All liens may be abandoned, or waived, or lost. And it has been held that a refusal by a bailee to give up the goods without giving his lien as a reason, is a waiver. (g) And a lien may be lost, as by a repeal of the statute creating it, without affecting the contract. (h) * * It has been questioned whether a common carrier, who carries goods of a party, but without his order or knowledge, can maintain a lien for the freight. Generally the owner would have the right to refuse such service, and to require that the goods should be replaced, or he might have his action for intermeddling with his property. But if the facts were such as to leave 208 to the owner only the option between receiving his goods or rejecting them, must he either refuse the goods, or by accepting, give the carrier all the rights which he would have had if he had himself placed them in the hands of the carrier? If a thief in Albany steals one hundred barrels of flour from an owner who intends to send it to Boston, and the thief, for his own purposes, sends it by railroad to Boston, and there the owner's agent discovers the flour, and recognizes it by marks and numbers, can the owner or the owner's agent get possession of the flour, only by paying the freight, and so discharging the lien of the railroad? If a service has been distinctly rendered to the owner, and he accepts that service and holds the benefit of it, on general principles he must pay for it. Whether that rule would apply here would depend upon the peculiar circumstances of the case. But if it would, it does not follow that the carrier is entitled to his lien. He may have a rightful claim for freight, which he may otherwise enforce, but still have no lien for it on the goods transported. If the lien of the common carrier be connected with his peculiar obligation to carry for all who offer, (i) and his peculiar responsibility as an insurer against everything but the act of God or the public enemy, these three, the lien, the obligation, and the responsibility, existing only together, and in dependence on each other, then it would follow that he has no such lien. unless he was under a legal obligation to carry the goods for the thief. Such an obligation, in the present extension of our internal interchange of property, and with the existing facilities of (4) Dorrs v. Morewood, 10 Barb. 183; Hanna . Phelps, 7 Ind. 21; Adams Ex. Co. v. Harris, 120 Ind. 73. (h) Lambard v. Pike, 33 Me. 141; Bangor v. Goding, 35 Me. 73. (7) "The doctrine of lien originated in certain principles of the common law, by which a party, who was compelled to receive the goods of another, was also entitled to retain them for his indemnity; thus carriers and innkeepers had, by the common law, a lien on the goods entrusted to their charge." Smith, Merc. Law, 558. locomotion, would make the common carrier the most efficient assistant of the thief. We cannot doubt that he may always inquire into the title of one who offers him goods; that he must so inquire if there be any facts which would excite suspicion in a man of ordinary intelligence and honesty; and that if the person offering the goods is neither the owner nor his authorized agent, the carrier is under no obligation to receive and carry them. *209 And then again it follows, that if he carries goods for one who is neither the owner nor his agent, he carries what he was under no obligation to carry, and therefore cannot maintain his carrier's lien for the freight. This conclusion seems to us, on the whole, most comformable to the prevailing principles of law, and to the actual condition of the carrier's business in this country, and to the present weight of authority. (j) 1 * (j) This question has been considerably discussed within the last few years. We have already seen that an innkeeper in such a case has a lien. See ante, p. 156, note (u). See also Fitch v. New berry, 1 Dougl. (Mich.) 1, where the court says "There is an obvious ground of distinction between the cases of carrying goods by a common carrier, and the furnishing keeping for a horse by an innkeeper. In the latter case it is equally for the benefit of the owner to have his horse fed by the innkeeper, in whose custody he is placed, whether left by the thief, or by himself or agent; in either case food is necessary for the preservation of his horse, and the innkeeper confers a benefit upon the owner by feeding him. But can it be said that a carrier confers a benefit on the owner of goods by carrying them to a place where, perhaps, he never designed, and does not wish them to go? Or as in this case, is the owner of goods benefited by having them taken and transported by one transportation line, at their own price, when he had already hired and paid another to carry them at a less price? The first case in which the same question arose, in regard to a carrier, is that of the Exeter carrier, cited by Lord