personally informed that the goods had not gone on the Kansas until after the loss of the Angloman. They sought to recover the value of the merchandise lost, but the court held that if they supposed the contract to be an absolute engagement to carry the goods upon the Kansas, they relied upon an erroneous construction thereof, and not upon the contract. The libel was dismissed.12

Sec. 625. (§ 317.) The goods must be carried at and within the time agreed on. If the carrier has agreed to carry the goods to their destination, or to the point of connection with the succeeding carrier, and there deliver them within a prescribed time, he will be held to a strict performance of his contract,13 and no temporary obstruction or even absolute impossibility will be a defense to an action for failure to comply with the engagement; for when a party, by his own contract, creates a duty which he engages to perform, he is bound to make it good, notwithstanding an accident or delay by inevitable necessity, because he might have provided against it by his contract;14 and this rule applies not only to the engagements of carriers but to the contracts of all persons. If a vendor of goods, for instance, absolutely engages to deliver them by a certain time, it will be no defense that he was prevented from doing so by the blockade of a port or by any other inevitable

12. The Kansas, 87 Fed. 766; Hilton, 19; Deming v. Railroad, The Britannia, 87 Fed. 495.

13. Rudell v. Transit Co., 117 Mich. 568, 76 N. W. Rep. 380, 44 L. R. A. 415; Stoner v. Railway Co., 109 Iowa, 551, 80 N. W. Rep. 569.

The first of two connecting carriers is liable for a failure under a contract to deliver the goods to the succeeding carrier within a given time or in time for a particular market. Fox v. Railroad Co., 148 Mass. 220; Pereira v. Railroad Co., 66 Cal. 92.

48 N. H. 455; Hadley v. Clark, 8 T. R. 259; Harrison v. Railway Co., 74 Mo. 364, 371; Chicago, etc. R. Co. v. Thrapp, 5 Ill. App. 502; Miller v. Railway Co., 62 Mo. App. 252; Shelby v. Railway Co., 77 Mo. App. 205.

Under the familiar rule that the case made by the declaration must be the case proven, although the evidence may tend to show a contract to carry within a prescribed time, a recovery cannot be had on that evidence where the only time

14. Place v. Union Ex. Co., 2 alleged in the declaration is the

accident;15 nor that goods of the particular quality agreed to be delivered could not be had at the time when the contract was to have been executed.16

Sec. 626. (§ 318.) Same subject-Illustrations.-A forcible illustration of this principle is afforded by the case of Parmalee v. Wilks,17 which, though not a case turning directly upon the question of the duties and liability of a common carrier, was assimilated to such a case. The owners of a steamboat entered into a contract to tow a raft of logs for the plaintiff. They agreed to commence the service on the morning of a certain day, but, owing to an alteration in the voyage of the boat, the raft was not taken in tow until the evening of that day, and a storm arising during the night, whilst it was being carried to its destination, broke it up and scattered the logs. It was found on the trial that but for the delay the raft would have reached its destination before the storm arose. It was held that in such a case time was to be considered as of the essence of the contract; that the delay by the steamboat was in effect the same as a deviation by a common carrier, and that its owners were liable for the value of the logs by reason of the failure to start with the raft as had been agreed. And in the case of a common carrier, it has been held that if he undertake to carry a cargo to a blockaded port when he has knowledge of the blockade, no difficulty attending the performance of his contract can be set up as an excuse for its non-performance.18

Sec. 627. ($319.) Same subject-Not excused by circumstances beyond his control.-In Harmony v. Bingham,19 the carrier entered into a covenant to convey a large quantity of goods from New York to Independence, Missouri, in twentysix days, or to pay at the rate of ten cents per one hundred

duty to carry within a "reason- C. Ct. 85; Youqua v. Nixon, id. able" time. Express Co. v. Brat- 221. ton, 106 Ill. App. 563.

15. Atkinson v. Ritchie, 10 East, 530; Spence v. Chadwick, 10 Q. B. 517.

16. Gilpins v. Consequa, 1 Peters'

17. 22 Barb. 539.

