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Vietor v. International Navigation Co.

45 N.Y. Super. Ct. 129 13 Jones & S. 129 Court N.Y. Super. Ct. Decision date 1879-04-07 English

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GEORGE F. VIETOR, et al., Plaintiffs and Respondents, v. THE INTERNATIONAL NAVIGATION COMPANY, Defendant and Appellant.

Headnote

COMMON CARRIER.—LIMITATION OF LIABILITY TO INVOICE PRICE.
What allegations and proofs deprive a party of the benefit OF SAID LIMITATION.
Estoppel. What acts or statements on the part of the common carrier, tending to apprise the consignee of the arrival
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of the goods in question, and readiness to deliver the same, i are sufficient to induce the consignee, believing the same, to make entry at the Custom House and pay duties on the same, so that afterwards, the carrier being unable to deliver said goods or account for the same, he would be deprived of such limitation, and be compelled to pay the invoice price of the goods, with the duty and interest on the same added thereto.
Before Sedgwick and Van Vorst, JJ.
Decided April 7, 1879.
The facts and the rulings of the court thereupon, as also the rules of law and decisions applicable to carriers, their liabilities, and to equitable estoppels, are fully set forth and discussed in the opinion of the court.
The court held, in this case, that the carriers were only liable for the invoice price of the missing goods.
Appeal from judgment entered on verdict for plaintiff, directed by the court.
The complaint stated, as a first cause of action, that there were delivered to the defendant at Aix-la-Chapelle twelve bales of cloth, which the defendant agreed to transport to Hew York and deliver there to the plaintiff, under a certain bill of lading particularly set forth; that they did not transport, &c., the said bales, but “ so negligently and improperly conducted itself in the premises ” that, although delivering ten of said bales, it failed to deliver the remaining two bales, “ and the said two bales, through the negligence and improper conduct of the said defendant, were wholly lost to the plaintiffs hereinthat “the invoice value of the said two bales of cloth so lost and not delivered as aforesaid, is the sum of $1,074.40, in gold coin of the United States, for which amount, with interest from, &c., judgment is hereby demanded.”
It stated, for a further and second cause of action, after reiterating the allegation of the first cause of
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action, that, on the arrival of the steamship named in the bill of lading, the plaintiffs received from the defendant notice of the arrival of said steamship and of said twelve bales ; that defendant entered on the manifest of the said steamship all of said twelve bales, and on July 17, 1876, filed said manifest, in pursuance of law, in the custom-house of the port of New York ; thereupon, on July 18,1876, these plaintiffs paid to the United States the legal duties on all of said bales so entered on said manifest, including duties on the said two bales, which afterwards were not delivered to plaintiffs, which latter duties amounted to $787, in gold coin of the United States, and thereupon received from the said United States a permit for the landing of said twelve bales ; that the plaintiff, on the production to the defendant of said landing permit, received from it a delivery order on their agent in charge of said steamship for all of said twelve bales, and, on duly presenting the same, received from the said defendant only ten bales, as aforesaid ; that, by the revenue laws and customs at the port, &c., unless the duty be paid within twenty-four hours after the arrival of a vessel, the goods therein are sent to the public store-house, and thereby an additional expense is incurred; that the plaintiffs, desiring not to incur such expense, “relying upon the aforesaid notice received from the defendant, and upon the manifest of the defendant filed in the custom-house at, &c., and the other acts and doings of the defendant, paid said duty as aforesaid, in order to obtain possession of their goods and to prevent their being sent to the public store-house that the government of the United States declined to refund to these plaintiffs the sum of said duties, unless these1 plaintiffs furnish positive proof that the said two bales, were never shipped on board the said steamship at her port of departure, viz. : Antwerp ; that the plaintiffs are unable to comply with this condition, unless proof be
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furnished by the defendant and its agents ; but the defendants, although often requested, have totally failed and neglected so to do, to the damage of the plaintiffs in the sum of $878.49 lawful currency, which these plaintiffs paid for the gold, in which the duties were paid; whereupon, &c.
The answer admitted the defendant’s liability for the damage set out in the first cause of action, “ which, with the interest, the defendant has always been ready to pay, and has offered and now offers to pay to plaintiffs, who have always refused to receive and accept the same.”
