delivered the opinion of the court.
Goods were deposited by Benjamin & Co. with Mepham to keep for them. Subsequently, Benjamin & Co. transferred the goods to Dufour, and surrendered to Mepham their warehouse receipt, who then issued another receipt to Dufour for the same goods. Mepham removed from the warehouse in which these goods were stored to another, but left these goods (and some of their own) in the old warehouse, and the person who succeeded them in the possession of the warehouse delivered the goods to Benjamin & Co. Dufour, having demanded the goods, sued Mepham for their non-delivery, who set up the facts as above stated as an excuse.
This is not a case of the negligence of the warehouseman, but of a delivery to the wrong person. Either Mepham voluntarily abandoned the possession and care of the goods, leaving them to be taken by whoever might choose to do so, or the person who succeeded Mepham in the warehouse must be considered as the agent of Mepham, and his wrongful act in delivering the goods to Benjamin & Co as Mepham’s act.
Judgment, having been given for the plaintiff, is affirmed.