8 Cow. 301 | N.Y. Sup. Ct. | 1828
The plaintiffs sued the defendants before a justice; and recovered $48 43 damages and costs. The defendants appealed to the common pleas, where a trial was had, and the case was as follows: The suit was brought for work and labor, in transporting certain goods from Troy to Eochester, and for money enclosed by the plaintiffs for the defendants, to a forwarding company for transporting the same goods from New-York to Troy.
The goods arrived in Eochester in May and June, 1826, when the plaintiffs presented to the defendants their bill for transporting the goods from Troy to Eochester, and a charge for money paid to Patterson and Hart for transporting them from New-York to Troy, to which the defendants made no objection. After the goods were ^delivered to the defendants, they refused to pay for transportation, unless the plaintiffs would pay for damage which the goods had received. The plaintiffs refused to make any allowance for the damage, as it appeared to have been sustained before the goods came into the hands of the plaintiffs, at Troy. On the part of the defendants, it appeared in proof that the goods were delivered to one Palnum, as agent for Hart & Co., (Pattison and Hart,) under the following contract : “ Eec’d on board the Troy line tow boats, Pittsburgh, from Hammet and Hone, for account of Messrs. E. E. Smith & Co. (defendants) of Eochester, 30 boxes lemons and 20 boxes oranges, and 6 do. pipes, marked E. E. Smith &' Co., in good order, which goods we promise to deliver to Messrs. Smith & Co., Eochester, in like good order, at the usual rates of transportation.” Dated at New-York, May 13th, 1826; and signed by E. Palnum. There was no other connection between Hart & Co., who received the goods in New-York, and the plaintiffs, than a general understanding that the two lines should assist each other to freight. It further appeared, that it was the custom for the plaintiffs’ line and some others, to receive goods from the transportation lines on the Hudson, with which they have
In my judgment, the court of common pleas erred. It should have been submitted to the jury to see whether there was not a promise to pay the plaintiff’s charges.
The plaintiffs received and transported the goods in question in the way which was usual upon the canal. They had no knowledge of the contract entered into by the defendants with Hart & Co. And before they delivered the goods, they presented to the defendants their bill *of charges, not only for their own transportation of them, but for the money paid to Hart & Co. The defendants, at that time, made no objection. They received the goods without disclosing to the-'plaintiffs that Hart & Co. were bound to deliver the goods in question. They could not consider the plaintiffs as the agents or sub-contractors of Hart & Co.; for the plaintiffs had made the account in their own names, and had charged for moneys paid Hart & Co. for transporting the goods from Hew York to Troy. It seems to me, therefore, that the defendants have, by their acts, waived any right which they had, of refusing payment of freight to the plaintiffs. They were bound in good faith to have stated to the plaintiffs the relation in which they stood to Hart & Co. If the goods were damaged, the defendants shoul have then asserted their claim to damages. But having received their goods with full knowledge of all the facts, without disclosing those facts to the plaintiffs, there was sufficient grounds for a jury to presume a promise to pay the plaintiffs’ charges.
The defendants have their remedy by action against Hart & Co. for the damage done their goods while in possession of the former.
Judgment reversed.