The complaint in this action which came to this court on appeal from the first judgment, charged that the defendant, as a common carrier, received the wagons in question from the plaintiff, and undertook to carry and deliver them to the consignee and purchaser, Downs, at Marshalltown in the state of Iowa, and to collect on such delivery, from Downs, *346the sum of eight hundred dollai-s, the value and proceeds of the same, for the plaintiff.
The complaint as amended and now before this court, charges, in effect, that the defendant received from the plaintiff, at Racine, a bill or account for the sum of eight hundred dollars, in favor of the plaintiff and against Downs, for the wagons sold to Downs by the plaintiff, and shipped by the Chicago & Milwaukee Railroad Company, to Downs, in the care of the agent of the defendant at Marshalltown, Iowa, and undertook to collect of Downs said bill upon the delivery of the wagons to him, and to transport the said sum, when collected, from Marshalltown to Racine, and deliver the same to the plaintiff.
By these two complaints the cases are very materially and widely different, and the liability of the defendant would depend upon very different evidence and principles. Under the present complaint, it is doubtful whether the defendant would be liable by reason of its duties and obligations as a common carrier, or as the agent and factor of the plaintiff for the collection of the money; as in the latter case the defendant would not be bound to transmit to the plaintiff the identical money received, as a common carrier, but would be merely liable to pay to the plaintiff generally so much money had and received, or paid to the defendant for the use of the plaintiff’ less collection fees and expenses.
The complaint alleges that the consignment was made to Downs in care of the agent of the defendant at Marshalltown, and, mferentially at least, that the wagons were delivered by the railroad company to the agent of the defendant, and were delivered by the agent to Downs, by stating that the defendant collected from Downs, on said bill, the sum of four hundred dollars.
If it be true that the agent of the defendant did so deliver the property, as consignee, to Downs, the purchaser, having in his hands at the same time the said bill for eie-ht hundred *347dollars, tbe price of tbe wagons, witb or without payment, tbe defendant would be liable to pay tbe plaintiff tbe entire sum. Angelí on Carriers, § 824, and cases cited.
Tbe complaint, however, fails to state that tbe property ever came into tbe possession of tbe defendant, or its agent at Mar-shalltown, or that tbe company or its agents, either at Racine or. Marshalltown, bad any thing to do witb tbe property or its delivery to Downs/
Tbe facts proved upon tbe last trial present a very different case from the one made by either tbe former or the present complaint. Tbe variance seems to be wide and material, if indeed there was not a failure of proof; but, no objection having been taken in the circuit court on this ground, and tbe variance, if any, having been there disregarded, it will be disregarded here.
Tbe evidence is clear that tbe express company, tbe appellant, bad nothing to do witb tbe transportation or delivery of tbe wagons to Downs, and, although tbe wagons were consigned to Downs in care of its agent at Marshalltown, tbe agent did not receive them, and of course could not have delivered them to Downs. They were probably delivered by tbe railroad company directly and personally to Downs; and there is no evidence that the agent of tbe defendant at Marshalltown knew anything about it, or bad anything to do witb it, or that tbe agent collected of Downs any of tbe money in tbe bill sent to him, or that Downs paid tbe agent any money. Tbe bill, therefore, was returned to tbe office of tbe company at Racine, unpaid. This disposes entirely of tbe question of tbe liability of tbe defendant, either as tbe carrier of tbe wagons, as alleged in the first complaint, or as tbe consignee of tbe property and factor of tbe plaintiff at Marshalltown to collect tbe proceeds of its-sale to Downs and pay it to tbe plaintiff when so collected, as alleged in tbe present complaint.
Tbe fact that tbe bill for eight hundred dollars was sent to tbe agent at Marshalltown for collection from Downs upon *348the delivery to Downs of tbe eight wagons, presupposes that the wagons would be delivered by the railroad company to said agent, and that he would deliver them, to Downs upon his payment of the money. This arrangement seems to have been materially changed, or to have failed, the cause of which does not appear in the evidence very clearly; but one thing is quite clear, that the defeat or failure of the original purpose of this transaction is not attributable to any act or neglect of the agent, or of any one on behalf of the company, the appellant. The change was caused solely by the interference of the plaintiff, or by the fault of the railroad company in not delivering the property to the agent of the express company; for neither of which can the appellant be now held responsible.
