. After the sale by II. to S., M., who had not before known of the sale to H., saw S. in possession of the goods, and was informed of the sale to him without being informed that he had not then paid for them. She did not inform him that she owned the goods. Held, that she was not estopped from claiming them afterwards.
    3. Whether she would have been estopped had she then known that they were not paid for: Dubilatur.

      4. When points are submitted without evidence to sustain them, the court should decline them; or if answered, the jury should be told that they had no application to the facts.
    5. Harden v. Hays, 9 Barr 151; Neely v. Neely, 5 Harris 227, distinguished.

      October 13th 1871.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 90, to October and November Term 1870.
    This was an action of assumpsit by E. R. McGregor and Ann M. McGregor his wife, in her right, against John J. Sibley and Nesbit D. Stoops, commenced to April Term 1869.
    The action was brought to recover the value of a number of sewing machines and other articles, claimed by Mrs. McGregor to be her property, which had been sold by her husband to the Home Sewing Machine Company and by them to the defendants.
    The cause was tried June 22d 1870, before Sterrett, P. J.
    Mrs. McGregor testified, that she had separate estate from her grandfather and mother, amounting to about $3000; that in January 1862, she paid to Elias Howe and A. B. Howe, then partners, $500 for the privilege of selling their sewing machines; she opened establishments in Pittsburg for the purpose, and furnished them at an expense of several hundred dollars, from her own means. She bought machines and made money as long as she could get machines and the profits went into the business; the signs and business cards were in her name; both Elias and A. B. Howe knew whose business it was, and with whose capital it was carried on. They separated, and the Howe Sewing Machine Company was formed; Elias Howe was the president; he told her she could get machines from the company, as she had been getting them before; and if she had not money enough, he would furnish her machines on credit; he knew she was a married woman; she continued in the business selling machines; having made an arrangement with Mr. Howe to furnish her machines from the company; she was kept from her store about ten days by sickness, and went there on the 17th of February 1868, to see Mr. Stock-well, the secretary of the Howe Company, who expressed his gratification “with things as they were.” In consequence of sickness she was not back at the store until the 27th, when she found Stoops, one of the defendants, in possession; she had no knowledge of his being in possession or contemplating it, until she then found him there; after that Sibley & Stoops were in possession. She demanded the delivery of the goods to her; told Stoops everything belonged to her.
    On cross-examination, she said her husband was her agent, and got his support out of the business; she employed agents to sell the machine, who reported sometimes to her husband and sometimes to herself; she made report to the company through her husband; she never heard of a sale or transfer till the 27th of February.
    McGregor testified that he had no interest in the business, but carried on the correspondence sometimes in his wife’s name and sometimes in his own; the correspondence with Howe was in his own name. On the 18th of February 1868, there was a change; Stock-well, secretary of the Howe Company, made an arrangement about the continuation of the business, Mr. Howe having died. Stock-well said it was necessary to put things into a different shape, so as to settle up the estate; the books were looked over, the indebtedness to the company and the‘ assets to meet it; the proposition was made to give them security for the indebtedness; these assets were offered as security by myself. * * * In order to make the security valid a bill of sale was necessary of the whole assets; this bill of sale I executed. By the direction of Mrs. McGregor I had supervision of the business.”
    The plaintiffs gave other evidence for the purpose of showing Mrs. McGregor’s ownership, and that the business was transacted in her name.
    For defendants, Stockwei* testified that the company never did business with Mrs. McGregor, but always with Mr. McGregor; the company’s books showed that the accounts were in the name of Mr. McGregor. In February 1868, he was at McGregor’s establishment and examined the books; they owed the company $7300; the inventory was taken by McGregor; Mrs. McGregor was there part of the first day and helped make the inventory; the bill of sale was made next day; McGregor was left in charge of the store; witness returned in a week with Stoops, who came for the purpose of buying the store; he bought the stock; Mr. McGregor was informed of the sale to Sibley & Stoops. Witness had exhibited the trial balances at different times to Mr. Howe, who knew the business was carried on in the name of Mr. McGregor.
    Defendants proposed to prove by the witness that he prepared monthly statements of the business of the company, including account of E. R. McGregor, which were exhibited to Elias Howe, president of the company, each month up to the time of his death, for examination and inspection, that upon such inspection the said Elias Howe expressed dissatisfaction with the account of E. R. McGregor having been permitted to swell to so large an amount, and directed it to be settled up.
    This for the purpose of contradicting that part of the testimony of Mrs. Ann M. McGregor, in which she testifies to the knowledge of Elias Howe, that the business was carried on in Pitts-burg by her with her own means, as well as that portion of her testimony in which she testifies to the willingness and agreement of the said Elias Howe to extend or enlarge the credit previously given. '
    This offer was objected to by the plaintiffs, on the ground that it is not competent to give in evidence any alleged declarations of Elias Howe made in the absence of plaintiffs.
    The evidence was admitted and a bill of exceptions sealed.

