Ontario Bank v. New Jersey Steamboat Co. — 59 N.Y. 510

Majority

p. 510

The Ontario Bank, Appellant, v. The New Jersey Steamboat Company, Respondent.

(Argued December 17, 1874;

decided January 19, 1875.)

Headnote

One P. shipped at Q-. a quantity of wool by railroad, receiving bills of lading which stated that the property received was addressed to order of plaintiff at New York, deliverable at “ Ooenties’ slip,” and advice sent R. L. The latter was a commission merchant and the correspondent of P. in New York, which fact was known to plaintiff. Drafts drawn by P., accepted by R. L., were discounted by plaintiff upon delivery of the bills of lading. Defendant received the wool at A., from the railroad company, with bills of charges accompanying, containing the following: “Order Ontario Bank (plaintiff), deliverable at Ooenties’ slip and advise R. L.” The wool was delivered to R. L. In an action for conversion of the wool, after evidence of these facts evidence was offered by defendant and received under objection, that many previous shipments of wool similarly consigned, and the bills of lading therefor delivered to plaintiff under similar circumstances, had been delivered by defendant to R. L. without objection from plaintiff. Reid, that the evidence was properly received under a general denial in the answer; that the bills of charges alone, or the acceptance of the draft did not authorize a delivery to L. or give him any title to the property in the absence of an agreement to that effect; but that from the fact of the former deliveries having been acquiesced in, defendant had the right to regard R. L. as the agent of plaintiff for "the receipt of the wool in question, and the delivery to him constituted a good defence to the action.

Appeal from judgment of the General Term of the Court of- Common Pleas for the city and county of New York affirming a judgment in favor of defendant, entered upon a decision of the court at Special Term upon trial without a j™7-

This action was brought against defendant as a common carrier, for the alleged conversion of a quantity of wool. The answer was a general denial.

The plaintiff’s evidence showed that one Oldknow Pooley, a produce merchant in Guelph, Canada West, shipped to New York in six separate shipments, 153 sacks-of wool by the Coburg and Peterborough railway and the Great Western railway. The sacks were marked “ R. L.” The bills of

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lading stated the wool was “ addressed to order Ontario Bank” (plaintiff), “deliverable at Coenties’ slip and advice sent R. Logan, 6 South William street, New York.” The wool was received by the defendant at Albany, from the New York Central railroad, with bills of charges accompanying the same, containing the following: “ Order Ontario Bank, deliverable (or to be delivered) at Coenties’ slip and advise (or advice to be sent to) R. Logan, 6 South William street, New York.”' These bills of lading were transferred to plaintiff. Defendant transported the wool to New York, but refused to deliver to plaintiff’s order on demand. Defendant was allowed to show, under objection and exception, that the bills of lading were transferred to plaintiff as collateral for drafts drawn by Pooley on said Robert Logan, who was a commission merchant in New York and Pooley’s correspondent there, of which fact plaintiff was advised by Pooley, which drafts had been accepted by Logan. Previous to the shipments in question fifteen other shipments had been similarly made by Pooley, the bills of lading transferred to plaintiff upon the discounting of similar drafts, all of the wool bad been transported to New York and delivered by defendant to Logan. The previous drafts were collected of Logan by plaintiff’s agent in New York. Defendant had no other instructions or order save what was contained in the bills of charges. The court found that the previous deliveries were with the consent or acquiescence of said plaintiff and said Pooley. And as matters of law:

“ That said Logan as acceptor of said drafts or bills of exchange, drawn against or upon the security of the shipments of wool in controversy, became and was authorized (in the absence of his insolvency) to require a delivery to him of the bills of lading or carriers’ receipts of the property against which such drafts were drawn, or for which such bills of lading were held, in order to provide for their payment.”

“ That his authority to do so had been recognized and assented to by plaintiffs in the customary course of dealing with respect to all the previous shipments made under simi

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lar circumstances, and defendants had a right to rely upon the authority the plaintiffs had thereby conferred on said Logan therein, to take possession of the wool in dispute.”

“ That the direction on these several shipments to advise B. Logan, was an indication and designation of him as the proper agent of the parties interested in the goods, to be consulted with and direct as to their delivery at Hew York.”

“ That plaintiffs have no cause of action against the defendants.”

Wm. Henry Arnoux for the appellant.

