33 N.Y. 610 | NY | 1865
The defendant undertook to transport the flax to Albany, and to forward it thence to New York by the People's Line of steamboats. On the refusal of that line to receive it, the defendant's obligation as a carrier ceased; and if it incurred any further liability, it was in the character of agent for the owner of the property. In the absence of instructions as to the mode of transportation from Albany, it owed no duty to the plaintiff, beyond the delivery of the property, in the usual course of business, to safe and responsible *612 carriers for transmission to its destination. (Brown v.Dennison, 2 Wend., 593; Van Santvoord v. St. John, 6 Hill, 157.) But when the forwarding agent is instructed as to the wishes of his principal, and elects to disregard them, he is guilty of a plain breach of duty. When he sends goods in a mode prohibited by the owner, he does it at his own risk, and incurs the liability of an insurer. (Ackley v. Kellogg, 8 Cow. 225.)
It appears in the present case, that the contract was made with the freight agent of the defendant, who suggested that it would be better to forward the hemp by tow-boat from Albany; but the plaintiff replied in substance, that it was so late in the season that he would not send it, unless it could go by the People's Line. This proof tends to show that the defendant received the property, with an express understanding that the hemp was not to be forwarded to New York unless by the People's Line. If this was so, the defendant was clearly liable. On the refusal of the steamboat proprietors to receive the property, the company should either have communicated the fact to the plaintiff, and awaited further instructions, or it should have relieved itself from liability by depositing the hemp for safe keeping in a suitable warehouse. (Forsyth v. Walker, 9 Barr, 148; Goold v.Chapin,
There is a class of cases in which an agent is justified, by an unexpected emergency, in deviating from his instructions, where the safety of the property requires it. In this instance no such exigency arose. The only inconvenience which would have resulted to the owner, from compliance by the carrier with his known wishes, would have been mere delay in transmitting the hemp to market; and he had notified the company that he would rather submit to this delay, than to the hazard of tow-boat transportation at the close of the season of navigation. The primary duty of the agent is to observe the instructions of his principal, and when he departs from these, he must be content with the voluntary risk he assumes. (1 Pars. on Cont., 69;Forrester v. Boardman, 1 Story, 43; Ackley v. Kellogg, 8 Cow., 223.) *613
The evidence would have authorized the jury to find that there was a breach of duty by the defendant, and the nonsuit was therefore erroneous.
The judgment should be reversed, and a new trial should be ordered, with costs to abide the event.
All the judges concurred in the foregoing opinion, except BROWN and CAMPBELL, JJ., who dissented.
Judgment reversed, and new trial ordered.
