the goods, and has left no agent known to the carrier to whom delivery can be made for him, or to whom notice can be given of their arrival, the carrier becomes at once a mere warehouseman of the goods.24

Sec. 724. (§ 387.) Same subject.-In such cases, as well as when the consignee has refused to take the goods, if the carrier know that they still belong to the consignor, from being so informed or from any circumstance which should bring the fact to his knowledge, as, for instance, if he is instructed not to deliver the goods until the price is paid, or other terms complied with, he should, upon being unable to find the consignee, after reasonable efforts to do so, or upon ascertaining his absence, give notice to the consignor or other owner, if he is known. The carrier, however, has always the right to presume that the goods belong to the consignee unless he is otherwise informed, or is bound to infer otherwise from the circumstances. And if, in the absence of such information or circumstances, he store the goods for the absent or unknown consignee, without notice to the consignor, it would seem that he ought not to be held liable for any loss which may arise from its not being given. For any delivery which discharges the carrier, as between himself and the consignee, is good as against the consignor, unless the carrier is advised that the goods still belong to the latter.25

Sec. 725. (§ 388.) Same subject-Duty arises only when bound to make personal delivery or to give notice of arrival.— The duty to give notice to the consignor or owner of the goods, in case of their refusal by the consignee, or when he is absent. or cannot be found, can arise only when the carrier is required to make a personal delivery or to give notice to the consignee of their arrival. It has no application, therefore, to railroad

companies, when they are only required to deposit the goods in their warehouses to await the call of the consignee, without notice to him, which, as we have seen, is all that is generally required of such companies. Their whole duty as carriers is performed as soon as this is done, and the failure as warehousemen to give such notice would not be such negligence as to make them liable in that character for any loss which might be thereby occasioned.26 It is also said that when the duty devolves upon the carrier to give such notice to the consignor, and the attempt is made to hold him liable for the failure to perform it, it must appear, before he will be made liable, that the loss for which the claim is made upon him was the consequence of his omission to give the notice. If the loss be attributable to a cause which had no connection with notice to the owner and which such notice would not have prevented, it is evident that the carrier should not be held liable for his failure to give it.27

Sec. 726. ($389.) The duty of the carrier as to C. O. D. goods. Goods are frequently sent, especially by the express carrier, with instructions not to deliver them until they are paid for.28 In such cases, it is understood that the payment of

26. Merchants', etc., Co. v. Hal- packages, and the attempt is made lock, 64 Ill. 284. to hold the carrier as upon a

27. Weed v. Barney, 45 N. Y. contract growing out of such a

344.

28. Goods accompanied with such instructions to the carrier have obtained the name, in commercial parlance, of C. O. D. goods, or are said to be sent C. O. D., because they are usually marked with those letters. They mean simply "collect on delivery," and the acceptance of goods thus marked by the carrier generally imports an undertaking on his part that he will not deliver to the consignee until the collection is made. The meaning of the letters, when they are indorsed upon

symbolic mark, must be explained
by evidence. Courts will not take
judicial notice of their meaning.
In the case of The American Ex-
press Co. v. Lesem, 39 Ill. 312, the
following remarks were made by
Breese, J., upon their meaning
and effect: "It is proper here to
discuss the nature and import of
the letters C. O. D., as placed on
the receipt and on the box by the
express company.
Do they
amount to a contract? And, if
so, what is the extent of it? What
are the liabilities assumed by the
company, and how can they dis

the price and the delivery of the goods are to be concurrent acts. The carrier who accepts the goods with such instructions undertakes that they shall not be delivered unless the condition of payment be complied with, and becomes the agent of the shipper of the goods to receive such payment. He therefore undertakes, in addition to his duties as carrier, to collect for the consignor the price of his goods.29 This no carrier can be compelled to do unless it be a customary part of his business, or unless he has, in some way, held himself out to the public as willing to undertake such service; and then, upon the principle that every man who engages in a public employment shall be required to act in that employment according to his public professions, he might be obliged to accept goods upon such terms from all who offered them.

Sec. 727. (§ 390.) Same subject-Must conform to instructions-Wrongful delivery ratified. However this may be, when the goods are so received, the carrier is held to a strict compliance with such instructions, and if the goods are delivered without an exaction from the consignee of the amount which the carrier is instructed to collect, he becomes liable to

charge them? These are interesting questions to the whole business community, and deserve careful and full investigation, the more especially after the effort made by this company to deprive them of any force or meaning. The counsel treats them as an enigma not legally explainable. We are inclined to think that if an express company or other common carrier resort to enigmas in the conduct of their business, they shall not alone be permitted to afford the solutions. Their agent testifies that the letters mean that the express company was to collect of the consignees, on delivery, the amount due from him and marked on the package, and to return such amount to the con

signors; and this is the experience of the whole business community employing such an agency. The letters are the initials, and so understood, of the words 'collect on delivery;' and this undertaking by those letters the appellants assumed, and they must be held to a strict performance thereof."

