#### George E. Ford, Plaintiff in Error, v. American Express Company and Illinois Central Railroad Company, Defendants in Error.

Gen. No. 22,581.

(Not to foe reported in full.)

Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed January 22, 1917.

Rehearing denied February 5, 1917.

Statement of the Case.

Action of the fourth class in the Municipal Court of Chicago by George E. Ford, plaintiff, against the American Express Company and Illinois Central Railroad Company, defendants, to recover damages for alleged failure by the defendants to deliver promptly a carload of strawberries, shipped from Louisiana to Chicago. From a judgment for defendants, plaintiff brings error.

Stewart Reed Brown, for plaintiff in error.

William A. Purcell, for defendants in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice McSurely

delivered the opinion of the court.

*276Abstract of the Decision.

1. Carriers, § 4 * —when railroad is not common carrier. A railroad company is not a common carrier of the traffic of an express company, hut acts simply as its agent.

2. Carriers, § 82 * —what constitutes delivery to consignee by express company. Where a carload of strawberries shipped by an express company as a common carrier was placed by the railroad company on its team tracks at destination which were used by the express company for its deliveries, and the consignee there opened the car, inspected the contents, and receipted and paid the charges for the shipment, held that there was a delivery to the consignee, notwithstanding when he went to unload the next day he found the car had been taken away by some one’s mistake.

3. Carriers, § 96 * —when not íiable for delay in delivery. There can be no recovery against a railroad company for failure to perform a contract to deliver goods promptly where no goods are actually received by the company, but are received by an express company whose cars are carried by the railroad company.