      On the cross-examination he said that Mrs. McGregor was at her store on the 18th and 19th of February 1868, whilst witness was there; she assisted in counting the needles.
    E. Veech, Esq., testified that Mrs. McGregor was present on the 26th of February, when the bill of sale was made to the defendants; she claimed nothing at all; Mr. McGregor in her presence said that the goods were his; she knew all about the transaction; she made no objection; there was a note taken from Mr. McGregor to the defendants for the amount due to The Howe Company; and the amount of the stock was credited on the note. There was other evidence of Mrs. McGregor’s presence on the 26th of February, and that she did not claim to own the goods. Also, that Mrs. McGregor had kept an account with Holmes & Sons, bankers, until May 1st 1866, and that Mr. McGregor opened an account with the same bankers on the 11th of August 1866, which was closed in March 1868.
    The defendants gave in evidence the bill of sale, dated February 19th 1868, from Mr. McGregor to The Howe Company, for the goods, furniture and fixtures of the establishment, piano, &e., also “all bills due me” for sewing-machines sold. The schedule of the articles annexed, showed a number of sewing-machines, with their fixtures, furniture of the establishment, &c.; it amounted to $2885.57; they were sold to the defendants for the same sum.
    The following were points of the defendants:—
    4. Mrs. McGregor must satisfy the jury, that the business was carried on for her sole use and benefit, by and in the name of her husband, with the knowledge and consent of The Howe Machine Company; and the mere fact that Elias Howe, president of the company, was informed that she had invested money in the business, will not entitle her to recover.
    5. If the jury believe that E. R. McGregor was the general agent of his wife to buy and sell goods and pay the indebtedness thus incurred by her, and that she held him out as her general agent, and that in pursuance of this agency, he transferred the machines and other articles purchased from The Howe Machine Company, to the company in part payment of her indebtedness to said company, then, so far as regards said machines, needles, &c., she cannot recover in this action.
    7. Even should the jury believe that Mrs. McGregor had no knowledge of the purchase by defendants from The Howe Machine Company, until the morning of February 27th 1868, yet if she then knew of the same, and did not then notify the defendants, or either of them, until the commencement of this action, of her claim to the goods, but permitted them to take possession and control of the same, she cannot recover in this action.
    8. Even should the jury believe that until the 11th day of August 1866, Mrs. McGregor carried on business in her own name, and for herself, yet if on that date, there was a change, and thereafter the business was carried on for the benefit and behoof of E. R. McGregor, and in his own name, and that under these circumstances, the goods were sold' to defendants, then the plaintiff cannot recover in this action.
    The court answered the 4th point as follows:—
    “4. This point is affirmed. If she merely informed the president of the company that she had invested money in the business, without more, this would not be sufficient notice to the company, that the business was being carried on as her own, with her own separate means.”
    The other points were affirmed without qualification.
    The verdict was for the defendants.
    The plaintiffs removed the record to the Supreme Court, and assigned the admission of defendants’ offer of evidence, and the answers to the points for error.(

      B. F. Lucas (with whom was A. &. Lucas), for plaintiffs in error.
    There was no evidence of which the defendants’ 4th and 8th points could be predicated and an affirmative answer should have been refused: Covert v. Irwin, 3 S. & R. 283; Fox v. Union Academy, 6 W. & S. 353. As to the 5th point; although her husband might have been her agent in conducting the current business, he was not authorized to sell the whole establishment: White v. Cooper, 3 Barr 130; Kerns v. Piper, 4 Watts 222; Baring v. Peirce, 5 W. & S. 548.

