By the Court,
Johnson, J.From the facts found -in this case, it becomes necessary to determine, first, what have the defendants undertaken to do, and secondly, what are their liabilities growing out of that .undertaking.
Theplaintiff, who resided in Three. Eivers in 1850, wrote to ¥m. D. Thompson, one of the. .agents of defendants residing at Niles, expressing a desire to make arrangements for the transportation of their flour. from that place to Buffalo, for the ensuing fall, and requested that he would communicate to them the best terms the company would make.-
In answer to this letter, -Mr. Thompson, among other things, says: “I will deliver your flour on board at Detroit from Niles, for 35c. per bbl., up to the first of October; after that time, the road I think will charge 40c. but not over forty to the close of -navigation. I do not like to contract east of Detroit* and I think you will be able to get your freights .cheaper from Detroit without a contract than you would with.” Much more was written in this letter, but nothing it is believed that would materially change or qualify in any manner the purport and legal effect of the language above quoted.
*35This letter bears date July 29th, 1850, and on the 13th of August following, the plaintiff’s by letter addressed to.Thompson, accept of this proposition.
The flour in question was received under this contract, at Niles, and transported to Detroit, and there deposited in defendants’ depot, on the evening of the 18th of November, and early on the morning of the 19th, was destroyed by fire.
The plaintiffs insist that here is a clear, distinct and definite undertaking on the part of the defendants to receive the flour at Niles, and deliver it on board at Detroit, in furtherance of its destination eastward.
The defendants on the other hand insist that the language of the foregoing correspondence should be construed in reference to the ordinary customs of the Company, their usual mode and manner of doing business as found in the facts in ■the case. That the term on board means nothing more than that they would, after the property was removed from the cars into their depot, in the capacity of forwarding merchants or warehouse-men, and in pursuance of their usual custom, see that the property was put on board some suitable water craft for its transportation east.
This then seems to become material — to determine whether here was a special agreement to deliver this property on board at Detroitj or at their depot in Detroit, which it is acknowledged would have been the implied undertaking from the reception of the property generally without any special agreement.
This becomes material for the purpose of determining in what capacity the defendants held the property at the time <of its destruction.
The plaintiffs insisting that, upon their construction of the contract, the defendants must be deemed to act as common carriers until the flour was delivered on board some ship, while the defendants contend under their constniction, that they ceased to act in that character as soon as the property *36was deposited in their depot, and consequently only chargeable for negligence.
It is not denied, but expressly admitted on the argument, that Thompson, whatever may be the construction of the contract, had the authority to make it, and we are therefore to determine from the language of this correspondence, and from such other facts as are proper to be considered from the record, what was the real intention of the parties.
The plaintiff’s request to Thompson was, for the best terms the Company would make them for transporting their flour from Niles to Buffalo.
It is presumable from this letter, (and such' conclusively appears from the examination of the whole record,) that unless they should receive some acceptable proposition from the Company, they designed to ship their flora by some other route, and hence the letter was written.
Thompson informs them that they did not like to contract east of Detroit, but upon the terms before stated, he would deliver their flour on board at Detroit. ITe held out to them at the same time, inducements, by stating “that he thought they would be able to get their freights cheaper from Detroit without a contract than they would with.”
The property was consigned to J. & C. Hitchcock, Buffalo. There was no consignee at Detroit, and evidently becausey by the terms of this contract, none was required. We refer to this circumstance, for the purpose of showing that the plaintiffs attention must have been called to the distinct terms of this contract. That the term on board was by them considered as the operative and descriptive term expressive of the extent and character of the defendants’ engagement.
And we believe it must have been a consideration with the plaintiffs, in accepting this proposition, that they were thereby incurring no expense in the storage and transhipment at Detroit. "Would not the difference between the delivery of this property on board at Detroit, and in defendants’ depot, in De*37troit, readily occur to an ordinary business man ? Had they' not a right to say, and are we not bound to presume they did say, in accepting this proposition in lieu, of the-one they made, they incurred simply the hazard of paying extra freight from Detroit to Buffalo.