18. Medeiros v. Hill, 8 Bing. 231. 19. 2 Kernan, 99; s. c. 1 Duer, 209.

pounds of the freight for every day's delay beyond the specified time, and also gave a bill of lading containing an exception of liability for unavoidable accidents. Owing to a freshet, a canal over which he usually transported goods westward was rendered impassable, and was not repaired so as to become navigable for several weeks. In consequence of this delay, the goods did not arrive at destination for some twenty days after the time specified in the contract. Having exacted the payment of the agreed freight, without making any deduction for the delay, according to the terms of the contract, upon the ground that he had been prevented by inevitable accident from sooner delivering the goods, the owner sued him upon the covenant, and he was held liable to damages according to his contract, although the delay had been occasioned by circumstances beyond his control.20

20. In this case it was proven are destroyed by the act of God or that there was another possible of the public enemy without negroute, via New Orleans, by which ligence on his part. Gage v. Tirthe goods might have been sent, rell, 9 Allen, 299. Should not the and that this was known to the same cause which, if it had departies when the contract was stroyed the goods in toto, would made. It did not therefore appear have excused him altogether from that a strict compliance with it their delivery, excuse a delay of had been made impossible by the delivery beyond the time fixed by accident to the canal. The con- the contract? And if by the same tract to carry within a given contract in which he agrees to time was also separate and dis- carry within a certain time, certinct from the bill of lading, which tain dangers are excepted from a latter contained the exception of loss by which he would be ex"dangers of the railroad, fire, leak- cused altogether, ought not a preage and all unavoidable accidents." vention by the same dangers to These exceptions were held to be excuse a later delivery than he in no wise inconsistent with the has undertaken to make, unless covenant as to the time of deliv- his contract can be construed as ery, and to except only damage to an insurance that they will be dethe goods by unavoidable accident, livered within the specified time, and not the loss to the owner oc- unless lost by the act of God or casioned by the delay in the the public enemy, or the excepted transportation. But if the car- dangers in the bill of lading? The rier contracts to deliver within a general rule undoubtedly is, that certain time, he is still excused a party who contracts to do a from delivering at all if the goods certain thing will not be excused

Sec. 628. (§ 319a.) Same subject-Shipper must not be in default. But these contracts of the carrier to transport the goods at or within a certain time must be held subject to the condition that the shipper is not himself in default in not furnishing the goods for transportation at the time agreed upon. Thus, in one case it appeared that the defendant had under

taken to transport "on board steamship Minnesota or Nevada, for Liverpool," a quantity of cotton which was then on its way to New York, but the date of arrival of which was uncertain. The Minnesota was advertised to sail on October 27; the Nevada a week later. The cotton reached defendant's pier on October 26, but a full cargo for the Minnesota was then on the dock and loading. The cotton was therefore shipped a week later on the Nevada, reaching Liverpool a week later than the Minnesota. During this week the price of cotton declined and an action was brought to charge the defendant for the delay. The court held, however, that the contract must be construed as an undertaking to carry on the Minnesota, provided the cotton reached there in a reasonable time for loading; that it did not arrive within a reasonable time; that the defendant was not bound to reject other freight to save room for the cotton, thereby running the risk of sailing with a short cargo, and that the shipment on the Nevada was justifiable.21

Sec. 629. Same subject-Carrier may agree to hold the goods for transportation until a future date. The converse of the proposition that if the carrier has agreed to deliver the goods within a prescribed time he will be held to a strict per

of God. Beebe v. Johnson, 19 Wend. 500. Another important feature of the case was that the parties had agreed upon the amount of damages in case of failure to comply, which showed clearly that the carrier was to take the risk, for an increased compensation, perhaps, of all accidents which might delay the carriage. He insured or warranted the delivery by a given time, which, as it seems, was a matter of great importance, under the circumstances, to the owner of the goods. And such should, no doubt, be the construction generally of contracts to carry within a

given time; but perhaps not necessarily always so. Leavitt, J., in Broadwell v. Butler, 6 McLean, 296, seems to have thought, without, perhaps, an investigation of the subject or a reference to the case, that the act of God or the public enemy, or any of the dangers excepted in the bill of lading, would excuse a delay beyond the time, even where there was a stipulation that the goods should be delivered by a given time. It was not a question in the case, however, and cannot be relied upon as a decision.

21. Fowler v. Steam Co., 87 N. Y. 190.