For the purposes of this hearing, all the facts which the defendant offered to show are to be taken as established. We must assume, therefore, that there was an existing regulation and usage of the Housatonic Railroad Company that car loads of freight like that of the plaintiff’s should be unloaded *263by the consignee within twenty-four hours after notice to him of their arrival; that for delay in unloading, after twenty-four hours, the consignee should pay two dollars a day for each car belonging to other railroad companies, and that this regulation and usage was known to the plaintiff.
Being known to the plaintiff, it is to be presumed, in the absence of any evidence to the contrary, that the parties contracted in reference to it. It enters into and forms part of their contract, and the railroad company is entitled to recover the amount fixed by the usage, by virtue of the plaintiff’s promise to pay it. This charge is, in its essential character, a charge for storage. After the arrival of the goods at their destination the liability of the company as common carriers ceased, but they became liable for the custody of the goods as warehousemen, and, if they were not removed within a reasonable time, were entitled to compensation, for which they had a lien as warehousemen. Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263. The parties, by their agreement, fixed the rate of compensation which the company should receive and the time when it should commence. It is not material that the goods remained in the cars instead of being put into a storehouse. The responsibility of the company for their custody was the same as if they had been stored, and they had the right to retain them until their charges were paid.
We are of opinion, therefore, that instructions should have been given substantially as requested by the defendant, and that the presiding judge erred in the instructions which he gave.
Both parties have assumed that the question involved in the ease is the same as if the suit had been directly against the railroad company, and we have, therefore, so treated it.
Exceptions sustained.