Opinion of the Court.

In Buckmaster v. Grundy, 1 Scam. 310, it was held that the purchaser was not bound to prepare and tender a deed to the vendor for him to execute, unless such an obligation is imposed by the contract of sale. It then follows that the vendor of lands or a mortgagor is bound to prepare the deed or mortgage at his own expense, unless it is otherwise stipulated by the parties. When he agrees to make and deliver it, the duty and expense devolves upon him, and not the grantee. It was then, so far as the evidence discloses in this case, the duty of appellee to have this agreement, which, as we understand it, operated as a lien on his real estate, drawn and executed, as we find no evidence that Mrs. Hamilton did agree to incur the expense. If, then, it was his duty to have it done, and to pay for it, and he intimated that Cooper should be the draftsman, we can see no reason why appellee should not pay him for it.

It does not follow that because Cooper was Mrs. Hamilton's attorney, he should therefore draw the deed, or that she should pay for it. Unless otherwise agreed, that became the duty of appellee. Nor was it incompatible with Cooper's engagements with his client to draw the instrument, but still, in every particular, he was bound to protect her rights. He was, of course, bound in all things to make it conform to the agreement. But the terms having been first arranged, he could draw the instrument in conformity thereto, and look to appellee to pay him therefor, on either an express or an implied request. Whilst the position of Cooper was a delicate one, still it was not prohibited by his relation to Mrs. Hamilton. But, under such circumstances, an attorney must act with the utmost good faith towards his client. A portion of the instructions asked by appellants and refused by the court were in accordance with the views here expressed, and should have been given. The instruction given by the court in lieu of them, was not sufficiently comprehensive, as it seems to limit appellee's liability to an express request, and seems to exclude an implied promise to pay for preparing the mortgage.

Syllabus.

Appellee's instructions go upon the theory that there must be an express and formal retainer before an attorney can recover. The contract of retainer may be made like any other. It may be express or implied. And whilst no one would expect an attorney would so far forget the duty he owes to his profession as to volunteer without the knowledge or consent of a party, to render for him professional services, and then charge for them, still, when he renders services under such circumstances as reasonably imply that they were performed with the assent and on the request of a party, he must be held liable. The judgment of the court below must be reversed and the cause remanded.

1. RAILROADS of their liability for non-delivery of freight beyond their own lines. A box of goods was delivered to a railway company, marked to a point beyond their own line of road. The bill of lading given therefor was called by the company their "through freight contract," acknowledged the receipt of the goods, and proceeded thus: "Which we promise to transport over the line of this railway, to the company's freight station at its terminus, and deliver to the consignee or owner, or to such company (if the same are to be forwarded beyond the limits of this railway,) whose line may be considered a part of the route to the place of destination of said goods, it being distinctly understood that the responsibility of this company as a common carrier shall cease at the station where such goods are delivered to such persons or carrier." And among the conditions printed in the bill of lading was this: "The responsibility of this company as a common carrier, under this bill of lading, to commence on the removal of the goods from the depot on the cars of the company, and to terminate when unloaded from the cars at the place of delivery." It appeared that freight received by this company as through freight, was never unloaded or delivered at

£200 640

Statement of the case.

their terminus, but proceeded on to its place of destination in the cars in which it was received: Held, that this was a "through freight contract," and the company were liable beyond the terminus of their own road.

APPEAL from the Circuit Court of Peoria county; the Hon. S. D. PUTERBAUGH, Judge, presiding.

This was an action of assumpsit, brought in the court below, by Merriman against the railroad company, to recover the value of a box of goods belonging to the plaintiff, shipped on the company's road at Peoria, in this State, to be carried to Washington, in the District of Columbia.

On the delivery of the goods to the agent of the company at Peoria, they being marked to the place of destination, a bill of lading was given, which, in its terms, was as follows:

TOLEDO, PEORIA AND WARSAW RAILWAY COMPANY'S

THROUGH FREIGHT CONTRACT.

Wm. E. Main, General Freight Agent, Peoria, Illinois.

