108 Ky. 113 | Ky. Ct. App. | 1900
Opinion o<f the coubt by
Aettbming.
The appellee, in the first paragraph of its petition, avers that it sold and delivered to A. R. Camp' & Co. a certain ■bill of goods of the value of more than $400. In the second paragraph it is averred that the goods were delivered to a common carrier, and by it to the Louisville & Nashville Railroad Company, which w>as to deliver them to the consignee, A. B. Camp & Co., but had, in violation of its contract, delivered them to one Hogan, who was not authorized to receive them. In the third paragraph it is averred that the company had either delivered the goods to A. B. Camp & Co., or had delivered them to some person not authorized to receive them; that it did not know which one of the allegations was true. By the first paragraph appellee sought to recover from A. B. Camp & Oo., and by the second paragraph from the Louisville & Nashville Railroad Company.
The court erred in overruling motions by defendants to
The facts with reference to the transaction are substantially these: The appellee was a corporation doing business in Indiana. Orders were received by it for certain goods purporting to have been sent by A. B. Camp & Co. The goods were shipped to A. B. Camp & Co. After they were transported by the Louisville & Nashville Eailroad Company to the point to which they were shipped, A. B. Camp informed the agent of the railroad company that they had not ordered the goods, and would have nothing to do with them. The agent informed him that one Hogan had ordered them to be shipped to Madisonville, Ky., — a point other than the one designated in the order to the appellee, and to which they had been shipped. Notwithstanding A. B. Camp refused to have anything to do with the goods, and gave notice that he had not ordered them, the railroad company shipped them to Madisonville, Ky., and there delh-ered them to Hogan. There is no evidence in the case that Hogan was a member of the firm of A. B. Camp & Co.
It is urged on behalf of the railroad company that the right to maintain the action was not in the consignor, the appellee, because it is claimed that, if any cause of action exists, it is in favor of the consignees. Granting the rule to be that- a consignee, nothing else appearing, is presumed to be the owner of the goods, and the right of action
Appellant invokes the aid of a rule announced in section 1526, Elliott on Railroads, which is as follows: “Where there are two persons in the same city, and one of them, being a swindler, induces the shipper to sell goods to him in the belief that he is the other, who is a reputable merchant, it is held that the carrier is not liable for delivering the goods to the swindler to whom they are directed.”
The text seems to be supported by Samuel v. Cheney, 135 Mass. 278. In that case the swindler induced the shipper to sell goods to him in the belief that he was another, and a reputable merchant, and the goods were delivered to the party who bought them. In this case the goods were ordered and shipped in the name of a firm, and the railroad company was advised by that firm that it had not ordered the goods, and it made a misdelivery of them with the knowledge of that fact. We do not think the rule quoted has any application to this case. On the
Petition for rehearing filed by the appellant and overruled.