23 F.2d 667 | 3rd Cir. | 1928
In the court below the MaeAndrews & Forbes Company filed a libel against the United States, owning and operating the steamship Egremont, to recover the value of 10 cases of fox skins shipped on board said steamer, which skins the said vessel failed to deliver to consignee at port of delivery. That court, after final hearing, dismissed the libel, whereupon this appeal was taken.
The proofs are that the shipment duly arrived at Now York, the port of delivery, where the libelant had employed a firm of custom house brokers to arrange for entry of the shipment and delivery to them. The latter filed a bill of lading' in the custom house and selected the firm of Cantwell & Wall, truckmen, to receive and ^eliver the goods, and wrote a letter or order, addressed to the delivery clerk of the steamship, as follows: “Please deliver to our truckmen the 10 cases skins arrived SS Egremont and marked M. F. C. 1/10 and oblige.” This letter
The paper was evidently taken out of the unlocked drawer by some one other than Cantwell & Wall’s truckman, for on the following morning it was presented to the delivery clerk of the Egremont by a man who called for the packages with a truck, and on delivery of the order received the eases and carried them away. On whom shall this loss fall? The libelant says on the steamship. And this is the question involved.
Where, as hero, a fraud has been committed by a third parly, and the loss must fall on one of two innocent parties, the law lets it rest on the one whose act made possible the perpetration of the fraud. In that regard we are clear, as was the court below, that the fraud was made possible by those acting for the plaintiffs. The ship brokers were entitled to receive the shipment, and, had they applied to the delivery clerk, they would have received it. Instead of so doing, they signed a written order directing delivery to their trucking firm; but the order for this valuable shipment, instead of being delivered by that firm to its truckman, was left in an unlocked drawer in a public garage, where it was evidently found and abstracted by some person, who was thus by the lack of care of the plaintiff’s agent — and lack of due care is negligence — put in a position to wrongfully obtain the goods.
In the natural sequence of events the person who stole the order had only to provide himself with a truck, appear at the ship’s office, present the order, and receive the goods. This he did, and we find no lack of care in the ship’s delivery clerk in honoring
The decree below will be affirmed.
“New York, May 7, 1925.
“Delivery Clerk S/S Egremont, Foot of 57th St., Brooklyn — Dear Sir: Please deliver to our truckmen the 10 cases skins arrived S/S Egremont and marked M. E. C. 1/10 and oblige.
“Yours truly, Watt, Butcher & Co.,
“E. R. Reynolds.
“Truckmen — Cantwell & Wall.”