138 N.Y.S. 325 | N.Y. App. Term. | 1912
This case arose upon a submission of controversy to the Municipal Court, which rendered a judgment in favor of the plaintiff for three dollars and forty-five cents, from which the defendant appeals. The action was brought to recover this sum for additional freight charges under a consignment of peaches shipped by one Franklin, of Adairsville, Ga., to the defendant at the city of ¡New York. The peaches were shipped on or about June 27, 1907, at which time Franklin was concededly their owner. The goods were shipped to the defendant for sale upon commission, and upon the agreement that the defendant should sell and dispose of the same for and on account of Franklin and as his agent. The goods were delivered to the defendant, who sold them, and after deducting his commissions and expenses remitted the proceeds to Franklin, the consignor. The peaches were shipped by Franklin and delivered at Adairsville, Ga., to the ¡Nashville, Chattanooga and St. Louis Railway Company, which company issued its bill of lading for them. The peaches were carried by that company to Philadelphia, and were then delivered to the plaintiff, which transported them to ¡New York city and delivered them to the defendant about July 1, 1907. The defendant paid the plaintiff the sum demanded for freight charges, amounting to $488. These charges were assessed upon the basis of eighty and two-tenths cents per 100 pounds, which was incorrect, the correct rate being eighty-one cents per 100
Quite apart from the clause contained in the bill of lading, we think that the rule of law governing such a case as this is, that the consignee who receives the goods is presumptively their owner, and the carrier may, in the absence of notice to the contrary, so treat the consignee and hold him for the freight charges on the goods. 2 Hutch. Carriers (3d ed.), §§ 807, 809. In the present case it is asserted that the consignee was merely the agent of the consignor, but it is undisputed’that this fact was never made known to the carrier. In such a case the rule that the consignee cannot be held liable is not available to the consignee; “ But in order that the foregoing rule that the consignee, when acting as agent for the owner, cannot be held liable for the freight, may be available to such consignee when the demand is made upon him, it must appear that the fact of such agency was in some manner disclosed to the carrier.” 2 Hutch. Carriers (3d ed.), § 811. When the consignee accepts the goods from the carrier, and thereby deprives the carrier of their possession and of his lien upon it for his freight, I do not think that the consignee should be permitted to claim that he has
Güt and Burnt, JJ., concur.
Judgment affirmed, with costs.