delivered the opinion'©f the court.
This was an action on a contract of affreightment brought by the plaintiffs, residing at Vicksburg, Mississippi, against the defendant, as a common carrier, for damages for failing to deliver goods at St. Louis, according to the terms of a bill of lading by which they were shipped from the city of New York.
The ultimate destination of the goods was Vicksburg, the residence and place of business of the plaintiffs, who were merchants. By the terms of the bill of lading the defendant was only to carry the goods to St. Louis, Missouri. The goods were marked “Cramer, Hume & McCown, Vicksburg, Miss., care St. Louis & Vicksburg Packet Co., St. Louis, Mo.”
The receipts given by the defendant to the shippers in New York as the goods were being delivered, were to the same effect, and in the followingform : “New York, October 2nd, 1869. Shipped on board the M. D. via.'St. Louis & Vicksburg Packet Co., for Cramer, Hume & McCown,.Vicksburg, Miss.”
The defendant is a common carrier’, its line being from New York to St. Louis. The goods were' received by defendant, as above, at New York, on the 2nd day of October, 1869, and in due time were safely conveyed to St. Louis. Eor the purpose of the trial, the plaintiffs admitted “that at the time tbe goods in question arrived in St. Louis, tlrere was no company, or person or persons in existence in St. Louis, having an office or place of business in St. Louis, named or known as the Vicksburg Packet Company ; and that tbe W. R. Arthur at that time was a first class steamer, in which it was usual and customary to ship goods of this kind from St. Louis to Vicksburg, Miss.” When the goods reached St. Louis, the defendant being unable to find the consignee, and there being no such consignee in existence as the St. Louis & Vicksburg Packet Company, shipped the goods to plaintiffs at Vicksburg, on board the above named steamboat, W. R. Arthur. The Ar*528thur was sunk; a part of the goods were lost, a part were damaged, and the whole of them detained some four weeks longer than was necessary to make the trip from St. Louis to Vicksburg, and reached the plaintiffs too late to be sold, except at a great sacrifice, that season. The plaintiffs expended large sums of money in looking up the goods and recovering possession of the same.
It does not appear that the defendant notified the consignor or the owners at Vicksburg, that it could not find the St. Louis & Vicksburg Packet Company at St. Louis; nor did the consignor, or owners at Vicksburg know what had become of the goods until the plaintiffs found them in possession of the Board of Underwriters at St. Louis.
The defense relied on by the defendant in its answer,was, that when it failed to find the consignees in St. Louis, it had the right to ship the goods to the plaintiffs, and that by shipping them on the steamboat Arthur to the plaintiffs at Vicksburg, it had performed its whole duty.
The plaintiffs gave evidence, in addition-to the above facts, of the amount of damages they had suffered.' On the case as thus made the court, at the instance of the defendant, declared the law to be, that the plaintiffs, on the evidence given, were not entitled to recover. The plaintiffs excepted to this ruling of the court, and took a non-suit with leave to move to set it aside, which motion was duly made and overruled, and the plaintiffs excepted.
The judgment of the Special Term was affirmed by the General Term, and the plaintiffs have brought the case here by appeal.
The principle that a common carrier, who has performed nis duty by safely carrying goods to their destination, accord - ing to the terms of the bill' of lading, can ordinarily relieve himself from further responsibility, as such, by storing them in a safe warehouse, is too familiar, and too well settled by the authorities to need illustration. (See Ang. on Carriers; Norway Planes Co. vs. Boston & Maine Railway Co., 1 Gray., 263; Chicago & Alton R. R. Co., vs. Scott, 42 Ill., 132 ; Stephenson vs. Hart, 4 Bing., 476, &c.)
*529This principle results from the fact, that when the consignee cannot be found or has no existence, the common carrier becomes the agent of the owner and ought to take such care of the owners’ property as a prudentman would of his own. Certainly he may discharge himself from his-duties as common carrier by storing the goods in a safe warehouse, and thus retain his lien for the freight, when the goods are such as maybe stored without injury. But if the goods aye such as will decay by detention it might become his duty to forward them at once, or have them sold for the benefit of the owners; (See Steamboat Keystone vs. Moies, 28 Mo., 248.)
It is evident from the facts of this case that the sole object of the plaintiffs was to have their goods forwarded to them from New York to Yicksburg. The defendant’s line only extended to St. Louis, and by the terms of the bill of lading the goods were to be delivered to “The Vicksburg Packet Company” at St. Louis. As this company was not in existence and had no agency at St. Louis when the goods arrived, did not the defendant, as agent of the owners, exercise a sound discretion and act as prudence would dictate in forwarding the goods at once by a first class steamboat ? This was exactly what the plaintiffs desired, as manifested by the shipment from New York.
. If the defendant had stored the goods in St. Louis and they had been consumed by an accidental fire, the question might have arisen, whether it was not a paramount duty on its part to have forwarded them at once, instead of retaining them in St. Louis. But considering the kind of goods, which were merchandize bought for re-sale in Yicksburg, I think a common carrier, under the circumstances, ought to be relieved from further responsibility, as such, by adopting either course.
He would have the right to retain his lien for the freight on the goods, and for that purpose, and for the protection of the owner he might store them or he might forward them and receive his freight and charges from the second carrier, or risk the owners for payment.
*530In my judgment, the carrier in this instance pursued the course best calculated to promote the interests of the owners, and by delivering the goods to the steamboat was wholly relieved of all further responsibility as a common carrier.
The question of want of notice to the owners or consignors of the shipment on the steamboat, Arthur, does not arise in this case. If any responsibility at all attaches for the want of such notice, it does not grow out of the defendant’s character as a common carrier, but as a forwarder of goods; and it is not sued as a forwarder, but as a common carrier.
Under this view, the demurrer to the plaintiffs’ evidence was properly sustained. Judgment affirmed.
Judge Wagner absent; the other judges concur.o-