by them as an excuse for omitting a delivery personally to the consignee, under particular circumstances and in certain cases, to the same extent as by other carriers, is not well settled. The cases show that the courts are somewhat adverse to making exceptions in their favor as to this duty upon that ground, though they have been sometimes allowed to rely upon it. Where delivery was made to the clerk of a government bakery of an ordinary package, consigned to one of the employees, by an express company, it was held that the carrier was justified by the usage and custom in such cases in making the delivery in this manner. But it was afterwards decided by the same court that a delivery by such a carrier to a station agent or switchman of the railroad at a way-station, where the amount of business done by the carrier was very small, and where no messenger had ever been employed by it, could not be defended upon the ground of the usage of the company, and of all other express carriers, so to deliver the goods and notify the consignee. It was said that such usage was local in its application and character, and confined to this station, and that unless it was shown that the plaintiff knew of the custom when he made the contract, he could not be held bound by it; and the latter case was held to be clearly distinguishable from the former.14 And where an express carrier put off a package upon the platform of a station at which it had no messenger or agent, and no warehouse, and only carried the package at the solicitation of the plaintiff's agent, who knew these facts, to a consignee who had before received goods, delivered at the same station in the same manner, it was held that it could not rely upon usage as a defense, when sued for the loss of the package. Sec. 719. (§ 382.) Same subject. It has been held that a custom of an express carrier to deliver to the president of a college, packages sent to the students, might be relied upon as a justification of such a delivery in a suit for a loss.15 And a usage in delivering packages to a bank after banking hours 14. Sullivan v. Thompson, 99 Mass. 259; Packard v. Earle, 113 Mass. 280. 15. Southern Express Co. v. Everett, 37 Ga. 688. In Aldrich Car Seal Mfg. Co. v. has also been considered available for the defense of the express company when it was sued for the loss of the packages, after its tender and refusal, because not offered within such hours and in the absence of the cashier of the bank, because, it was said, if it had been the habit of the bank to receive such packages from the carrier on its arrival, it was very proper for the jury to consider it in reference to the question whether the package was tendered at a reasonable time.16 But where the express carrier undertook to deliver a heavy box for the plaintiff, who lived in the fourth story of a building, by placing it within the outside door of the building at the foot of the stairs, and notifying a boy whom he found in the office, the Express Co., 117 Mich. 32, 75 N. W. Rep. 94, the plaintiff, desiring to submit bids for furnishing car seals to the United States government, inclosed its bid with samples of the seals addressed, "Hon. J. G. Carlisle, Secretary United States Treas. Dept., Washington, D. C.," and delivered the package to the defendant express company to deliver at the treasury department before 2 p. m. July 1st. The package arrived at Washington July 1st, and was delivered by the express company's driver at 1:25 p. m. July 1st to one C. E. Vickery, an employe in the treasury department who had charge of all the store supplies in the treasury department, and a receipt was taken therefor. The package did not reach the department of the treasury where those bids would be received until 3:07 p. m. In an action by the plaintiff against the express company for alleged failure to deliver the package at the United States treasury department before 2 p. m. July 1st, the question of the sufficiency of the delivery arose. The court in its opinion said: "There was no re- 16. Marshall v. The American Express Co., 7 Wis. 1. See also, Stimson v. Jackson, 58 N. H. 138. plaintiff not being in, and attempted to justify such delivery, when sued for its loss, upon the ground of usage, his defense was held to be unavailable, especially as the usage was not conclusively proven, and it was said that the law was exceedingly jealous of any innovation upon the responsibility of carriers, and that the express business, most of all, required that even the most uniform and constant dereliction of duty, however successful, should not enable express carriers to evade liability for a lost package committed to their care, by getting up a usage.17 V. VARIOUS INCIDENTS OF DELIVERY. Sec. 720. (§ 383.) Whether carrier bound to make a personal delivery, must give notice of a refusal of the goods by the consignee. It has been frequently determined that if the express carrier tender the goods to the consignee, and they are refused, the carrier will from that time hold them in the character of warehouseman; and if he store them safely with some third person, it would seem that his liability is completely at an