57 N.Y. 81 | NY | 1874
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That the consignee, who receives the cargo consigned under such a bill of lading as the one in question, is liable to the carrier for the freight is not questioned. (Merian v. Funck, 4 Denio, 110; Hinsdell v. Weed, 5 id., 172; Davis v. Pattison,
It, therefore, only remains to be examined, whether anything was done at the time of the delivery of the wheat, or subsequently thereto, by which the defendant was discharged from *86
a liability, which would otherwise rest upon it. The bill of lading provided that the cargo was to be delivered as "addressed on the margin, or to his, or their assignees or consignees upon paying the freight," etc. If the defendant, having no interest as owner in the wheat, had simply assigned the bill of lading, and directed a delivery to the assignee, of given an order for its delivery to the owner without accepting or receiving the wheat, it would not have been liable for the freight. (Merian v.Funck, 4 Denio, 110; Dart v. Ensign,
At the time the order was given, the cashier of defendant also said to the master of the vessel that "they (meaning the proprietors of the elevator), will pay your freight." This was an assurance that they would pay the freight, which the defendant had by its acceptance of the wheat, become liable to pay. The master was not bound to look to them for the payment of his freight. He was not directed to collect his freight before he made delivery, or to insist upon payment as a condition of delivery. He had the right to make delivery and then immediately call upon the bank for his freight, and was not bound to make any efforts to collect it elsewhere. The proprietors of the elevator paid a portion of the freight and gave their checks on a New York bank for the balance. There was no agreement that these checks should be taken as payment, and they did not, therefore, for an instant, operate as payment. The master could, therefore, immediately have tendered them back, and demanded payment of the balance of the freight. They could not operate as payment, unless paid, and there is no claim that after the master received the checks, there was a want of due diligence in presenting them for payment, or in giving notice of non-payment, and there is *87 no claim that after the receipt of the checks there was any laches on the part of the plaintiffs, which caused any damage to the drawers thereof or to the defendant. Hence, I am unable to see how the taking of the checks deprived the plaintiffs of any rights which they had against the defendant. The bank had made the proprietors of the elevator their agents, to receive and hold the wheat for them, and also to pay the freight, and the loss following from the conduct of such agents should fall upon it rather than upon the plaintiffs.
The judgment should therefore be affirmed, with costs.
All concur.
Judgment affirmed.