Scheu v. Erie Railway Co.

Headnote

Common cmrierr — delveery of goods to wrong person — liability for — distinction between liability of common ca/rriei' a/nd warrelwusema/n.

Appeal from a judgment entered on tbe decision of a single judge of tbe Superior Court of Buffalo, and transferred to tbis court by order, pursuant to Laws of 1873. (Ob. 239, § 7.)

The action is.brought to recover damages for tbe alleged wrongful delivery of a quantity of malt belonging to tbe plaintiff, wbicb tbe defendant, as a common carrier, received at Lancaster, Erie county, "and undertook to transport and deliver to tbe plaintiff’s consignees, at Newark, New Jersey. Tbe court found that tbe malt was consigned to tbe firm of C. Weidenmeyer & Sons, Newark, New Jersey, and that tbe defendant failed to deliver it to that firm, but wrongfully and negligently delivered it to tbe firm of 0. Weidermyer’s Sons, at Newark, and that tbe latter firm was not tbe con

signee or owner of the malt or entitled to receive it; that the latter firm was insolvent, and the plaintiff has not received pay for the malt, but, by reason of such wrongful delivery, has lost the same. The court ordered judgment for the plaintiff for the value of the malt.

The court at General Term said: “ Upon the facts found, the judgment is clearly right. If a common carrier deliver goods to a wrong person, although by his own innocent mistake, or by his being imposed upon, he is liable to the true owner for the value. Such wrongful delivery is treated in the common law as a conversion of the property. (Story on Bailments, § 545, b; McMitee v. New Jersey Steamboat Go., 45 N. Y., 34 .) The carrier delivers at his peril. He is responsible as an insurer. His liability differs from that of a warehouseman, who is held only" to the exercise of proper diligence and care in the preservation of the property and its delivery to the trae owner. . (Price v. Oswego and Syracuse It. It. Go., 50 N. Y., 213 , per Grover, J., p. 217.) When 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 diligence, be found, the carrier may be discharged from further responsibility as carrier, by placing them in a proper warehouse ■ for, and on account of the. owner (Fish v. Newton, 1 Den., 45 ); but until discharged in that manner, his responsibility as carrier continues. (Price v. R. It. Go., supra.)