Holt, in York v. Grenaugh, 2 Ld. Raym. 866. There it appeared that one A stole goods, and delivered them to the Exeter carrier to be carried to Exeter. The right owner find ing the goods in the possession of the carrier, demanded them of him, upon which the carrier refused to deliver, without being paid for the carriage. The owner brought trover, and it was held, that the carrier might justify detaining the goods against the right owner for the carriage, for when A brought them to him he was obliged to receive them and carry them; and therefore, since the law compelled him to carry them, it would give him a remedy for the premium due for the carriage. The decision evidently met with the approval of Lord Holt. On the authority of this case, the opinion seems generally to have prevailed in the profession and among text-writers, that innkeepers and common carriers stand upon the same ground in this respect. See King v. Richards, 6 Whart. 423. But several late cases seem to have established the contrary doctrine, in this country at least, în accordance with what we have stated in the text. The first case, since that of the Exeter carrier, in which this question has been directly considered, is Fitch v. Newberry, 1 Dougl. (Mich.) 1, already cited. In that case, the plaintiffs, by their agents, shipped goods at Port Kent, on Lake Champlain, consigned to themselves at Marshall, Michigan, care of H. C. & Co., Detroit, by the New York and Michigan line, who were common carriers, and with whom they had previously contracted for the transportation of the goods to Detroit, 1 A carrier receiving goods from a tortious holder has no lien against the owner. Vaughan v. Providence, &c. R. R. Co. 13 R. I. 578; but where the carrier has received the goods from an agent whom the owner has clothed with apparent authority to deal with the goods, the carrier has a lien. See to this effect, Patten v. Union Pacific Ry. Co. 29 Fed. Rep. 590; Denver, &c. Ry. Co. v. Hill, 13 Col. 35; Whitney v. Beckford, 105 Mass. 267; Crossan v. New York, &c. R. R. Co. 149 Mass. 196, 199; Vaughan v. Providence, &c. R. R. Co. 13 R. I 578. *It is settled that when the carrier cannot find the consignee, or learns that he is a swindler, and would cheat and paid the freight in advance. During their transit, and before they reached Buffalo, the goods came into the possession of carriers doing business under the name of the Merchants Line, without the knowledge or assent of the plaintiffs, and were by them transported to Detroit, consigned by H. P. & Co. of Buffalo to the care of the defendants, and delivered to the defendants, who were personally ignorant of the manner in which they came into the possession of the Merchants Line, and of the contract of the plaintiffs with the New York and Michigan line, although they, and also H. P. & Co., were agents for and part owners in the Merchants Line. The defendants being warehousemen and forwarders, received the goods and advanced the freight upon them from Troy, N. Y., to Detroit. On demand of the goods by the plaintiffs, the defendants refused to deliver them until the freight advanced by them, and their charges for receiving and storing the goods were paid, claiming a lien on the goods for such freight and charges. The plaintiffs thereupon brought replevin; and the court, after much consideration, held, that the plaintiffs were entitled to the possession of the goods without payment to the defendant of such freight and charges, and that the defendants had no lien for the same. This decision is supported by the case of Van Buskirk v. Purrington, 2 Hall, 561. There property was sold on a condition, with which the buyer failed to comply, and shipped the goods on board the defendant's vessel. On the defendant's refusal to deliver the goods to the owner, he brought trover, and was allowed to recover the value, although the defendant insisted on his right of lien for the freight. See also Collman v. Collins, 2 Hall, 569. The same point arose directly in the case of Robinson v. Baker, 5 Cush. 137, in which Fletcher, J., after reviewing and commenting upon the authorities which we have cited, says: "Thus the case stands upon direct and express authorities. How does it stand upon general principles? In the case of Saltus v. Everett, 20 Wend. 267, 275, it is said: "The universal and fundamental principle of our law of personal property is, that no man can be divested of his property without his consent, and, consequently, that even the honest purchaser under a defective title cannot hold against the true proprietor.' There is no case to be found, or any reason or analogy anywhere sug. gested in the books, which would go to * *210 show that the real owner was concluded, by a bill of lading not given by himself, but by some third person, erroneously or fraudulently. If the owner loses his property, or is robbed of it, or it is sold or pledged