As to the second cause of action, the answer alleged good faith on its part in all the acts and doings in regard to the transaction; that defendant had no knowledge or information that the two bales were not oh board.
At the trial, it appeared that, on the arrival of the steamship, a clerk of plaintiff saw in a newspaper an advertisement as follows :
“Notice. Red-Star Line, Steamship Kenilworth, from Antwerp, will commence discharging under general order at Pier 53, N. R., on Wednesday, July 19, at ten o’clock. Consignees will please send their permits on board and attend to receipt of goods without further notice. All goods remaining on the dock are at the risk of owners or consignees. All persons are hereby cautioned, &c.
“GEO. W. COLTON, Agent.”
This was the notice, referred to in the complaint, as notice of the arrival of said steamship and of said twelve bales. The clerk saw it on July 18. The vessel had been entered at th.e custom-house on arriving, on the 17th. By the testimony, if goods were not taken away from the vessel wifhin forty-eight hours after the
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entry of the ship, they would be sent to a public store. To prevent such sending, it was necessary within the forty-eight hours to pay the duties and obtain a permit to land the goods, and to act upon the permit within the forty-eight hours. The dock clerk of the defendant would not allow goods to be taken from the dock without a “ delivery order” obtained from the proper agent of the defendant. Generally, a delivery order would- not be made until the custom-house permit was exhibited ; but exceptions were made to this in case of large dealers like the plaintiffs, who could be trusted.
The clerk of plaintiffs, on seeing the advertisement, went to the office of defendant and applied for a delivery order. It was made up from a list of goods, which list had been made from counterpart bills of lading in possession of defendants. The defendants had no right to keep the goods until payment of freight, for the goods were free of freight. The plaintiff’s clerk thought that the officer he applied to could not have been on the vessel to see if the goods were on board. No facts were given in evidence to show that plaintiffs had any reason to believe that the vessel had been so far discharged that it was possible for the defendant’s agents to know whether the whole of plaintiff’s goods were on the vessel. On all the facts a jury would not have been justified in finding that there was an opportunity on the part of defendant’s agent to know what the fact was.
Plaintiff’s clerk received an order directed to the dock clerk in charge of the vessel, viz.: “Please deliver to Yiet-or & Achelis sixty-nine packages merchandise per steamship Kenilworth, marked as follows.” The marks comprised the marks by which all the twelve bales were designated upon the bills of lading.
No agent of plaintiffs, nor any one of them, saw the manifest of the cargo, that had been made in Ant
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werp and filed in the custom-house, on arrival of ship.
Plaintiffs’ clerk, after receiving the delivery order, entered the goods at the custom-house and paid the duties on them all. The duties upon the two bales amounted to the sum stated in the complaint. He also obtained the custom-house permit, certifying that duties had been paid, and stating, “ Permission is accordingly given to land” the goods. This was on July 18. On the same day, plaintiffs’ clerk delivered to the custom-house inspector in charge of the steamship the custom-house permit to land the goods, and to a carman the delivery order for the clerk at the dock. The carman did not receive the two bales. The defendants were not able to deliver them. No facts were given to account for the non-delivery or any loss of them.
On the trial the defendants admitted that they were liable in the invoice value of the goods. The plaintiffs claimed for the invoice value $1,074.40 in gold, and interest from June 29, 1876, on first cause of action, and for the amount of customs duties $878.49, and interest from July 18, 1876, oh second cause of action. The court directed a verdict for plaintiff in both amounts, and judgment accordingly. The defendants duly excepted.
Benedict, Taft & Benedict, attorneys, and E. C. Benedict, of counsel, for appellants, urged:
I. The defendant admits the non-delivery of the two bales in-question, but pleads the limitation of its liability to the inmice price, as stipulated in the bill of lading. Of the benefit of this limitation it can be deprived only by allegation and proof of: 1. Fraud and deceit on the part of defendant, or its agent. 2. Conversion by the defendant. 3. Misfeasance or abandonment by defendant of the character of carrier (Magnin v. Dins-
