p. 427Upon receipt of the package at Geneseo, the express company’s representative made inquiries for the consignee and, being unable to learn that any one bearing that name lived or was in the vicinity, placed the package in the company’s safe. Shortly thereafter a man who claimed to be Frank Rice called at the office of the express company and produced an order for the money, ostensibly signed by the consignee. The package of currency was thereupon delivered to him.
It subsequently appeared that the letter and check sent to the trust company and the order exhibited to the express company were fictitious, and that the package of currency was not delivered to the consignee.
Held, that the trust company, which had made good the $500 to Miss Rice, was entitled to recover the §500 from the express company, as the latter’s agent, when he delivered the package, knew that he was not delivering it to the consignee, but took the risk that the person purporting to be Frank Rice was the alter ego of the consignee;
That, assuming without deciding, that the trust company was negligent in failing to detect the forgeries, such negligence did not exonerate the express company from liability, as the action of the trust company did not influence the conduct of the express company in delivering the package to the wrong person;
That a clause in the receipt, for the package delivered by the express company to the trust company providing, “And it is further stipulated that Wells, Fargo & Company shall not be liable under this contract, for any claim whatsoever, unless presented in writing within 90 days from date thereof,” did not exonerate the express company from liability to the trust company, whose claim was not presented within the ninety days, it appearing that the clause in question followed a provision of the receipt exempting the express company from liability for any default by a connecting carrier and that the receipt did not, in terms, place any restriction upon the express company’s liability for a wrongful delivery by its agent.
Appeal by the defendant, The Wells, Fargo & Company Express; from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 18th day of November, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 18th day of November, 1902, denying the defendant’s motion for a new trial made upon the minutes.
James M. E. O’ Grady, for the appellant.
Edward Harris, for the respondent.
On July 6, 1899, one Rachel G. Rice deposited with the plaintiff, a trust company; $1,000 and left her genuine signature with one of
p. 428its officers or agents. On July 10, 1899, a check purporting to be drawn on this fund by her tó the order of "John Rice was paid by the plaintiff, and a similar one for a like sum the fifteenth of that' month, both of which it was subsequently discovered were forgeries.
On July 20, 1899, the plaintiff received a letter dated that day at Geneseo,' N. Y., apparently signed by her, which directed the respondent to send to her at Geneseo $500 in currency, and a check was inclosed also purporting to be signed by her to the order of Mrs. Rachel G. Rice and bearing the indorsement of Rachel G. Rice. The check was stamped paid by the respondent and the currency sent by the medium of the appellant express company addressed to Rachel G. Rice, Geneseo, 1ST. Y. The representative of the express company made inquiries for the consignee upon the receipt of the package, but was unable to learn that any one of her name lived or was in that vicinity, and placed the package in the company’s safe. Shortly after a man called at the office stating that he was Frank Rice and produced an order for the money, ■ostensibly signed by the. consignee, and the package was delivered over to him by the employee of the appellant. The letter and the check to the respondent, and also' the order exhibited to the appellant, were fictitious, and the package of money was not delivered to the consignee to whom it was addressed. The frauds were not discovered until October, 1901, when Miss Rice gave a check on the bank which would have overdrawn the account if its previous depletion had been made at her instance. The plaintiff was sued by her, of which the appellant had notice, and has made good to her the $500 lost, as above described, and this, action of conversion was commenced to recover of the appellant on the theory.it had not delivered the package to the person addressed, but had delivered to another person without any authority from the consignee.
It is contended by the learned counsel for the appellant that the agents of the respondent were negligent in failing to discover the forgeries of the check and the letter, and had they exercised care the package of money would not have been sent. Assuming, but not conceding, for there is no proof on the subject, that vigilance by the employees of the respondent might have resulted in the detection of the forgeries, that omission does not exonerate the appellant. That the plaintiff paid the checks without discovering
p. 429they were simulated is not the concern of the defendant. Its agent was not aware of the payment of these checks and the action of the plaintiff whether careless or otherwise did.not influence the defendant in delivering the money to the wrong person.' As a common carrier it received the package consigned to Rachel G. Rice at Geneseo. Confessedly, it was not delivered to her, but to a man. who assumed to represent her and who was not in any way identified. The agent of the respondent did not know the man to whom the delivery was made, but he did know the man was not Rachel G. Rice, the consignee. The agent took the chances, when he handed the package of money to this man, that he was the
alter ego of the person to whom the package was addressed. The strict rules governing the liability of a common carrier for the misdelivery of goods transported by it are not even necessary to be resorted to in this case, for any one who, for a compensation, undertakes to. deliver an article to a certain person and then hands it over to one that the deliverer well knows is not the person to whom he agreed to make delivery, is liable. He may not be excused, because, for-, sooth, he believed the one to whom delivery was made represented the person who was to receive the article. The liability of' the common carrier, nevertheless, is the measure to be meted out to the appellant. It received the goods strictly within that capacity and cannot be exonerated until the goods have been delivered to the consignee. “Ho obligation of the carrier is more rigorously enforced than that which requires delivery to the proper person.”