29. In United States Exp. Co. v. Keefer, 59 Ind. 263, it is said: "Where the goods are marked 'C. O. D.,' the contract of the common carrier, in connection therewith, is not only for the safe carriage and delivery of the goods to the consignee, but he further contracts with the consignor that he will 'collect on delivery' and return to the consignor the charges on said goods."

the consignor for it. Delivery under such circumstances, without requiring such payment, has been said to be as much a conversion, though to the right person, as if it had been made to the wrong person.30 It is the surrender by the carrier of a security for the debt, not only without authority, but contrary to the instructions of the consignor and his own contract.31 The wrongful delivery may, however, be ratified by the consignor, and if ratified the carrier will be released.32 Sec. 728. (§ 391.) Same subject-Duty to require payment is based on contract. The obligation to require payment for the goods, as a condition of their delivery, does not arise from the implied duty of the carrier. It must rest upon contract, either express or implied from the circumstances.33 No doubt, if goods, so marked as to clearly indicate that it was the intention of the consignor that they should not be delivered without payment of their price, be delivered to a carrier who had made such collections a part of his customary business, and especially if he had been in the habit of carrying goods for the same consignor upon the same terms, it would be held as obligatory upon him to deliver only when such payment was made.34 And such contract may be verbal, and need not be incorporated in the carrier's receipt.35 But if goods so marked be delivered to a carrier who never undertook to carry and deliver upon such terms, no contract to do so in the particular instance would arise or be implied. This was decided where a box, so marked, was sent by a railroad company as carrier, and it was shown that, although the road accepted the box, it had not only not been its custom to collect from the consignee, but that it had never done so.

30. Murray v. Warner, 55 N. H. 546.

31. Meyer v. Lemcke, 31 Ind. 208; Feiber v. District Tel. Co., 3 N. Y. Suppl. 116.

32. Rathbun v. Steamboat Co., 76 N. Y. 376. In this case the carrier took a check in payment, but the check was accepted by the consignor, who sent it on for

And although the box so collection. The taking of the check was held ratified by such acceptance.

33. Fowler v. Railway Co., 98 Mo. App. 210, 71 S. W. Rep. 1077, citing Hutch. on Carr.

34. American Express Co. v. Lesem, 39 Ill. 312.

35. The Union, etc., R. R. v. Riegel, 73 Penn. St. 72.

marked was directed to the care of the consignee, and was delivered by the company directly to the latter, upon his calling for it, without collecting the charges marked upon it, the road was held not liable for the loss by this failure to pay the consignor his charges.36 So where a package was delivered to the carrier, with an accompanying bill upon which was indorsed the words "please collect," it was held that they amounted only to a request to the carrier, and that his acceptance of them did not create a contract not to deliver unless the price was paid.

Sec. 729. (§ 392.) Same subject-Duty to give consignee an opportunity to pay.-When the carrier receives goods with such instructions, and carries them to their destination, if the consignee is not ready to pay for them immediately upon their being tendered to him, he must retain them a reasonable time. to enable the consignee to obtain the means to do so. And if the carrier return them immediately upon a tender of them to the consignee, who declines to pay for and take them, because he is not then prepared to do so, but desires to be allowed a reasonable time in which to prepare himself to call for them, he will be liable to an action for damages by the consignee. And this will be so whether the charges demanded are for freight upon the goods or for their price.37 Though after such tender, no matter for what reason the consignee defers such

36. Chicago, etc., R. R. v. Merrill, 48 Ill. 425. In this case, as well as in those previously cited in reference to instructions to collect on delivery, the box was marked "C. O. D.," the well-understood abbreviation, and meaning of course the same thing as the words in full.

In Smith v. Express Co., 104 Ala. 387, 16 So. Rep. 62, instructions were written on a small piece of paper (name of consignee, "C. O. D.," "$86.75"). The package and note of instructions was delivered to the carrier by plain

tiff's servant, who took a receipt in turn. The receipt nowhere showed the mark "C. O. D." The servant took the receipt home and laid it away. Before the plaintiff saw it, the package had been delivered. The court held that the sender was charged with notice of the contents of the receipt, and the giving and receiving of such receipt operated as a refusal by the carrier to send the goods C. O. D.

37. The Great Western Ry. v. Crouch, 3 H. & N. 183.