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more, 70 N. Y. 410 , 417). a. The complaint contains no allegation of fraud or deceit, or of any intent by defendant to defraud or deceive, nor was any proof thereof attempted. t. It contains no allegation of a conversion, nor was any proof thereof attempted, c. It contains no allegation of misfeasance, or of an abandonment of the character of carrier, by the defendant, nor was any proof thereof attempted. The evidence is uncontradicted that everything done by the defendant and its agents was done without intent to defraud or deceive, and in good faith, d. It contains no allegation of any facts from which fraud, deceit, conversion, misfeasance, or abandonment of the character of carrier could be drawn inferentially, nor was any evidence given tending to show such facts, e. The pleadings and proofs disclose simply non-delivery of the goods. Such non-delivery unexplained amounts in law to negligence, rendering the carrier liable under the till of lading, but confining his liability to the terms thereof (Magnin v. Dinsmore, 70 N. Y. 410 , supra. See Marsh v. Falker, 40 Id. 567).
II. It is alleged in the complaint that the plaintiff, “relying upon the aforesaid notice received from the defendant,” (viz., the advertisement of the arrival of the vessel in the Journal of Commerce, ‘ ‘ and upon the manifest of the defendant filed in the custom-house, at the port of New York, as aforesaid, and the other acts and doings of the defendant, paid said duty as aforesaid.” But neither the notice so advertised, nor the manifest filed, nor any of the acts or doings of the defendant, constituted any representation as to these goods upon which the plaintiffs had any right to rely, nor was any such representation intended thereby by the defendant or its agents. 1. The notice advertised was simply a notice that the vessel had arrived, and would begin to discharge at a specified time. 2. The manifest filed was made up from the bills of lading, not
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from actual inspection of cargo, which was impossible. This fact was known to Fisher, plaintiffs’ clerk, who represented the plaintiffs in this matter. The manifest' was therefore (as plaintiffs knew) only a list made up from bills of lading, and constituted no representation. 3. The delivery order was made up from the bills of lading, and nol/from or after an inspection of the cargo : that fact was known to plaintiffs’ clerk. It constituted no representation ; it was simply a notice to the dock-clerk that freight had been paid, and he was at liberty to deliver. 4. The delivery order had no reference to the payment of duties. The defendant,and its agents had no knowledge or idea that it would be used with reference to payment of duties. The evidence is uncontradicted that neither the defendant nor any of its agents knew that the two bales were missing until after the filing of the manifest, the giving of the delivery order, and the unloading and delivery to plaintiffs of the goods consigned to them. The bill of lading is not a representation ; it is a promise or contract to carry, but not a representation that defendant had carried and could deliver. Neither the manifest, the notice of arrival and discharge of vessel, nor the delivery order was a representation that defendant had carried and could deliver.
III. Nothing was done or said by defendant or its agents, constituting a representation upon which the plaintiff had the- right to rely in paying duties (see Alston v. Mechanics’ Mutual Ins. Co., 4 Hill, 329 ). Fisher, plaintiffs’ clerk, who obtained the delivery order, and who attended to the entry of the goods and payment of duty, admits that he knew that the manifest and the delivery order were made up from the bills of lading, and not from an inspection of cargo ; it follows, then, that he did not consider them, or either of them, as a representation that the goods were on the vessel and could be delivered.
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IV. Plaintiffs did not rely upon any representation in paying duties.
V. 1. The defendant is not estopped from setting up the limitation of liability contained in the bill of lading. The bill of lading does not constitute an estoppel (Bates v. Stanton, 1 Duer, 79 ). Nor does the manifest, nor the delivery order, as they were simply transcripts from the bills of lading. 2. An equitable estoppel is not created by any representation or admission, unless the party' making such representation or admission means it to be acted-upon, and it is acted upon accordingly (Freeman v. Cooke, 2 Exch. R. ; Young v. Bushnell, 8 Bosw. 1 ). 3. All the elements necessary to constitute an equitable estoppel are wanting (see Dezell v. Odell, 3 Hill, 215 , and cases cited; Brown v. Bowen, 30 N. Y. 519 ; Baker v. Un. Mut. Ins. Co., 43 Id. 283; Kingsley v. Vernon, 4 Sandf. 361 ).
Blatchford, Seward, Griswold & Da Costa, attorneys, and C. M. Da Costa, of counsel, for respondents, urged:
I. The exception to the direction of a verdict under the first cause of action fails, of course, because the answer admits the liability therefor.
