contained a provision that the lumber should be measured and piled on deck at the port of delivery. Part of it was unloaded and measured on the wharf. Notwithstanding this breach of stipulation, the carrier was entitled to freight. The stipulation was not a condition precedent, but merely an agreement for convenience, and in view of the consignee's death before arrival, and the failure of his representatives to accept the goods, it became unimportant. § 381. In Davison v. Gwynne,1 the master of a vessel covenanted with a freighter that the vessel should proceed with the first convoy from England for Spain and Portugal, or either, as he should be directed by the freighter or his agents, and there make a right and true delivery according to the bills of lading signed for the same, etc. The freighter first ordered the master to proceed to Lisbon, in consequence of which he took in goods and signed bills of lading for that port. It was held that sailing with the first convoy was not a condition precedent to the recovery of freight by the master, and that the master was entitled to recover freight as upon a right and true delivery of the cargo, agreeably to the bills of lading, upon proof of having delivered the entire number of chests, etc., called for by the bills, though it appeared that their contents were damaged by negligence, the injured party having his remedy by action for such negligence. In Murphy v. Creighton, a carrier company contracted to ship a certain party's goods to certain points at rates" same as lowest to points named." It was held that the fair construction of this is that the rates to each point were to be as low as the lowest to that point and not, for example, that said party should have rates to the most distant one as low as the lowest rates for some one else to a nearer point. In Southern Ex. Co. v. Womack, the fact that freight was to be paid in Confederate money, an illegal currency, would not affect the carrier's liability for loss or failure to carry. 112 East, 381 (K. B.). 245 Iowa, 179. 1 Heiskell (Tenn.), 256. 282 CHAPTER XXVIII. STIPULATIONS RELATING TO DELIVERY GOODS SHIPPED C. O. D.-CLAIM FOR LOSS WITHIN LIMITED TIME. Carrier's duty under a bill for goods | shipped "C. O. D.," §§ 382, 383, 384, 385. Claim for loss to be made within a limited time, §§ 386, 387, 388. Effect of a notice on the back of the carrier's receipt, § 389. Claim to be made before the removal of the goods, § 390. Claim to be made at a particular office, Claim for non-delivery is not covered § 382. WHERE goods are sent " C. O. D." the carrier has no right to deliver them to the consignee till they are paid for.1 The consignee is entitled to a reasonable opportunity to inspect before accepting them and the carrier may afford him reasonable facilities for doing so without making himself chargeable for the price, even if he put them into the hands of the consignee for that purpose and receive from him the price as personal security to the carrier that the goods shall be returned, if not accepted, after a reasonable opportunity to examine them." The shipper may, however, stipulate that there shall be no inspection of the goods before delivery and payment. The letters "C. O. D." have acquired in the commerce of the country such a fixed and determinate meaning that courts and juries, from their general information, will readily understand them, but parol evidence is admissible to prove their meaning. Where goods are marked "C. O. D." the contract of the carrier in connection therewith is not only for the safe carriage and delivery of the goods to the consignee but he further contracts Wiltse v. Barnes, 46 Iowa, 210. with the consignee that he will collect on delivery and return to the consignee, the charge. If the carrier, on such a contract, returns neither the goods nor the charges thereon to the consignor, the latter may sue him.1 §383. Where goods were sent to be delivered on payment of $1665 and were delivered without payment, the carrier was held liable for what was not paid by the consignee. It made no difference that $1665 were more than the amount coming to consignor, nor would it have made any difference whether or not said sum had anything at all to do with the price of the goods. The carrier had no interest therein except to see that the condition was complied with. Where a bill of lading says "charges to be collected, $274.40," its plain and reasonable intent is that the charges are to be collected by the carrier and if he delivers the goods without doing so, thereby surrendering a security without authority, he is liable for the charges he assumed to collect.3 § 384. An express company carried a box "C. O. D." and received from the consignee the sum charged. The box, on being opened, proved worthless-a bald swindle. The money was returned to the consignee. It was held that if by reason of the fraud of the consignors the consignee becomes entitled to recall the payment he has made to the agent for the use of his principals (the consignors), he may recall it upon notice to the agent if the latter has not paid the money over to his principals and no change has taken place in his situation before such notice. It is clearly the duty of the express agent to pay back the money on discovery of the fraud. If the transaction is on the part of the consignors a bald and naked swindle, the law 1 U. S. Express Co. v. Keefer, 59 Ind. 263; Owen v. Johnson, 2 Ohio St. 142; American Merch. Union Ex. Co. v. Wolf, 79 Ill. 430; Am. Ex. Co. v. Greenhalgh, 80 ib. 68; Am. Ex. Co. v. Lesem, 39 ib. 312; Hutchings v. Ladd, 16 Mich. 493; Collender v. Dinsmore, 55 N. Y. 200; Pilgreen v. State, 71 Ala. 368; Van Winkle v. Adams Ex. Co., 3 Robertson, 59; Am. Merch. Union Ex. Co. v. Schier, 55 Ill. 140; Brooks v. Am. Ex. Co., 14 Hun (N. Y.), 364; Wareham Bank v. Burt, 5 Allen (Mass.), 113; Am. Ex. Co. v. Wettstein, 28 Ill. App. 96. 