19 Barb. 346 | N.Y. Sup. Ct. | 1855
By the Court,
I agree with my learned brother before whom this action was tried, wherein he holds that the business of the defendants, in the course of which, by their
When the package was received by Dawley, as the agent of the plaintiffs, and designated by them as such, the duties of the defendants as common carriers had ended. Occupying the double capacity of agent of the plaintiffs for receiving the package, and as general local agent of the defendants, at Vienna, in relation to their business as common carriers, Dawley might, in the latter character, have refused to part with it until the defendants’ charges were paid. As agent for the defendants, he was neither required nor authorized to commit it to the hands of any one but the plaintiffs or their authorized agent. Whatever he did, therefore, in that direction, was necessarily as agent for the plaintiffs. It should be borne in mind, that the defendants’ business as common carriers was confined to carrying between cities and villages on the rail road. Port Gibson was not on the rail road, and not a place included in any of their routes, and was not the place to which they undertook to carry the package in question. The duty of the defendants was to
Johnson, Welles and T. JR. Strong, Justices.]
It seems to me that the fact that the charges were unpaid, and that the defendants therefore had a right to detain the package until they were paid, proves nothing against them. They clearly had the right to waive the lien, which I think it is evident they did. Dawley, as the defendants’ agent, consented that the same Dawley as the plaintiffs’ agent should forward the package to the plaintiffs, with the account for the charges to be collected. How, it may be asked, could the char- ' ges be actually paid and the lien thereby practically removed ? Clearly in no way except by Dawley paying himself.
In my opinion the judgment should be reversed and a new trial granted, with costs to abide the event.
Ordered accordingly.