without his consent, by one who has only a temporary right to its use, by hiring or otherwise, or a qualified possession of it for a specific purpose, as for transportation, or for work to be done upon it, the owner can follow and reclaim it in the possession of any, person, however innocent. Upon this settled and universal principle, that no man's property can be taken from him without his consent, express or implied, the books are full of cases, many of them hard and distressing cases, where honest and innocent persons have purchased goods of others, apparently the owners, and often with strong evidence of ownership, but who yet were not the owners, and the purchasers have been obliged to surrender the goods to the true owners, though wholly without remedy for the money paid. There are other hard and distressing cases of advances made honestly and fairly by auctioneers and commission merchants, upon a pledge of goods by persons apparently having the right to pledge, but who in fact had not any such right, and the pledgees have been subjected to the loss of them by the claim of the rightful owner. These are hazards to which persons in business are continually exposed by the operation of this universal principle, that a man's property cannot be taken from him without his consent. Why should the carrier be exempt from the operation of this universal principle? Why should not the principle of cavea. emptor apply to him? The reason, and the only reason given, is, that he is obliged to receive goods to carry, and should therefore have a right to detain the goods for his pay. But he is not bound to receive goods from a wrong-doer. He is bound only to receive goods from one who may rightfully deliver them to him, and he can look to the title, as well as persons in other pursuits and situations in life. Nor is a carrier bound to receive goods, unless the freight or pay for the carriage is first paid to him; and he may in all cases secure the payment of the carriage in advance. In the case of King v. Richards, 6 Whart. 418, it was decided that a carrier may defend himself from a claim for goods by the person who delivered them to him, on the ground that the bailor was not the true owner, and the consignor, he is bound to protect the owner and consignor, and for that purpose to hold the goods, or store them in some proper way for his use. (k) And so he is if the consignee. the goods. (1) He would be bound to give notice to the consignor only, if that, under the circumstances, would be reasonable care; and this, it would seem, is a question for the jury. (m) *211 refuses to receive The carrier may also be a factor to sell for the owner; and this by express instructions, or by usage of trade (n) When this is the case, after the carrier has transported the goods, and is engaged in his duty as a factor for sales, he is responsible only as a factor, or for his negligence or default, .and not as a carrier. But after he has sold the property, and has received the price which he is to return to the owner, his responsibility as a carrier revives, and in that capacity he is liable for any loss of the money. (0) therefore not entitled to the goods. The common carrier is responsible for the wrong delivery of goods, though innocently done, upon a forged order. Why should not his obligation to receive goods exempt him from the necessity of determining the right of the person to whom he delivers the goods, as well as from the necessity of determining the right of the persons from whom he receives the goods." (k) Stevenson v. Hart, 4 Bing. 476; Duff v. Budd, 3 Br. & B. 177. (1) Crouch v. G. W. R. Co. 2 Hurl. & N. 491. (m) Hudson v. Baxendale, 2 Hurl. & N. 575. (n) Stone v. Waitt, 31 Me. 409; Williams v. Nichols, 13 Wend. 58; The Waldo, Daveis, 161. (0) Thus, where the owners of a steamboat, which ran upon the Ohio River, took produce to be carried and sold by them for a certain freight, and were bringing back in the same vessel the money which they obtained on the sale of the produce, when the vessel and the money were accidentally consumed by fire; it was held, that under the usage of trade in the western waters, they were acting as common carriers in going, as factors in selling the produce, and as common carriers in bringing back the money, and were liable for its loss, notwithstanding the accident. Harrington v. McShane, 2 Watts, 443. And per Sergeant, J.: "The question of the defendants' responsibility in the present case depends on the character in which they held this money when the loss occurred. If they were merely factors they are not responsi ble; if they were carriers the reverse must be the case. Had the flour been lost in the descending voyage by a similar accident, there could be no doubt whatever of the defendants' liability; they were certainly transporting it in the character of carriers. On their arrival at the port of