In seeking the intention of the parties, we must not be unmindful of the object to be accomplished. - The plaintiffs had in view the safest and cheapest, mode forthe transportation of their property to an eastern market. . In accepting this proposition, we are to presume they took into consideration every circumstance having a tendency to promote that object. In. this, they were to be at no trouble or expense at Detroit. The flour was to be received at Niles, and delivered m board for transportation to Buffalo, without any new engagement for freightage.
It would have been competent for the plaintiffs to have employed a particular carrier on the láke, and in that case to have instructed the defendant, upon the arrival of the property at Detroit,, to hold it subject to the order of such carrier, and then their duty would have been completed and ended upon the deposit of the property in their warehouse, but no such order was given, showing that the plaintiffs were relying upon their contract, that the defendants would ship the flour for'its eastern destination vithont any specific directions. -
It is urged that we should not apply a rigid rule of construction to a contract drawn in the hasty and indeliberate manner this appears to have been done, that we should nobe bound by its literal terms, but look beyond it in arriving at the intention of the parties. This is what we have endeavored to do; let us proceed with it a little further. Here was a competition between this Company and the carriers around the lakes. This was alluded to in the plaintiffs’ letter to Thompson, and Thompson in his reply discussed at some length ‘the advantages and disadvantages of the respective *38routes. He.was anxious to secure their business by making them the most favorable proposition he could. He saw what they wanted; not to have their property transported to Detroit, but to Buffalo. I do not like, says he, to contract east of Detroit, but I will deliver your flour on hoard at Detroit. We think this term on hoard was used by Thompson understahdingly and deliberately, and with the Ml intention of conveying to them the distinct idea, that they were to incur no expense at Detroit in shipping their flour, and that an idea so distinctly expressed, and so important in its result, Could not have been overlooked by the plaintiffs in their acceptance of the proposition.
But it is said that even though it be conceded, that here was a special contract, it must be taken with and construed in reference to the regulations and customs of the Company. That ordinarily* property received by them for transportation east, would, as of necessity, be deposited in their depot prior to its being shipped on board, and upon such deposit the duty of the Company as common carriers would end. And that after that time they would act, if at all, in the capacity of forwarding merchants or warehousemen, and that such custom was shown on the trial of this cause.
We are not called upon to say what the.effects of this custom would have been in this case, had a knowledge of it been brought home to the plaintiffs, but it does not appear from the facts found, nor indeed from anything that appears of record, that they had any knowledge of the particular manner in which the Company transacted their business, nor does it appear that they even knew that the Company had a depot or warehouse in Detroit.
If the defendants seek to modify this contract by a custom, they must show that both parties acted in reference to it.
It is analogous to those cases where a party seeks to avoid an implied legal obligation by a particular usage or custom. To do that so as to make the general law yield to a particular *39one, it is essential that he should not only show the particular custom and usage to exist, but he should show enough to warrant the presumption that both parties'acted in reference to it.
We think no such presumption can be raised in this case. We are therefore to determine the intention of the parties from the language of the contract, and from such other circumstances in the case as may properly be considered with it. We have attempted to do so. There is nothing ambiguous or doubtful in its terms. There are no circumstances to warrant the assumption that the parties did not mean precisely what they expressed, and we are of opinion, then, that the contract was to deliver on board, and not' at Detroit generally.
Having determined this point in the case, it would seem to follow that the defendants could not escape the responsibility which the law attaches to common carriers. They having undertaken, by the reception of the property under the special contract, to transport it to a given place, and the same having been destroyed before that undertaking is accomplished, it seems only necessary to inquire in what capacity they, received it, for the purpose of determining their liability.
