Dunham v. Boston & Maine Railroad Company.

APPLETON, C. J. The defendants, on July 1, 1876, received from the Fitchburg Railroad Company certain goods consigned to the plaintiff at Bangor, with a memorandum stating from whom received and to whom and where to be delivered, but the Fitchburg company neglected or omitted from carelessness to furnish the defendant with the amount of precedent freight earned.

The defendants received the goods, and on the third or fourth of July carried them to Portland, where they remained until July 12, when, having received a bill of all previous freight earned, they delivered the goods to the Maine Central railroad, which corporation took them to their place of destination and delivered them to the consignee.

The plaintiff, in consequence of the delay in transportation, lost the sale of his goods, and brings this action to obtain compensation for such loss.

The acceptance by the defendants of the goods at Portland was complete when the goods by their consent came into their hands. Pratt v. Railway Co., 95 U. S. 43.

The defendants receiving the goods and taking them to Portland, in so doing were common carriers and liable as such.

But as the goods were to be delivered at a point beyond their line, and as they knew where and to whom they were to be delivered, they were thus to be regarded as forwarders, and it became their duty to forward the goods without unnecessary delay. Plantation No. 4 v. Hall, 61 Me. 517; Rawson v. Holland, 59 N. Y. 611; s. c., 17 Am. Rep. 394; Burroughs v. N. & W. R. R. Co., 100 Mass. 26; s. c., 1 Am. Rep. 78.

The defendants manifestly neglected their duty as forwarders. For so doing they rely upon an established rule of the Maine Central Railroad Company, which is not "to receive goods from connecting lines to be forwarded unless such goods are accompanied by a regular way-bill or memorandum giving name of consignee, destination and charges due."

But this rule, if proved, cannot avail, because they did in fact receive the goods and carry them part way, and thus receiving them and transporting them they were bound to forward.

While the defendants claim all the rights of common carriers they must discharge all the duties of such carriers. Railroads may make arrangements for mutual accommodation. They may

Dunham v. Boston & Maine Railroad Company.

have the merit of convenience, but they have not the force of law. They are not obligatory on the public.

It is claimed that they are to be excused because the antecedent charges for freight had not been delivered and they could not collect the freight earned. But that is no excuse. That the Fitchburg Railroad Company neglected to furnish the amount of freight, so that they were unable to state the amount of precedent freight and collect it, is no excuse for not forwarding the goods in their possession.

But they would not be responsible for its collection if the negligence of the Fitchburg Railroad Company prevented their having the necessary information to enable them to make such collection. They should not suffer for the negligence of others for whose acts they are not responsible. They could forward the goods with their own bill for freight earned by them.

But the defendants having received and carried the goods were bound to deliver them to the next railroad. In Reynolds v. B. & A. R. R. Co., 121 Mass. 291, the defendants refused to receive the goods because there was no freight bill and expense voucher. In the present case the defendants did receive and transport over their line, but neglected to forward. They cannot deny that they had the custody of the goods as carriers; that they were responsible as such carriers over their road; that when the goods reached its terminus their liability as carriers had terminated and a new duty as forwarders had arisen, which they neglected to discharge.

But the defendants are not justified in the delay in this case by the evidence upon which reliance is placed. Hartwell, the general freight agent of the Fitchburg railroad, and Kenney, the general freight agent of the defendant company, agree that in cases where the regular way-bill is not delivered on the same day as the freight, the custom of both railroads "is to receive the freight with the memorandum and send it forward at once, and afterward, as soon as received, sending on the regular way-bill.' Neither witness states that the road receiving the freight with the memorandum is to retain it till the way-bill is received, or that the freight received is subject to the further order of the road delivering it until the way-bill is forwarded. If it were so, the road receiving the freight might be compelled to hold it against the will of the owner until the road delivering the freight should see fit to deliver the way-bill. This would make the subsequent carriage of goods

Dunham v. Boston & Maine Railroad Company.

depend upon the action of the railroad delivering, and their carriage might be delayed indefinitely.

What the defendant corporation should have done, and what it did not do, was to deliver the freight with their own charges only, and the memorandum stating the place where and the person to whom the freight was to be forwarded, to the next line of railroad over which the goods were to be transported. If the Fitchburg railroad should not forward their freight bill in a reasonable time, so that the defendants could collect the freight, they would not be responsible for it. The loss would be the result of negligence on the part of the Fitchburg railroad, which that corporation could not and should not impose on these defendants.

But it has been urged that the Maine Central Railroad Company would not have received the goods without a way-bill giving the charges due. They were not tendered for transportation, therefore it cannot be known that they would not have carried them to their place of destination.

But why should not the Maine Central railroad have taken and carried the goods? It seems from the testimony of their freight agent they were accustomed to forward freight though the regular way-bill showing charges was not delivered on the same day with. the freight.

