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All these facts show clearly that the parties made and carried out arrangements in regard to payments entirely different from the provisions of the contract.

The appellant next raises the point that President Baldwin had no authority under the proof in the case to make the agreement for the bank to pay otherwise than according to the provisions of the contract. The president's testimony shows that the matter was in his hands on the part of the bank. It is also shown that, where orders came in, they were taken to him, and he gave a slip to the teller, and that when he was not in the teller or other officer paid them; and it shows also, that all these payments appeared on the books of the bank, many of them showing on their face what the payments were for; and in addition to all this the bank is here suing under the contract and claiming credit for 351 these payments. From these facts the court had a right to infer that the entire transaction was with the knowledge and consent of the bank: Bibb v. Hall, 101 Ala. 79, 14 South. 98; Talladega Ins. Co. v. Peacock, 67 Ala. 253.

The judgment of the court is affirmed.

Tyson, Anderson and Denson, JJ., concur.

McClellan, C. J. (sick), and Haralson, J. (disqualified), not sitting.

Dowdell, J., dissents.

If the Obligee in a Bond, given by sureties for the faithful performance of a building contract pays the contractors the entire amount of the contract price, when more than twenty per cent thereof is not due, there is such a material alteration of the contract, without the consent of the sureties, as to discharge them from liability: Cowdery v. Hahn, 105 Wis. 455, 76 Am. St. Rep. 923.


[145 Ala. 436, 40 South. 120.]

CARRIERS-Liability for Loss by Delay-Negligence.-A carrier is not permitted to invoke the act of God which destroys goods while in transportation, as an excuse for unreasonable delay and failure to deliver, when, if the carrier had discharged his duty, the goods would not have been destroyed. (pp. 55, 56.)

CARRIERS-Loss of Goods by Delay-Negligence Act of God. If a carrier is intrusted with goods for transportation and they are lost, he is responsible therefor unless the loss was caused by the act of God or the public enemy, and to avail himself of such exemption he must show that he was free from fault at the time. If there is an unreasonable delay on the part of the carrier in forwarding the goods and they are destroyed by the act of God during this delay, or such delay causes their destruction, the carrier is liable. (pp. 55, 56.)

A. G. and E. D. Smith, for the appellant.

De Graffenreid & Evins, for the appellee.

436 TYSON, J. Only one question is presented by the record in this case. It is this: Whether the defendant, 437 as a common carrier, can avail itself of the defense of the act of God under the facts upon which the case was tried. The facts may be stated as follows: The plaintiffs were cotton buyers, doing business in Eutaw, Alabama. On January 11, 1904, they bought at Moundville, Alabama, six bales of cotton from one Findlay, which he delivered to defendant at that place on that day, for shipment, and received from the defendant's agent. a bill of lading therefor, consigning the cotton to plaintiffs at Eutaw. The defendant was at that time and at the time of the trial a common carrier, operating between Moundville and Eutaw, stations on its line, situated twenty miles apart. The cotton was never delivered by the defendant to the plaintiffs. On the morning of the twentysecond day of January, 1904, a cyclone of great violence passed through the town of Moundville, practically destroying it, killing and wounding many people, and destroying the cotton, but did not pass through Eutaw. It will be noted that the delay in shipping the cotton was about eleven days after it was received by the defendant, and this is the fact relied upon as precluding the defendant from asserting that the cyclone, which confessedly was an act of God, was the cause

of the loss in order thereby to relieve itself of all liability for its failure to safely deliver the cotton at Eutaw.

As a general rule, the undertaking of a common carrier to transport goods to a particular destination includes the obligation of a safe delivery of them, within a reasonable time, to the consignee. And the contract of carriage is one of insurance against every loss or damage, except such as may be occasioned by the act of God, or the public enemy, or the fault of the owner of the goods or his agent. And in this state the shipper makes a prima facie case against the carrier when he shows the goods were not delivered, and, in order for the carrier to relieve itself of the absolute liability for their loss as an insurer, it must bring itself within the exception relied upon as an excuse for its failure to deliver: Grey's Exr. v. Mobile Trade Co., 55 Ala. 387, 28 Am. Rep. 729, and cases there cited. Has the defendant done this, when it appears that it was in default in not carrying out its contract 438 by not shipping the cotton within a reasonable time, as it obligated itself to do, and which if it had done the cotton would not have been destroyed by the cyclone? In other words, will it be allowed to invoke the act of God, which destroyed the cotton, as an excuse for the failure to deliver it, when, if it had discharged its duty, the cotton would not have been destroyed?