end. Whether, in the case of such refusal, and warehousing, it' becomes his further duty to notify the consignor, is a question upon which the cases are in conflict. It has been said that there is no rule of law which requires the carrier to give such notice in ordinary cases; that the liability for a failure to give it could only arise where such failure would be evidence of gross negligence in discharge of the duty to protect the property in his custody, and that the fact that the property was liable to depreciate in value by the fluctuation of the market price will not take the case out of the general rule. This was held in a case the facts of which were, that the express carrier had carried the goods to destination, and, having offered them to the consignee, who refused to pay for and take them, had stored them, without giving notice to the consignor. They remained in store for nearly a month, during which time, as was claimed by the consignor, he was ignorant of the fact that 17. Haslam v. Adams Express Co., 6 Bosw. 235. they had been refused, and the goods depreciated greatly in market value. This being the view taken of the law upon the subject, it was held that the plaintiff could not recover;18 and the decision in this case, upon the question of the obligation of the carrier to give notice to the consignor, under such circumstances, seems to be supported by a number of cases.19 Sec. 721. (§ 384.) Same subject-Who to be deemed the owner. But the better opinion would seem to be that the carrier would be bound to presume, from such refusal, that the consignor was still the owner of the goods, and that, to relieve himself from his responsibility as carrier, it would be necessary for him to store them, either in his own warehouse or with some responsible warehouseman, and give notice of the fact to such consignor or owner. If, however, the consignee be the owner, the notice of the storing of the goods, if they are not retained by the carrier in his own warehouse, should be given to him, so that he may know where to call for them if he should so wish.20 Accordingly, where goods were intrusted to an express carrier, with instructions to collect the price of them upon delivery, it was held to be liable for their loss by depreciation in value, the goods having been kept by the carrier at the place of destination, without notice to the consignor, for nearly a month after they had been tendered to the consignee, and not taken by him, because he was not then prepared to pay 18. Bremer v. The Southern Ex- party, notify the shipper or owner press Co., 6 Cold. 356. 19. Mayell v. Potter, 2 Johns. Cas. 371; Fisk v. Newton, 1 Denio, 45; Fenner v. Railroad, 44 N. Y. 505; Zinn v. Steamboat Co., 49 id. 442; Neal v. Railroad, 8 Jones (Law), 482. 20. The Eddy, 5 Wall. 481; The Green, etc., Nav. Co. v. Marshall, 48 Ind. 596. The ordinary duty of a carrier when the consignee refuses to receive the goods shipped is to store them either in his own warehouse or that of some responsible third of such refusal, and hold them for a reasonable time subject to further orders. But if the shipper be the owner and consignee, no such duty is imposed on the carrier. The refusal of the owner to accept the goods under such circumstances constitutes an abandonment of the goods, and the owner will thereafter be estopped from asserting that the carrier has converted them. Beedy v. Pacey, 22 Wash. 94, 60 Pac. Rep. 56. for them, although he had several times promised to call and pay for them.21 But the carrier will not be required to give notice to the consignor that the consignee refuses to accept the goods where such notice has been given by the consignee.22 Sec. 722. (§ 385.) Same subject-How when goods are not to be delivered until paid for.-But it has been held that if the carrier is instructed not to deliver the goods until they are paid for, and the consignee, instead of refusing to take them, promises to pay for and take them within a few days, and requests the carrier to keep them for him until he is ready to pay for them, the carrier becomes a warehouseman of the goods; and if they are destroyed while so held, without any fault or negligence of his, he will not be liable, although he has given no notice of the fact to the consignor. The custom of carriers, however, in San Francisco, which was the place of delivery, in extending the time for the reception of goods, and the distance and the length of time which would have been required to communicate notice to the consignor, who resided in the city of New York, were considered as having an important bearing in the case.23 Sec. 723. (§ 386.) Same subject-How when consignee absent or not found. The effect will be the same upon the liability of the carrier if the consignee be absent, or after reasonable diligence cannot be found. It is the duty of the consignee to be on hand and ready to receive the goods. He cannot absent himself, and thus put it out of the power of the carrier to make a delivery to him, and hold him during his absence to the extraordinary care of the goods required of the carrier. If, therefore, he be absent when the carrier is ready to deliver |