(Furman v.
Union Pacific R. R. Co., 106 N. Y. 579 , 585.) In
McEntee v.
New Jersey Steamboat Co. (
45 N. Y. 34 ) the court say (at p. 37): “ Common carriers deliver property at their peril, and must take care • that it is delivered to the right person, for if the delivery be to the wrong person, either by an innocent mistake or through fraud'of third persons, as upon a forged order, they will be responsible, and the wrongful delivery will be treated as a conversion.”
In Price v. Oswego & Syracuse R. R. Co. ( 50 N. Y. 213 ) the plaintiff, a merchant in Syracuse, received an order purporting to be signed by S. H. Wilson & Co., of Oswego, for a quantity of bags to be transported by rail to that city. The bags were consigned to S.
p. 430the defendant, a common carrier-. The bags were delivered by the defendant at Oswego to a man who called for them and paid the freight charges, and signed the name of the consignee to a receipt therefor. There was no such firm in Oswego, and the plaintiff did not know any such firm, but shipped the bags on the strength of the order and a letter to one Morgan. ' The plaintiff sued for the value of the bags, but was defeated by the referee who heard the case. The Court of Appeals reversed the judgment of affirmance by the General Term on the ground that the defendant was responsible for the wrongful delivery of the goods; that it was not discharged until the goods were delivered to the consignee, and that “ a delivery to a wrong person, although upon a forged order, will not exonerate the carrier from responsibility.” To the same effect is
Pacific Express Company v.
Shearer ( 37 L. R. A. 177 ), where there is an exhaustive analysis of the authorities in a note by the repórter. (Hutch. Carr. §§ 344-349; Lawson Bailments, § 200.)
The wrongful delivery rendered the appellant liable for conversion. (Gu illaume v. Hamburgh & American Packet Company, 42 N. Y. 212 ; Hawkins v. Hoffman, 6 Hill, 586 .)
In" Wait’s Law and Practice-(Vol. 1 [7th ed.], 412) is the following concise statement of the-rulé: “ If á common carrier delivers goods to the wrong person, although by his own innocent mistake or by his being imposed upon, he is liable to the true owner for the value. The carrier delivers at his peril. He is responsible as an insurer. And a wrongful delivery by him is treated-at common law ' as a conversion of the property.” ¡Nor would it benefit the defendant if the .liability were that of a warehouseman or of an involuntary bailee, for the wrongdoing consisted in the affirmative act of delivering the goods to a person not the consignee. (Bank of Oswego v. Doyle, 91 N. Y. 32 .)
It is claimed that thé appellant is relieved from liability by reason of stipulations contained in the shipping receipt delivered to "the respondent upon the acceptance of the package for shipment. The receipt contains clauses limiting its liability -for loss as forwarders only and within its own lines of communication, and not for any default of connecting companies. There is nothing, however, Whereby it absolved itself from the common-law liability as a carrier for a wrongful delivery. The receipt then has this clause: “ And
p. 431it is further stipulated that Wells, Fargo
& Company shall not be liable under this contract, for any claim whatsoever, unless presented in writing within 90 days from date thereof.” The claim in this case was not presented until more than two years after the delivery of the package, but it was made promptly upon information of the fraud received by the respondent. This clause follows the clauses defining what constitutes the limitation upon its liability and,-as has been stated, not one refers to any restriction of that liability for a delivery to a person other than the consignee. Within the strict construction which is to be applied to stipulations designed to give immunity to a common carrier for the accountability which the law imposes upon it
(Nicholas v.
N. Y. C. & H. R. R. R. Co., 89 N. Y. 370 ;
Rathbone v.
N. Y. C. & H. R. R. R. Co., 140 id. 48;
Wheeler v.
O. S. N. Co., 125 N. Y. 155 ;
Kenney v.
N. Y. C. & H. R. R. R. Co., Id. 422;
Westcott v,
Fargo, 61 id. 542), the general words will not be construed to relieve the appellant, but the claim will be confined to the limitations mentioned in the contract. In .the cases cited, the general language employed was held not to exempt the carrier from responsibility for its negligent acts. The tortious act which renders it amenable to an action for conversion brings the case within the principle adverted to.. See
Porter v.
Southern Express Co. ( 16 Am. Rep. 762 ), where a similar exempting clause was held not to bar a recovery for a nondelivery of goods, although the limiting period had elapsed before the action had been commenced.
The judgment and order should be affirmed, with costs.
Adams, P. J., McLennan and Williams, JJ., concurred; His-cook, J., not voting.
Judgment and order affirmed, with costs.