Plaintiff was the legal owner of the goods. (Factors’ Act, Edm. Stat., 462; Gibson v. Stevens, 8 How. [U. S.], 396 ; Bk. of Rochester v. Jones, 4 N. Y., 497 , 501; City Bk. v. Rome R. R. Co., 44 id., 136; Cayuga Bk. v. Daniels, 47 id., 631; McNeil v. Tenth Nat. Bk., 46 id., 325; First Nat. Bk. v. Kelly, id., 34; Wilkes v. Ferris, 5 J. R., 335; Rawls v. Deshler, 3 Keyes, 572; Brown v. Heathcote, 1 Atk., 160; Greaves v. Hipke, 2 B. & A., 131; Atkinson v. Maling, 2 T. R., 465; Pleasants v. Pendleton, 6 Rand., 473 ; Ingraham, v. Wheeler, 6 Comst., 277; Ricker v. Cross, 5 N. H., 571 ; Gardner v. Howland, 2 Pick., 599 ; Dows v. Greene, 24 N. Y., 638 ; Marine Bk. v. Wright, 48 id., 1; Bailey v. H. R. R. R. Co., 49 id., 70; Ind. Bk. v. Colgate, A. L. J., 1871, 390.) Plaintiff being legal owner of the goods remained so until payment of the drafts. (The Sallie Magee, 3 Wall., 451 ; Gibson v. Stevens, 8 How. [U. S.], 396; City Bk. v. Rome R. R. Co., 44 N. Y., 136 ; Cayuga Bk. v. Daniels, 47 id., 631; Rawls v. Deshler, 3 Keyes, 572.) The drawee of a bill of exchange drawn against merchandise, is not entitled to the bills of lading or shipping receipt, or to possession of the goods upon his acceptance of the hill of exchange against the lawful holder of such bills of lading or shipping receipt. (Lanfear v. Blossom, 1 La. Ann., 148 ; 4 Edm. Stat., 462, § 5; Cartwright v. Wilmerding, 24 N. Y., 532 .) If a carrier delivers goods at a place to which they are not addressed an action lies against him. (Brown on Cor., 195; Add. on Con.,

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810 ; Stephenson v. Hart, 1 M. & P., 357; Perkins v. Smith, 1 Wils., 328; Youl v. Harbottle, Peake, 68; Devereaux v. Barclay, 2 B. & A., 702; Stevens v. Elwall, 4 M. & S., 259; Meyer v. Chicago, etc., R. R. Co., 24 Wis., 586 ; Redf. on Car., § 318; Ostrander v. Brown, 15 J. R., 39; Hawkins v. Hoffman., 6 Hill, 588 ; Powell v. Myers, 26 Wend., 591 ; Clarke v. Spence, 10 Watts, 337 ; Johnson v. N. Y. C. R. R. Co., 33 N. Y., 610 ; McEwan v. R. R. Co., 33 Ind., 368 ; Maghee v. Cam. R. R. Co., 45 N. Y., 514 , 522; Pars. on Con., 644; Lichbarrow v. Mason, 2 T. R., 63; Fitzhugh v. Wiman, 9 N. Y., 559 , 566; Ellis v. Willard, id., 529.) The words “ advise R. Logan ” were not a special instruction or an order from plaintiff to deliver the goods to Logan. (The Thames, 7 Blatch., 520; Bonita v. Mosquera, 2 Bosw., 401 ; Pegram v. Casson, 10 id., 505 ; Cartwright v. Wilmerding, 24 N. Y., 533 .) A carrier is bound to ascertain whether a bill of lading was delivered to the shipper, and he must retain the property until presentation of the bill of lading. (Bk. Roch. v. Jones, 4 N. Y., 497 ; Cayuga Bk. v. Daniels, 47 id., 631 ; Howard v. Shepherd, 9 C. B., 297 ; Tindall v. Taylor, 4 E. & B., 219 ; Thompson v. Traill, 2 C. & P., 334 ; Abb. on Ship. [8th ed.], 595 ; Haille v. Smith, 1 B. & P., 563 ; Tooke v. Hailingworth, 5 Tenn., 215 ; Allen v. Williams, 12 Pick., 297 ; Rawls v. Deshler, 3 Keyes, 572.) The court below erred in-finding that the previous deliveries had been made by defendant to Logan with the consent or acquiescence of plaintiff and Pooley. (Putnam v. Hubbell, 42 N. Y., 106 ; Austin v. N. J. S. Co., 43 id., 75; Leonard v. Fowler, 44 id., 289.) Under the pleadings plaintiff was entitled to recover for the full amount claimed. (Ferguson v. Ferguson, 2 N. Y., 361 ; Kelsey v. Western, id., 506 ; Wright v. Delafield, 25 id., 268; McKyring v. Bull, 16 id., 297; McKay v. Draper, 27 id., 256, 266; Kniffen v. McConnell, 30 id., 285.)

Charles Jones for the respondent.

Upon delivery of the wool to Logan the duty of defendant as common carrier was. discharged. (Platt v. Wells, 2 Robt., 101; Price v. O. and

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Syr. R. R. Co., 58 Barb., 599 ; Bristol v. R. and S. R. R. Co., 9 id., 158; Russell v. Livingston, 19 N. Y., 515 , 518; Lanpar v. Blossom, 1 La. Ann, 148 ; Little v. Blossom, id., 169 ; Sweet v. Barney, 24 Barb., 533 ; 23 N. Y., 335 ; Hanks v. Drake, 49 Barb., 186 , 201.) Evidence of usage and custom was admissible to show that defendant’s obligations as carrier were discharged. (Sweet v. Barney, 24 Barb., 533 ; 23 N. Y., 335 ; Van Santvoord v. St. John, 6 Hill, 157 .)

