to make delivery has now become so well settled that a case could but seldom occur in which it could not be at once determined without a resort to the proof of usage or custom. Not only have the usages of those who ply the business of carrying goods for hire for the public in the various modes and according to their various professions become universally understood, but as to those into whose hands the great bulk of the carrying business of the country has fallen, most of the questions of doubt as to the manner in which they are required to make the delivery of the goods to the consignee or party entitled to them have been settled by judicial decision; and whenever such questions now arise, judicial notice will generally be taken of their several modes of delivery, as matters of law rather than of fact, as to usage. It is still, however, the duty of most of those who are classed as common carriers to make personal delivery to those for whom the article carried is intended; and whenever the carrier engaged in a particular mode of carrying, as to which the kind and manner of delivery required have not been so established, claims that he is exonerated by the long existing and uniform course of his business from making a personal delivery, the presumption of law will be against his claim and he must overcome it by proof. Delivery to the person for whom the goods are intended, or to whom they are consigned, being the rule, he must bring himself within the exception by showing a long continued and well understood usage. Sec. 667. (§ 343.) Same subject-How delivery made-Degree of diligence required. Whenever a delivery to the consignee in person is required to be made by the carrier, it is his duty to seek him, and make him a tender of the goods. If the goods are directed or marked for a particular house or number, 8. Schroeder v. The Railroad, 5 been held alone sufficient to reDuer, 55. "A mere change in name on a way-bill or receipt given by a careless clerk while goods are in transit from carrier to carrier has never, so far as we are advised, lieve the last carrier from the obligation to use all reasonable efforts to deliver goods to the real consignees at the proper destination." Pennsylvania Co. v. Railway Co., 107 Ill. App. 386. they must be carried there to be tendered, and if the consignee is not found there, and is unknown to the carrier, he must use reasonable diligence in his efforts to find him. What is due and reasonable diligence in such cases will, of course, depend very much upon the circumstances of each case, and is a question of fact for the jury, and not of law for the court. What would be sufficient in one place might be entirely insufficient in another, and the extent and character of the inquiries to be made, in the exercise of reasonable diligence, cannot be regulated or prescribed by any fixed standard. The degree of diligence must be that which a prudent business man would be expected to use about an important business affair of his own. When a package was addressed to Martin Witbeck, and the agent of the carrier, not knowing any such person, looked into the city directory, and not being able to find the name there, inquired of several persons who informed him that they knew of no such man, whereupon he addressed a notice of the arrival of the package through the postoffice to Martin Witbeck, and put the package in the office safe, which several weeks afterwards was broken open by burglars and the package was taken from it and lost, the carrier was held liable because he had not used proper diligence to find the consignee.10 Sec. 668. (344.) Excuses for non-delivery-Neither fraud, imposition nor mistake will excuse delivery to wrong person.