II. The court was equally justified in directing a verdict for the amount claimed under the second cause of action. On the undisputed evidence, the direction was right, and the plaintiffs were entitled to recover, on the elementary principle of an estoppel in pais, for it appeared beyond question that on the ship’s manifest, filed in the custom-house, the defendant entered all of the bales; that the defendant gave to plaintiffs a delivery order, representing that all of the bales of goods consigned to them were on board; that the plaintiffs would not have entered all the goods, or paid the duties on all the goods, had the defendant, at the time the delivery order was given, informed them that two of the bales were short, or had so stated on the
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said manifest or delivery order, or had given them any reason so to believe; that relying upon the statements contained in such delivery order, and the silence of the defendant in that respect, the plaintiff did enter the twelve bales, and did pay the duties thereon; that, subsequently to such payment, the defendant discovered its inability to deliver all of the goods, two bales being missing and wholly unaccounted for; that application was made to the government to refund the duties paid on such bales, which were never received by the plaintiffs, and that the government refused so to refund unless it were furnished with positive proof that the two missing bales had never been shipped on the Kenilworth at Antwerp, which evidence was alone in the possession of the defendant; and that the defendant, though requested to furnish such proof, has refused, and (in view of the testimony of its officer above alluded to) has willfully refused so to do. On these facts, therefore, the well-known principle of an estoppel in pais is applicable, and it is on that ground that the plaintiffs have proceeded, and seek to enforce the liability of the defendant (2 Pars. on Cont. 6 ed. 793; in note q, on same page, all the authorities are collated; Costello v. Meade, 55 How. Pr. 356 , 358; Cornish v. Abington, 4 H. & N. 556, per Bramwell, J.; Continental Bank v. Bank of the Commonwealth, 50 N. Y. 575 ). It was held in Blair v. Waite ( 69 N. Y. 113 ): 11 It is not necessary to an equitable estoppel that the parties should design to mislead. It is enough if the act or declaration was calculated to, and did, in fact, mislead another, acting in good faith and with reasonable diligence.” And the same doctrine was reiterated in Morgan v. Railroad Co. ( 96 U. S. 716 ); also in Merchants’ Bank v. State Bank ( 10 Wall. 604 , 645). “It seems,” says Bigelow on Estoppel (p. 170), “to be settled that a party’s ignorance of the truth of a representation made will not remove the estoppel if he
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was bound to know the fact, or if his ignorance is the result of gross negligence.” It will hardly be claimed that a common carrier is not bound to know the fact whether or not he has lost goods; and certainly his utter ignorance on the subject is gross negligence within all the authorities.
III. The proof required by the government before it would refund the duties was exclusively within the power of the defendant to furnish. The plaintiffs applied to the defendant to furnish it, and it has failed to do so. The defendant has therefore been willfully negligent in the premises. The testimony of the defendant’s agent, Mr. Colton, that, so far as he knows, all efforts to get any trace of the missing bales have been unavailing, will not militate against our contention. Had the witnesses, who, it is to be presumed, were the only persons who knew anything about it, been examined, or tendered for examination, the truth would probably have been arrived at, and the liability of the defendant either absolutely fixed, or the proof furnished to the government, on the production of which it had expressed its willingness to refund the duties paid for the missing bales.
IV. But, irrespective of the foregoing, the direction of the court was right. The bill of lading did not in terms exempt the defendant from loss arising from negligence. The clause of the bill of lading limiting the liability, in case of damage, loss or non-delivery, to an amount not to exceed the invoice value of the goods, does not apply to cases of loss by negligence; because, neither by such terms, or by any other terms contained in the bill of lading, is a loss by negligence exempted or limited. It is perfectly well settled that, while a carrier may exempt himself from loss by negligence, he must, if he so desires, exempt himself by positive words, and that general words, limiting his liability, will not be construed to include losses in
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curred by negligence (Magnin v. Dinsmore, 56 N. Y. 168 ; Mynard v. Syracuse, &c. R. R., 71 Id. 180 , where all the authorities are collated). The defendant being unable to furnish any proof of the loss of the two bales,' or to account for their loss in any way, was prima facie guilty of negligence (Steers v. Liverpool, N. Y. &c., Co., 57 N. Y. 1 ; Fairfax v. New York Central & Hudson River R. R. Co., 67 Id. 11 ).

