The exceptions set out the entire charge of the presiding judge as taken by the stenographer, and thereupon say, "to all wMch rulings and instructions . . . the said plaintiff excepts,” &c. So far as any of the instructions given are concerned, the wholesale character of the exception would be of itself a sufficient reason for overruling it, if any of the instructions are found correct; MacIntosh v. Bartlett, 67 Maine, 130; Harriman v. Sanger, Id. 442; Grosby v. Maine Central R. R. Co. 69 Maine, 418. A large part of the charge is as favorable to the plaintiff as the rules of law will permit. The instructions thus excepted to in gross, include in substance at least, four of the ten instructions requested by the plaintiff, — the third, fourth, fifth and seventh. Plaintiff’s counsel very properly concedes that it must be regarded as established by the verdict under the instructions given, that the loss of the salmon did not result from the negligence of the defendants, and hence under the bill of lading, presented by the plaintiff, defendants are not liable for it; and this disposes of four out of the six remaining requests, viz : the second, eighth, ninth and tenth.
The sixth request was that the jury should be instructed that "if the flour was delivered for transportation upon the next *59steamer, which was to sail from defendant’s wharf, such delivery was a delivery for immediate transportation, and the defendant would be liable as a common carrier.” It is apparent that this calls for an authoritative decision as upon a question of law, of what seems to have been the principally controverted vital question of fact in the case. Plaintiff’s counsel does not insist upon his exception to the refusal to give it.
He bases his claim to a new trial upon the refusal to give the instruction stated in his first request, and to instructions wdiich he construes as laying it down as a rule of law, that if defendant’s steamer made but one trip a week, and the plaintiff, knowing this fact, should leave goods at defendant’s wharf at any time before the steamer had returned to this port and had discharged her inbrought cargo, and before she was in a condition to receive any articles of the outgoing cargo, such delivery of goods w'ould be a delivery for storage, and not for immediate transportation; and defendant corporation would be liable as warehousemen only, that is in case of negligence, and not as an insurer as a common carrier.
But if any question upon the instructions except that already alluded to, were open to the plaintiff upon his general exceptions to the charge, it would only be necessary to remark, that, in order to reach this construction, the plaintiff’s counsel omits and ignores an essential element in the instruction as actually given, to the effect that this result would follow, if "it was then left with the understanding that it remained there on storage until the vessel was in condition to receive another cargo.” The presiding judge repeatedly called the attention of the jury to the inquiry: What was the agreement or understanding of the parties upon wdiich the flour was left ? and he concludes thus : "In other words, I mean to have you understand that the agreement of the parties, their understanding of the purpose for which the flour was left, is to govern.”
.There is no report of the evidence upon which these instructions were based, but the case indicates that there was conflicting evidence on the questions of delivery and acceptance of the goods, and the terms of such acceptance, and that the character and purpose of such acceptance (if there was one), were *60carefully left by the presiding judge to be determined by the jury from the evidence. This condition of things seems to make the first requested instruction (as to the effect of the mere fact of delivery of the goods to defendant corporation for transportation, in raising a presumption that such delivery and reception were for the purpose of immediate transportation), needless and immaterial, as there is nothing tending to show that there was any such "mere fact of delivery” in evidence, unaccompanied by testimony as to the terms and conditions upon which it was made and accepted. It does not appear that there was any written contract between these parties, touching the purpose or terms upon which the flour was received by the defendant corporation, and jit was for the jury to determine what understanding was reached by the respective agents of the parties in the course of their verbal communications.
The case does not appear to have been one of mere tacit delivery and reception, which would make the plaintiff’s requested instruction appropriate. We see no reason to doubt that the jury passed upon the case with a full understanding that they must determine, from the evidence, whether the agreement between the parties, acting by their respective agents, was that the flour was received by the defendants as common carriers for transportation, or as warehousemen for storage until the time when their steamer should be in readiness to receive it on board; nor that they failed to understand from the charge, that the defendants would be liable as common carriers for the flour, received by them, to be transported over their route for hire, although not placed on board, unless, — to use the language of the judge in the charge, — "it was then left with the understanding that it remained there on storage until the vessel was in condition to receive another cargo.”
This is entirely consistent with the doctrine of Fitchburg & Worcester R. R. Co. v. Hanna et al. 6 Gray, 539, cited by plaintiff’s counsel, where Merrick, J., correctly remarks (p. 542) : "When goods are brought *and delivered to a party for transportation, he can determine for himself in what relation he will receive them. If he is a common carrier, he is certainly required by law, to take and transport goods, tendered to him *61for that purpose. But be is to have a reasonable opportunity to make the necessary preliminary preparations for that service; and he can therefore, if he choose so to protect himself, whenever it is necessary and proper that he should have some intermediate time for preparation before proceeding on the voyage or journey, receive the goods and keep them during such intervening period as a warehouseman, and not as a common carrier.” It cannot be doubted that it was competent for the defendants to contract to receive this flour, delivered the day after their boat had left and six days before it would again leave on its regular trip, — not as common carriers for immediate transportation,' — but as warehousemen, until the boat should be in condition to receive cargo ; and the jury seem to have found that such was the contract and understanding of the parties.
Exceptions overruled.
Appleton, C. J., Walton, Peters, Lxbbey and Symonls, JJ., concurred.