— No circumstances of fraud, imposition or mistake will excuse the common carrier from responsibility for a delivery to the wrong person.11 The law exacts of him absolute certainty that the person to whom the delivery is made is the party right 9. Witbeck v. Holland, 45 N. Y. 13; Zinn v. Steamboat Co., 49 id. 442. App. 641; Cavallaro v. Railway Co., 110 Cal. 348, 42 Pac. Rep. 918, 52 Am. St. Rep. 94, citing Hutch 10. Witbeck v. Holland, 45 N. Y. inson on Carr.; Southern, etc., R'y 13; s. c. 55 Barb. 1443. Ala. 39 Co. v. Webb., 11. Express Co. v. Shearer, 160 fully entitled to the goods, and puts upon him the entire risk of mistakes in this respect, no matter from what cause occasioned, however justifiable the delivery may seem to have been, or however satisfactory the circumstances or proof of identity may have been to his mind; and no excuse has ever been allowed for a delivery to a person for whom the goods were not directed or consigned. If, therefore, the person who applies for the goods is not known to the carrier, and he has any doubt as to his being the consignee, he should require the most unquestionable proof of his identity; or, if from any cause he should have a reasonable doubt as to whether the person claiming the goods was entitled to them, he should refuse delivery to him until he established his right.12 In such cases the carrier will be protected in his qualified refusal, if he have a reasonable excuse therefor, until the proper evidence is furnished that the party claiming is the party entitled. But he must act in good faith, and solely with a view to a proper delivery; and the question whether his excuse was reasonable under the circumstances, and of his good faith, is one for the jury.13 And if such refusal be qualified, and it be found to have been in good faith, and because of a reasonable doubt as to the right of the claimant, it will not be treated as a conversion.14 If, 12. Sellers v. Railway Co., 123 Ga. 386, 51 S. E. Rep. 398, citing Hutchinson on Carr. 13. McEntee v. N. J. Steamboat Co., 45 N. Y. 34; Rogers v. Weir, 34 id. 463; Alexander v. Southey, 5 B. & Ald. 247; Ball v. Liney, 48 N. Y. 6; Merz v. Railway Co., 86 Minn. 33, 90 N. W. Rep. 7; Lester v. Railroad Co., 92 Hun, 342, 36 N. Y. Supp. 907; Moore v. Railroad Co., 103 Va. 189, 48 S. E. Rep. 887, citing Hutchinson on Carr. R'y Co. v. Freeman (Tex. Civ. The fact that a railroad asks that its "notice of arrival" be presented by the consignee does not protect the railroad if the notice of arrival be lost by the consignee or his agents and the railroad delivers the goods to a third person on its production. Sinsheimer v. Railroad Co., 46 N. Y. Supp. 887, 21 Misc. 45. 14. Sargent v. Gile, 8 N. H. 325; Leighton v. Shapley, id. 359; Dent v. Chiles, 5 Stew. & P. 383; Watt v. Potter, 2 Mason, 77; Baltimore, etc. R. Co. v. Pumphrey, 59 Md. The carrier is not liable for refusing to deliver to an unidentified consignee who fails to produce the bill of lading, even though he may offer to give security. Gulf, etc. 390. however, the delivery be made to the wrong person, whether by an innocent mistake or through fraud practiced upon the carrier, such wrongful delivery will be a conversion.15 Sec. 669. (§ 345.) Responsibility for delivery to the wrong person-Negligent delivery to person not the consignee.-Cases are abundant in which the carrier has been made the sufferer by a delivery to the person not entitled to the goods, and in which his attempts to excuse such wrongful delivery have been unavailing. In Price v. The Railroad Company,16 the 15. Hawkins v. Hoffman, 6 Hill, 586; Powell v. Myers, 26 Wend. 591; Devereux v. Barclay, 2 B. & Ald. 702; Duff v. Budd, 3 Brod. & B. 177; Nebenzahl v. Fargo, 3 N. Y. Suppl. 929; Reynolds v. Railroad Co., 3 N. Y. Suppl. 331; Forbes v. Railroad Co., 133 Mass. 154; Houston, etc. R'y Co. v. Adams, 49 Tex. 748; McCulloch v. McDonald, 91 Ind. 240; St. Louis, etc. R. Co. v. Larned, 103 Ill. 293; Little Rock, etc. R'y Co. v. Glidewell, 39 Ark. 487. But see Ryder v. Railroad Co., 51 Iowa, 460; Railroad Co. v. Barkhouse, 100 Ala. 543, 13 So. Rep. 534, citing Hutch. on Carr.; Bruhl v. Coleman, 113 Ga. 1102, 39 S. E. Rep. 481; Railway Co. v. Wright, 25 Ind. App. 525, 58 N. E. Rep. 559; Railway Co. v. Fifth National Bank, 26 Ind. App. 600, 59 N. E. Rep. 43; Railway Co. v. Johnston, 45 Neb. 57, 63 N. W. Rep. 144, 50 Am. St. Rep. 540, citing Hutch. on Carr.; Security Trust Co. v. Express Co., 80 N. Y. Supp. 830, 81 App. Div. 426; affirmed in 178 N. Y. 620, 70 N. E. Rep. 1109, citing Hutch. on Carr. It is no defense that the carrier offered to the consignee other goods of equal value. Clement v. Railroad Co., 56 Hun, 643, 9 N. Y. Supp. 601. But where the goods were sent subject to the order of the consignor to notify the consignee for the purpose of inspection, and the carrier placed the car containing the goods upon a switch at the consignee's warehouse for the purpose of allowing him to inspect the goods, the carrier retaining control of the car, it was held that a removal of a portion of the goods by the consignee did not constitute a conversion. Conrad Schoop Fruit Co. v. Railroad Co., Mo. App. 91 S. W. Rep. 402. 