Hathorn v. . Ely

28 N.Y. 78 | NY | 1863

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] If this case were to be decided by the rules which determine the ordinary duty of common carriers, when consignees refuse or neglect to receive goods, there could be no doubt that the plaintiff's responsibility as a carrier remained at the time when the flour was injured, and he would be held liable for such injury, though it happened without his fault. The refusal of consignees to receive goods, authorizes the carrier to relieve himself from the stringent liability which he is under as such, by depositing the goods in some suitable warehouse, if any such can be found, or by making some equivalent disposition of them, for the use of the owner. Occupying the position of carrier merely, his responsibility as such continues until this is done. (20 N.Y. Rep. 259.) But it would not be a reasonable construction of the contract upon which the plaintiff received the flour, to hold that he was to remain an insurer of its safety for ninety days after the duty of carrying it should be completed; in case the owner elected to have it remain that length of time upon the boats. Its fair interpretation is, that when the duty of carrying should terminate, an election by the owner to postpone the delivery for ninety days, would convert the carrier into a mere bailee. When, therefore, the flour reached its destination in good order, and a delivery was tendered to the consignees, their refusal to receive it put an end to the plaintiff's responsibility as carrier, and from that time he held it as the bailee of the owner. He had a right to treat the refusal of the consignees as equivalent to an election on the part of the owner to have the flour remain on the boats during the ninety days; although he might, in the absence of an express election, have relieved himself from all responsibility, by placing it in store. Whether the plaintiff held the flour in pursuance of his contract, to allow it to "remain on board ninety days," or, as waiting the election of the defendant whether it should so remain, he was required to exercise ordinary care only, in its protection, and was not liable for an injury to it which occurred without fault on his part.

The judgment of the Supreme Court should be affirmed.

All the Judges concurring,

Judgment affirmed.