The precise question has arisen and been adjudicated in other states. In some of them, the question has been answered in the affirmative, and in others in the negative. The appellate courts of New York and Pennsylvania were the first to lead off on this question. The New York court held the carrier liable, and the Pennsylvania court held that it was not. When the question arose in other jurisdictions, some of the courts followed the lead of the New York court, and others that of the Pennsylvania court, so that the decisions of these two states may be regarded as the leading ones, pro and con, upon the question here presented. The cases in New York are Michaels v. New York C. R. R. Co., 30 N. Y. 564, 86 Am. Dec. 415, and Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426. The Pennsylvania case is Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695. The New York cases held, and we think correctly, that, where a carrier is intrusted with goods for transportation, and they are lost, the law holds him responsible for the loss unless exempted by showing that the loss was

caused by the act of God or the public enemy. And to avail himself of such exemption he must show that he was free from fault at the time. In other words, when there is an unreasonable delay on the part of the carrier in forwarding the goods and they are destroyed by the act of God during this delay, that he is not excused for the reason that it was by his fault that they were exposed to the peril. Says the court in Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426, quoting the language of Gould, Jr., in Williams v. Grant; 1 Conn. 487, 7 Am. Dec. 235: "It is a condition precedent to the exoneration of the carriers that they should have been in no default, or, in other words, that the goods of the bailee should not have been exposed to the peril or accident, by their own misconduct, neglect, or ignorance. For, though the immediate 439 or proximate cause of the loss, in any given instance, may have been what is termed the act of God, or inevitable accident, yet, if the carrier unnecessarily exposes the property to such accident, by any culpable act or omission of his own, he is not excused." In line with this holding may be found the courts of Kentucky, Missouri, Illinois, and Tennessee: Hernsheim Bros. & Co. v. Newport News etc. Co., 18 Ky. Law Rep. 227, 35 S. W. 1115; Armentrout v. St. Louis etc. Ry. Co., 1 Mo. App. 158; Pruitt v. Hannibal etc. R. Co., 62 Mo. 527; Wald v. Pittsburg etc. R. Co., 162 Ill. 545, 53 Am. St. Rep. 332, 44 N. E. 888, 35 L. R. A. 356; Southern Exp. Co. v. Womack, 1 Heisk. (Tenn.) 256.

On the other hand, as approving the doctrine of Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695, may be found the courts of Michigan, Mississippi, Ohio, Massachusetts, and the supreme court of the United States: Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; Merchants' Wharfboat Assn. v. Wm. Wood & Co., 64 Miss. 669, 60 Am. Rep. 76, 2 South. 76; Yazoo etc. R. Co. v. Millsaps, 76 Miss. 855, 71 Am. St. Rep. 543, 25 South. 672; Daniels v. Ballantine, 23 Ohio St. 532, 13 Am. Rep. 264; Denny v. New York Cent. R. Co., 13 Gray (Mass.), 481, 74 Am. Dec. 645; Hoadley v. Northern Transp. Co., 115 Mass. 304, 15 Am. Rep. 106; Memphis & Charleston R. Co. v. Reeves, 10 Wall. (U. S.) 176, 19 L. ed. 909. It must be admitted that in all these cases, except the cases reported in 13 Gray (74 Am. Dec.), and 64 Miss. (2 South., 60 Am. Rep.), the principles declared in the Morrison-Davis case (20 Pa. 171, 57 Am. Rep. 695), were direct

ly involved, and that they were in direct conflict with our views and with our own case of Louisville etc. R. Co. v. Gidley, 119 Ala. 523, 24 South. 753. In those two cases (13 Gray, 74 Am. Dec., and 64 Miss., 60 Am. Rep., 2 South.), the defendants were bailees, and their liability was, of course, predicated upon negligence. And while the Massachusetts. court in that case approved what was said in Morrison v. Davis upon the point that the delay in the transportation of the goods was not the proximate cause of their injury, it cannot be held to have approved the proposition that a defendant, when 440 liable as an insurer, being at fault at the time the act of God caused the loss, could invoke that act as a defense. That case, therefore, cannot be regarded as authority on the point under consideration. For the same reason the case in 64 Miss. cannot be regarded as authority. And in our opinion the fallacy of the doctrine in Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695, is made apparent, when we view the liability of the carrier from the standpoint of an insurer, and not that of the bailee for hire.

Adverting again to our case of Louisville etc. R. R. Co. v. Gidley, 119 Ala. 523, 24 South. 753, we need only to state what was there held to see that it supports the position we have taken. In that case the plaintiff delivered to the defendant, a common carrier, on Saturday, at Gadsden, some leather to be shipped to Philadelphia, and received from it a bill of lading limiting defendant's liability to due care and reasonable diligence in protecting it from loss by fire. The leather was received in time for shipment on the same day over a line connecting with defendant's road, five miles from Gadsden, but it was held for shipment over defendant's usual route, by way of Calera, on Monday morning following, no freight train running on Sunday. It was held that as a matter of law defendant was not justified in delaying the shipment, and its failure to ship on the day the leather was received rendered it liable for its loss by fire which occurred on the night of the day the leather was received. This holding, it seems to us, clearly put this court in line with the New York cases. For undoubtedly the principle which must control is the same, whether the carrier undertakes to exempt itself from liability as an insurer by the act of God or the public enemy, or by contract against fire not occasioned by its own neglect: Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49. In this case

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