destination, and landing the flour there, this character ceased, and the duty of factor commenced. When the flour was sold, and the specific money, the proceeds of sale, separated from other moneys in the defendants' hands, and set apart for the plaintiffs, was on its return to them by the same boat, the character of carrier reattached. The return of the proceeds by the same vessel is within the scope of the receipt and of the usage of trade, as proved, and the freight paid may be deemed to have been fixed with a view to the whole course of the trade, embracing a reward for all the duties of transportation, sale, and return. If the defendants, instead of bringing the money home in their own vessel, had sent it on freight by another, there would have been to the plaintiffs the responsibility of a carrier, and there ought not to be less if they chose to bring it themselves. If they had mixed the money with their own, they would have no excuse for non-payment. The defendants can be relieved from responsibility only by holding that the character of carrier never existed between these parties at all, or that if it existed, on the descending voyage, it ceased at its termination, and that of factor began and continued during the ascending voyage. But if the defendants bring back in the The common principles of agency apply to the carrier; 212 he is liable for the acts of those whom he employs and authorizes to act for him. But a party may contract with the servant alone, and then can hold him only. (p) SECTION XIII. OF THE RESPONSIBILITY OF THE CARRIER BEYOND HIS OWN ROUTE. The question, when the carrier is liable beyond his own route, has been recently much considered, and is not yet quite settled. If carriers for different routes, which connect together, associate for the purpose of carrying parcels through the whole line, and share the profits, they are undoubtedly partners, and each is liable in solido for the loss or injury of goods which he undertakes same vessel other property, the proceeds of the shipment, whether specific money or goods, they do so as carriers, and not merely as factors." So where a master of a vessel, employed in the transportation of goods between the cities of Albany and New York, received on board a quantity of flour to be carried to New York, and there sold in the usual course of such business for the ordinary freight; and the flour was sold by the master at New York for cash, and while the vessel was lying at the dock, the cabin was broken open and the money stolen out of the master's trunk, while he and the crew were absent; it was held, that the owners of the vessel were answerable for the money to the shippers of the flour, though no commissions, or a distinct compensation, beyond the freight, were allowed for the sale of the goods and bringing back the money, such being the duty of the master, in the usual course of the employment, where no special instructions were given. Kemp v. Coughtry, 11 Johns. 107. And, per curiam: Had the property which was put on board this vessel for transportation been stolen before it was converted into money, there could be no doubt the defendants would have been responsible. But the character of common carrier does not cease upon the sale of the property. According to the testimony in this case, the sale of the goods and return of the proceeds to the owner is a part of the duty attached to the employment, where no special instructions are given, The con tract between the parties is entire, and is not fulfilled on the part of the carrier, un til he has complied with his orders, or has accounted with the owner for the proceeds, or brought himself within one of the excepted cases. The sale in this case was actually made, and the money received; and had it been invested in other property, to be transported from New York to Albany, there would be no question but the character of common carrier would have continued. It can make no difference whether the return cargo is in money or goods. A person may be a common carrier of money, as well as of other property. Carth. 485. Although no commission or distinct compensation was to be received upon the money, yet according to the evidence, it appears to be a part of the duty attached to the employment, and in the usual and ordinary course of the business, to bring back the money when the cargo is sold for cash. The freight of the cargo is the compensation for the whole; it is one entire concern. And the suit may be brought against the owners of the vessel. The master is considered their agent or servant, and they are responsible for the faithful discharge of his trust." See also, Taylor v. Wells, 3 Watts, 65; Emery v. Hersey, 4 Greenl. 407. It should be observed, however, that Mr. Justice Story has made some strictures upon the case of Kemp v. Coughtry, for which see Story on Bailm. §§ 547, 548. (p) See ante, p. * 181, note (a). |