What is, then, the nature of the transaction as disclosed by the evidence, and what was the responsibility assumed by the defendant, or the liability incurred, if any? The real transaction was, that Downs sent, by the express company, a package addressed to “ Cartright & Wells, Racine, Wisconsin,” on the margin of which was written the words, “ From W. H. Downs.” This will appear from the evidence hereafter referred to. There appears to be nothing in the evidence to make this transaction differ from an ordinary one of an express company receiving a package from a consignor at one point on its route, to be carried to another point and delivered to the consignees named in the address and directions upon the package. There seem to have been no directions or contract outside of and inconsistent with this plain and simple transaction. Downs was the consignor, the express company was the common carrier, and Cartright and Wells were the joint consignees. From the address upon the package, the agent of the express company at Racine had a right to presume that the package belonged jointly to Cartright and Wells, and that it could rightfully and properly be delivered to either one of them. But if this presumption in the mind of the agent, Hall, arising from the directions of the package itself, should *349be weakened by bis previous knowledge tbat Wells bad sent a bill or account of eight hundred dollars for the wagons, against Downs, to the agent of the company at Marshalltown, for collection, or if he had reason to suppose, from such knowledge, that the package contained the money arising from the sale oi the wagons by Wells to Downs, and no other money, at the same time he had even better reason to suppose, from the directions upon the package and the manner in which it had been sent, and from the fact that the said bill had been returned unpaid, that the previous transaction and arrangement had been changed and modified by the parties themselves," and that the package had been sent and directed accordingly. But whatever knowledge or notice the agent might have previously had, of the rights and relations of the parties, inconsistent with the directions of the consignment, which was in the ordinary course of business of the company, the defendant would not-be bound by his knowledge or notice of facts outside of his legitimate duties and employment. Story on Agency, §§ 140, 451, and cases cited; Marshall v. American Express Co., 7 Wis., 1; Sawyer v. The C. & N. W. Railway Co., 22 id., 403; Congar v. The C. & N. W. Railway Co., 24 id., 157.
There is no dispute as to the arrival of the package at the place of destination; and at least one of the consignees had notice of it. There may not have been any such firm or co-partnership as Cartright & "Wells, in Racine at the time; but there were such persons, and they were the joint consignees of the package, and a delivery to one would have been a delivery to both; and so, also, notice to one in respect to the package so marked and addressed, would have been notice to both. Story on Agency, § 44; Hubbard v. Galusha, 23 Wis., 398.
It is already manifest that the apparent ownership of the money in the package was in Cartright and Wells jointly; but to whom did the money actually belong?
The evidence is perfectly clear and conclusive that the money *350actually belonged to both Cartright and Wells jointly. In what precise proportion they owned it, or the interest of each in it, is not shown by the evidence, and is still an open question.
In answer to the question: “ From whom did you order the wagons?” Downs testified that he bargained with Cartright, and did not know Wells at the time, and had been in the habit of buying wagons of Cartright, and that he ordered these wagons by letter; and, in explanation of his evidence that “he received the wagons from the plaintiff,” he said that he meant the saíne wagons be bargained for of Cartright, and that at the time of the purchase he did not know any other person in the purchase than Cartright, and that he received no directions as to how the money should be sent, but had been in the habit of sending in that way, by express, to different parties iñ Racine, but not to Cartright and Wells-, that the money was sent September 21st, 1864, and and was the only package of money he sent about that time to Cartright and Wells; that he put the money in the envelope himself, sano it sealed amd directed, and took the receipt, and gave the address to be put on the package; and that it was put on as he gave it. It was admitted, on the trial, that the package of $400 is the only one in dispute, and that it is the $400 sent by Downs. The plaintiff testified that he owned the eight wagons shipped to Downs, and that he advanced money to Mr. Cartright for some lumber before the wagons were made. Downs, when asked how he came to send the money to Cartright and Wells, answered that “ he received a letter from each of them, both stating that they had sent the wagons; and as he had bought of Ca/rtright and did not know Wells, he thought he would send the money to both of them, marked Cartright do Wells”
Here we have the explanation by Downs himself, both of the nature of the interest of the plaintiff and of the reason why the package was sent by Downs to Cartright and Wells, in*351stead of to the plaintiff alone. In the letter of the plaintiff to Downs, produced on the trial and of the same date as the shipment of the order, bill or account for the eight hundred dollars, he says: “ Having advanced money to Mr. E. Cart-right to get up the seven wagons built by him, I have bought them with the understanding that they should be shipped to you on his trade with you; and this is the reason they are shipped in my name; the money for them is belonging to me to a certain amount.” In the letter of Cartright to Downs of the same date, he says: “ I have shipped you this day seven wagons of my own make. * * Mr. Wells has advanced me money on the wagons to get them up in a hurry, and I have billed them in his name. * * We thought that [we would] send the bill for collection with the wagons; for I am very hard up just now, having to borrow money to make wagons, and pay interest on it. * * Will have another car load about the last of this month. You will send the money to Mr. A. 8. Wells, Hsg. The bill is made to him.”