      D. Watson (with whom were D. H. Veech and Veech), for defendants in error.
    Whenever knowledge of a party or want of the same becomes a material fact, his acts and declarations are admissible: Lobin v. Walkinshaw, 1 McAllister 186. Where one party has shown declarations to bring home knowledge, the other may rebut by the same kind of evidence: Neely v. Neely, 5 Harris 227 ; Harden v. Hays, 9 Barr 151. Mrs. McGregor was bound to inform the defendants: Pearsoll v. Chapin, 8 Wright 9; Beaupland v. McKeen, 4 Casey 124; Lewis v. Carstairs, 5 W. & S. 205; Commonwealth v. Moltz, 10 Barr 527.
   The opinion of the court was delivered, October 30th 1871, by

Williams, J.

The ex parte declarations of Elias Howe were clearly inadmissible for the purpose of rebutting the testimony of the plaintiffs. They did not necessarily or directly tend to contradict any portion of her testimony. He may have been informed that the business was the plaintiff’s, and that it was carried on with her own means, and he may have promised that if she had not money enough he would furnish her machines on credit; and yet subsequently, on inspecting the monthly statements of the business of the company, including the account of E. R. McGregor, he may have expressed his dissatisfaction that the account had been permitted to grow to so large an amount, and directed it to be settled up. There is no necessary contradiction or inconsistency between the two statements. But if they were utterly irreconcilable it would not be competent to give in evidence his subsequent declarations in the absence of the plaintiff, for the purpose of contradicting her testimony: Gordon v. Bowers, 4 Harris 226; Graham & Co. v. Hollinger, 10 Wright 55. Such declarations do not come within any of the recognised exceptions to the general rule, which rejects all hearsay reports of transactions, whether verbal or written, given by persons not produced as witnesses. The utmost extent to which the exceptions have gone, is the admission of the declarations of a deceased subscribing witness' to a deed or will: Harden v. Hays, 9 Barr 151; and the declarations, in a lucid interval, of a subscribing witness to a note, who was insane at the time of the trial (Neely v. Neely, 5 Harris 227), in disparagement of the evidence afforded by their signatures. But there is a palpable distinction between such declarations and those which were admitted in this case. To sanction their admission would amount to a repeal of the rule which forbids the introduction of hearsay evidence.

There was no error in answering the defendants’ 4th and 8th points in the affirmative, if nothing more than their affirmance as mere abstract propositions was intended. But if the court, as the plaintiffs in error contend, submitted the facts upon which the points were based to the determination of the jury, then the answers were practically erroneous, for there was no evidence, so far as we discover, to sustain the facts as hypothetically stated in the points. The court may not have intended by the answers anything more than an affirmance of the points as abstract propositions, but by their unqualified affirmance the jury may have understood the court as intending to leave the facts on which they were based to their determination. "Where points are -submitted without any evidence to sustain them, they should be declined by the court, or, if answered, the jury should be told that they do not arise out of the evidence, and have no application to the facts in controversy between the parties. The defendants’ 5th point was rightly affirmed, and the question raised thereby was properly submitted to the jury. If E. R. McGregor was the general agent of his wife, to buy and sell goods and pay the indebtedness thus incurred by- her, and if, in pursuance of this agency, he transferred the machines and other articles purchased from The Howe Sewing Machine Company to the company in part payment of her indebtedness, is it not clear that, so far as regards the machines and other articles so purchased and transferred, there can be no recovery by the wife in this action ?

