Salinger v. Simmons — 57 Barb. 513

Majority

p. 513

Salinger vs. Simmons.

Headnote

Where property committed to carriers, consigned to a point beyond their route, was safely transported by them to the termination of their route, and was there delivered to the keeper of a storehouse or warehouse, who acted as the agent of the carriers and "others in receiving and delivering freight, by whom it was, in accordance with the usual custom, delivered to a teamster, to be carried by him the remainder of the distance, to the residence of the consignee; and the property was sd carried by the teamster and delivered to the consignee; Held that the duty of the carriers terminated, certainly upon the delivery of the goods at the consignee’s residence, if not before; and that their liability could not be renewed and resuscitated by a return of the property to the warehouse, by the consignee.

Held, also, that the carriers were not responsible for the loss of the goods because the consignee directed the property to be taken back to the warehouse, and because it was so taken back. That to make them liable for the loss of the goods after their return, notice of such return should at least have . been given, and that they were required to be taken back to the consignor. To render a common carrier or warehouseman liable for the loss of goods, there must be an acceptance of the goods, and the responsibility does not commence until the delivery is complete. It is not enough that the property is delivered upon the premises, unless the delivery is accompanied by notice to the proper person.

MOTION by the plaintiff for a new trial, upon a case and exceptions ordered to be heard in the first instance at a general term.

The action was brought against the defendants as common carriers and warehousemen, to recover the value of a cask of gin, alleged to have been lost by their negligence. The complaint alleged,

1. That the defendants, as common carriers, on the 22d of September, 1864, contracted to carry a cask of gin, for the plaintiff, from the city of New York to Gatskill; and that they so carelessly and negligently conducted themselves, in that regard, that the cask of gin was wholly lost to the plaintiff.

2. That the defendants, as common carriers, agreed to carry a cask of gin from New York to Gatskill, consigned to Ira Sherman, East Windham, N. Y.; that the gin arrived

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at its destination, and was stored by the defendants in their storehouse, or warehouse, at Oatskill Point, under the charge of J. T. Huntley, their agent, to be delivered to Ira Sherman or his order, and in case of his refusal to receive the same, to notify the plaintiff, and to keep the same stored for him; that Ira Sherman refused to receive the liquor; that the defendants did not notify the plaintiff thereof; that it was stored in their warehouse, and was lost.

Judgment was demanded for $175. Answers were put in by the defendants, and the cause was tried at the circuit, before Justice Peckham and a jury. The facts appearing in evidence, are set forth in the opinion of the court. The plaintiff claimed that upon the evidence the defendants were guilty of negligence, either as common carriers, or as warehousemen. 1. In delivering the property for storage, to Huntley, an irresponsible man, by reason whereof the plaintiff lost the same. 2. In losing the property, and not accounting for its loss,, after it was put in the storehouse, on the theory that Huntley was their agent. The court decided that there was no neglect by the defendants, and directed a nonsuit; and the plaintiff excepted.

Jas. B. Olney, for the plaintiff.

O. I). T. 0. Ingersoll, for the defendants.

The evidence in this case establishes that the property in question was safely transported upon the defendants’ steamboat to Oatskill Point, which was the termination of the defendants’ route as' common carriers, and was there delivered to one Huntley, who kept a public house' and a storehouse and warehouse at that place, and who acted as the agent of the defendants’ and of other steamboats, in receiving and delivering freight. The defendants had no interest in the store

p. 515

house or warehouse; and the usual custom was to put all goods there which were landed at the Point, for the consignees, and subject to their call or order. There was no regular line of transportation between Catskill and East Windham, where the goods were to be forwarded; and a teamster, either on his own motion, or otherwise, (it does not appear exactly how,) without any order or direction of the consignee, took the cask and carried it to the residence of the consignee, where it was directed, and delivered it there, in front of his house and place of business, in the presence of two of his sons, (he being absent,) and notified one of them that the cask was for his father. Subsequently, the consignee refused to receive the property, alleging that he had never ordered it; and by his direction and at his request, the teamster brought it back and delivered it at the place from whence it was taken, to some person who was there; but the agent, Huntley, testifies that he did not know it, and it does not appear that he did know that it was there. It disappeared and was lost

The plaintiff’s claim to recover, in this action, is based upon the ground that the defendants were guilty of negligence ; and unless this is made to appear, the action is not maintainable.

