Patten v. Johnson

Devens, J. Upon the evidence of the known usage in Boston, and of the expectation and intention of the defendants in connection therewith, it was the duty of the defendants, (unless the contract was in some way varied,) not only to have carried the trunks of the plaintiff to Ashland Place, but also, as the houses within the Place could not be immediately approached by their carriage, to have transported the same to the door of the house where the plaintiff was going, and there to have safely delivered them to him. As the performance of this duty might be waived by the plaintiff, either in terms or by taking upon himself or accepting the delivery when the transportation by carriage was terminated, so it might be modified by his assuming control or direction of the delivery, or assenting to any particular method thereof, in which case the carriers would be relieved from responsibility. Loveland v. Burke, 120 Mass. 139. Lewis v. Western Railroad, 11 Met. 509. There was evidence that no other man was taken by the hack man to aid in carrying the trunks into the house, upon the promise of the plaintiff that he would help the driver so to do. On arriving at the Place, he went to the house with his own valise, and, having left it there, returned to the entrance of the Place, proposed himself to the hackman, who stood there with the trunks, that they should take the largest first, to which the driver assented, adding, “ I will set the other in here,” and then putting the smaller trunk within the posts of Ashland Place. Upon their return, the trunk thus left was gone, and has not since been found. The original proposition of the plaintiff to assist in carrying in the trunks, by reason of which no other .man was taken and presumably additional expense avoided, his going to the house with his valise and return to aid in the transfer of the trunks, his suggestion that they should take the heaviest trunk first, which implied that the other was to be left, his permitting the hackman to leave the other at the entrance of the Place without objection, afford such evidence of an assent to this method of delivery that it might have been inferred that he intended to accept the responsibility of it. These facts afford evidence of more than a mere negative assent to the mode in which the hackman conducted his own business; they warrant a finding 300 that there was an active participation in the transaction, and upon them it could not be held, as matter of law, that the plaintiff was entitled to judgment. Judgment for the defendants.