Baldwin v. American Express Co.

Breese, J. The question in this case is, was there sufficient evidence of a delivery of this package, or of an offer to deliver, as will discharge the liability of the express company as a common carrier, or change it into the liability of a depository simply. There is no count in the declaration against the defendant, charging any other contract with it than that as a common carrier, and consequently, all evidence in relation to the security of the safe, or the absence of a night watch, is out of the question. The defendant can only be liable as a common carrier, and in no other character on this declaration. We do not consider there is any offer to deliver this package either to the officers of the Dane County Bank or to Flowers, or to any one in his employment authorized to receive it, proved. The testimony of Douglas, the agent of the express company, taken in connection with that of Memhard, the messenger, of Treadway, one of the employees of the bank, and of Brown, the cashier of the bank, and of Willis, the clerk of Flowers, all go to show that the package was not ever tendered by Douglas, to either of them, and he shows most clearly that the package was at no time ready for delivery, either to the bank or to Flowers, for he says it was the custom at the express office to enter the packages received in a delivery book, which is also the receipt book, and by which book they deliver to consignees, who sign a receipt in this delivery book. Now this package was never entered on this book, and of course was not ready for delivery The bank had no opportunity to refuse to receive the package, for it was not offered to any officer of the bank. One or more of them was informed there was such a package there for Baldwin, but though the bank office was not five steps distant, and in the same building with the express office, the express agent did not take it to the bank, and there offer to deliver it. It was not offered to Flowers, or his clerk, at his place of business. The clerk was merely told by the messenger, when making his rounds, there was a package for Baldwin at the office, and the clerk said he would “ go round and see about it.” When at the office, the package was not offered to him, and if it had been, he would not have been authorized to receive it at the office, it not having been entered on the delivery book, and the custom of the express company being shown to be, at Madison, to deliver by that book to the consignees in person, or to their authorized agent, at their place of business. An offer to deliver at the express office, if that was proved, under such circumstances, amounted to nothing. Mr. Fargo, the general agent of this company, says, “ we deliver goods actually to the person, or by notice,” by which we would understand, that at important towns on their routes, and at the termination of their routes at important towns, they deliver personally; at way-stations by notice, and by depositing the goods or packages in a safe receptacle, if that be the known custom of the company. Such a custom may be reasonable, and therefore legal, and if well established, parties will be presumed as having contracted with reference to it; but at small stations, where the business will not justify them in keeping a special delivery agent, prompt notice should be given to the consignee, in order to discharge them from the strict liability of common carriers. Mr. Yan Yleet, the check clerk in the United States express office, says that “ the general method of conducting an express business is to take receipts in a receipt book, which is called the delivery book.” This was the custom, as proved by Douglas, of the defendants, at Madison. The cases cited by defendant’s counsel, of vessels and railroad companies delivering goods at their landings or depots with or without notice, cannot meet such a case as this, where the undertaking is to deliver in person. It is the settled doctrine of England and of this country, that there must be an actual delivery to the proper person, at his residence or place of business, and in no other way can he discharge himself of his responsibility as a common carrier, except by proving that he has performed such engagement, or has been excused from the performance of it, or been prevented by the act of God or a public enemy. Stephenson v. Hart, 4 Bing. 476; Garnett v. Willan, 5 Barn. & Ald. 53; Duff v. Budd, 3 Brod. & Bing. 177; Hyde v. The Navigation Company, from the Trent to the Mersey, 5 T. R. 389; 2 Kent. Com. 604; Gibson v. Culver, 17 Wend. 305 ; Eagle v. White, 6 Wharton, 505; Moore v. Sheindine, 2 Har. & McHen. 453 ; Chickering v. Forolm, 4 Mass. 453 ; Young v. Smith, 3 Dana, 92. It is necessary, in order to give one security to property, this rigid rule should obtain, and it has for years been enforced against common carriers. They are considered as insurers, and are under that responsibility; and to prevent litigation, and avoid the necessity of going into the examination of matters difficult to be unravelled, the law, very justly, in case of loss, presumes against them. The rule being so rigorous, they are entitled to demand, and do demand, a compensation for their services in full proportion, at least, to the risks incurred. The company in this case, have shown no excuse for the non-delivery .of the package. The facts and the law are against them. We have not the opportunity to examine the case of Marshal et al. v. Henry Wells et al., in 6 Wisconsin, referred to by defendant’s counsel, in which this company prevailed, as is said, upon the same state of facts upon which we have adjudicated. We are inclined to think there must have been some circumstance in that case not found in this, which determined the recovery. It may be the proof in that case showed the entry of the package on the delivery book, and an offer at the bank perhaps, after bank hours, and a refusal to receive it on that account, or some other controlling fact not appearing in this record. If not so, then we can only say, we differ from the Supreme Court of Wisconsin, in our view of the law upon the facts presented. The judgment of the Circuit Court is reversed, and the cause remanded. Judgment reversed.