The defendant, under the general denial in its answer, had the right to introduce proof controverting any fact that the plaintiff was required to prove to establish his cause of action. For this purpose, it must show a conversion of the wool by the defendant. To do this it proved a demand of the wool from the defendant, and its failure to deliver. This was evidence tending to show a conversion, which, unexplained, would justify finding that fact. The defendant, under the answer, had a right to explain this by showing an excuse for its failure to deliver, and thereby repel any inference of a conversion deducible therefrom. This it endeavored to do, by evidence tending to show that it had previously delivered the wool to Logan, under circumstances constituting a good delivery to the plaintiff. This was competent, under' the answer. The defendant received the wool, as a common carrier, from the Hew York Central railroad, at Albany, with bills of charges, etc., accompanying the same, as follows : “ Order Ontario Bank (the plaintiff), deliverable at Coen ties’ slip (city of Hew York), and advise R. Logan, 6 South William street, Hew York.” The duty of the defendant, upon the receipt of the wool, was to carry it to Hew York, and then deliver it as directed by the bill of charges, having, so far as appears, no other information as to the ownership of the property. A delivery to a party not entitled to receive it would constitute a conversion. (Redfield on Carriers, § 318 ; Hawkins v. Hoffman, 6 Hill, 586 .) The defendant in fact advised Logan of the arrival of the wool in question, and delivered the same to him at the place specified. The question is

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whether such delivery was a defence to the action of the plaintiff. It was proved that the wool was shipped hy Pooley at Guelph, in Canada, by the Coburg, etc., railroad, from which he received bills of lading requiring transport and delivery as above stated, and drew drafts upon Logan at thirty days, which were accepted by him. That he procured these drafts to be discounted for him by the plaintiff, and transferred to it the bills of lading. By this transfer the title to the property vested in the plaintiff. (Bank of Rochester v. Jones, 4 N. Y., 497 ; Cayuga Bank v. Daniels, 47 id., 631 .)

It further appeared that Logan was a commission merchant in Hew York, and was employed by the shipper to make sales of wool shipped by him, and was his correspondent in Hew Y"ork, and that these facts were communicated to the plaintiff by the shipper. The facts alone would not, I think, constitute a defence to the action. I think it sufficiently appeared upon the bill of charges, or paper received from the Hew York Central with the property, that it was deliverable to the plaintiff or its order, and that the direction to advise Logan did not authoi’ize a delivery to him by the defendant, but implied nothing more than an understanding with him to give information to the party entitled to receive delivery or to enable him to procure authority from the plaintiff therefor. The fact that he had accepted drafts drawn by the shipper did not give him any title to the property in the absence of an agreement to that effect. The title to the property, we have seen, was transferred by the shipper to the plaintiff as security upon the discount of the drafts, and the plaintiff had a right to retain this title until actual payment of the bills. It was not obliged to transfer it to Logan upon acceptance of the drafts by him. Ho such agreement was shown. Indeed the inference from the facts shown is that the drafts had been accepted by Logan at the time of this discount by the plaintiff. Had no further proof been given, I should have been of opinion that the plaintiff was entitled to recover for the conversion of the wool. But it was proved that prior to the delivery by the defendant of the wool in question,

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other packages of wool shipped by the same shipper had been received by the defendant at the same place, delivered to it by the Hew York Central, with substantially a similar bill of charges, whose drafts had been drawn upon and accepted by Logan and the wool had been delivered to Logan with the knowledge and acquiescence of the plaintiff and of Pooley, the shipper, and that Logan had paid the drafts so drawn. Among the legal conclusions the judge finds that the authority of Logan to receive the wool had been recognized and assented to by the plaintiff with respect to such previous shipments, under similar circumstances, and that the defendant had a right to rely upon the authority of the plaintiff to take possession of the wool in dispute. This, although included in the legal conclusions, is substantially a finding of fact, arid if correctly found, shows that the defendant had a right to regard Logan as the agent of the plaintiff for the receipt of the wool. The question is not what • actual power in this respect had been given by the plaintiff to Logan; but what, from the course of business with the knowledge and acquiescence of the plaintiff, the defendant had the right to assume had been given. (1 Parsons on Contracts [5th ed.], 40.) The case shows that a large number of parcels had been shipped under the same circumstances, which had been delivered by the defendant to Logan. This must have been known to the plaintiff, or its correspondent, the city bank to which the drafts discounted by the plaintiff had been sent for collection, and to which they were paid by Logan, doubtless from the proceeds of the wool delivered to and sold by him. To such delivery, in those cases, no objection was made, either by the plaintiff or the city bank. The defendant knew nothing of the drafts drawn upon or paid by Logan. It only knew that he received the delivery of the wool, and from the delay of the plaintiff in making any objection to his authority to receive it, when it must have known that it had been so delivered, was justified in the belief that he had its authority for receiving it. Upon this ground the judgment for the defend

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ant was right, irrespective of the other reasons for sustaining it assigned by the judge and the judges at General Term.

Ho question appears to have been made upon the trial, but that all the wool in question had been delivered by the defendant to Logan. The judge must be assumed to have so found, and there is no exception to his finding in this respect. The fact that the witness, in enumerating packages delivered, omitted to specify some, his attention not being called to the point whether there had been a failure to deliver any, was immaterial.

The judgment appealed from must be affirmed, with costs.

All concur.

Judgment affirmed.