But there was error in charging the jury, as requested in the defendants’ seventh point, that if they should believe that Mrs. McGregor had no knowledge of the purchase by defendants from The Howe Machine Company until the morning of February 27th 1868, yet if she then knew of the same, and did not. notify the defendants or either of them, until the commencement of this action, of her claim to the goods, but permitted them to take possession and control of the same, she cannot recover in this action. The defendants purchased and took possession of the goods in controversy on the 26th of February, and there is not a particle of evidence that the plaintiff knew that the defendants did not pay for the goods at the time of the purchase, if such was the fact, nor is there any evidence that they have paid anything on account of the price of the goods since the plaintiff had notice of their purchase. How then is she estopped, by her failure to notify the defendants of her claims, from asserting title to the goods ? If the defendants have not been prejudiced by her silence, why should they be allowed to set it up as a bar to her claim ? It is by no means clear that the plaintiff would be estopped from claiming the goods if the defendants had shown that they paid for them after she had notice of the sale. If there is a recovery by the plaintiff on the ground of ownership, the defendants may have recourse to The Howe Sewing Machine Company, on the implied warranty of title in the sale of the goods. And if so, what right have they to complain of the plaintiff’s silence? But however this may be, it is clear that the plaintiff is not estopped from asserting her claim, unless it is shown that she has done or omitted something to the prejudice of the defendants.

Judgment reversed, and a venire facias de novo awarded.


