The common method afforded a mortgagee of foreclosing a mortgagor's equity of redemption is by the petition in equity above described. Many of the states have provided statutory methods which may be followed. Some mortgages by express stipulation give the creditor or mortgagee the right to seize the property and sell same upon default of the debtor to pay. This takes the place of an equitable foreclosure. When a mortgage contains a power of sale stipulation, the mortgagee may seize the property when the mortgagor defaults, and sell the same at public sale. The excess recovered over the mortgage debt and expenses, must be paid the mortgagor. If possession of the property cannot be obtained peaceably, the mortgagee must bring an action in replevin, by which possession is obtained by an officer of the court. In some jurisdictions, a mortgagee is permitted to seize and sell mortgaged property upon default of the debtor, even though the mortgage contains no power of sale stipulation. The sale must be bona fide and public, or it can be set aside at the instance of the defrauded mortgagor.
CARRIERS
256. Carriers Defined. Carrier is the term applied to individuals or companies engaged generally or specially in carrying goods or passengers from place to place. The business of carriers has grown rapidly with the development of this country. The business of steamboat, railway, express, and electric package companies forms an important part of present day affairs. Carriers are usually classified as common or private. Both common and private carriers may carry either passengers or goods. Carriers of passengers are discussed in a separate chapter.
257. Common Carriers of Goods. A common carrier of goods is one who represents himself as engaged in the business of carrying goods from place to place for anyone who desires to employ him. A common carrier of goods is liable as an insurer of the goods. By reason of this exceptional liability attaching to a common carrier, it is important to know who are common carriers. Everyone who carries goods from place to place is not a common carrier. To constitute a person a common carrier, there must be a representation on his part of a willingness to carry goods belonging to anyone who desires to employ him for that purpose. A common carrier need not necessarily hold himself out as willing to carry all classes of goods. He may limit his business to carrying a peculiar class of goods, and still be a common carrier. It may be stated as a rule that anyone who holds himself out as willing to carry goods of any person is a common carrier. Common examples of common carriers are railroad companies, express companies, public transfer companies, and electric package companies. An express company, in holding itself out as willing to carry goods of any person, is a common carrier.
If persons carry goods only on special contract, and choose their customers, they are private carriers, and are not liable as insurers of the goods entrusted to their care. Anyone may engage in the business of a private carrier, and so long as he does not hold himself out as a common carrier, he cannot be compelled to accept for carriage goods against his will, neither is he liable as an insurer of the goods. A private carrier is an ordinary bailee. If he agrees to carry for compensation, he must exercise ordinary care, and is liable for ordinary negligence. The business of a common carrier is said to be one of the exceptional mutual benefit bailments. The exceptional liability of a common carrier is discussed under a separate section.
258. Implied Liability of a Common Carrier. In early days when pirates infested the seas and stagecoach robberies were common, it was an easy matter for a common carrier to conspire with robbers and thieves, in unjustly depriving the owner of the goods entrusted to the carrier's care. By reason of the opportunity given a common carrier fraudulently to deprive a shipper of his goods, the law at an early time placed the exceptional liability of an insurer upon a common carrier. The relation between a shipper and a carrier, after goods are placed in the hands of the carrier, is one of mutual benefit bailment. The liability of a common carrier, however, is not limited to the liability of an ordinary mutual benefit bailee. Common carriers and innkeepers are said to be exceptional mutual benefit bailees. This exceptional liability is placed on them by reason of the opportunity given them fraudulently to deprive the owners of their goods, and to compel the carriers to protect the goods against robbery and theft.
A common carrier is liable as an insurer of the goods entrusted to his care. He cannot avoid liability by acting as an ordinarily prudent man would act under the circumstances in protecting and caring for the goods, but he must actually protect them or be liable to the owner for their loss or damage. There are a few exceptions discussed under a separate section. If A employs B to keep, feed, and care for his horse for six months, for fifty dollars, and B puts the horse in his stable, where it is stolen, together with B's own horse, B is not liable to A for the loss of the horse, if he acted as an ordinarily prudent man would act under the same conditions. If, however, A delivers his horse to B, a railroad company, to be shipped from Buffalo to Chicago, and the horse is stolen from B's possession, B must pay A the value of the horse. He is not permitted to say that he exercised ordinary care in the protection of the horse. This is what is meant by the exceptional liability of a common carrier. While the reason for this exceptional liability of a common carrier has largely passed away by the practical extermination of highway robbers and pirates, the exceptional liability of common carriers remains as a part of the law. This exceptional liability is not a matter of express contract between the shipper and the carrier, but is impliedly a part of the contract.
259. Exceptions to the Liability of a Common Carrier as an Insurer. A common carrier of goods is not absolutely liable as an insurer of the goods entrusted to his care. If the goods are lost, injured, or destroyed by an Act of God, by a public enemy, by negligence of the shipper, by the inherent nature of the goods, or by the exercise of public authority, the carrier is not liable as an insurer.
By Act of God is meant an inevitable act arising without the intervention or aid of a human agency. A loss of goods by a storm, by lightning, or by earthquake is an example. If the goods are lost or injured as a result of any act of the shipper, the carrier is not liable as an insurer. A carrier is permitted to adopt and enforce reasonable regulations relating to the packing and shipment of goods. If the shipper negligently packs goods so that they are injured by reason thereof, the carrier is not liable as an insurer. If the shipper improperly addresses packages, and they are lost by reason thereof, the carrier is not liable as an insurer. If the shipper accompanies live stock, and injury occurs by reason of the carelessness of the shipper, the carrier is not liable as an insurer.
By public enemy is meant a power at war with a nation. This includes pirates. Mere insurrections, robberies, thefts, mobs, and strikes are not included in this class of public enemies. If a loss of goods occurs by means of public enemy, a carrier is not liable as an insurer of the goods. If the loss occurs through the inherent nature of the goods, without the negligence of the carrier, the latter is not liable as an insurer. For example, if fruit spoils as a result of warm or cold weather, if the carrier is not in any way at fault, he is not liable as an insurer, since the loss occurs on account of inherent defects of the goods. If animals injure themselves while in the carrier's possession by reason of their viciousness, or fright, which injury could not have been prevented by reasonable care on the part of the carrier, the latter is not responsible.