Ostrander v. Brown & Stafford — 15 Johns. 39

Majority

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Ostrander against Brown and Stafford.

Headnote

Where good* board orthedél *1 uTbe car- and 0/amv-^ti^de'fenS ant’s direction, wharf^R was was not a deconsignee, and 0fai usage™» fne thkmfnner was immaterial, but that the t was i ail action of trover for such part of the goods as wasnot actually delivered to the consignee. defendant. 1 liable m an

And although the goods were taken away without the direction of the consignee, by a cartmau usually or always employed to transport his goods, and the greater part actually received by the consignee, this was held not to be evidence or the delivery of the part alleged to be lost, as he was not to be deemed the general agent of the consignee for receiving nis goods.

A carrier is not justified, by the inability or refusal of the consignee to receive the goods, in leaving them exposed on a wharf, but it is his cluty to secure them for the owner»

IN error to the mayor’s court of the city of Albany.

This was an action of trover for a box of tea, brought by the defendants in error against the plaintiff in error. At the trial before the recorder of Albany, in September, 1816, the plaintiffs below proved that, in the spring of 1815, they shipped, with a number of other articles, on board the sloop George, of which the defendant below was master, two chests of tea, - to he carried to Albany, and delivered to Mounsey and Olmstead of that city; and it was testified by Hyde, a clerk of Mounsey and Olmstead, that the George arrived in Albany about the 22d of May, and that all the goods were received, except one chest of tea.

Robert Brozan, a witness for the defendant below, testifie d, that soon after the sloop arrived at Albany, one of the firm of Mounsey and Ohnstead came on board and put his name

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opposite to the entry of the plaintiff’s goods on the sloop’s, fre¡g]^ ]jgt. jj. was sworn by Hyde, that the name on the freightlistwas not the hand writing of either of the consignees. Brown further stated, that the goods of the plaintiffs were put on the dock together, and were taken away by one Carle, a cartman, who was the general cartman of Mounsey arid Olmstead, for carrying goods from the different sloops to their store.

The defendant offered to prove that it was customary in the city of Albany for the captains of vessels freighted with goods for merchants in that place, to deliver them by putting them upon the dock, and giving notice to the consignees, who usually had cartmen to convey them to their stores, and that such delivery, with notice, was, by custom, considered a good delivery'. The counsel for the plaintiffs objected to this testimony, and it was overruled. The plaintiffs then offered Carle, the cartman, as a witness, who was objected to on account of interest, but was admitted by the court. Carle testified that he had often carried goods from the sloops for Mounsey and Olmstead j that, at the time when the chest of tea was lost, after the sloop had arrived at the dock, he saw one Jsfee/er/who told him that there were some goods on board for Mounsey and Olmstead, and that he must go and take them away; that he carried one load one day, and another load the next, and believed that he carried all the goods of Mounsey and Olmstead that were shown him, to their store, who paid him for the cartage. He further testified that a part of the goods had, by mistake,'been put into a waggon,'from whence he took them. The jury found a verdict for the plaintiffs below, the defendants in error, the recorder having charged that Carle, under all the circumstances, was not such an agent- of Mounsey and Olmstead, as to render a delivery to him a legal delivery.

A bill of exceptions was taken on the part of the defendant below, which was removed into this court by writ of error.

Foot, for the plaintiff in error, contended,

(1.) That the proof offered of the usage, ought not to have been rejected. In Smith v. Wright ( 1 Caines’ Rep. 43 .) evidence of usage

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was admitted ¡ and the court say, that “ the true test of a commercial usage is its having existed a sufficient length of time, to have become generally known, and to warrant the presumption that contracts are made in reference to it.” (Rushforth v. Hadfield, 7 East, 224.) In Wardell v. Mourillyar, (2 Esp. N. P. Rep. 693.) which was an action against a hoyman for not delivering goods, Lord Kenyon left it to the jury to decide what was the custom, as to landing the goods at a particular wharf. And many cases are to be. found- in the English books, of evidence of usage or custom being received. (Syeds v. Hay, 4 Term Rep. 260. Hyde v. Trent. Navig. Co. 5 Term Rep. 389. 397. Catley v. Wintringham, Peake’s N. P. Cases, 150. Abbot on Ships, 247.) The time when the liability of the carrier is to cease, depends on the custom of the particular place. (2 Comyn on Contracts, 329, 330.)

