Fort v. Bank of Cape Fear.

Such a count may be maintained for bank notes. Filgo v. Penny, 2 Mur. 182; Anderson v. Hawkins, 3 Hawks, 560; Jones v. Cook, 3 Dev. 112; Hargrave v. Dusenbery, 2 Hawks, 326.

Rogers & Batchelor, contra.

PEARSON, C. J. We do not concur with his Honor in regard to the construction of the instrument sued on.

The plaintiff deposited in bank as a general deposit the sum of $480. Without more saying, this would have entitled him to demand of the bank that amount in specie; and, for the purpose of qualifying his demand, it is set out that the funds deposited, amounting to $480, consisted of current notes of the different banks of the State of North Car olina, which were then at or about par, but for which the bank was not willing to oblige itself to pay specie, and it is accordingly stipulated-"which sum is payable in like current notes." When the certificate was presented, none of the notes of the banks of the State were current. They had all so far depreciated as no longer to circulate as currency, and instead thereof had become articles of merchandise, without retaining in any degree the character of current money.. Owing to this change in the condition of things, the bank was unable to perform its stipulation, to pay the sum of $480 in like current notes; and the question is, on whom shall the loss fall? Obviously it must fall on the bank, for it has had the use of the plaintiff's money, and is unable to return funds of the same kind; and, surely, the plaintiff has a right to expect funds as good as what he deposited. There is nothing to support the inference that, according to the understanding, he took upon himself the risk of loss, in case of utter depreciation of the notes of all of the banks, including those of the Bank of Cape Fear, which seems to

Fort v. Bank of Cape Fear.

have been the idea of His Honor in rendering judgment for the value of the notes of that bank.

We think that the plaintiff wasliberal in offering to accept currency of the United States in satisfaction of his certifi cate of deposit.

The cases of Hamilton v. Eller, 11 Ire., 276; Lackey v. Miller, ante, 26, are distinguishable from our case. In each of these cases a literal construction is adhered to, which seems to meet the question of the respective cases, and the intention of the parties. Eller owed Hamilton the sum of $150, which Hamilton agreed to receive "in good trade, to be valued," &c., provided it was delivered on or before the first day of January 1844. Eller failed to deliver the trade, and was obliged to pay the $1 Miller in 1865 bought a

cow of Lackey, worth $20 in good money, and gave his note for "$71 in current bank notes." It was held that did not create a debt of seventy-one dollars in money, or United States coin, but was a promise to pay "seventy-one current bank money dollars," and a distinction is taken between a promise to pay in bank notes, and a promise to pay in money, and a promise to pay in "currency," which was even still more depreciated.

In our case, the plaintiff deposits with the bank $480, and, as he made the deposit in current bank notes, then at about par, he agreed to receive "like current bank notes," which the defendant is not in a condition to pay, and our decision is that payment must be made so as to put the loss on the bank, and not on the depositor.

PER CURIAM.

Judgment reversed, and judgment on the case agreed for $480, with interest.

Benbow v. N. C. Railroad Co.

C. BFNBOW v. NORTH CAROLINA RAIL ROAD COMPANY.

It is the duty of a Rail Road Company to deliver articles at the usual places of delivery. Therefore, where a hogshead of molasses, instead of being landed on a platform, the usual place for heavy articles, was lost in an attempt to deliver it to the plaintiff at an unusual and an unfit place, the Company was held responsible.

Whether a Railroad Company is compellable to furnish hands to remove heavy articles from the platform to wagons sent to haul them away; and if so, whether for any loss occurring in such removal the Company is liable as a common carrier or only as a bailee for hire-Quare?