text:
    The American Express Co. versus The Second National Bank of Titusville.
    1. Common carriers cannot so limit their liability by special notice or contract, as to relieve themselves from the consequences of their own or their servants’ negligence.
    2. If a common carrier fails to deliver property safely at its destination, the burden is on him to prove that it was not lost or injured whilst in his custody.
    3. An express company received a package of money from a bank at Titusville to be transmitted to Lancaster, jn their printed receipt, they undertook to “forward to the nearest place of destination reached by this company.” By conditions printed with the receipt, they were not to be liable “ except as forwarders only, * * * or for any default or negligence of any person or corporation to whom” the package should be delivered, “at any place of the established route run by this company,” and such person, &e., was to be taken to be the agent of the consignor. To reach Lancaster the package was carried by three other express companies. The consignee at Lancaster refused to receive it, and directed it to be returned to Titusville, to which place it was carried by the same routes. On its arrival there it was found that part of the money had been abstracted. Held, that at most the company were liable as carriers only to the end of their own route, and afterwards were forwarders, responsible only for reasonable care and diligence in selecting proper carriers.
    4. The burden was not upon the company to prove when, where, or by whose negligence the package was lost.
    5. The contract in the conditions of the receipt was not unreasonable or unlawful.
    6. Forwarders are not insurers as common carriers; they are liable as an ordinary bailee for hire, who need only satisfy the jury by the best evidence in his power of his care and fidelity; and that the loss was not from default of himself or servants.
    October 16th 1871.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Grawford county: No. 48, to October and November Term 1871.
    This was an action on the case brought September 7th 1866, by the Second National Bank of Titusville against the American Express Company.
    The suit was to recover damages for the loss of part of a package of money sent by the defendants, addressed to Amos Funk, Lancaster, Penna.
    The defendants’ route was from Titusville to Corry; from Corry to Lancaster other express companies had the route. The package when started from Titusville on the 25th of May 1866, contained $1900. It reached Lancaster, and Funk, on being notified of its arrival, called at the express office there, declined to receive it, and directed it to be returned to A. C. Kepler, Titusville. It was accordingly returned, and was delivered by the express agent to the plaintiff’s cashier on the 2d of June, and upon opening it, was found to contain but $600.
    The receipt given to the plaintiffs was as follows:—
    “AmericanExpress Company, Titusville, Penn., May 25th 1866.
    “ The American Express Co. do a general express business between all the principal cities and towns of the states of New York, Kentucky, Wisconsin, Western Pennsylvania, Michigan, Missouri, Ohio, Illinois, Minnesota, Indiana, Iowa, Canada, and connecting with other responsible expresses to all parts of the world.
    “ Livingston, Fargo & Co., Buffalo.
    “Wells, Butterfield & Co., New York.”
    “Beceived of Second National Bank, Titusville, Penna., one package, said to contain bank-notes valued at Nineteen Hundred Dollars, marked Amos Funk, Esq., Lancaster City, Pennsylvania, which we undertake to forward to the nearest point of destination reached by this company, subject expressly to the following conditions, viz.: This company is not to be held liable for any loss or damage except as forwarders only, nor for any loss or damage by fire, by the dangers of navigation, by the act of Cod, or of.'the enemies of the government, the restraints of government, mobs, riots, insurrections, pirates, or from or by reason of any of the hazards or dangers incident to a state of war. Nor shall this company be liable for any default or negligence of any person, corporation, or association to whom the above-described property shall or may be delivered by this company, for the performance of any act or duty in respect thereto, at any place or point off the established routes or lines run by this company, and any such person, corporation or association is not to be regarded, deemed or taken to be the agent of this company for any such purpose, but on the contrary such person, corporation or association shall be deemed and taken to be the agent of the person, corporation or association from whom this company received the property above described. * * * The party accepting this receipt hereby agrees to the conditions herein contained.
    “For the proprietors, “ O. J. Benham, Agent.”
    The case was tried January 21st 1870, before Johnson, P. J.
    The plaintiffs proved that their cashier, on the 25th of May 1866, put $1900 in an envelope, sealed it with mucilage and sealing-wax, and directed it to A. Funk, Lancaster, Penna. Downs, a clerk of the bank, delivered it about five minutes after it was sealed to the express office, took the bank’s express receipt-book, with receipt filled up, delivered the package as received, with the receipt-book to Benham, the express agent; the receipt-book had beenused by the bank for about fifteen months, and was about half-full of receipts. On the 5th of June this package was brought again to the bank by Robinson, an express agent, and the express charges from Titusville to Lancaster and back paid by the bank; it was laid on the teller’s table, who, upon opening it, found but $600 in it; the seals were not tampered with; the folds of the envelope had been cut, and it was held by mucilage.
