delivered the opinion of the court.
Since it was not shown that this cotton was burned because of any negligence on the part of appellant, it is not liable .to account to appellees for the value thereof, if at the time of the fire its liability was that of a warehouseman, and not that of a common carrier.
When appellant agreed with the consignees thereof to deliver this cotton to the compress company, the duty at once devolved upon it, there being no contract or agreement between it and these consignees to the contrary, of making delivery to this company in the usual and ordinary way; that is, by placing it in an accessible position and giving notice thereof to the company. Until this was done, and a reasonable time for the company to unload the car had elapsed, appellant’s liability as a common carrier continued.
Appellant does not claim that the cotton was delivered in the usual and ordinary way;, its defense being that it had either complied with its special contract with the receiver of the compress company with reference to making deliveries, or, if not, that its failure to do so was caused by the negligence of the servants of the compress company, and that in either event it had discharged its duty as a common carrier, and held the cotton simply as a warehouseman. This compress company was a mere agent of the consignees to receive the cotton. It was given no express, and certainly it had no implied, power to release appellant from this common law liability as an insurer; and, in the absence of any knowledge on the part of these consignees of this contract between appellant and the receiver of the compress company, appellees are not bound by the terms thereof.
It follows from the above that at the time of the fire appellant’s liability was that of a common carrier, and, consequently, the decree of the court below is affirmed.
Affirmed.