I think the property" was lawfully delivered at its place of destination, at Catskill point, the end of the defendants’ route, and properly left at the store or warehouse, which was a suitable place for its deposit, for the benefit of, and on account of, the consignee. Up to this period of time there was no act done by the defendants which indicates negligence, or exposed the property to injury or loss. The deposit at the store or warehouse appears to be in accordance with a well settled rule of law. "When the consignee is absent at the place of destination, the carrier may discharge himself from further liability, by placing the goods in store, with some responsible third person, at the place

p. 516

of delivery, for and on account of the owner. (See Northrup v. Syracuse Railroad Co., 5 Abb. N. S. 428. Williams v. Holland, 22 How. Pr. 137 .)

In the case at bar, the goods were left with the agent who was in the habit of receiving them; and had they been lost while there, and "before they were removed, the fact that the agent was irresponsible might very properly have been urged as evidence of negligence, and have been entitled to consideratioñ in determining the question of the defendants’ liability. But as the goods were safely kept, and forwarded to the consignee by the earliest and most convenient mode of transportation, and as they were not lost at this time, I am inclined to think that no question of negligence arises in the case.

If there had been a regular line of transportation between Catskill Point and Bast Windham, the delivery of the goods to the next carrier,on the route, with proper instructions, would have terminated the defendants’ liability. (Hempstead v. N. Y. Central Railroad Co., 28 Barb. 485 . McDonald v. Western Railroad Corp., 34 N. Y. Rep. 497 .) As there was no such line, nor any other convenient means of transportation, and as the one selected was entirely safe, there was no impropriety or negligence in thus forwarding the property to the consignee. It was one way of notifying him of the arrival of the goods. That.it was entirety safe is apparent from the fact that the property was safely delivered to the control of the consignee, so far as was practicable. That it was not accepted, was not the fault of the defendants, but owing to the plaintiff or the consignee! Bor the misunderstanding between them, which caused a return of the goods and their loss, the defendants are clearly not liable. Bor, in my' opinion, are they responsible because the consignee directed the property to be sent back to Catskill, and because it was brought back by his order.

I think that "the duty of the defendants terminated,

p. 517

certainly after the goods were delivered at the place of business of the consignee, if not before; and their liablity cannot be renewed and resuscitated by a return of them, to the storehouse or warehouse of Huntley. If the consignee ordered the goods, then he is liable upon the delivery, and he cannot shift the responibility by directing their return. If he did not purchase them, then the plaintiff was in fault in forwarding them to his direction, and has no good reason to complain of the defendants because the consignee returned them.

There was no authority from the defendants, direct or implied, to return the goods to Catskill Point; and to make the defendants liable, at least notice should have been given that they were returned, and were to be taken back by the defendants, in their steamboat, for the plaintiff. Huntley, the agent, was not aware of their being returned, and no directions were given, as to what they were left for, or what was to be done with the property. Huntley was the agent for three different steamboats, and unless he was advised that the property was intended for the defendants, I do not understand how they can be held liable for his acts. If it be said that he should have notified the owner, the answer is, that the evidence does not show that he had notice of the delivery for the defendants, and hence they are not liable. Huntley being proprietor of the house where the goods were placed and in store, became thereby the agent or bailee of the owner. (Fish v. Newton, 1 Denio, 45 .)

In establishing the liability of a common carrier, it must not be overlooked that there must be an acceptance of the goods, and that the responsibility does not commence until the delivery is complete. It is not enough that the property is delivered upon the premises, unless the delivery is accompanied by notice to the proper person. (Grosvener v. N. Y. Central Railroad Co., 39 N. Y. Rep. 34 , and authorities there cited.)

p. 518

[Albany General Term,

March 7, 1870.

The defendants were exonerated from liability after the goods were delivered to the consignee, and no steps were taken to bring them within the rule laid down in the case last cited, after they were thus discharged.

In no aspect in which the case can be considered can the defendants be held liable; and the judge, upon the trial, in my opinion, committed no error in his rulings, and properly directed a nonsuit.

A new trial must be denied, with costs.

Kogéboom, Ingalls and Miller, Justices.]

Cases cited

Williams v. Holland 22 How. Pr. 137 N.Y.C.P. p. 516
Hempstead v. New York Central Rail Road 28 Barb. 485 N.Y. Sup. Ct. 1858-11-04 p. 516