    The defendants proved that Benham, their agent at Titusville, put the package into the safé at the office, kept the key about two hours, apd delivered it to the clerk, whose duty it was to bill such packages; the package was not interfered with whilst in his charge; it^was delivered by the clerk the next day, about thirteen hours afterwards, in the same condition it had [been'received, to the messenger on the Oil Creek Railroad; nobody could touch it whilst it was in the safe but the clerk. The messenger of the defendants who received the package from the clerk, delivered it two hours afterwards as he had received it, to the clerk a.t the office of the defendants at Oorry. The clerk at Corry received it May 26th, and put it into the safe immediately upon receiying it, and in the condition it was when given to him; it was delivered about 10 o’clock A. M. of that day to the messenger of the Union Line Express Company, in apparent good order. The agent of the Adams Express Company, at Lancaster received the package on the 29th of May in the evening; the package appeared to be perfect; it was laid in the safe until the morning of the 30th; it was given to another agent to deliver to Funk, who' brought it back to the office, Mr. Funk not being at home; it was put into the safe till the next morning; Funk then called and said he would not receive the package, and directed the agent at the office to return it to A. C. Kepler, Titusville; the package went in the mail train of Pennsylvania Railroad at 11.15 A. m., in the same condition in which it had been received, except that the direction was altered. They proved also the return of the package by similar evidence over the same route, and its delivery at the Titusville Bank; also that it would pass through four express companies, including the defendants, from Titusville to Lancaster, and that the Adams Express Company and the Union Line Express Company, two of them, were entirely distinct from the defendants ; the defendants had no control over the other companies.
    The defendants gave much evidence to show that there had been no negligence or want of care in regard to the package by the different agents of the several companies who had charge of it from the time it was delivered to them at Titusville until its return.
    The defendants’ points were — ■
    1. If the jury believe the evidence of defendants’ witnesses, the special acceptance and undertaking of defendants to deliver the package safely for plaintiffs at the end of the route has been fully complied with.
    2. There is no evidence of any contract on part of the defendants to deliver the package beyond the terminus of its own route, and if the jury believe that defendants parted with its possession each time in the same condition as received by them, the defendants are not liable for the loss of any of the contents of the package.
    3. The defendants are not to be charged with the loss unless it be shown affirmatively that the $1300 were in the package when they received it at Corry on its return from Lancaster, and the burden of this proof is on plaintiffs.
    4. Unless it is affirmatively shown that the $1300 were not in the package when it reached its destination at Lancaster, the defendants are not liable to plaintiffs.
    The points were denied.
    The court charged:—
    * * * “ [In this case the defendants agreed to carry or send this package safely to Lancaster, and deliver. it to Mr. Funk. That became impossible, because Funk would not take it. They had it on hand, and were bound to get rid of it or be responsible for it. So they voluntarily undertook to bring it back and redeliver it to the party from whom they got it.] This they failed to do. While in transitu, some one of their several agents or some outsider, through the negligence of these agents, opened the package and stole the money. The package is returned to the defendants, to whom it had been delivered to the plaintiffs from whom they received it, with full charges for its transportation both ways. But it is despoiled and robbed 6f $1800. * * * The plaintiffs therefore claim to have back from the defendants just what they committed to their safe-keeping, and have paid them for carrying and taking care of.
    “ The defendants resist this construction of their liability, because they say it is contrary to their special contract; that they did not undertake to carry the package to Lancaster, but only to the end of their line, and were not responsible for the diligence, care or honesty of those to whom they intrusted the plaintiffs’ goods, and indeed that they did not agree to deliver the package to anybody, nor at any place, nor at any time, and if they did, they were not to be held responsible for the negligence or stealing of those to whom they delivered it. All this or more is expressed or implied in the fine-print stipulations and conditions of their receipt. If full force and effect were given to these fine-print conditions, it would be as to them an entire exemption from the laws and liabilities of common carriers, and their offers to serve the community in that capacity would be a mockery, a delusion and a snare. While holding themselves out as such, they cannot thus escape the liabilities that attach to their occupation. Their undertaking is larger than their receipt and appended conditions. Receiving such a package marked for a certain destination, they are bound to forward it on its way with care and diligence, and are liable for any loss or damage that accrues through any negligence of theirs, or their agents or employees. That they may limit their liability for accidents beyond their control by special contract may be true, but they cannot exonerate themselves from the duties which the law imposes upon a party thus assuming the custody of another’s property and the obligations of a carrier respecting it. * * * It is clear to my mind that the loss of goods in the hands of a carrier unaccounted for, is presumptive evidence of negligence, and throws the burden of proof on him as to the manner of the loss. Peradventure he may show that the loss so happened as not to make him liable. But showing nothing as to how, when and by what means the loss occurs, the liability falls on him with or without a special contract. When the law presumes negligence, the