Again, it was the duty of the Maine Central railroad as common carriers to receive and transport the freight. The defendants had the goods to forward, and it was nothing to the Maine Central railroad that the Fitchburg railroad, or some preceding railroad on the route, had neglected their duty, The Maine Central would not be liable for precedent freight earned, of which they had no notice. Indeed, they might assume, that if no charges were made known to them, it was because none whatever existed. They would have no right to refuse goods tendered for carriage.

Where goods are delivered to a railroad company by a connecting railroad company to be transported to the owners, and the same are received by said company for the purpose, it becomes its duty to send them off immediately; and it cannot justify the detention of the goods on the ground, that by its regulations, goods received from a connecting road are not to be forwarded until the receipt of a bill of back charges, and that no such bill accompanied the goods. Michaels v. N. Y. Cent. R. R. Co., 30 N. Y. 564. This case determines the precise question under consideration.

Davis v. Dudley; Shaw v. Dudley; Dudley v. Shaw.

In the case of transporting goods over several railroads constituting a connecting line, neither company is an agent of the owner; each exercises an independent employment as a contractor with the owner, and is responsible for its own negligence, and it cannot make the owner responsible for the negligence of a connecting road. Sherman v. Hudson R. R. Co., 64 N. Y. 255.

Here the defendants' only excuse is the negligence of another railroad, and that, too, when they had all the information needed for the discharge of their own duty. The convenience of the public must have precedence. It is not just that goods consigned should be lost or diminished in value at the cost of the consignee, thereby to exonerate a railroad company from the consequences of its own negligence, still less to exonerate another railroad from the consequences of its negligence. The defendants should have discharged their known duty, whether the Fitchburg company did theirs or not. They should have tendered the goods received with the memorandum to the Maine Central Railroad Company for transportation, and then they would have fulfilled the legal obligation resting upon them. If the Maine Central railroad had refused to receive and transport, it would then remain to be seen by what right they could refuse goods tendered for transportation so long as they claim to be common carriers.

The measure of damages is the difference in the value of the articles (which should have been forwarded) at the time and place when and where they ought to have been delivered and when they were actually delivered. Ward v. N. Y. Cen. R. R. Co., 47 N. Y. 329; s. c., 7 Am. Rep. 405

Defendants defaulted.

WALTON, BARROWS, VIRGIN and LIBBEY, JJ., concurred.

DAVIS V. DUDLEY; SHAW V. DUDLEY; DUDLEY V. SHAW.

A minor's deed of lands is binding upon him, if after arriving at majority, he knowingly suffers the grantee to make valuable improvements on the prem. ises, without announcing his intention to avoid the deed.*

*To same effect Gillespie v. Bailey (12 W. Va. 70), 29 Am. Rep. 445.

A

Davis v. Dudley; Shaw v. Dudley; Dudley v. Shaw.

CTION to recover real estate. The opinion states the case.

L. R. King, for Shaw and Davis.

Powers & Powers, for Dudleys.

DANFORTH, J. The last named of these three cases, that of Dudley v. Shaw, is a real action. It is conceded that the title to the land described in the writ was originally in the plaintiff. The tenants claim under a deed from him. The execution of the deed is not denied, but the case finds that when it was given the grantor was a minor. The deed is dated November 27, 1868, and the plaintiff became of age April 17, following. On the 22d day of April, 1878, the plaintiff entered upon the land claiming to own it. After the sale and before this entry the tenants had built buildings thereon and made valuable improvements, the plaintiff living near by and making no claim to the land or objection to the improvements. The only question involved in the case is whether under these circumstances the deed is valid and binding upon the plaintiff.

Whatever differences of opinion may formerly have existed as to whether a minor's deed is void or only voidable, it must now be considered as well settled law that an instrument like this, where it does not appear upon its face to be prejudicial and which may be beneficial to the minor, is voidable at his election. Robinson v. Weeks, 56 Me. 106.

As the deed is voidable at the election of the minor, it follows that until that election is in some way made manifest there is neither a ratification nor an avoidance. Without the one or the other the deed must still remain in force but as a defeasible instrument. This manifestation must be shown by some positive and clear act, intended for that purpose. What that act shall be, or what is sufficient for that purpose must necessarily depend upon the circumstances of each case. It therefore follows that mere delay within the time allowed by the statute of limitations, uncoupled with any acts expressive of an intent to confirm, would not be sufficient for that purpose; and this may now be considered as well settled law; though some decisions may be found holding that unless the deed is repudiated within a reasonable time, ratification will result. 3 Wash. Real Prop. (3d ed.) 226; Boody v. McKenney, · 23 Me. 523-4; Jackson v. Carpenter, 11 Johns. 539; Tucker v. Moreland, 10 Pet. 75-6.