regular shippers, by mail, of the arrival of goods, but fails to show that notice was sent in this case.

The railroad asked the court to give the following instruction, which was refused: "The party who ships goods is bound to take notice of the time, by the usual mode and route of the shipping the same, when they would arrive at the place of destination, and it is the duty of the shipper to apply for his goods within a reasonable time after their arrival and take the same away. Therefore, if the jury find from the evidence that said goods were shipped from Allerton, in Iowa, and that, by the ordinary mode of shipping, they would have arrived on or about the 14th of November, 1879; and you further find that they did arrive on the 14th day of November, 1879, and were then stored in defendant's store or warehouse, and that plaintiff failed to apply for and get his goods and chattels until after they were burned on the 24th of November,you will find that the defendant is not to blame for not delivering up said goods to plaintiff; and the mere fact that he sent one Miller and one Morse to inquire whether the goods were there or not, will make no difference, unless he had authorized one or both to pay the charges on the same and receive the goods in question." The refusal to give this instruction is now assigned for error. is sufficient to say that the instruction asked is not applicable to the testimony. The plaintiff below required the goods, as he states in his testimony, "very badly," being necessary household goods, and, by himself or agents, made inquiries almost daily between the time of their arrival at Hastings and their destruction by fire, and received the invariable answer by those in charge of the depot that the goods were not there. There was therefore no question as to the failure of Arms to apply for the goods to submit to the jury. And even if Morse and Miller did not have the money or propose to pay the charges on the goods, of which there is no testimony, and take them away, still it was the duty of the agent to state to them, in answer to their inquiries, the facts in regard to the goods being then at the depot. There is no error, therefore, in the refusal to give the instruction.

It

The court also refused to give the fourth instruction asked for by the railroad company, which is as follows: "The following is a part of the contract introduced in evidence by the plaintiff in this case, to wit: All articles of freight arriving at their destination must be taken away in twenty-four hours after being unloaded from the cars, the company reserving the right of placing the same in store at the risk and expense of the owner, if they see fit, after the lapse of that time. If the jury find from the evidence that the goods did arrive at the place of destination on or about the 14th of November, 1879, or even as late as the 20th of said month; and if you further find that they were not taken away by the plaintiff, or some one for him, within twenty-four hours after being so unloaded,—then

you will find that they were, according to said contract, held at the risk of the plaintiff, and if they were destroyed the loss would be the loss of the plaintiff, and not the loss of the defendant, and the defendant would not be liable." It was proposed by this instruction to submit to the jury a number of questions having no pertinency to the question at issue. The testimony shows that the custom of the agents of the plaintiff in error, at Hastings, was to notify through the mail all persons who were not regular shippers of the arrival of their goods. The proof fails to show that any such notice was sent to Arms, and he was unable, by persistent inquiry by himself and agents, to ascertain that the goods had arrived. Such being the condition of the testimony, it would seem like a burlesque to instruct the jury in effect that he must lose the goods because he failed to take them away,-goods which had been received ten days before their destruction, and were in the custody of the agents, but which they persistently denied the receipt of. The liability of the railroad continued until the notice had been given and a reasonable time had intervened to permit of their removal. There was no error, therefore, in refusing to give the instruction. No particular objection has been pointed out to the instructions given by the court on its own motion, and they seem to have been quite favorable to the plaintiff in error.

The verdict is fully supported by the evidence, and is right, and the judgment is affirmed.

Notice of Arrival of Goods. According to some authorities the carrier is bound to notify the consignee of the arrival of goods when he is not on hand to receive them. Sherman v. Hudson River R. R. Co., 64 N. Y. 254; Spears . Spartenburg Union, etc., R. R. Co., 11 S. C. 158; Union Express Co. v. Ohleman, 92 Pa. St. 323. But see South. & North. Ala. R. R. Co. v. Wood, 9 Am. & Eng. R. R. Cas. 419.

