The opinion of the Court was delivered by
Willard, A. J.The main question at the trial was, whether a delivery of the goods set forth in the complaint had been made to the defendant under an express contract with the defendant that he should carry them from Watkins’ Landing to Augusta and there deliver them- to the plaintiff’s consignees.
The facts appeared upon the trial that the plaintiff hauled the goods in question, consisting of cottton in bales, to the banks of the Savannah River, at an intermediate landing place for defendant’s boat in its trips up and down the river. The goods were piled in a place regarded as safe from the waters of the river and were left without shelter or person to guard them.
There was delay on the part of the defendant in calling for the goods, and in the meantime an extraordinary freshet occurred, occasioning partial destruction and injury to the goods.
The first exception relates to proof introduced by the defendant, notwithstanding objection on the part of the plaintiff, to the following effect: “The general custom was for persons to guard their cotton until delivered on boat.”
*295There is nothing in the contract as set forth in the complaint or in the testimony of the parties themselves to warrant the conclusion that anything short of actual delivery or tender to the plaintiff or to some person in charge of his business as a carrier was sufficient to subject the defendant to the risks and liabilities of a carrier as it respects the safety of the goods in question.
If defendant had agreed, upon consideration, to be present to receive the goods at a designated time and place, and had failed so to do, an action would arise for damages sustained in consequence thereof.
The evidence under immediate consideration has no bearing upon the aspect of the case last referred to, but bears exclusively on the question whether the depositing of the goods at the landing was in itself a delivery to the defendant so as to charge him at once with the responsibilities of a carrier.
The plaintiff’s ease was destitute of evidence tending to show that the goods were at the risk of the defendant at the time and place of the damage. It was unnecessary for the defendant to offer proof tending to show that such a deposit of the goods was not a delivery according to the habit of business at that particular landing, for that conclusion was already the proper inference from the terms of the contract as laid and proved. The evidence in question neither tended to contradict or vary the terms of the contract nor to explain it as to any matter of a doubtful nature. It is not necessary, therefore, to consider whether it was properly relevant and material, for, even if not, under no aspect could it'prejudice the plaintiff’s case as it stood under the terms of the contract. This exception must be disallowed.
The remaining exceptions relate to the rulings upon certain requests to charge.
The case states that the first instruction prayed “ was fairly submitted to the jury, leaving them to find whether or not a special contract had been made between the parties, varying the custom, except that portion as to the act of God, which I unintentionally overlooked.”
That portion of the request unintentionally overlooked related to the nature of the defendant’s liability, assuming that a delivery had been made sufficient to charge defendant with the liability of a carrier with respect to the goods. Inasmuch as the force of the plaintiff’s exception must be tested by the assumption of an express *296contract to convey, and as the obligations and proofs of the plaintiff failed to show a contract making a deposit of the goods at the place in question equivalent to an actual delivery, the failure to submit a proposition the only bearing of which was to test the defendant’s liability when there had been a delivery and acceptance of the goods was altogether unimportant.
The remaining portion of the first request to charge must, under the statement of the case, be regarded as having been charged according to the plaintiff’s desire, and, therefore, this exception fails.
The second request to charge was as follows : “ That the delivery of the cotton at the time and place agreed on by the parties was a delivery to the defendant.” Had the Court simply refused to charge, as thus requested, the ruling would have been supported by the true construction of the contract. But the Court took a view of the question more favorable for the plaintiff than the case warranted. He says: “This I did charge the jury, leaving them to find from the testimony whether or not the custom prevailed as proved.” ■ This charge, although not consistent with the terms of the contract, was favorable to the plaintiff rather than to the defendant, and, if objected to by either party, that objection should come from the defendant. At all events, as the charge pursued the plaintiff’s request, he is not in a position to object to it.
This exception must be disallowed. It does not appear that any request to charge or ruling was made bearing on the question whether the defendant had sufficiently excused his failure to be at the landing in question at the time required by the contract, assuming that the contract was established in accordance with the allegations and proofs on plaintiff’s part. That aspect of the case is not, therefore, before us in the present case.
The motion should be dismissed.
Moses, C. J., and Wright, A. J., concurred.