It seems that Downs did not see fit to send the money to Wells alone, according to this order, thinking, doubtless, that as the money belonged to them both, and as he had bought the wagons of Cartright and did not know Wells, it would be more proper for him to do so. This important change in the first an'angement, through which the wagons failed to come to the possession of the agent of the defendant, and to be delivered by him to Downs upon his payment of the eight hundred dollars according to the bill or account sent to him, and which caused the said bill to be sent back unpaid, took place without the knowledge or fault of the defendant or its agents, and the defendant is not responsible in any manner for it.
This evidence most clearly shows that Cartright made and owned seven of the eight wagons sent to Downs, and that they were sent and delivered on Downs’ purchase and order, at an agreed price and terms of purchase; for Downs testifies that terms were to be one-half down and the balance on time, which *352shows that even the bill itself for the whole amount to be paid on the delivery of the wagons, was a mistake.
This evidence further shows that the only interest which the plaintiff had in the wagons or money was for money advanced by him to Oartright, to aid him in getting them up; that the wagons were his security for this loan; and that they were therefore shipped in the plaintiff’s name, to Downs, and the money was to be sent to the plaintiff for his further security for the payment of the amount of his advances to Oartright on the wagons, and interest, and the residue (whatever that might be) belonged to Oartright. This evidence will not bear any other construction; and the conclusion is inevitable, that neither the wagons nor the money belonged solely to the plaintiff; but it more properly establishes the fact that both belonged to Oartright alone, subject to the lien or security of the plaintiff for the payment of the money he had advanced to Oartright; and, in the aspect most favorable to the plaintiff, that they both owned jointly the wagons, and are jointly entitled to their proceeds, according to their several interests.
The statements of both Oartright and Wells in their evidence, that Wells owned the wagons or the money, are mere conclusions of their own, most wrongfully drawn from the facts, which clearly show that both were owned jointly by the plaintiff and Oartright.
We think we are safe in saying, that there was no evidence to sustain the first and twelfth findings in the special verdict asked for by the plaintiff, and the other findings based upon the theory of the sole ownership of the money by the plaintiff. There is no evidence whatever that the express company, the appellant, collected the money of Downs, or that it was paid by Downs to the company or its agent on account of said wagons; and therefore the third finding in said verdict was clearly erroneous.
Indeed, all the findings for the plaintiff seem to have been based upon the theory that the money was actually collected *353by the defendant from Downs upon the bill of eight hundred dollars, according to the first probable arrangement, which was utterly abandoned afterwards by the parties, and that, too, without the fault of the defendant, and therefore that bill was returned unpaid.
These errors are so apparent, and so important, that it will be unnecessary to refer to the questions arising from the garnishee proceedings against -the defendant in the attachment suits against Cartright, or the notices deposited in the post-office at Eacine, addressed to Cartright and Wells, of the garnishee proceedings, and tendering their defense to them, any further than to suggest that, so far as Cartright is concerned (and he wa% joint owner of the money), he was a party to the record in those proceedings, and is presumed to have had notice, and leave the questions open as to whether the notice to Cartright and Wells, deposited in the postoffice, -was not sufficient as to both and each of them, in respect to any inter-meddling or interference with or diversion of the package addressed jointly to them, and its contents, and as to whether they are both presumed to have received said notice.
This case was very ably argued by the learned counsel on both sides in this court, and all the light possible thrown upon the questions involved; and the apparent confusion and inconsistencies in the evidence, and the entire want of it on the question as to the proportionate interest of the plaintiff and Cartright in the money, are doubtless to be attributed to the length of time the case has been pending, and the absence or forgetfulness of witnesses. But the case must be disposed of upon the record before us; and, for the manifest errors above pointed out, the judgment must be reversed.
By the Qowrt. — The judgment of the circuit court is reversed, with costs, and the cause remanded for a new trial.