It was agreed at the argument, that if, upon the plaintiff’s paying the duties in question, he had no cause of action for the duties, the subsequent omission or neglect of defendants to furnish proof sufficient to obtain from the government a repayment, did not give an action.

The learned counsel for appellant argued that the verdict could be maintained if the proof showed such negligence in respect of the loss of the two bales, that the plaintiff would be entitled, in an action on the bill of lading, or on the case, to recover the full value of the goods, which would include the invoice value and the duty combined ; without inquiring into the validity of this proposition, the case shows that the recovery of the duties was not placed on that ground. The complaint made two causes of action. Damages were' stated and calculated on the trial, as if arising from two causes of action. There were, in fact, two recoveries. The general course of the trial shows that no claim was then made, that in an action on the bill of lading, the plaintiff was entitled to recover, under any measure of damages other than that stated in the contract', viz.: the invoice value of the goods. Neither the law nor the facts were investigated in a manner appropriate to a claim that negligence on the part of the defendant would give greater damages than the invoice value.

Another ground on which the judgment was maintained by the learned counsel for the respondents, was

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that the conduct and silence of the defendants’ agent, together with the contents of the delivery order issued to the plaintiff, led him to believe that the goods had actually arrived and were ready to be delivered, and, relying upon that as a fact, to pay the duties on them to the United States. It was claimed that the rules that prevail in an estoppel in pais were to be applied to this state of facts, and made the defendant liable for the amount of duties.

It attracts attention at once that an estoppel operates to prevent a party from asserting the non-existence of a fact, that he formerly asserted did exist. If the effect of the acts, or silence of defendant’s agent, was to lead the plaintiffs to believe that the cloth had arrived, an estoppel would prevent the defendants from showing that they had not arrived. It is only necessary to observe that such an estoppel would not be at all relevant to the case here.

It may be imagined, that, if the defendant was estopped to show that the goods had not arrived, then, in an action on the bill of lading, or rather on the case, for the two bales of cloth, the defendants might have to meet a claim that they, having the two bales, refused to deliver them, and were therefore liable for their conversion and their value at the time and place of conversion. Of course, under the views that have been expressed, as to what was the real nature of the action, and what the trial of it involved, it is impossible to pass upon such a question here. A cause of action cannot'be split, and if there be any recovery upon it, the rights of the parties are finally settled. Nevertheless, an inquiry as to the right of the defendant on the case made, will involve considerations that would be pertinent to the claim of estoppel, on the same facts in any action.

I will ask if the facts below showed certain things, that must exist, to create liability on the part of de

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fendant ? Is it proven that the defendant’s agent did or said anything which was equivalent to an. assertion that the cloth had arrived and was ready to be delivered, or was the delivery order and the silence of the defendant’s agents calculated to lead the plaintiff to believe that the defendant’s agent meant to represent that he knew that the cloth had actually arrived ? Did the defendants intend that their act or silence should influence the plaintiffs in the matter of paying the duties, or did they know or have sufficient reason to believe that the plaintiff meant to be influenced in paying the duties forthwith, by what the defendants did, in issuing the delivery order ?

It is undoubtedly law, that it is not necessary to an equitable estoppel that the party should design to mislead. It is enough that the act was calculated to mislead, and actually did mislead, the party while acting in good faith and with reasonable diligence. This was said to be the law in Blair v. Wait ( 69 N. Y. 116 ), and to support it the Mechanics’ & Traders’ Bank v. Hazard ( 30 N. Y. 226 ), was cited. In Blair v. Wait, the rule was applied to the fact that plaintiff had said to one of the defendants, that a third person was the owner of a judgment, and that if the defendants settled with him it would be all right, and accordingly the defendants did settle the judgment. Thereupon the plaintiff was estopped from an action on the judgment, although he may have been the owner. It was clear that the plaintiff intended that what he saiff should influence and be acted on by the defendants.