2. A delivery to an agent, or servant, is a delivery to the principal. The cartman, in this case, being in the usual employment of the plaintiff, must be deemed, pro hac vice, his agent.

3. A delivery on the wharf, or at the dock, is, by law, a good delivery. This seems to be admitted in the case of a common carrier from port to port. (3 Wils. 429. 2 Wm. Bl. 916. 5 Term Rep. 389. 4 Term Rep. 581.)

Hale, contra.

This is an action against a common carrier, who is held to very strict responsibility. Nothing but the act of God, or a public enemy, will excuse him for a nondelivery of the goods entrusted to his care. The delivery must be either to the party himself, or to some person authorized by him to receive the goods. Putting the goods, especially where they are perishable articles, on a wharf or dock, cannot be a good delivery. In the case of Wardell v. Mourillyar, the delivery was made to a wharfinger, not merely by putting them on a wharf. In England, a wharfinger is an officer or agent well known in the law, and who is responsible for the safe keeping of the goods delivered to him. (4 Term Rep. 260. 7 Term Rep. 171. 5 Burr. 2825.)

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No notice was given to the consignee, in this case, of the delivery of the goods at the wharf.

delivered the opinion of the court. In a case where the precise place of delivery is material, it may he proper to allow evidence of a local usage. For instance, the usage at Havanna is often proved to show that some species of cargoes, such as slaves, are to he delivered at the Moro Castle, and that other articles are deliverable only on the wharfs in the inner harbour. But in this case, it seems to me, that the only question is, not whether the tea was delivered at the right place, but whether it was delivered at all, to Mounsey and Olmstead ?

If it be true, that one of the consignees Avent on board the vessel and saw a list of the goods, (which I think is not proved,) that would not be evidence of a delivery. The goods xvere then in the hold of the vessel. The master, soon afterwards, put them on the dock, but not in the presence, nor with the knoAvledge of either of the consignees. , No notice was given to Mounsey and Olmstead that the-goods were unladen, or that they had arrived. But a cartman Avho “ had often carted for them and Avho, no doubt, had often carted for fifty other persons, came, by the direction of Mr. Keeler, (a stranger to the plaintiffs beloAV,) and on that day carried one load to the store of the consignees; the residue was left all night on the wharf, and the next day, the same cartman found some of them in a strange Avaggon, and the box of tea has not since been heard óf. In truth, the only acts done by Mounsey and Olmstead or their clerk, were to receive in store such articles as the cartman brought to them, and to pay him for carting them; and there is no proof that they ever had any other knowledge of the goods. The weight of evidence clearly shows that neither of them were on board the sloop.

Admitting, then, that the wharf was the place of delivery, a mere landing the goods on the wharf was no delivery. A delivery, in this case, implies mutual acts of the carrier and the consignees.

A tender, merely, of the goods to the consignees, without their acceptance, would not be a performance of the car

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rier’s duty in such a case. Suppose the consignees had been dead, or absent, or had refused to receive the goods in store, what would have been the carrier’s duty ? Certainly he would have no right to leave them on the wharf, or in the street, without protection. He would not be justified in abandoning the goods. He had notice that Stafford and Brown were the owners ; and if Mounsey and Olmstead would not take charge of the goods as consignees, he ought to have secured them on board his vessel, or in some other place of safety; and that would have entitled him to his freight with all extra charges.

The fiecision of the court below on the question of local usage, was on a point which is immaterial in this case.

The second exception was, I think, properly abandoned on the argument; and the opinion of the court below on the last point, to wit, that the cartman was not to be regarded as the general agent of the consignees, for receiving • goods, merely on the ground of his being often employed by them to cart goods, was undoubtedly correct. Because a merchant usually selects a cartman, and employs him exclusively in carrying goods, according to his orders, it by no means follows that such cartman is his general agent for receiving goods, without orders.

The defendants in error are, therefore, entitled to judgment.

Judgment accordingly.