(dissenting).—I dissent. The only way the majority opinion can be sustained is by invoking the doctrine of general agency. The idea of general agency in this character of cases is purely artificial and has no foundation in fact or in the understanding of the parties to the contract. An agency is not an artificial condition, but it is a real condition or relative position of parties based upon a contract, upon the real understanding and intention of the parties; and the agency, so far as the parties to the contract are -concerned, cannot go beyond the intention of the parties at the time the contract was made.
What was the understanding of the parties to this contract? Plainly, that the Burlington & Missouri River Railroad Company should deliver respondent’s goods in Olympia for an agreed price, which the respondent paid in advance to that company. Here was a special agency created to do a special thing. There is no semblance here of a general agency, and under the undisputed rule, he who deals Avith a special agent deals at his peril and is bound to take notice of the exact powers conferred.
Neither is there any element of apparent authority in this case. If the contract which Mrs. Moses made Avith the Burlington Company can be construed as clothing that company with apparent authority to bind her to pay more than she agreed to pay for the transportation of her freight to Olympia, then the distinction between a general and special agency can always be obliterated by the plea of apparent authority. What is it that is made apparent by this contract ? If the Union Pacific and subsequent transportation companies had taken the trouble to look at the bill of lading, one thing certainly would have been apparent, and that apparent thing was that the freight had been paid on the goods clear through to their destination at Olympia. The exercise of ordinary business care would *603have brought this notice home to the company that received the goods from the Burlington Company.
It is conceded that if the company had had the notice its lien could not attach. Shall it be allowed to change the responsibility of the owner by refusing or neglecting to take notice which was within its reach? There is no privity between these connecting companies and the shipper, but there is privity between the connecting companies and the company from which they received the freight.
It is in perfect harmony with the natural order of business, that he who is employed must look to his employer for his recompense, and I see no good reason for changing the rule in the interest of transportation companies. These companies deal with each other; they are familiar with the business transactions of each other; most frequently have traffic arrangements; at all events they can easily make such arrangements between themselves, if they see fit. The business is for their mutual benefit, and it is no hardship to hold that the company which procures another company to forward its freight should be taken to be its agent to carry the goods forward.
A different rule altogether prevails where the charges have not been paid. There the party sees fit to put his goods in the care of any number of companies that is necessary to transport them. He knows that of necessity they must be carried by different companies, and that each company is entitled to a fair consideration for its services; that in order to insure their transportation without payment in advance the companies respectively are entitled to a lien to secure their payment. This knowledge becomes incorporated into his contract. He is presumed to have contracted with reference to it. And here the doctrine of apparent authority attaches, and the shipper is presumed to have consented to the attachment of a lien to secure the freight charges. And when the extending company makes *604the ordinary inquiry and ascertains that the freight is in this condition, it takes it, and its lien attaches upon this implied consent. For it must be borne in mind that the lien can only attach upon the idea of consent, expressed or implied, in the contract made with the owner. But where can we get the idea of consent in this case ? It is certainly not expressed; it is just as plainly not implied. Not only so, but the very transaction itself negatives the idea of consent; for the respondent paid the charges to Olympia, the point of destination, and she certainly did not consent to pay the charges twice. And yet, if the doctrine of the majority is sustained, it must be upon this unreasonable hypothesis. It is a well settled principle that a wrongdoer cannot confer on a carrier a right to assert a lien against the true owner, because the owner cannot be divested of his property without his consent.
I think, then, that in an executed contract of this kind, executed at least on the part of the shipper by the payment of through freight charges in advance, as agreed upon, each successive carrier over connecting lines of railroads becomes the agent of its predecessor; that each successive carrier acts in subordination to the contract and must be held to take notice of the conditions of the contract. And I think the doctrine is well established, that in cases of connecting carriers, the succeeding carrier is the agent of the initial or first carrier. The rule is thus laid down by Hutchinson on Carriers, § 273:
“Whenever, therefore, as in England and in many of the states of this country, upon the delivery of goods to a common carrier, consigned to a particular point, the law obliges him to become responsible for the carriage to that place, all subsequent carriers who may be employed to aid in the through transportation do so as agents of the carrier to whom they are first delivered, and are protected by his contracts.”
In this case the goods were delivered to the Burlington *605Company, consigned to a particular point, viz., Olympia. The law obliges that company to become responsible for their carriage to that place, because it had received the pay for the through transportation. Consequently,.according to the text, the Union, the Northern and the Port Townsend Southern were the agents of the Burlington Company.
“When goods are sent, not according to the contract with the owner, but by some other route, there is no lien for freight money;” and if the goods are withheld under a claim of lien, an action of trover will lie for the value. Marsh v. Union, Pacific R. R. Co., 9 Fed. Rep. 873.
“The connecting carrier by receiving the goods from the contracting carrier, becomes its agent for the purpose of completing the contract with its shipper. ’ ’ Halliday v. St. L., etc., Ry. Co., 74 Mo. 159.
To the same effect: Fitch v. Newberry, 1 Doug. (Mich.) 1; Buskirk v. Purington, 2 Hall, 561; Robinson v. Baker, 5 Cush. 137.
If a bill of lading or way bill accompanying the goods shows that the freight has been paid wholly or in part for the through route, the succeeding carriers w'ould be affected with knowledge of such payment, 'for if they consult the bill of lading they will have actual knowledge, and if they do not consult it they may be regarded as guilty of negligence and constructively affected with knowledge of what the bill of lading actually shows. 1 Jones on Liens, § 297. This was the view the court took of the law in this case, both in sustaining objections to the testimony offered and in its instructions to the jury.
Most of the cases cited by the majority base their arguments upon the theory that transportation companies are compelled to receive and forward freight. If that were so, then there would be some equity and justice in holding that they would have a lien for their services in any event. But such is not the law. If a connecting company is not satisfied with the responsibility of the company which has *606the goods in charge, in the first instance, it can demand its pay in advance, and if it is not paid it need not carry the goods. The law on that subject is well settled.
In my judgment there was no error committed in the trial of this cause, and the judgment should be affirmed.