In Continental Bank v. National Bank of the Commonwealth ( 50 N. Y. 577 ), Judge Folgker said • that there need not be an intention to mislead, and applied the principle to the assertion of plaintiff’s teller, that a check having on it his forged certification was all right. The facts spoke for themselves that the teller intended that the clerk who asked him the question

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should act on what he answered. Judge Folger cited In re Bahia & S. P. Railway Co. (Law R. 3 Q. B. 584), saying it held that if a representation is made with the intention that it shall be acted upon by another, and he does so, there in an estoppel.

In Manufacturers’ & Traders’ Bank v. Hazard ( 30 N. Y. 226 ), the case above cited, Judge Johnson said it was not necessary to an equitable estoppel that the party should design to mislead. The facts were that the defendant had written his Christian name, as indorser of a note, in such a manner that the notary in sending notice of protest read it A. C. instead of M., which was the real initial. The defendant was held to be estopped from setting up a defense that the notice was not addressed to him. The defendant knew and intended that whoever should act upon his indorsement would act upon it as he wrote it.

In Brown v. Bowen ( 30 N. Y. 541 ), Judge Mullin said, that to establish an estoppel in pais it must be shown that the person sought to be estopped had made an admission or done an act with the intention of influencing the conduct of another, or that he had reason to believe would influence another.

In Payne v. Burnham ( 62 N. Y. 72 ), Church, Ch. J., said, an indispensable requisite of an estoppel in pais is, that the conduct or representation was intended to influence the other party. The same language has been used in Wilcox v. Howell ( 44 N. Y. 398 ), Welland Canal Co. v. Hathaway ( 8 Wend. 483 ), Dezell v. Odell ( 3 Hill, 222 ), Reynolds v. Lounsbury (6 Id. 534), Carpenter v. Stilwell ( 11 N. Y. 61 ), Otis v. Sill ( 8 Barb. 108 ).

The actions in the nature of deceit are founded upon intentional misleading. Apart from fraud, there would be no foundation for responsibility in cases of words spoken, of a legal kind, unless the person speaking knew or believed that another was about to act

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upon what he said, and therefore, when he spoke, intended to influence the other. The evidence as to this intention is in the facts of the case, and, as one of them, the character and form of the matter claimed to be an estoppel. If the character is such as is likely to influence, the presumption is that the probable effect was intended. An intention to influence is consistent with no intention to mislead.

Undoubtedly, if the person charged referred in his speech or conduct to one object, disclosed, and there is another undisclosed object not brought to his attention directly or circumstantially, an equitable estoppel would not operate to bind him for the consequences connected with the undisclosed object. There could be no intention to influence as to the undisclosed object. As against him, no person could claim that he was justified in thinking that the other knew or was bound to know that he would act in reference to a matter not disclosed. The one alleging the estoppel as part of the burden of proof, must show to what subsequent course the alleged estoppel was meant to refer.

It will, no doubt, be admitted that the foundation of an estoppel is the assertion of the existence of a thing as a matter of knowledge, to this extent, at least, that no matter how positive in form the assertion is, nevertheless, it does not operate as an estoppel, if it appears that in substance the assertion is an inference from something, and the person addressed knew, or had reason to know so.

The facts were, that when the plaintiffs’ clerk applied to defendant’s clerk for a delivery order, he stated nothing as to his object, excepting that he wanted it. He chose his own time for the application. There was nothing to except the incident from the usual methodical routine of business. He was entitled to receive the delivery order at any time he saw. fit to ask for it. The main object in issuing delivery orders

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was to show the dock-clerk that, so far as the company was interested, he might allow carmen to take away goods, or, in other words, that freight had been paid. To the most of persons who held bills of lading, delivery orders were not issued before the customhouse permit was shown, but to persons of character and responsibility, and among them the plaintiffs, it was usual, as matter of convenience, to issue the delivery order whenever it was requested, before or after the custom-house permit was obtained. The freight in this instance had been paid or secured at Aix-la-Chapelle, and the defendants would have had no reason to delay issuing the order. Indeed, in the present case, there was no reason for the defendants’ clerk to think, if the matter of duties had come up to his mind, that they had not already been paid. With not uncommon activity, the duties might have been paid. The defendants’ clerk had no reason to think of what had been or would be the plaintiffs’ conduct as to duties. And the delivery order might have been asked for before the hatches were open or the ship really moored to the dock. So proof was given as to this matter.

