Joslyn v. Grand Trunk Railway Co., 51 Vt. 92

Joslyn v. Grand Trunk Railway Co.

51 Vt. 92 | Vt. | 1878

The opinion of the court was delivered by

Ross, J.

The two car-loads of corn in controversy were shipped from Chicago over the defendant’s railway by J. B. Nutting & Co. to Island Pond to their own order, with directions to the defendant to notify J. C. Page, West Charleston. The defendant on its delivery book treated J. C. Page as the consignee, and delivered the corn to Page’s teamsters without any order from Nutting & Co. This was a delivery to the wrong person, which rendered the defendant liable for the value of the corn to the owner thereof, unless such owner’s conduct had induced the misdelivery by the defendant. Nutting & Co., when they shipped the corn, made a draft for each^ car-load on J. C. Page, in favor of the Third National Bank of Chicago, payable at the Derby Line National *96Bank, to which was attached a bill of lading, or shipper’s receipt, of the corn indorsed by them in blank, and the Third National Bank duly forwarded the drafts with the bills of lading attached to the Derby Line National Bank for collection. Page was not at home when the corn and drafts with bills of lading reached their respective destinations. The plaintiff, at the request of Page’s clerk, purchased the drafts with the bills of lading attached, intending to hold the corn for the payment of the drafts. By this purchase the title to the corn became vested in the plaintiff. Davis v. Bradley, 24 Vt. 55; Davis v. Bradley, 28 Vt. 118; Tilden v. Minor, 45 Vt. 196. Hence, the question on the report of the referee is, whether the conduct of the plaintiff induced the misdelivery, or was such that he is estopped from taking advantage of such misdelivery. We say this is the question in the case, for the facts reported do not sustain ■ nor warrant the claim made by the defendant that a delivery to Page was a delivery to the plaintiff. By the contract of shipment the defendant was bound to deliver the corn to Nutting & Co., or some one holding their order for it. That person was the plaintiff. The defendant treated Page as the consignee and made delivery accordingly. This was negligence on the part of the defendant. Blumenthal v. Brainerd, 38 Vt. 402; Winslow v. Vt. & Mass. R. Co. 42 Vt. 700. Such negligence as rendered it liable to the plaintiff for the value of the corn, unless the negligence was excused by the conduct of the plaintiff. The referee has not reported an act which the plaintiff did or omitted to do which led the defendant to treat Page as the consignee of the corn, or which induced it to make the delivery to Page’s teamsters. The delivery of each carload of corn was made by the defendant to Page’s teamsters, and all the corn taken from the cars to Page’s store-house at Island Pond several days before the plaintiff knew of any such delivery. He knew of the misdelivery of each car-load several days after it actually took place, and after the teamster had commenced drawing the corn to West Charleston, and using it up in Page’s business. It would have been neighborly for him to have notified the defendant of the misdelivery as soon as he learned of it, but he was under no legal duty to give such information. It was the *97defendant’s duty to see to it that it delivered the corn to the owner, the plaintiff. When he knew of the misdelivery, the liability had been incurred through the negligence of the defendant’s servants. Page already had the corn. The defendant could not have delivered it to the plaintiff if he had called for it. No doubt, from his relations to Page, the plaintiff was rejoiced to have Page receive the corn through the negligence of the defendant’s servants, and if he had done anything to induce the misdelivery, if he had even stood silently by, and seen the misdelivery, this court would not have been slow to have given effect to such misleading acts or silence, by way of estoppel. But the fact is potent that the defendant’s servants took Page for the consignee, and so the defendant was misled by its own servants. The case furnishes no facts to which the doctrine of estoppel is applicable.

Judgment affirmed.