burden of showing its absence necessarily devolves upon the party implicated. [Here, according to the proof, if believed, $1900 was given to the defendants to send to Lancaster and deliver to Mr. Funk. It was not delivered to him. The defendant was not to blame for that, for he would not take it. What, then, was to he done ? It should have remained at the place of consignment until the further order of the consignor was received. But this was not done. Those put in charge of it by the defendants undertook, of their own motion, to bring it back.] It came back into the hands of defendants. They claim to have received it as a package of $1900, agreed to pay those from whom they received it the full price for transporting that amount back from Lancaster. They then brought it to Titusville, charging for its transportation over their route at the full rate for $1900, and collected the expressage on that amount both to and from Lancaster. What was this but an assertion on their part that they had faithfully, diligently and carefully discharged their undertaking, and now returned undamaged the money intrusted to them? They did not return what they had received by $1300, and gave no account of its loss. But on whom should it fall, supposing both parties equally innocent of any intentional wrong ? Should the plaintiff, who has been guilty of no negligence, who had no possession of or control over it, be the victim ? * * * Whose duty is it to show how the loss occurred ? The plaintiff has no means of showing it. The defendants have, or ought to have. If the defendants have dishonest employees, that would be negligence. If they delivered the package into the hands of thieves, that was negligence. [If they received it from others on its return-trip and re-delivered it to plaintiffs as $1900, charging and receiving full price for the transmission, care and incidental responsibility of that amount, and there was not that amount there, that was negligence — not criminal, but technical.]
    “ As between two innocent parties, the loss must fall on the one whose act or agency has in any manner been instrumental in its production. [The burden of proof, then, was on the defendants to show their entire innocence of any agency in producing this loss. This could only be done by showing how it did happen. It was implied, if not expressed, in the contract of the defendants in taking charge of this money, that they would take or send it to its destination or return it to its owner. They have done neither. Therefore the presumption of negligence arises against them. They fail to show that it was the negligence of any other express company for whose carelessness they stipulated not to be responsible. Therefore they are not relieved from the presumption against themselves.]
    “ The conclusion of the whole matter is this: the defendants being common carriers, received this package of money consigned to’ Lancaster, under an implied contract to take or send it by careful and responsible hands to its destination. They declare, on the bill of lading or receipt, that they are doing business with such companies to all parts of the world. Not having delivered it to the consignee, they return it to the owner as sound, demand and receive pay for its safe transmission both ways as sound, and it proves to have been damaged while out of the possession of the plaintiffs $1300 worth.
    “ The law attaches negligence to the 'party thus receiving and returning the goods or package. To absolve themselves from liability for this negligence, the burden of proof is on the defendants to show how the loss occurred, so that the jury may judge whether it was altogether without any fault of theirs. You must judge from all the evidence whether the defendants have been guilty of negligence or are exonerated from liability.
    “ If, then, you believe from the evidence, that plaintiffs did enclose $1900 in the envelope, sealed up and gave it to the defendants in that condition, and that there was but $600 in the envelope when it was returned to the plaintiffs, and that the defendants have not accounted for the loss in a manner satisfactory or consistent with their freedom from blame, then the law presumes the loss to have occurred through their negligence and they are liable. If you are not satisfied of these two facts, that they gave to the defendants $1900 and got back only $600, your verdict should be for the defendants. * * *”
    The verdict was for the plaintiff for $1583.40.
    The defendants took a writ of error, and assigned the answers to the points, and the parts of the charge in brackets for error.
    P. Church, for plaintiffs, in error.
    The plaintiffs having been doing business with the defendants for many months, and having a book of the receipts of the defendants, there was notice' of what the contract contained: Roskell v. Waterhouse, 2 Starkie 461; Mayhew v. Eames, 3 B. & C. 601; Redfield on Carriers 128; Pennsylvania R. R. Co. v. Schwarzenberger, 9 Wright 208; Hood v. N. Y. & N. H. R. R. Co., 22 Conn. 1, 502; Van Santwood v. St. John, 6 Hill 157; C. & A. Railroad Co. v. Forsyth, 11 P. F. Smith 81. The usage of the business is to deliver to the next carrier to be forwarded, this usage must be considered as one of the elements of the contract, and the consignor could not avail himself of his ignorance of the usage, it being his business to inform himself: Farmers’ Bank v. Champ. Trans. Co., 18 Verm. 140; Nutting v. Conn. Railroad Co., 1 Gray 502; United States Express Co. v. Rush, 24 Ind. 403; 2 Redfield on Railways 103; Damon v. Damon, 8 Allen 189.
    Where a bailee accounts for a loss in a way not to implicate himself in a charge of negligence, this is a sufficient defence unless plaintiff proves negligence: Beckman v. Shouse, 5 Rawle 179; Farnham v. C. & A. Railroad Co., 5 P. F. Smith 53. Where goods have been tendered to a consignee and refused by him, the carrier is not hound to give notice to the consignor — he is only bound to do what is reasonable, and that is a question for the jury under all circumstances: 2 Redfield on Railways 65.