Failure of Consignee to Receive and Take Away Goods.—Where a consignee has been notified of the arrival of the goods, or is held bound in law to take notice of that fact, and fails, notwithstanding, to receive the goods and take them away within a reasonable time, the carrier may store them and thenceforth may make the charges and assumes the responsibilities of a warehouseman only. Mohr v. Chicago, etc., R. R. Co., 40 Iowa, 579; Rothschild. Michigan, etc., R. R. Co., 69 Ill. 164; Stowe v. New York, etc., R. R. Co., 113 Mass. 521; Hilliard v. Wilmington & W. R. R. Co. 6 Jones L. 343; Smith v. Nashua & L. R. R. Co.,27 N. H. 86; Illinois Central R. R. Co. v. Alexander, 20 Ill. 23; Dimmick v. Milwaukee & St. Paul R. R. Co., 18 Wisc. 471; McCarty v. New York & Erie R. R. Co., 30 Pa. St. 247; Rice v. Boston & Worcester R. R. Co., 98 Mass. 212; Cincinnati & Chicago R. R. Co. v. McCool, 26 Ind. 141; Northrop v. Syracuse & C. R. R. Co., 5 Abb. Pr. (N. S.) 425; Jackson v. Sacramento & R. R. Co., 23 Cal. 269; Judson v Western R. R. Co., 4 Allen, 520; Davis v. Michigan S., etc., R. R. Co., 20 Ill. 412; Mobile, etc., R. R. Co. v. Prewitt, 46 Ala. (N. S.) 63; Ayres v. Morris & Essex R. R. Co., 5 Dutch. 393; Norway Plains Co. v. Boston & Me. R. R. Co., 1 Gray, 263; Alabama & Tenn. R. R. Co. v. Kidd, 35 Ala. (N. S.) 209; Winslow v. Vermont, etc., R. R. Co., 42 Vt. 700; Chicago, etc., R. R. Co. v. Bensley, 69 Ill. 630; Leavenworth, etc., R. R. Co. v. Morris, 16 Kans. 333; Pinney v. First Div. St. Paul & Pac. R. R. Co., 19 Minn. 251; Nicholas v. N. Y. Central R.

R. Co., 9 Am. & Eng. R. R. Cas. 103; McKinney v. Jewett, 9 Am. & Eng. R. R. Cas. 209; Butler v. East Tennessee, etc., R. R. Co., 9 Am. & Eng. R. R. Cas. 249; S. & N. Ala. R. R. Co. v. Wood, 9 Am. & Eng. R. R. Cas. 419; s. c., infra. Unless, indeed, they are not delivered, as in the principal case, through the fault of the carrier. Faulkner v. Hart, 82 N. Y. 413.

NATHAN BROTHERS

v.

SHIVERS.

(71 Alabama Reports, 117.)

An agent of a common carrier is not only held to good faith in making a sale under the statute, of packages held for freight, but also to reasonable diligence in ascertaining and giving notice of the contents of the packages. Reasonable diligence in such cases requires that the agent must examine all external indicia and marks on or about the packages, and all other sources of information reasonably within his reach; but he is neither required nor authorized to break or open the packages for the purpose of ascertaining their contents.

If the agent knows the contents of the packages, or has good reason for believing what they are, and, witholding such knowledge or well-founded belief, he makes the sale to a favorite having superior knowledge, and at a nominal price, this constitutes a fraud which subjects the perpetrators to an action for damages at the suit of the party injured.

Whether the agent knew, or could have learned, or had just grounds for believing what were the contents of the packages, and whether he acted in good faith in giving the notice prescribed by statute, and in making the sale, are questions for the jury under appropriate instructions from the court.

APPEAL from Hale Circuit Court.

Tried before Hon. George H. Craig.

This was an action of trover brought by Nathan Bros. against J. M. Shivers and A. M. Fowlkes, to recover damages for the alleged conversion of two barrels containing seventy nine 17-100 gallons of whiskey; was commenced on 30th July, 1879, and was tried on the plea of the general issue, with leave to give in evidence any special matter of defence, the trial resulting in a verdict and judgment for the plaintiffs.

As shown by the bill of exceptions, Nathan Bros. shipped from Philadelphia, Pennsylvania, on the 30th March, 1878, the two barrels of whiskey in controversy, consigned to A. Stollenwerck, at Greensboro, Alabama. At that time the Selma, Marion & Memphis R. R., a connecting line, running from Marion Junction, in this State, to Greensboro, was in the possession of the defendant Fowlkes as receiver, by the appointment of the Chancery Court of Perry County, and was by him, as such receiver, operated as a com

On 6th

mon carrier under the orders and direction of said court. April, 1878, the whiskey was received at Marion Junction and transported over said railroad to Greensboro. On 8th April, 1878, the consignee was notified of its arrival, and of the charges thereon; but he refused to receive it, or to pay the charges, on the ground he had never ordered it consigned to him. The two barrels were described in the "through freight list or bill of lading" as "2 Bbls. Wet." No demand having been made for these barrels, and the freight not having been paid thereon, Shivers, acting under the direction of Fowlkes, on the 4th of December, 1878, advertised them, with other articles held for charges, for sale for the payment of the charges thereon, in a newspaper published at Greensboro; and on the 3d January, 1879, the day appointed for the sale, they were sold by Shivers at the depot at Greensboro at public outcry, and were bid in by him for Fowlkes at $12.50, the amount of the charges and expenses of sale. In the advertisement of the sale the barrels were described as "two barrels, wet, consigned to A. Stollenwerck.'' On 11th January, 1879, the two barrels were shipped to Marion, Alabama, for Fowlkes, and on the same day were sold by him to a party at Marion, as containing fiftyseven gallons of whiskey, at $2.00 per gallon. The whiskey was shown to have been worth at Greensboro $3 per gallon.

