§ 527. Assumption of Excess of Authority by One Partner. Where the contract is entered into, or the obligation incurred by the partner who, at the time, is acting beyond the scope of his authority, as conferred by the articles of co-partnership, or restricted by private stipulation, such acts will not bind his co-partners in favor of one having notice of the misconduct of the partner with whom he treats, when such act amounts to a fraud upon the partnership.1 $523. Misapplication of Funds.-When the excess of authority by one partner is in the misapplication of the funds of the partnership to satisfy a debt or demand against himself, or for his own benefit, the party with whom the transaction takes place, knowing that the funds are those of the firm, cannot avoid knowledge of their misapplication, and the obligations assumed will be void as against the partnership, how binding soever they may be upon the partner who commits the fraud.2 $529. Effect of Dissolution upon Guarantor. -The effects of notice of dissolution of a partnership are not always confined to the parties having dealings, prior or subsequent, with the firm. Where advances are made to a co-partnership, not upon faith in the firm's credit, but upon the strength of the guaranty of a third party, the guarantor cannot be held for advances made by the creditor, subsequent to his receiving notice that the partnership is dissolved.3 - § 530. Onus Probandi. When one attempts to escape the responsibility implied from his connection with the partnership in whose name the obligation is incurred, upon the ground that he has severed such connection, and notified the creditor, or that he had given antecedent notice of his nonliability, the authorities all seem to agree in casting the burthen of proof upon him in every instance. If the cir 1 Connecticut River Bank v. French, 6 Allen, 313; Warren v. French, Id., 317; Sandilands v. Marsh, 2 B. & Ald., 673. 'Kemeys v. Richards, 11 Barb., 312; Burwell v. Springfield, 15 Ala., 273; Green v. Deakin, 2 Stark., 347; Story on Part., § 132. Cremer v. Higginson, 1 Mason, 323. 4 Carmichael v. Greer, 55 Ga., 116. cumstances require actual notice, it is necessary for him to allege and prove such actual notice. If the case admits of constructive notice, by publication in a newspaper, or by other notorious proclamation of the fact relied upon, he still has the affirmative of the issue upon the matter of notice, and until he makes at least a prima facie showing, will be held liable as a partner. II. NOTICE BY CARRIERS LIMITING THEIR LIABILITY. § 531. Division of Subject. 532. Inception of Liability. 533. Cannot be varied by Published Notice. 534. Liability at Common Law. 535. Different Methods of Giving Notice. 536. State of the Law in England. 537. Notice must be Brought Home. 538. Posting Notices Insufficient. 539. Same. 540. Example of Insuficient Notice. 541. American Rule-must be Clear and Explicit. 542. Limitation of Extent of Liability. 543. Notice on back of R. R. Ticket. 544. Must be seen and Understood. 545. Party unable to read Notice. 546. Taking Paper Containing Advertisement, Insufficient. 547. To whom Given-Servant. 548. Printed in Bill of Lading, Insufficient. 549. Conflicting Notices. 550. Same. 551. Agent's Acts Governed by Notice to Principal. 552. General Doctrine in America-Cannot be Limited by Notice. 553. May be by Contract. 554. Notice and Assent. 555. Assent must be Voluntary. 556. Same. 557. Views of Judge Redfield. 558. Notice never Exempts from Negligence. 559. Example of Express Contract held Inoperative. 560. Cases arising under English Statute. 561. Further Illustration of same. 562. Notice of Arrival. 563. Will Terminate Liability as Carrier. 564. Reasonable time for Removal after Knowledge of Arrival. 565. Classification of Conflicting Authorities. 566. Massachusetts, Illinois, Iowa. 567. Modification of the Rule in Massachusetts. 568. New Jersey, Vermont,-Reasonable Time to Remove. 569. Additional Authorities. 570. New York, Michigan, Texas, New Hampshire-Notice Required. 571. Carriers by Water-Notice Required. 572. Comparison of Conflicting Views. 573. Rule Requiring Notice, Preferred. 574. Conflict Explained by Difference in Local Customs. 575. Rule Affected by Custom. 576. Waiver and Excuse. 577. Reasonable Time for Removal. § 531. Division of Subject. The carriers' notices by which. their liability is sought to be limited, has reference-1. To the notice by which they endeavor to qualify or restrict their responsibility, imposed by law, as special insurers of the articles committed to their charge. 