      W. S. Morris (with whom were Douglass McCoy), for defendants in error.
    An express company, carrying packages for hire, are common carriers: Fuller v. Bradley, 1 Casey 120. Negligence will not be presumed, but when a loss has been shown to throw the burden of proof on the bailor, it is necessary for the bailee to show clearly how the loss occurred: Clark v. Spence, 10 Watts 335; Verner v. Sweitzer, 8 Casey 208; Camden and Amboy Railroad Co. v. Baldauf, 4 Harris 67; Beckman v. Shouse, 5 Rawle 179; Baltimore and Philadelphia Steamboat Co. v. Brown, 4 P. F. Smith 77; Penna. Railroad Co. v. Schwarzenberger, 9 Wright 208. Receipting for full freight between two points, is a contract to carry between those points: Baltimore and Philadelphia Steamboat Co. v. Brown, supra; whether the freight be paid before or after the carriage of goods: McGill v. Rowand, 3 Barr 451; Chouteaux v. Leech, 6 Harris 224. Restrictions by carriers for their own benefit are construed most strongly against them : Hooper v. Wells & Fargo, 4 Am. Law Register, N. S. 216.
   The opinion of the court was delivered, January 9th 1872, by

Sharswood, J.

A fundamental error runs through and infects the whole charge and the answers of the learned judge below to the points presented, which renders it unnecessary to discuss the assignments in detail. He instructed the jury more than once that the express company had agreed to carry or send the package in question safely to Lancaster and' deliver it to Mr. Funk, to whom it was directed. He entirely put aside, as of no validity, the special contract contained in the receipt, actually filled up.by the bank, and accepted by them, undoubtedly with full knowledge of its stipulations. Pie put this, it would seem, on two grounds, both of which are unquestionably true, but have no application to the case, viz.: first, that common carriers cannot so limit their liability, by special notice or contract, as to exempt themselves from the consequences of their own or their servants’ negligence; and second, that if property is received by a common carrier, and he fails to deliver it safely at its place of destination, the burden is on him to prove that it was not lost or injured while in his custody; and in general, the only way in which he can do this satisfactorily, is by proving when, where, and how the loss did actually occur. There was, however, in this case, no attempt to relieve the common carrier from the necessity of proving to the satisfaction of the jury that the package, after its delivery to the express company, was not broken open and rifled of part of its contents while in the possession and custody of any of their officers or agents. The learned judge thought, and so charged, that it was incumbent on them to prove affirmatively where, when, and by whose negligence, or otherwise, the loss had actually happened. We think, however, that this rule is not applicable to the case. By the express terms of the contract contained in the receipt, the express company undertook only to forward to the nearest point of destination reached by them, and upon this, among other conditions, that they were not to be liable for any default or negligence of any person or corporation to whom they might deliver it at any point off their own established route or line. If they were carriers at all, it was only to the nearest point of destination ; beyond that they were forwarders only. There was nothing unreasonable, unusual or unlawful in such a contract. It is very well settled that forwarders are not insurers as common carriers. They are liable only as ordinary bailees to carry for hire. “A person,” says Mr. Justice Story, “who receives and forwards goods, taking upon himself the expenses of transportation, for which he receives a compensation from the owners, but who has no concern in the vessels or wagons by which they are transported, and no interest in the freight, is not to be deemed a common carrier, but a mere warehouseman or agent: ” Story on Bailees, § 502; Chitty on Carriers 18; Hoop v. Wells, 5 Am. Law Reg., N. S., 16; Jenneson v. The Camden and Amboy Railroad Co., 4 Am. Law Reg. 234; Camden and Amboy Railroad Co. v. Forsyth, 11 P. F. Smith 81.

To hold that a forwarder merely is bound not merely to clear his own skirts of negligence, but to prove when, where and how the loss occurred, would be to impose upon him an obligation which attaches only to a carrier, and not to an ordinary bailee for hire. A carrier, who is bound at all events to deliver safely, must bring himself, by positive evidence, within the exceptions, the act of Grod, or public enemies. Not so an ordinary bailee. It is enough for him to satisfy a jury, by the best evidence in his power, that he has performed his duty with care and fidelity, and that the loss has not arisen from any default of himself or his servants. The jury then should have been instructed that if the evidence satisfied them that the loss had not occurred between Titusville and Corry, either in going or returning, but on some other part of the route, and that in the performance of their duties as forwarders they had used all usual and reasonable care and diligence in the selection of proper carriers, their verdict should be for the defendants.

Judgment reversed, and venire facias de novo awarded.