16. 50 N. Y. 213. In Guillaume v. Transportation Co., 100 N. Y. 491, it appeared that defendant was a carrier between Havre and New York. One S., who resided in Gourin, France, acting in pursuance of a previous correspondence as to rates, etc., sent to Havre a bag of gold directed to de fendant's agent at Havre with instructions "to forward to Mr. Frank Guillaume, 152 and 154 Bleckert street, New York, Utica, America." The gold was duly received by the agent at Havre, who, two days before the steamer sailed, sent to S., at Gourin, a letter inclosing a bill of lading which stated that the gold was to be transported to New York and de facts as found were, that a person, with the intention of swindling the plaintiff, addressed to him a letter in the name of a fictitious firm, requesting him to send the goods to the address of the firm. Plaintiff, supposing the order to be hon livered "to M. Guillaume Frank, 152 and 154 Bleckert street, New York." This bill of lading contained a clause to the effect that the shipper, by accepting it, assented to its conditions. It took two days for letters to go from Havre to Gourin. S. sent no reply to the letter and took no steps to notify defendant of the erroneous statement in the bill of lading. After the arrival of the vessel in New York defendant attempted to notify the owner by sending a bill of lading directed to Guillaume Frank, 152 and 154 Bleckert street, New York. The bill of lading fell into the hands of a swindler, who, by representing himself to be Guil laume Frank, obtained the money. In an action to charge defendant with the loss it was held that the bill of lading did not, under the circumstances, constitute the contract between the parties; that the retention of the bill of lading by S. did not show an assent to the mistake, and, at most, the question of his negligence was one of fact; that defendant was bound to deliver the gold according to the directions, and that the question whether defendant was not guilty of negligence in sending the bill of lading to one not entitled to it, by means of which he obtained the gold, was, at least, one of fact, and the finding on this point being against the defendant, the court refused to disturb it. 14 S. W. Rep. 481, affirmed on rehearing, 14 S. W. Rep. 604, one Gillenwaters, over the assumed and fictitious name of Charles G. Magrauder, wrote from Knoxville, Tenn., to Cleveland, Ohio, ordering a brick machine. On its arrival Gillenwaters presented a bill of lading in the name of Charles G. Magrauder, paid the freight and demanded and received the machine, receipting for it in the name of Magrauder. No questions were asked, nor was he required to identify himself, nor was the bill of lading indorsed. The carrier was held liable. "It can make no difference," said the court, "that the defendant carrier thought because Gillenwaters had the bill of lading that he was Charles G. Magrauder. If he was a stranger, as the proof shows him to be, it was the duty of the carrier to have required him to identify himself as the consignee or his rightfully constituted agent. By its failure Gillenwaters was enabled to practice that fraud intended to be guarded against by the rule from Kent (2 Kent's Com. 9th ed. 805), as well as a theft or, its equivalent, the obtaining of the goods by false pretenses. That Gillenwaters had succeeded in deceiving the complainants by representing himself as Magrauder is no excuse to the defendant for its failure to use an effort to discover his true character. The consignment was In Sword v. Young, 89 Tenn. 126, to Charles G. Magrauder. That |