1857. Jud staff in error CROUCH V. THE GREAT WESTERN RAILWAY COMPANY. 3 ADN 183 July 7. THE first count of the declaration stated that the de- Where goods as be are tendered riage, where- of the carrier to retain the goods at fendants, at the time of the occurrences hereinafter men- for a reason able time, and with the con- communicate held Per Pollock, C. B., Bramwell, B., defendants, a railway Company, a parcel directed to the plaintiff's agent at Plymouth. The defendants' railway terminates at Bristol from whence they forwarded the parcel to Plymouth by the South Devon Railway. The parcel was tendered by a servant of that Company to the consignee at Plymouth who refused to pay the amount demanded for carriage, whereupon the servant took the parcel away. The next day the consignee went to the office of the South Devon Railway and demanded the parcel and tendered the amount of carriage, when he was told that the parcel had been returned to London, but though he made repeated applications at the office in London, the parcel never was delivered. The jury having found that the tender was made within a reasonable time and that the parcel was sent back to London before a reasonable time had elapsed.-Held: Per Pollock, C. B., Martin, B., and Channell, B., that the defendants were responsible for the act of the South Devon Company, and that the sending the parcel to London at the time they did, followed by the nondelivery of it to the plaintiff, upon or subsequent to the several applications, afforded sufficient evidence of a breach of duty by the defendants in not taking care of the parcel for the plaintiff, even supposing their duty qua carriers ended with the tender of the goods. Bramwell, B., dissentiente. Per Bramwell, B., that assuming the act of the South Devon Railway Company was the defendants' act, the defendants were not responsible, inasmuch as they had performed their duty by carrying and tendering the parcel, and that upon the refusal of the consignee to receive it, the defendants had a right to send it back to London.-Also that the defendants were not responsible for the act of the South Devon Railway Company. post 575 1857. CROUCH v. GREAT WESTERN RAILWAY CO. Pleas. First, to the first count: That the plaintiff did not deliver, nor did the defendants receive, a parcel to be carried as aforesaid. Secondly, to same count: That defendants deny the truth of the breach therein alleged. Thirdly, to same count: That after the delivery to and receipt by the defendants of the said parcel and its contents, they duly carried and caused to be carried the same from London to Plymouth, according to their duty in that behalf, and they there were always ready and willing to deliver the same for the plaintiff, and tendered and offered and caused to be tendered and offered, the same for delivery for the plaintiff upon payment to them of certain reasonable hire and reward due and payable to them, to wit, by the plaintiff for and in respect of the carriage of the said parcel and its contents as aforesaid, of all which the plaintiff had notice; but the plaintiff at all times wholly refused to pay or tender the amount of the said hire and reward, or any sum of money whatever in respect thereof, nor was any sum ever paid or tendered in respect thereof to the defendants, wherefore the defendants refused to deliver, and did not deliver the said parcel and its contents for the plaintiff, which is the breach complained of. Fourthly, to last count: Not guilty. Fifthly, to same count: That the goods were not the goods of the plaintiff. The plaintiff joined issue on the first, second, fourth and fifth pleas. Replications to the third plea.-First: the plaintiff takes issue upon the third plea. Secondly: that after the said tender and offer by the defendants to deliver the said parcel, and within a reasonable time then next following, the plaintiff at Plymouth aforesaid was ready and willing to receive the said parcel, and offered to pay to the defendants the said hire and reward, and then requested the defendants to deliver to him the said parcel according to their duty in that behalf, but the defendants refused then or at any other time to deliver the same at Plymouth aforesaid, and have from thence hitherto continually refused, neglected and omitted so to do, and discharged the plaintiff from tendering such hire and reward to the defendants, and by means of the premises the said parcel has become and is wholly lost to the plaintiff, as in the declaration mentioned. -Issue thereon. At the trial before Pollock, C. B. at the London sittings after last Hilary term, the following facts appeared.