2 Steamboat John Owen v. Johnson, 2 Ohio State, 142. Meyer v. Lemcke, 31 Ind. 258. will lend no aid in the collection of money for the satisfaction of such a claim. Where the carrier sells the goods carried at their destination and brings back the proceeds, the original contract of carriage applies to the return voyage.2 § 385. Where goods are entrusted to a common carrier, accompanied by a bill and instructions not to deliver the goods unless paid for by the consignee, he is liable to the consignor for a delivery without exacting payment. By thus assuming to act with the goods as his own, he is answerable for their value, but he may discharge himself from liability by procuring their return. An indorsement upon the bill, "Please collect the bill," is a mere request with which the carrier may or may not comply and is not of itself sufficient evidence of an undertaking or agreement on his part not to deliver the goods unless paid for.3 § 386. A clause is frequently inserted in bills of lading restricting the time when, and fixing the place where, claims for loss are to be made to the carrier. In the case of the Express Company v. Caldwell it was held by the Supreme Court of the United States that a condition imposed by an express company that it shall not be liable for any loss or damage to a package unless claim therefor shall be made within ninety days from the time of its receipt by the company, is lawful and binding and is not unreasonable where the time of the transit of the package is only one day. The claim should be made within ninety days, but the suit may be brought at any time within. the statute of limitations. Mr. Justice STRONG, in delivering the opinion of the court, says: "A common carrier is responsible for his negligence, no matter what his stipulations may be; but an agreement that, in case of failure by the carrier to deliver the goods, a claim shall be made by the bailor or by the consignee within a specified period, if that period be a reasonable one, is altogether of a different character. It contravenes 1 Herrick v. Gallagher, 60 Barbour (N. Y.), 566. 443. 71. 421 Wallace, 270. See also Swinburne v. Massue, Stewart's L. C. Rep. 2 Harrington v. McShane, 2 Watts, 569; Mason v. Grand Trunk Ry. Co., 37 U. C. Q. B. 163; Merrill v. Am. Hooker v. Gormer, 2 Hilt. (N. Y.) Exp. Co., 62 N. H. 514; Kaiser v. Hoey, 16 N. Y. St. Rep'r, 803. no public policy. It excuses no negligence. It is perfectly consistent with holding the carrier to the fullest measure of good faith, of diligence and of capacity which the strictest rules of the common law ever required. And it is intrinsically just as applied to the present case. The defendants are an express company. We cannot close our eyes to the nature of their business. They carry small parcels easily lost or mislaid and not easily traced. They carry them in great numbers." 387. Where it was agreed that damages to stock in transit should not be allowed unless notice in writing of a claim therefor should be given to the company at or before unloading the cattle and the plaintiff, knowing of an injury at the time, gave no notice for a year, it was held that the contract must be held good unless contrary to public policy. Unless the notice were given immediately it would be of no value to the carrier, therefore the time when it was to be given was not unreasonable.1 In Indiana, where a bill of lading stipulated that the carrier should not be liable for any loss unless the claim therefor should be made in writing at the office of shipment within thirty days from the date of the bill and the complaint filed in the case did not allege that the claim for such loss was so made, it was held that the stipulation that the claim should be made in writing within the time specified was reasonable and that in such a case it was not necessary to make the claim at the office of shipment. It might be made upon some agent or officer of the company chargeable with the loss.2 § 388. A provision that carriers shall not be liable for loss or damage unless the claim therefor shall be presented to them in writing at their office within thirty days after the time when the property has or ought to have been delivered "is a very reasonable and proper provision to enable the defendants, while the matter is still fresh, to institute proper inquiries and furnish themselves with evidence on that subject. The defendants do a large business and to allow suits to be brought against them sas, 416. 1 Goggin v. K. P. Ry. Co., 12 Kan- Ind. 21, it was held that the requirement that a claim for loss should be made within thirty days was unreasonable and void. 2 U. S. Ex. Co. v. Harris, 51 Ind. 127. In the same State in the earlier case of Adams Ex. Co. v. Reagan, 29 |