Fisk v. Newton

Headnote

It is a general rule that a common carrier is bound to deliver the goods entrusted to him to carry, personally, to the consignee at the place of delivery: but in certain cases where the transportation is by vessels or boats, notice of the arrival and place of deposit, is sufficient, and comes in place of a personal delivery; and where goods are safely conveyed to the place of destination, and the consignee is dead, absent or refuses to receive, or is not known and cannot after reasonable efforts be found, the carrier may discharge himself from further responsibility, by placing the goods in store with some responsible third person in that business, at that place, for and on account of the owner. In such a case, the storehouse keeper becomes the agent or bailee of the owner of the property.

Where the consignee of certain kegs of butter sent from Albany to New-York by a freight barge was a clerk, having no place of business of his own, and whose name was not in the city directory, and who was not known to the carrier, and after reasonable inquiries by the carrier’s agent could not be found, it was held that the carrier discharged himself from further responsibility, by depositing the property with a storehouse keeper then in good credit for the owner, and taking his receipt for the same, according to the usual course of business in that trade, though the butter was subsequently sold by the storehouse keeper, and the proceeds lost to the owner by his failure.

Error to the superior court of the city of New-York, upon a judgment of that court, reversing a judgment of the marine court of that city, upon certiorari

Fisk sued Newton, who was the owner of a line of freight barges on the Hudson, known as the New-York and Albany line, in the marine court, as a common carrier, for not delivering four kegs of butter received on one of his barges at Albany, to be taken to the city of New-York. The casks were marked with the name of the plaintiff, and the additional words, “ care of H. S. Field, New-York,” and arrived at that city November 21, 1842. The defendant’s agent in New-York swore, that on the arrival of the butter, he made diligent inquiry for H. S. Field, but could not find any such person. His name was not in the city directory, and he could not hear of him upon inquiry at the stores of several individuals of the name of Field, at which " he called. Under these circumstances, the next day after the arrival of the butter, he deposited the same for the owner with

Trafton & Owen, storehouse keepers, who were then in good credit, and took their receipt for the same. In March, 1843, the butter not having been called for, Trafton <fc Owen caused the same to be sold, and credited the proceeds to the defendant’s line of boats, and soon after, and in the same spring, they failed; and when they were subsequently called on, on behalf' of the plaintiff, they alleged that the sale was made by the defendant’s direction; but there was no evidence to that effect, and it was denied by the defendant’s agent. H. S. Field testified that he was a clerk in the city of New-York at the time the butter was sent, and had lived there several years. About the time of the shipment, he received a letter from the plaintiff stating that he had sent the butter to him, by the Oswego line, and to the care of E. J. Vanderwater, and the witness repeatedly called on Vanderwater at the office of that line, but could hear nothing of the butter. He did not call on the defendant’s agent until after he had been into the country and had seen the plaintiff in the summer of 1843, when, being informed by him that it was not sent by the Oswego, but by the defendant’s line, he called on the defendant’s agent in August of that year, paid the freight and received the storekeeper’s receipt, with which he called on Trafton & Owen; but they having sold the butter and failed, nothing could be obtained. There was some conflict in the testimony as to the account which the defendant’s agent gave of the butter when called on by Field, but the foregoing.facts were not controverted. It was also shown to be the usage of carriers bringing property to New-York by boats, to deposit it in store when the consignee could not be found. The justice of the marine court rendered judgment for the plaintiff for $57,15.