Page:Federal Reporter, 1st Series, Volume 9.djvu/889

 874, FEDERAL REPORTER. �route, there is no lien for freiglit money; 7— Fitcfe v. Newherry, 1 Doug. (Mich.) 1; Rollnson v. Baker, 5 Cush. 137; Stevens v. Boston e Wor- cester B. R. 8 Gray, 262 ; — because the owner cannot be divested of his property without his conseat, and to allow a lien on the goods in a matter to which he bas not assented, would divest liim of his prop- erty to the estent; of the Ken. �To apply the raie to the present case, it is only necessary to say that, in the contract with the Pittsburgh company, plaintiff did not in any way consent to have his goods charged with a lien for carrying them to Denver. It was not an agreement to pay, and tha,l his goods should be held until he shonld pay, but he did in fact' pay the price of carrying the goods, and as to him the contract was fully executed before the goods left Zanesville. Plaintiff paid the price demanded of him, and all that was demanded for carrying the goods, and it would be absurd to say that he assented to a lien on his goods for the same thing — the money which he had already paid. �But it is said that the Pittsburgh company had no authority froni defendant tO fix the price of carrying the goods in the way that it was done on the schedule published by the Wabash and Missouri Pacific Companies. And so the court ruled at the trial, without re- ferring to defendant's rule that for carrying household goods payment must be made in advance, under whieh it might be claimed with rea- son that the company first receiving the goods was defendant's agent to fis the rate and recoive the mbney. This point was not stated to the jury, however, and they were advised that the Pittsburgh company was without authority i'rom defendant to make the contract. The jury was also instructed to find whether the goods were received by defendant at Kans'as City with knowledge that a through contract had been made by the Pittsburgh company, and the price paid for carrying them. Of that there was ample evidence in the rule of de- fendant requiring prepayment on household goods, and the fact that $85 was paid to defendant by the Wabash company on account of freight money. Some of defendant's witnesses say that the payment by the Wabash company is of no weight, as freight money is often advanced by shippers when a through contract has not been made, and it would be impossible to determine whether the money was paid on a through contract or as an instalment of freight money. This means that money is paid in both ways, and leaves the payment by the Wabash company to stand as afiording some evidence of a through contract. Taken in connection with the rule requiring payment in advance on household goods, it' was sufficient to warrant the finding that ��� �