Harris v. Rand

By the court. We have given an opinion in this case, on a former occasion, and the only change in the statement of the facts which a new trial has produced is, that it now appears the defendant agreed to receive the salt at any place where the plaintiff might be compelled to stop. Upon the case, as before stated, we were of opinion, that, as the plaintiff had agreed to carry the salt to Kimball’s landing, he could not be entitled to freight by carrying it to any place below that landing, unless the defendant actually accepted it at a place below. And [557] we think the law of the case is not changed, hy the new circumstance now introduced into the statement. A previous agreement to accept, at a different place from that mentioned in the original contract, was not such an acceptance as entitled the plaintiff to freight. It changed the place of delivery, and made a delivery at another place equivalent to a delivery at Kimball’s landing. It in fact made McDuffie’s ferry the place of delivery. But it was not enough, that the salt was carried to the place of delivery. The contract was, that the plaintiff should not only carry, but deliver. And he was not entitled to freight until the contract was performed on his part, by an actual delivery. Abbot on Shipping, 308; 4 Mass. Rep. 91, Lane v. Penniman. It is well settled, that a carrier is responsible for goods until they are actually delivered, and a mere landing of .the goods is no delivery. The delivery of the goods is as much a part of his duty as the carriage. 15 Johns. Rep. 39, Ostrander v. Brown; 3 Wilson, 429, Golden v. Manning; 2 W. Bl. 916, S C; 5 D. & E, 389, Hyde v. The Navigation Company from T. to M; Owen, 57; 2 Esp. N. P. C., 693. Verdict set aside.