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Klein v. Dunlap

73 N.Y. St. Rep. 566 Court N.Y. App. Term Decision date 1896-02-26 English

Delivered by McADAM, J.

Contents

Majority

p. 566
Louis Klein, Resp’t, v. Cornell Dunlap, App’lt.
(Supreme Court, Appellate Term, First Department,
Filed February 26, 1896.)

Headnote

1. Carriers—Shipper—Agent.
Where the vendee intrusts the shipping of the goods to the vendor, the latter, in so shipping, acts as the former’s agent and as such has power to hind him in contract with the carrier as to the terms and conditions of transportation.
2. Same—Liability—Loss.
Where the vendor delivers goods for shipment, by authority of vendee, to a common carrier, with whom he has an agreement that such carriers , shall deliver freight received from him for delivery at points in the city, , find shall forward such as is to be delivered elsewhere, and the carriel) delivers the goods to a connecting carrier, whp tenders them to the vem
p. 567
dee at the place of destination, and, upon the vendee’s refusing to accept them, they are afterwards lost or disposed of'be the connecting carrier, the vendee is bound by such shipping contract made by the vendbr with the first carrier, whose responsibility for the goods is determined on delivery thereof to the connecting carrier.
Appeal from a judgment in favor of plaintiff.
W. W. Menzel, for app’lt; Joseph I. Green, for resp’t.

The action was brought to recover the value of certain goods which the plaintiff claims the defendant converted to his own use while in his care as a common carrier. On May 4, 1893, Messrs. Shrimpton & Sons, of New York City, delivered at that place to the defendant, for transportation, a case of goods .addressed to the plaintiff in Brooklyn. The defendant was an •expressman, the proprietor of Dunlap’s Express, with a license for .and doing business, in the city of New York only. He did busi- ' ness with Shrimpton & Sons under an agreement “to receive freight ■from them and deliver it in the city, and to forward other goods that they would give us to other points outside of our territory.” There was no special agreement to deliver in this case, and the defendant proved that, in accordance with the established usage and custom, he delivered the goods the same day he received them, at the end of his route, to the Windsor Express, a connecting carrier doing business in Brooklyn, for delivery to the plaintiff there. That the goods were safely delivered to the Windsor Express, by the defendant is clear, for that concern tendered them to the plaintiff at their place of destination. . The plaintiff refused to accept •delivery for some reason that does not appear. After such tender the goods were lost or disposed of by the Windsor Express. ■ Since the plaintiff intrusted the shipping of the goods to.. Shrimpton & Sons, they, in so shipping, acted as his agents, and as such, had ■power to bind him in contract with the carrier as to the terms and •conditions of transportation. Root v. Railroad Co., 76 Hun, 23 , 27 N. Y. Supp. 611 ; Jennings v. Railway Co., 127 N. Y., at page 447; 28 N. E. 394 ; Shelton v. Transportation Co., 59 N. Y. 258 ; Nelson v. Railroad Co., 48 N.Y. 498 ; Rawson v. Holland, 59 N.Y. at page 617. Under these circumstances Dunlap undertook the responsibility only of carrying the goods as far as his route extended, and there delivering them to and forwarding them according to the established usage of the next connecting carrier; and this he did.

The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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