29 Ind. 27 | Ind. | 1867
Stack sued the appellant for the non-delivery of two bonds. The defendant answered by the general
We have examined the record, and think that the action of the court, in overruling the motions to suppress, worked no harm to the defendant. The portions of the depositions objected to consist, in the main, in convei’sations of the plaintiff' and his wife with Eveleth, a witrxess who assisted in sending the bonds from Chicago. These conversations do not tend to establish or contradict any material fact in dispute, in axxy manner affecting the merits of the case.
The evidence, which is made a part of the x’ecord, tends to show that the plaintiff' enlisted as a soldier in the army of the United States, in Lockport, Niagara county, New York, in September, 1864, and received, as a bounty from that county, two hundx’ed dollars ixx cash and the bonds described in the complaint, which bonds were immediately sent by express to the plaintiff’s wife, Hannah Stack, at Chicago, Illinois. In July, 1865, the plaintiff was mustered out of the service, near Albany, New York, and arrived home in Chicago on the 16th of that month. A few days before the plaintiff' got home, his wife appeared at the. px-ovost marshal’s office ixx Chicago, and after a conference with Captain James, the provost marshal, she was referred by him to the witness Eveleth, then a clerk in the office, with a request that he attend to her business. She then exhibited to Eveleth a paper purporting to be a telegram from her husband, James Stack, fx'orn number 64, Montgomery street, Albany, New York, directing her to send those bonds to Albany, Neto York, 64 Montgomery street. She handed Eveleth two bonds, answering the description of those in the complaint referred to, who, thereupon, inclosed them property and directed the package “To James Stack, 64 Montgomery street, Albany, Nao York.” He also indorsed on the back of the package
It is claimed, that admitting the liability assumed by the appellant to be that of a common carrier, yet that such liability terminated when the package was taken to 64 Montgomery street, and thereafter the appellant was only bound
It is not necessary, for the determination of this case, that we should pass upon either of these propositions. For in any event the liability of the company could not be less than that of a warehouseman.
In Devereux et al. v. Barclay et al., 2 Bar. & Ald. 702, it was held that trover will -lie for the mis-delivery of goods by a warehouseman, although such mis-delivery has occurred by mistake only. Nor will a delivery on a forged order protect the warehouseman. Lubbock v. Inglis, 1 Starkie 104, (2 En. Com. L. 215.)
The court below found, under the facts, that there was a want of ordinary diligence on .the part of the company in the delivery of the package. We think the evidence justifies this conclusion. But we are not inclined to apply this rule to the delivery of goods entrusted to warehousemen and others in like condition. There must be a delivery to the right person. It is always in' the power of the person having the goods in charge to identify the owner. If he suffer himself to be imposed on, it is bin own fault.
The judgment is affirmed, with costs,!\and three per cent, damages. ^