I concede the proposition that, as between the original contracting parties, the carrier, with whom the contract is made, is bound to carry for the price agreed on, and is responsible for the safe carriage of the goods to the place of destination, whether on his own route or on the subsequent routes to which the goods may be transferred.
There can be no doubt, also, that the carrier who makes the contract for transportation would be responsible for all damage arising from an improper discharge of his duty. That for injuries to the goods, either on his own line or on the lines to which he might transfer them, he would have to respond to the owner, and if the transportation cost more than the contract price, the carrier would be bound to indemnify the owner.
But I cannot concur in the opinion that the subsequent carrier, to whom the goods are delivered for transportation, without notice of the contract, is not entitled to claim his freight or charge for transportation, or that he carries the goods subject to a loss of his services by a claim for damages incurred before he received the goods.
The first carrier, with whom the contract was made, was vested by the owner with all necessary authority to forward the goods to New York. True, he agreed to do it for a specified sum, but if he broke such agreement and exposed the owner to a greater charge by the transfer to another person, he must make good the loss. As between the owner and the last carrier, the equity is in favor of the latter. The owner trusted the goods to the first carrier, and by placing them in his possession he would thereby enable him to perpetrate a fraud upon the latter. It was through his act, in the first instance, that the last carrier was ignorantly led to do a service for which he is to receive no compensation. If the owner determined to insist upon his first contract, he should have refused to receive the goods after he knew of plaintiffs’ claims for transportation. Having received them, he cannot now refuse to pay for them. Nor do I agree that such last carrier forfeits his charge for carriage, if the goods are damaged on *249the previous line. So far as his rights are involved, I think he is entitled to recover if the goods were delivered in New York in as good condition as when he received them. All the previous freight may he lost by the amount of damages recouped, and if he takes the transfer of the first carrier’s claim for transportation on his line, he takes it subject to any claim for damages on the part of the owner.
The plaintiffs were entitled to recover their charges for transportation on their line, and if they held the charges of the previous line, and it had been shown that the damage did not occur while the goods were on that line, they would be entitled, I think, to those also. But as the evidence shows that the goods were damaged before they came to the plaintiffs’ possession, the plaintiffs would be bound, in order to relieve the intermediate line from loss, and to recover their charge for transportation, to show that the damage occurred previous to the delivery of the goods to them. This appears to be so from the testimony.
There is a difficulty in disposing of this case in the present condition of the court. With a difference between the judges who held the court, considerable delay must take place before an argument can be had before the full bench, in consequence of the illness of one of the judges.
Under such circumstances, I think the parties had better agree to an affirmance of the judgment, so as to allow an appeal at once to the court of appeals, and have the questions upon which we differ finally decided.
Re-argument ordered before the full bench, unless the parties consent to an affirmance pro forma, to enable the plaintiffs to appeal to the court of appeals.