The substance of the face of the delivery order was a release or waiver of any claim by defendants to detain the goods. Addressed to its clerk, it was necessary to give the number of the packages, and the marks upon them, to prevent the goods of others being delivered by mistake. If there were no chance of such an accident, the order might as well have said all the plaintiff’s goods, or all the cargo, or anything equivalent. Its purpose was known to plaintiffs, and the meaning of its terms must be found from its intended operation. It was permissive and in the nature of a release ; there is no more reason for supposing that there was an assertion that the particular goods had arrived and were on hand, than there is in the case of a quit claim of land

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with no covenants, for saying that it is an assertion that there is an estate in the laud. A controlling and most significant fact is that to the knowledge of both clerks there was an unexecuted contract between the principals, the consummation of which was to be in the future, viz., the goods themselves were thereafter to be delivered or demanded. Perhaps the clerk had no power to waive any of defendant’s rights under the contract; but if he had, the transaction of giving the delivery order was evidently not intended by either to affect the contract rights of the parties as it would be affected by an admission that the goods had actually arrived.

I am further of opinion that the testimony shows that the defendant’s clerk did not mean to assert that he knew the cloth had in fact arrived. Plaintiffs’ clerk himself testified, that he thought defendant’s clerk could not have been on the vessel to see if the goods were on board. The witness said, that was improbable. It was more than improbable. There was only a bare possibility of the improbable incident, that the clerk, who had no duties connected with the ship, should have seen the ninety-nine pieces specified in the order. When he was applied to for the delivery order, he forthwith and in the presence and to the knowledge of plaintiffs’ clerk, took from a list in his possession the marks of the goods. This list had been made from counterpart bills of lading in defendant’s possession. There was no proof that plaintiffs’ clerk believed, or had, from anything said or done by defendants, reason to believe, that the list was of goods that had actually arrived. It may be here said, that plaintiffs’ clerk neither saw nor acted on the manifest filed in the custom-house.

The published notice to consignees to take their goods, &c., cannot be justly deemed to have led any particular consignee to believe that his particular

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goods had arrived. While it incited consignees to prompt action, it did not suggest anything that would involve the consignees omitting to find out that goods had arrived before paying duties upon them. It does not appear that the placing goods in public store was so expensive, that to avoid it an owner would pay duties even before he had ascertained that the goods were on board.

It appeared from the testimony that defendant’s clerk acted with reference only to the plaintiffs having an unembarrassed opportunity to get their goods whenever they should be prepared to receive them, and with no reference to the payment of duties, and no intention to influence the plaintiff as to that payment. The plaintiffs’ clerk did not disclose, nor did the cir* cumstances, that he meant to act upon the delivery order’, as evidence of actual arrival, and as making it safe for him to proceed to the payment of duties. He had no reason to believe that the defendant’s clerk intended to influence him in that regard. The two things had no necessary or probable connection.

The plaintiffs’ clerk was not justified in believing that the other meant to assert that he had any knowledge of an actual arrival. The latter evidently was acting in what he did on a supposition or an inference.

The facts show that the necessary constituents of an estoppel in pais that have been specified, did not exist in this case, and that the plaintiff did not have the right to recover the amount of duties, even if the other facts were sufficient.

I am of opinion that the amount of the judgment should be reduced, in the sum of $878.49, and interest from July 18, 1876, and affirmed as reduced. As the appeal was from the whole of the judgment, neither party should have costs of this appeal, in case such an order is entered. But if the defendants wish a new-trial, then the appellant should have costs of the appeal.

Van Vorst, J., concurred.

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