| Subsistence Bureau |
| Richmond Decem 9th 1862 |
| |
| Col. William M. Wadley A. A. G. |
| Chief of Rail Road Transportation CS |
| Care of George Yongee Esq |
| Augusta, Ga. |
| |
| Sir, |
| I regret very much that pressing
engagements have prevented me from examining some legal authorities
which I desired to refresh my recollection with previous to my
writing to you upon the question discussed by us when you were in
this city To wit: whether Rail Road companies could be required or
were bound to deliver the freight transported by them to and upon
the wagons. |
| It seems to me that an affirmative
answer must be given and that none other will satisfy the
requirements of a "delivery" which all must concede
the companies are bound to make. I propose therefore first to
enquire what is a delivery. The following tract from Story on
Bailments &543 page 563 seems to settle the point as
conclusively as it is possible for a Text Book to settle any
question. "There seems a strong ind?? of opinion (although
there has been some diversity of judicial opinion,) to hold that, in
cases of transportation by land, the carrier is bound, generally to
make a personal delivery to the owner, unless there is some custom
of trade, or some contract to the contrary. Lord Kenyon was
strenuously the other way; but the other three judges, on that
occasion, differed from him. On more recent occasions, the opinion
of other distinguished judges have settled down in favor of the
doctrine of the three judges against him." Now if the greater
includes the less it seems to me that if the carrier is bound to
make a "personal delivery" it must follow that the
carrier can not ask more than that a wagon should be sent to receive
the freight. Can it be said that a delivery is made by the carrier
letting the owner of the freight or his agent (the wagoner) to come
in the depot and take the freight. The carrier must deliver
not permit the owner to take. |
| It has been decided by the Supreme Court
of Appeals of Virginia (which case I have been prevented from
referring to because my books were packed and I have not had time to
get the Book elsewhere) that while Rail Road Cos are not liable
as carriers after the freight is deposited in their Depot yet
that they are liable as warehousemen. And so several other
courts have decided in America. Though this decision it is said by
some of the most eminent jurists goes "very far indeed."
It then becomes necessary to enquire what are the duties of
warehousemen on this subject. Can there be any doubt but that a
warehouseman is bound to receive all articles (entrusted to him) at
his door and to deliver them at his door to the wagon or other
vehicle that is to transport them. In Story on Bailments&445 it
is said "It has been decided that as soon as the goods arrive,
and the crane of the warehouse is applied to raise them into the
warehouse the liability of the warehouseman commences; and it is no
defence that they are afterwards injured by falling into the street
from the breaking of the tackle, even if the carman who brought them
has refused the offer of slings for further security." Could
this liability of the warehouseman be unless it was his duty to
unload the wagon. And can it be possible that the warehouseman is
bound to unload the wagon to receive the articles and
not bound to load the wagon to deliver them. The
question is too clear to admit of agreement. |
| If a carrier undertakes to transport
freight to a party to do which the freight has to be delivered to
another carrier can there be any question but that the first carrier
is bound to deliver the article to the second carrier. Is not that,
this case -- wagoners carmen and truckmen are common carriers
decided so to be a choices and times. The Rail Road Company to
relieve itself from responsibility must therefore deliver to such
common carrier and until it does it can not claim to have completed
a delivery. |
| In addition to all this such has been
the custom so far as my experience and observation have gone
throughout the country and all the authorities agree such a custom
must prevail even if the law were the other way. |
| And in addition to this there is an
ordinance in the City of Richmond requiring the wagoner to remain
with his wagon all the time and not to leave under any circumstances
under the penalty (if the driver is a negro of being flogged and
also of the owner being fined. This ordinance is so necessary to
prevent accidents that it is presumed a similar one prevails in
every city. Therefore to require the wagoners to go into the Depot
and get the freight out would be to require the wagoners and the
owners of the wagons to disobey and infringe the law & this
subject themselves to the penalty of a penal statute. |
| I have written very hurriedly under a
considerable press of business and am fully aware that I have not
done more than present the subject for consideration. |
| Very Respy |
| Your obt servt |
| James R Crenshaw |