CASE, tried before Warren J., at Spring Term 1867 of the Superior Court of GUILFORD, Upon the following facts agreed: The defendant transported to Greensboro, for the plaintiff, a hogshead of molasses. The car in which it was conveyed passed beyond the old warehouse to the new platform in order to come in on the side track, and owing to the location of other cars, was stopped at the west side of the new platform and was not brought back to the old warehouse. The plaintiff was informed by the defendant's agent that the molasses was at the depot and was requested to send for it. He therefore sent his driver with a wagon for it. Upon application by the driver for the molasses, the agent told him to drive around, that it was at the west end of the new platform, and the agent went with hands in the employment of the company to deliver it. The hogshead was then rolled out of the car upon the new platform and thence the hands of the defendant and the plaintiff's driver attempted to remove it into the wagon (which had been backed up to the platform) by means of a plank which passed, at an angle of 45 degrees, from the wagon to the platform. In the attempt, the hogshead rolled, fell upon the ground and burst. It was agreed that if his Honor should be of opinion that the plaintiff was entitled to recover, a judgment should

Benbow v. N. C. Railroad Co.

be entered for the value of the molasses; otherwise a judg ment of non-suit. The Court being of opinion with defendant, gave judgment accordingly and the plaintiff appealed.

Scott & Scott, for the appellant.

Defendant ought to have delivered the hogshead at the old warehouse, the usual place. Hilliard v. R. R. Co., 6 Jon., 343; Neal v. same, 8 Jon., 482; 1 Pars. Con., 663 n. v; Thomas v. Boston & Prov. R. R. Co., 10 Met., 472.

Delivery was not complete when accident occurred, and under circumstances defendant must be held to have warranted the sufficiency of the method suggested by himself, as the plaintiff had nothing to do with it. DeMott v. Laraway, 14 Wend., 225; Graff v. Bloomer, 9 Barr, 114; 1 Pars. Con., 658 n. o. If plaintiff had requested the delivery at an unusual place, defendant would not have been liable. Lewis v. West. R. R. Co., 11 Met., 509. See Richards v. London Railway, 7 C. B., 839, as to responsibility of a company for acts of porters in its employ.

Moore, contra

When the hogshead was safely landed upon the platform, that was a delivery; and the company was liable no longer as a common carrier. That the plaintiff waived a deposit in the warehouse can make no difference. That hands employed by the company volunteered to assist the plaintiff, who was short of hands, to transfer the hogshead from the platform into the wagon, cannot involve the company in any responsibility; at least, can involve it no further than, as an unpaid bailee, for gross neglect. Hilliard v. R. R., 6 Jo., 343; Neal v. R. R., 8 Jo., 482; Boner v. Steamboat Co., 1 Jo. 211; Stanton v. Bell, 2 Hawks, 145.

Benbow v. N. C. Railroad Co.

Here the facts do not show negligence, and the burden of proof is upon the plaintiff. 2 Star. Ev. 970.

PEARSON, C. J. The car which brought the hogshead of molasses passed beyond the old warehouse to come in on the side track, and was, owing to the location of other cars, stopped at the western end of the new platform, and was not brought back to the old warehouse. "Plaintiff's driver applied for the molasses, and the agent told him to drive around, that it was at the west end of the new platform." In the attempt to remove the molasses from the car to the wagon, using the west end of the new platform as a resting place, the molasses was lost.

It is clear, from the statement of the case, that the defendant's agent intended to land the molasses on the platform at the old warehouse, and failed to do so because some other cars were on the side track; and it is to be inferred that the driver of the plaintiff applied for it at the old warehouse, and was told "to drive around." So we must take it that the platform at the old warehouse was the usual place at which heavy articles were landed, and the attempt to remove the molasses from the car to the wagon at the west end of the new platform (a place, by the by, which was very ill-suited for the purpose,) at an angle of 45 degs., was resorted to by the agent of the defendant in order to get around the difficulty caused by other cars being in the way.

We hold, upon this state of facts, that the defendant is liable for the loss, on the ground that the molasses was not delivered according to its contract as a common carrier.

If the molasses had been landed on the platform at the old warehouse, the usual place of landing such articles, we incline to the opinion that the transit of the article would have been at an end, so as to relieve the defendant from further liability as a common carrier.