Bickford v. Metropolitan Steamship Co. , 109 Mass. 151 ( 1872 )

Morton, J.

The defendants, as common carriers by sea, were bound to carry the plaintiff’s goods safely, and to deliver them to him at their wharf' in Boston. If, after notice of their arrival, he did not carry them away within a reasonable time, they had the right to deliver them to a responsible warehouseman and terminate their liability for their safe keeping. In this case, if there had been no contract between the parties, we think the defendants, after waiting six days for the plaintiff to remove his goods, would have been justified in storing them with Bradbury at the risk of the plaintiff.

But, upon receiving notice of the arrival of the goods, the plaintiff made an arrangement with the defendants that the goods might remain in their charge for a time. This contract was by paroi, and it was a question of fact for the jury to determine, whether the defendants undertook to keep the goods for a definite period of four or five days, or for an indefinite time until the plaintiff’s house could be got in readiness. If the latter, the defendants had no right to store the goods with Bradbury at the risk of the plaintiff, but Bradbury would be their agent. But if they undertook to keep the goods for a definite time, we think, if the plaintiff neglected to call for them at the expiration of that time, the defendants were remitted to their right to deposit the goods with a responsible warehouseman. They were not obliged to retain them at their own risk for an indefinite period. Under such circumstances, they had the right either to deposit the goods with Bradbury at the risk of the plaintiff, or to make him their own bailee. In other words, they might at their election make Bradbury either their own agent or the agent of the plaintiff. Hamilton v. Nickerson, 11 Allen, 308.

Whether, upon the evidence in the case, he was the agent of the plaintiff or the defendants, was clearly a question of fact. The ruling of the presiding judge at the trial, that this question must be submitted to the jury, was therefore correct.

Exceptions overruled.