We think this plaintiff would not be bound by the notice on the back of the shipping note and receipt in this case. The common-law liability of the defendants, as common carriers, could not be limited in that way, by such notice, if it were brought home to the knowledge of the plaintiff, — Moses v. Railroad, 24 N. H. 71, 88, S. C. 82 N. H. 523 — nor could the defendants’ common-law liability as ware-housemen or depositaries be limited in the same way, and, of course, not by a notice which was never brought to the plaintiff’s knowledge at all. The defendants would be liable, then, according to the rules of the common law, either as warehousemen, for hire, or as simple depositaries, notwithstanding the notice, and notwithstanding the demand was not made in accordance with the requirement.

No question arises here concerning the loss of the oil, and no question as to the liability of the defendants as common carriers. These questions are settled by the finding of the court. The only question is, upon the finding of the court, whether the defendants are liable for this act of ordinary negligence of one of their servants, acting within the scope of his employment, after their liability as common carriers had ceased, which they would be if acting in the capacity of warehousemen *538for hire, but which they would not be if acting as simple depositaries.

In Smith v. N. & L. Railroad, 27 N. H. 86, it is said that, where the owner of goods is present at their arrival, and is notified that the railroad company cannot store them for want of room, and he still leaves them on their hands, they may be chargeable as depositaries if they afterwards assume the care of the goods by putting them into their storehouse; but if, after such notice to the owner, they adhere to their refusal to store, and do nothing with them, or simply remove them from their premises without damage, they would not be chargeable.

It is also said, in Smith v. Railroad, supra, that a carrier, in whose hands goods are left after the contract as common carrier had ceased, would be chargeable as a depositary unless the circumstances are such as to entitle him to a compensation for his services, in which case he will be liable as a bailee for hire. The court in this case find that, though the plaintiff had reason to expect this flour on the third of August, but did not go for any of it to take it away until the tenth, yet that the defendants did not in fact receive, or ask, or expect any compensation for storing it, other than what may be incidentally included in the sum paid by House & Co. for the freight of the same, which was only the usual charge for freight for the same distance.

In Norway Plains Co. v. Boston & Maine Railroad, 1 Gray 263, it is held that while the goods after transit are stored in the defendants’ freight depots awaiting delivery, the company are depositaries for hire, and of course responsible for the ordinary care and attention of their servants and agents; that the amount charged for the transportation was to be assumed as an adequate compensation for the entire service of carrying to the point of destination, of storing a reasonable time, and for delivering when called for. Judge Redfield, after a review of the authorities, says, — “ Of course there is no absolute duty to keep warehouses if the company choose to give notice of the arrival of goods in every case, and suffer them to remain in the cars until the consignee has reasonable opportunity to remove them. It is only for their own convenience in keeping goods to be carried till the train is ready to depart, or after their arrival until the consignee has reasonable opportunity to remove them. After that there is no doubt the carrier’s responsibility as such ceases; and if the goods remain in the warehouse of the company, it is only with the responsibility of ordinary bailees for hire, as held in Norway Plains Vo. v. B. & M. Railroad, or as was held in Smith v. N. L. Railroad, with the responsibility of a bailee without compensation. The former degree of responsibility seems to us to be the just and reasonable one, as this is an accessory of the carrying business, and the carrier, after he becomes a warehouseman, is no doubt fairly entitled to charge in that capacity, — the omission to charge for warehousing, in the first instance, being the result of the course of the business, and because it is a part of the carrier’s duty to keep the goods safely till the consignee has opportunity by the use of diligence to remove them.” 2 Redf. on Railw., 5th ed., 76.

*539But in this case, the goods had been removed and delivered. The defendants had carried the flour safely for House & Go. to the place of consignment; had then kept it for House & Co. until by their order the agent of the defendants had selected the fifty barrels from the whole quantity; had removed it and put it by itself in the depot for the plaintiff. The plaintiff accepts it, for he has ratified these acts by bringing this suit for the flour in his own name. The freight which had been paid by House & Co., though it might be held to pay for storage also for a reasonable time, within which the shipper or the consignee (the same in this case) might take it away, yet it would not pay for storing the flour for the purchaser after the delivery to him.

And though the defendants might have charged the plaintiff for storage of the flour as warehousemen if they had so elected, yet the case finds that they did not, and did not expect to receive anything for this service. It was undertaken gratuitously, so to speak, and when so undertaken we cannot see by what rule the defendants should be held liable in a capacity in which they did not act, nor undertake to act, and were not understood by the plaintiff to act. The court have found that the defendants assumed the care and custody of this flour after it became the property of this plaintiff, without pay, and without any expectation of pay; in fact, that they were acting as simple depositaries. Since that was the capacity in which they undertook to hold this property, and were actually holding it for this plaintiff, we see no reason why they should be charged with duties and responsibilities which do not attach or belong to that kind of service, but think they should be charged with a degree of responsibility which belongs to and accompanies the actual service they were rendering.

Upon the finding of the court, we think there should be

Judgment for the defendants.