Jobbitt v. Goundry

29 Barb. 509 | N.Y. Sup. Ct. | 1859

By the Court, Balcom, J.

It was held, in Shepard v. De Bernales, (13 East, 565,) that the usual clause in a bill of lading, engaging the master of the ship to deliver the goods to the consignee or his assigns, he or they paying freight for the goods, is introduced for the benefit of the master only, and not for the benefit of the consignor; and that therefore the master is not bound to the consignor to withhold the delivery of the goods, unless the consignee or his assigns pay the freight. And it seems to be established that a clause in a bill of lading, which directs the carrier to collect the freight of the consignee of the goods, on delivery, does not, in case of the carrier’s neglect to collect of him, discharge the consignor’s liability to pay the same. (Collins v. The Union Trans. Co., 10 Watts, 384. Angell on Carriers, § 397.) It follows that the delivery of the defendants’ goods to Dorr, by the plaintiffs, without requiring him to pay the freight thereon, or the neglect pr failure of the plaintiffs to collect such freight of him, does not affect the defendants’ liability to them for it; and that such facts constitute no defense to this action.

The defendants’ counsel insists that the taking of Dorr’s check, by the plaintiffs, when the goods were delivered, under the circumstances disclosed by the evidence, was a satisfaction of the plaintiffs’ claim for the freight, as against the defendants. The check did not operate as a satisfaction of the claim, unless the fair inference from the evidence is that the plaintiffs agreed that it should be received as payment of it. (Noel v. Murray, 3 Kern. 167. Davis v. Allen, 3 Comst. 168. Vail v. Foster, 4 id. 312.) And it seems to me to be very clear that the plaintiffs could not have supposed the check was to operate as payment of the freight, unless the Union Bank should pay it when presented. It is absurd to say that a creditor regards his demand as paid, when he receives a check for it from his debtor, on a bank. I think, in ordinary transactions, the creditor has not the least idea that his demand is paid, though he may receipt it as paid, upon receiving the check of the debtor or of a third person, on a bank, for the same. He cannot be supposed to regard the check as payment, or as a satisfaction of his demand, when the drawer has no funds in the bank to meet it, and the bank refuses to honor it. And in this case, I am of opinion the evidence does not warrant the conclusion that the plaintiffs received Dorr’s check, in satisfaction of their claim against the defendants for the freight, whether it should be paid by the bank or not; but that the fair inference from the evidence is that it was not agreed it should so operate unless the bank should pay it on presentation. (See 5 Wend. 490.)

[Otsego General Term, July 5, 1859.

Mason, Balcom and Campbell, Justices.]

The defendants’ counsel now claims that the verdict was improperly ordered for the plaintiffs, for the reason that the plaintiffs did not cancel or surrender the check to the defendants at the trial. This position is sufficiently answered by the fact that no such objection was taken at the trial, where it could have been obviated.

X am of opinion, for the foregoing reasons, that the plaintiffs are entitled to judgment on the verdict, with costs.

Decision accordingly.