—The plaintiff, who was a carrier in London, made up a packed parcel directed to an agent of the plaintiff at Plymouth named Reynolds. The parcel was delivered at a receiving office of the defendants, to be carried to Plymouth. The defendants' railway terminates at Bristol, from whence they forwarded the parcel to Exeter by the Bristol and Exeter Railway, and from Exeter to Plymouth by the South Devon Railway. The parcel arrived at its destination, and was taken to the office of Reynolds by a servant of the South Devon Railway Company, and 2s. 8d. was demanded for its carriage, the usual charge for such a parcel being 1s. 6d. The servant of Reynolds refused to pay the sum demanded, but offered the usual charge, which the servant of the South Devon Railway Company would not accept, and took away the parcel. On the next day Reynolds's clerk went to the office of the South Devon Railway at Plymouth, and tendered the amount demanded for the carriage, when he was informed that the parcel had been returned to London. Repeated applications were made at the defendants' office in London, but the parcel could not be found. It was submitted on the part of the defendants that, VOL. II.-N. S. K K EXCH. 1857. CROUCH v. GREAT WESTERN RAILWAY CO. 1857. CROUCH v. GREAT WESTERN RAILWAY Co. under these circumstances, they were not liable. The learned Judge was of opinion that the defendants ought not to have sent back the parcel to London so soon, and he left it to the jury to say whether the demand and tender were made within a reasonable time after the plaintiff had refused to receive the parcel, and whether the parcel had been sent back before the expiration of a reasonable time. The jury found both questions in the affirmative, and a verdict was entered for the plaintiff, leave being reserved to the defendants to move to enter the verdict for them. Bovill, in the following term, obtained a rule nisi to enter the verdict accordingly, or for a new trial, on the grounds that the defendants having carried the parcel and tendered it at Plymouth to the consignee in due course, and he having refused to pay the amount not liable: and of the carriage, the defendants were that there was no duty or obligation on the defendants or the South Devon Railway Company, to keep the parcel at Plymouth after the consignee had refused to pay the carriage; and that if the act of sending the parcel to London was wrongful, it was the act of the South Devon Railway Company, and the defendants are not liable for that act that the verdict was against the evidence on the question left to the jury as to the reasonableness of sending back the parcel to London. J. Brown shewed cause in last Easter term (May 5,6).— The defendants were not justified in sending back the parcel to London, but were bound to keep it at Plymouth a reasonable time. [Pollock, C. B.-Suppose a quantity of fish was sent by railway from Plymouth to London and the consignee refused to pay the amount demanded for the carriage, would the Company be justified in sending it back to Plymouth? Martin, B.-Or suppose a parcel came to a person who had not money enough to pay for the carriage. Bramwell, B.-Here there was a peremptory and final refusal.] The consignee should have been allowed an opportunity of tendering, within a reasonable time the amount demanded. The defendants had no right to send back the parcel to London, and inflict on the plaintiff the penalty of double carriage, for what might be a mere mistake of his agent in calculating the charge. The plaintiff cannot be in a worse situation than if he had wrongfully placed the parcel on the Company's station at Plymouth, in which case they would not have been justified in removing it to a distance: Forsdick v. Collins (a). In Story on Bailments, § 117, it is said with reference to the place where the restitution of a deposit is to be made "If a particular place is agreed on between the parties, that, of course, is to regulate the matter. If no place is agreed on, the property ought to be restored at the place where it is found, or where it ought to be kept. Depositum eo loco restitui debet, in quo sine dolo ejus est apud quem depositum est ; ubi vero depositum est, nihil interest (b). Much must depend upon the particular circumstances of the case, and the presumed intention of the parties. It cannot, for instance, be presumed that a depositor could intend that if the depositary removed to another country, he should carry the deposit with him." Here the Company should have deposited the parcel in some convenient place, near to the place where it was when the plaintiff's agent refused to receive it. The carrying it back to London was a conversion. In Forsdick v. Collins (a), Lord Ellenborough held that the removal of a block of stone, belonging to the plaintiff, from the defendant's land, not to an adjacent place, but to a distance, was a conversion. In trespass for taking goods, if the defendant justifies the removal of them, he must plead that he removed them to a small and convenient (a) 1 Stark. Rep. 173. (b) Dig. Lib. 16, tit. 3, l. 12, s. 1. 1857. CROUCH v. GREAT WESTERN RAILWAY Co. |