Benson v. Gray

The transportation of the plaintiff’s horses was under, an express contract. This contract was prepared by the railroad company, and called “ Live Stock Receipt.” In it the company acknowledged the receipt of the two horses marked for the plaintiff at New Bedford, Mass., “ which the company promises to forward by its railroad, and deliver to or order, at its *394depot in , he or they first paying freight for the same. . . . N. B. If merchandise be not called for on its arrival, it will be stored at the risk and expense of the owner.” Then followed the rates for transporting different kinds of animals; after which were certain rules and regulations in regard to freight. Among these rules were the following: “ Nor will they [the company] hold themselves liable as common carriers for such articles after their arrival at their place of destination and unlading in the company’s warehouses or depots. Machinery . . . and live animals will only be taken at the owner’s risk of fracture or injury during the course of transportation, loading, and unloading, unless specially agreed to the contrary. . . . All articles of freight arriving at their place of destination must be taken away within twenty-four hours after being unladen from the cars.” The plaintiff paid for the transportation of the horses on their arrival at New Bedford, and took a receipt, which contained the same rules and regulations copied above, and applied for his horses; and the agent of the railroad company refused to unload the horses, and required the plaintiff to unload them.

In the opinion of a majority of the court, the railroad company must be held under this contract to have undertaken to unload the horses, though at the owner’s risk. This contract was made out with express reference to the carriage of live animals. The railroad company promised to deliver them, and this implies unloading them. The company would also store them, unless called for, and this also implies unloading them. There are three several stipulations as to unloading goods, one of which in express terms includes live animals, and each of which implies that the company will unload them. It must, therefore, be held that the company undertook to unload them.

This being so, a usage of the company’s agent at New Bedford to require the owner or consignee to unload live animals is of no consequence. The usage cannot override the contract. Dickinson v. Gay, 7 Allen, 29. Seccomb v. Provincial Ins. Co. 10 Allen, 305, 310. Dodd v. Farlow, 11 Allen, 426, 429. Boardman v. Spooner, 13 Allen, 353, 359. Odiorne v. New England Ins. Co. 101 Mass. 551. Snelling v. Hall, 107 Mass. 134. Haskins v. Warren, 115 Mass. 514, 535, 536. Hedden v. Roberts, 134 Mass. 38. Emery v. Boston Marine Ins. Co. 138 Mass. 398. Collender v. Dinsmore *39555 N. Y. 200. A rule and regulation of the company can have no greater effect. The company’s rule requiring consignees to unload live stock was not otherwise known to the plaintiff than this; he knew that the company’s agent at New Bedford had been accustomed to require consignees to unload their hprses. But if well known, it- must still give way to the contract. It was a matter of contract between the plaintiff and the railroad company that the company should unload the plaintiff’s horses. This being so, neither a usage nor a rule to the contrary will avail to excuse the company from the performance of its undertaking. In this respect, the case differs from Miller v. Mansfield, 112 Mass. 260, and other cases, where there was no such contract. Judgment for the plaintiff.