Barker v. Brown

Devens, J.

The goods which the railroad company transported were, by the way-bill, consigned to the owner, the Shepard and Morse Lumber Company, and an order was sent to the railroad company to deliver the goods to the plaintiff, who transmitted the same to the railroad company with the order that the freight should be charged to him, and a direction where the car containing the goods should be sent. The plaintiff was thus the indorsee of the way-bill of the goods. He subsequently refused to take them, on the ground that they were not of the quality bargained for.

When a reasonable time had elapsed, it was the right of the railroad company to store the goods with some suitable and responsible warehouseman, and thus discharge itself from further .liability. It was not compelled to determine the dispute which had arisen between the plaintiff and the owner, and such storing of the goods would be equivalent to a delivery thereof to whichever of the two parties was entitled thereto. *343 Hamilton v. Nickerson, 11 Allen, 308 . Bickford v. Metropolitan Steamship Co. 109 Mass. 151 . Miller v. Mansfield, 112 Mass. 260 . Rice v. Hart, 118 Mass. 201 . Fisk v. Newton, 1 Denio, 45 . Alden v. Carver, 13 Iowa, 253 . Illinois Central Railroad v. Alexander, 20 Ill. 23 .

It is the contention of the plaintiff, that, the Shepard and Morse Lumber Company not having been notified to remove the goods, the carrier could not deposit them so as to subject them to the warehouseman’s lien; and that a lien could not be created except with the assent of the owner. We are not aware that it has ever been held to be the duty of the carrier to notify the owner or consignor of goods of a refusal to accept them before he can terminate his own liability as carrier, and thereafter hold them himself, or transfer them to another, to hold as a warehouseman. It is for the owner or consignor of goods to have some one at the place of delivery, when their transit is completed, to accept them. If he does not, the rule which imposes a duty upon the carrier to hold them himself as warehouseman, or to store them in some convenient place, sufficiently protects the goods he has shipped. It would be unreasonable that the carrier should not be allowed to terminate his contract of carriage until after notice to the consignor and subsequent assent by him to the storage of the goods. The assent of the owner or consignor of goods that a lien thereon for storage shall, under certain circumstances, be created, is one to be inferred from the contract of shipment he has made. If his consignee cannot be found, or, being found, refuses to accept, he must be held to authorize the storage of the goods. If the carrier is authorized to store them, it does not require argument to show that he may subject them to a lien for the necessary storage charges, and that the owner cannot thereafter sell or transfer them so as to divest the lien.

The case of Storms v. Smith, 137 Mass. 201 , on which the plaintiff relies, has no proper application to this case. It was there held, that a mortgagor of personal property, the mortgage having been recorded, could not store it so as to create a lien thereon as against the mortgagee. By the record, the defendant had notice of the mortgage, and was not at liberty to assume that the mortgagor had the absolute jus disponendi *344 from his possession of the property. Nor could he assume that the mortgagee had ever authorized any storage thereof by which his interest would be affected.

As the defendant had lawfully a lien on these goods for storage, although he may have delivered part of them without insisting upon it, as they constituted a single shipment, he had a right to retain the residue for the whole amount thereof; and the plaintiff was not entitled to replevy them. Lane v. Old Colony & Fall River Railroad, 14 Gray, 143 . New Haven Northampton Co. v. Campbell, 128 Mass. 104 .

Judgment on the verdict.