Question.—I shipped a carload of lumber to a customer consigned to myself and it was apparently lost in transit. The delay caused my customer to cancel this order with me, whereupon I notified the railroad that I would not accept delivery and would hold it responsible for not only the value of the car, but any damages resulting to me. The car has just turned up and the railroad insists that I must take it and put in claim for loss. Am I compelled to accept the car?

Reply: If the road offers to deliver the lumber now the consignee should accept it. A carrier is not a dealer, and goods tendered by it cannot be refused, however late the tender may be, or however seriously the goods may be damaged, provided they are recognizable as the goods actually shipped and have any value at all. The consignee cannot leave them in the hands of the carrier and demand full value for them. He must accept them and do the best he can with them. His acceptance of them does not relieve the carrier of its liability, and the consignee is entitled to recover all loss caused by delay, or by damage to the goods, as soon as the loss has been ascertained. If the market price has declined since the day on which delivery should have been made that difference in value is to be included in the damages; usually that is the principal part of the loss, and frequently it is the whole of it.

Opinion No. 56.