Separate Opinion of
Philips and Ellison, JJ.We concur in the result of the foregoing opinion, for the reason that the record, as presented in the abstract, does not show that defendant’s refusal was a qualified refusal. But we are of opinion that section 1018, Revised Statutes, ■does not apply to the instance of a carrier of goods under circumstances like this. It is the prime duty of fthe carrier to deliver the goods to the consignee. If the ■carrier deliver the goods to the wrong party, he does so at his' peril; therefore, the law is that the carrier has the right, for his necessary protection, to demand the bill of lading before delivery, or, in case of demand by the rightful owner, to require reasonable evidence of his identity. Until demand be made by the rightful party ■the carrier is not in default, for in holding the goods until apiilied for by him to whom he has undertaken by 'bis contract to deliver them, he is only doing what the ■consignor, the shipper, has authorized him to do.
In refusing to deliver, without some evidence of identification by the demandant, he is but doing that which the law allows for his reasonable and necessary protection. It is evident to our minds that said section of the statute can have no application to this case, for the obvious reason that it contemplates an absolute and unconditional tender of the property sued for. Suppose the defendant, when sued without a demand, and is without knowledge or information as to whether plaintiff is the owner, comes into court, and, in order to protect hiniself against payment of costs, makes tender of the ■goods. This admits the plaintiffs’ ownership. It after-*451wards transpires that another party was the owner, who sues the defendant. I-Ie must recover, for the recovery •against the defendant in the first suit would be no defence to the latter. The defendant surrendered the property without even a struggle, merely to escape costs. Until the consignee or owner makes application for the goods, the carrier is not in default; and even where either does make demand, the law is that the carrier has the right-to request reasonable proof of identification. And, therefore, until demand be made by the rightful party, the carrier can never be placed in default, nor subjected to an action for wrongful detention.
On the re-trial of this case, therefore, if it appears from the evidence that no demand was in fact made by the plaintiff on the defendant for the goods before the institution of this suit he cannot recover. If he did make .such demand, and the defendant declined to surrender the goods in good faith on the ground that the defendant was unknown to the agent, and plaintiffs failed to ■offer any proof of identification, the refusal was a qualified and reasonable one, and the plaintiffs ought not to recover.