The plaintiff also introduced evidence tending to show that both defendants knew or had information of the contents of the barrels prior to the sale. Both Shivers and Fowlkes were examined as witnesses on their own behalf, and they testified that they had no knowledge of the contents of the barrels until after the sale, Fowlkes further testifying that "his information in respect thereto was confined to that afforded by the through freight list or bill of lading which came with the said property." The defendant Shivers further testified that on the 4th of December, 1878, he again demanded of Stollenwerck, the consignee, the charges due on the barrels, and that Stellenworck refused to pay said charges, or to receive the barrels, "and gave as his reasons therefor that he had never ordered them to be shipped, and that they contained stuff which had to be doctored' before it could be sold, and he did not wish to deal in it. Until this conversation witness had no information of the nature of the contents of said barrels, except such as was imparted by the description in the bill of lading which came with them, nor did he know that Nathan Bros. were the consignors thereof. Upon hearing that they were consignors, he immediately, on the same day, gave notice to, and made demand on them for said freight and charges by postal card mailed to them at Philadelphia." He further stated that he saw on said barrels no such brands as showed their contents to be whiskey; that whiskey barrels were very frequently used for the shipment of other liquids, such as mineral water, vinegar, and the like, and that the brands or marks

on such barrels very often do not show their real contents. It was also shown by the defendants that it was the usage and custom of common carriers, in advertising freight for sale, to describe it as it was described in the freight list or bill of lading.

Exceptions were reserved by the defendants to charges given by the circuit court, and to charges requested by them and refused by the Court. The rulings of the circuit court in its instructions to the jury are, for the purposes of this report, sufficiently stated in the opinion.

Theo. Seay for appellants. (1) The sale was fair, and in exact accordance with the terms of the statute (Code of 1876, § 2141); and the sale was not made until after the goods had been lying in the depot for over six months. (2) The description of the property in the advertisement of sale was the only description that could have been obtained without committing a conversion of plaintiff's property; and it was in exact accordance with the bill of lading, and with a well recognized and established custom. (3) If the law be as charged by the court below, a very great and unnecessary hardship rests upon common carriers; the requirement that every package shall be examined, and the responsibility incurred by an inaccurate description of the goods would very much embarrass the operation of common carriers, especially in the centres of trade.

Jas. E. Webb, contra. (1) The sale of the whiskey was illegal, because a carrier's power to sell goods for freight is purely statutory. Redfield on Carriers, § 283. For his power to sell the carrier must rely on our statutes. Code 1876, §§ 2140-1. This statute, being an inroad on the common law, must be strictly construed and strictly pursued. 30 Ala. 591; 20 Ala. 189; 20 Ala. 544; 19 Ala. 43. (2) The sale was illegal, because no advertisement describing the property was made. The advertisement of "two barrels wet" did not convey to the mind of bidders the least idea as to the character of what was to be sold. The purpose of the statue, as declared in Western Railroad Co. v. Rembert, 50 Ala. 25, is to authorize a carrier to be released from responsibility "without detriment to the owners or consignee." (3) Trover lies in this case. See 2 Hilliard on Torts, pp. 101 and 110; 21 Ver. 204; 44 Maine, 491; Redf. on Carriers, p. 220, § 298; Chandler v. Belden, 18 John, 157; Gracie v. Palmer, 8 Wheat, 605; 2 Wait's Act. and Def. pp. 58 and 61; Briggs v. Boston R. R. Co. 6 Allen, 246; 33 Me. 438; Angel on Carriers, § 431, p. 364, and authorities there cited; Redf. on Carriers, §§ 706, 710, and authorities there cited. (4) Nathan Bros. were the proper parties to bring the suit. Angel on Carriers, § 495, note 6, p. 414, note 1, p. 415, note 3 p. 415, and authorities cited; Swan v. Sheppard, 1 M. & R. 224; 2 Hilliard on Torts, pp. 443–4, and authorities cited.

STONE, J.-In form, the railroad, in the present case, appears to