Received of the following described packages in apparent good order (condition and contents not known), consigned as marked and numbered in the margin, which we promise to transport (subject to the exceptions below,) over the line of this railway to the company's freight station at its terminus, and deliver in like good order to the consignee or owner, or to such company (if the same are to be forwarded beyond the limits of this railway), whose line may be considered a part of the route to the place of destination of said goods or packages, it being distinctly understood that the responsibility of this company as a common carrier shall cease at the station where such goods are delivered to such persons or carrier; but it guarantees on its part and on the part of other companies that the rate of freight for the transportation of said packages from the place of shipment shall not exceed per 100 lbs. or per barrel, and $charges advanced by this company. Provided, That no carrier or company forming a part of the line over which said freight is to be transported will be responsible for demurrage or detention at its terminus or beyond on any part of the line, arising from any accumulation or over-pressure of business upon the following

to

CONDITIONS:

The owner or consignee to pay freight or charges as per specified rates upon the goods as they arrive by car loads.

Statement of the case.

Freight carried by this company must be removed from the station during business hours, on the day of its arrival, or it will be stored at the owner's risk and expense; in the event of its destruction or damage, from any cause, while in the depot of the company, it is agreed that said company shall not be liable to pay any damages therefor.

It is agreed and is a part of the consideration of this contract, that the company will not be responsible for leakage of liquors, breakage of glass or queensware, the injury or breakage of looking glasses, glass show-cases, picture frames, stoves, castings or hollow-ware, nor for injury to hidden contents or packages, nor for the loss of weight or otherwise of grain or coffee in bags, or rice in tierces, nor for the decay of perishable articles, nor for damages arising to articles carried, from the effects of heat or cold, nor for the loss of nuts in bags, or lemons or oranges in boxes, unless covered by canvass, or loss or damage to goods occasioned by Providential causes, or by fire from any cause whatever while in transit or at stations, or for loss or damage to articles or packages, the bulk of which renders it necessary to forward them in open cars.

Freight to be paid upon the weight by the company's scales, or according to table of weights in local tariff. All packages subject to charge for necessary cooperage.

The company not responsible for accidents or delays from unavoidable causes. The responsibility of this company as a common carrier, under this bill of lading, to commence on the removal of goods from the depot on the cars of the company, and to terminate when unloaded from the cars at the place of delivery.

In the event of the loss of any property, for which the carriers may be responsible under this bill of lading, the value or cost of the same at the point and time of shipment, is to govern the settlement of the same, and in case of loss or damage of any of the goods named in this bill of lading for which this company may be liable, it is agreed and understood that they may have the benefits of any insurance effected by or on account of the said owner of said goods.

Bills of lading will only be issued by this company after the actual loading of property into cars, and will not be considered valid unless the initial and number of each car containing the same is noted upon the bill.

On the trial, the superintendent of the defendants' road testified that the eastern terminus of their road was the State line between the States of Illinois and Indiana; that the company never undertook to carry goods beyond the terminus of their road at the State line-beyond that point it only agreed to deliver to the next connecting line. He testified the company had never given receipts for through freight other

than in the form mentioned.

The defendants' locomotives did

not go beyond the State line; the through cars were put on a side track for the locomotives of the next connecting line to take on to their destination. On cross-examination, the witness stated that, at the time the goods in question were shipped, the company were engaged in the business of shipping goods to points east of the State line; that in shipping through freight they generally sent it through in the same cars; did not change at the State line.

The trial resulted in a verdict and judgment for the plaintiff. The defendants appealed, and now insist they were not liable as common carriers beyond the terminus of their road at the State line, and it not being shown the goods were lost on defendants' road, the plaintiff can not recover.

Messrs. BRYAN & COCHRAN, for the appellants.

Common carriers may restrict their duties and obligations by the course of their business. And there is no obligation in a railway company to carry goods otherwise than according to their public profession. 2 Redf. on Rail. p. 116, 117; Ibid (2d ed.) 294.

In the absence of special contract, common carriers are bound only by usage and course of business, or to extent of their route, whether known to the employers or not. Van Stantvoord v. St. John, 6 Hill, 157; Hempstead v. N. Y. C. R. R. Co. 28 Barb. 499; U. S. Ex. Co. v. Rush, 24 Ind. 407; Nutting v. C. R. R. R. Co. 1 Gray 502; Redf. on Rail. p. 101, n. 9; Farm. & M. Bank v. Ch. Tr. Co. 23 Verm. 186; Jenneson v. C. & A. R. R. Co. supra; Angle v. M. &. M. R. Co. 7 Iowa, 493.

The law will not imply an agreement where the parties expressly make one. Expressum facit cessare tacitum. Story on Cont. sec. 15.

A bill of lading, receipt or ticket given by the carrier at the time of receipt of goods, to the owner or his agent,