2. The notice by which their responsibility as carriers is terminated. § 532. Inception of Liability. - An important matter for consideration in connection with notices of the former class, is the inception of the carrier's liability. This usually takes place when the goods are delivered to the carrier for transportation, whether immediately taken upon the vessel or vehicle employed in their carriage, taken into a warehouse to await the carrier's convenience, or left upon a public dock or wharf, where it is usual and customary to deposit articles intended for transportation by the carrier in whose charge they are thus delivered.1 But in order to hold the carrier to the onerous responsibility imposed upon him by common law, something more than the delivery of the goods to such carrier must appear. It is not 'Merriam v. H. & N. H. Railw., 20 Conn., 354; Rogers v. West, 9 Ind., 400; Burrell v. North, 2 Carr. & Kir., 680; Boehm v. Combe, 2 M. & S., 172. enough that he is charged with their possession. They must be delivered to him in his capacity of carrier and none other The articles delivered for carriage must be delivered for present transportation, and not to be held for a time, and shipped when further orders of the bailor are given to that effect.' If they are delivered for present storage and future shipment, although in the possession or under the control of the carrier, they are not held by him as such, but only as a warehouseman, who is held to less strict accountability.2 This rule as to § 533. Cannot be Varied by Published Notice. the commencement of the carrier's liability is so well recognized that it cannot be abrogated by public notice. Thus, where a railroad corporation, having a warehouse for the stor. age of goods entrusted to it for present shipment, advertised that it would not be responsible for goods so left, except for injuries resulting from the negligence of its own servants, it was held that it was nevertheless liable for the value of goods left at its warehouse to be presently forwarded, which, while in store, were destroyed by an accidental fire." § 534. Liability at Common Law. -The liability of common carriers, as fixed by the law of this country and England, is probably so well understood as to render unnecessary further comment or illustration than a statement of the general rule by which such liability is governed with respect to the goods committed to the carrier's charge. This rule is that such carriers will be liable for all damage and loss of goods during the carriage, from whatever cause, unless from the act of God, which is limited to inevitable accident, or from the public enemy.* $535. Different Methods of Giving Notice. The notice by which carriers seek to limit this liability is in some instances 'Moses v. Boston & M. R. R. Co., 24 N. H., 71; Spade v. Hud. Riv. Railw. 16 Barb., 383; R. R. Co. v. Manf. Co., 16 Wall., 318. O'Neill v. New York & Hud, Riv. R. R. Co., 60 N. Y., 138; Selway v. Holloway, 1 Ld. Raym., 46. 3 Moses v. Boston & M. R R. Co., 24 N. H., 71. '2 Redfield on Railways, 6; and cases there cited. actually communicated to the shipper, and in others rests entirely upon declarations of the carrier's rules, made public by printed posters, signs, or the advertisement of their nonliability, in connection with the customary solicitation of public patronage. Another method adopted alike by railroad corporations and other carriers by land, and by carriers by water, is to print the notice of the exemption claimed upon the ticket of the passenger, or the receipt, way bill, or bill of lading, when engaged in the carriage of goods and chattels. § 536. State of the Law in England. The state of the law upon this question in England prior to the legislation by which the responsibility of carriers has been settled upon a very reasonable basis in that country' may be illustrated by the case of Maving v. Todd,' where the vendor of goods in London forwarded them to the vendee in the country by a carrier from whom he had received notice that his liability for the safety of goods committed to his care for transportation, was limited so as not to extend to a loss by fire. During the time the goods were in the possession of the carrier, they were accidentally destroyed by fire, and in deciding an action brought by the vendee to recover for their loss, it was held by Lord ELLENBOROUGH, that although the carrier was selected by the vendor, the vendee was bound by the selection, and, notwithstanding that the carrier was bound to receive the goods, he might make his own terms and exclude his liability for the loss of the goods altogether.S ' 11 Geo. IV. & 1 Wm. IV., C. 68; Railway & Canal Traffic Act, 17 & 18 Vict. C. 31, § 7. 21 Stark., 72. * This learned jurist is reported to have expressed regret that the law presented such encouragement to negligence. In a case decided in the following year (1816) he says in the course of his summing up to the jury: "If this action had been brought twenty years ago the defendant would have been liable. ** * It was found that the common law imposed upon carriers a liability of ruinous extent, and in consequence, qualitications and limitations of that liability have been introduced from time to time till, as in the present case, they seem to have excluded all responsibility whatsoever, so that under the terms of the present notice, if a servant |