Stimson v. Jackson , 58 N.H. 138 ( 1877 )

The liability of common carriers continues until delivery of the goods at their destination. Harris v. Rand, 4 N.H. 555; Smith v. Nashua Lowell Railroad, 27 N.H. 86; Hyde v. Trent Mersey Nav. Co., 5 Term 389; Ostrander v. Brown, 15 Johns. 39; 2 Pars. Con. 183; 2 Kent Com. 787. The terms of an express contract cannot be varied by evidence of established usage — Foye v. Leighton, 22 N.H. 71; but a usage that is known to the parties, or so established and settled, or so uniformly acted on, and so notorious as to be presumed to be known to the parties, may be given in evidence as to their understanding of the terms of the contract and the mode of its performance. Johnson v. Concord Railroad, 46 N.H. 213; Gray v. Jackson,51 N.H. 9; Redf. on Carr. 222. The agreement in this case was expressed and in writing, and evidence of usage would not be competent to vary its terms; but if such usage was known to the plaintiff, or was so established and notorious as to be presumed to be known to him, and that he contracted in reference to it, evidence of it, and that the defendants delivered the package according to such usage, might be introduced to show his understanding of the mode of delivery by the defendants, and that they had performed the contract according to its terms. If the misdirection of the package was not through the fault of the defendants, and if they were in no fault for not knowing or discovering Such misdirection before delivery, and the consequences of which they could not reasonably avoid, they ought not to suffer for the plaintiff's fault or mistake, provided they made delivery according to the direction and to known usage. Congar v. Chicago N.W. Railway Co., 24 Wis. 157.

Case discharged.

DOE, C. J., did not sit.