It is, however, very strongly and ingeniously urged in behalf of the defendant, that under the express contract, as well as the implied one resulting from the reception of the property generally, they are only liable as warehousemen after the deposit of the property in their depot. That even conceding the engagement was to deliver on hoard, yet while it was actually in the warehouse they held it in the capacity of warehouse-men. This position, we think, is not maintainable. The implied undertaking resulting from the reception of the property generally, would have required them to have carried it no further than the terminus of the route, and there being no consignee there and no further special duty for them to perform, their implied contract as carrier would terminate upon the deposit of the property in the depot." The law settling the extent of the duty would also settle the extent of the liability.
*40But by this special contract nothing is implied, nothing can be. They have agreed to do a specific thing; they have agreed to deliver the property at a particular place, and in doing this-it may be convenient for them to remove the property from the cars to the depot, but they cannot become warehousemen until they first do what they have engaged to do as carriers. The point of delivery was beyond the depot, and if it had been removed three months-it would still have been in transitu.
This doctrine is established in the case of Hyde vs. the Trent. & Mersey Nav. Company, 5 Term. R. 387, cited by plaintiffs.
It is attempted on the part of the defendants to distinguish that case from the one at bar. It is insisted that that case was-not decided on the general question of the liabilities of defendants, but on the distinct ground “ that the cartage of the goods was demanded of and paid by plaintiffs before the goods-were put on board the defendants’ vessel, and from that circumstance the defendants undertook to deliver the goods at; the place to which the carts were to carry them.”
This, says the counsel, was the turning point in the case,, and so we understand it.
The Court said, that inasmuch as the defendants had received pay for cartage, it was evidence of a special contract to do something more than to deliver the goods in the warehouse at the termination of their transit. They had agreed to deliver the property to the plaintiff’ personally, that is, to cart it from their warehouse to the plaintiff’s residence, and until it was so personally delivered, they were liable as common carriers.
Then it was not the receipt of the money for cartage that, took it out of general rule, but a special contract which the payment of the money proved, that made the defendants liable..
And so it may be said in this case, in the absence of any special contract the defendants would have discharged themselves as common carriers by the deposit of the property in their depot, because that is all the contract would have im*41plied from a reception of the property generally. The depot being the place where goods are usually deposited on their arrival from the west, or in other words, it being the eastern termination of their transit.
But we have found in this case precisely what the court found in the case above cited, viz.: a special contract to carry beyond the ordinary terminus of their respective routes. In that case they were to cart it from their warehouse to the plaintiff’s residence. In this case they were to remove it from the depot on board. The court held in that case, that until they had fulfilled that special contract, they continued common carriers. The doctrine of that case has never been overturned or questioned, it never can be upon principle, and it is precisely anolagous to the case at bar. In that case there was a special contract to deliver the property to the plaintiff personally, it was destroyed by fire in their depot before such delivery.
Here was a special contract to' deliver the property on board; it was destroyed by fire in their depot before such delivery. In that case the court held the defendants liable as common carriers, because their undertaking had not been completed; at the destruction of the property it was still in transitu.
In this case the Court must hold the same. The case of Uardside vs. Trent. & Mersey Nav. Co., (4 Term Ji. 581,) cited by defendants, is not in point. There the property was received by the carrier with specific instructions to deliver it to the order of the next carrier. It had been carried to Manchester and deposited in the defendants’ warehouse, and was, when destroyed, awaiting the order of the carrier from Manchester to Stockport. The defendants had fulfilled their engagement, they had done everything they had undertaken to do, and consequently were discharged as common carriers.
. This case then bears no analogy to the case of Hyde above cited.
*42It is distinguishable in this, that in the one case the defendants had fulfilled their contract before the destruction of the property; in the other they had not.
But it is unnecessary to farther examine the authorities referred to on the argument; there will be none found to conflict with the principle we have before stated.
Besides, this whole case depends upon the nature of the contract, and having found that there was a special contract to deliver on board, that finding disposes of the case; there can be no serious contest about the application of the law.
We are therefore of the opinion that it should be certified to the Circuit Court, as the opinion of this Court, that the plaintiffs have judgment for the value of their flour..