80 N.Y.S. 830 | N.Y. App. Div. | 1903
On July 6, 1899, one Rachel G. Rice deposited with the plaintiff, a trust company; $1,000 and left her genuine signature with one of
On July 20, 1899, the plaintiff received a letter dated that day at Geneseo,' N. Y., apparently signed by her, which directed the respondent to send to her at Geneseo $500 in currency, and a check was inclosed also purporting to be signed by her to the order of Mrs. Rachel G. Rice and bearing the indorsement of Rachel G. Rice. The check was stamped paid by the respondent and the currency sent by the medium of the appellant express company addressed to Rachel G. Rice, Geneseo, 1ST. Y. The representative of the express company made inquiries for the consignee upon the receipt of the package, but was unable to learn that any one of her name lived or was in that vicinity, and placed the package in the company’s safe. Shortly after a man called at the office stating that he was Frank Rice and produced an order for the money, ■ostensibly signed by the. consignee, and the package was delivered over to him by the employee of the appellant. The letter and the check to the respondent, and also' the order exhibited to the appellant, were fictitious, and the package of money was not delivered to the consignee to whom it was addressed. The frauds were not discovered until October, 1901, when Miss Rice gave a check on the bank which would have overdrawn the account if its previous depletion had been made at her instance. The plaintiff was sued by her, of which the appellant had notice, and has made good to her the $500 lost, as above described, and this, action of conversion was commenced to recover of the appellant on the theory.it had not delivered the package to the person addressed, but had delivered to another person without any authority from the consignee.
It is contended by the learned counsel for the appellant that the agents of the respondent were negligent in failing to discover the forgeries of the check and the letter, and had they exercised care the package of money would not have been sent. Assuming, but not conceding, for there is no proof on the subject, that vigilance by the employees of the respondent might have resulted in the detection of the forgeries, that omission does not exonerate the appellant. That the plaintiff paid the checks without discovering
In Price v. Oswego & Syracuse R. R. Co. (50 N. Y. 213) the plaintiff, a merchant in Syracuse, received an order purporting to be signed by S. H. Wilson & Co., of Oswego, for a quantity of bags to be transported by rail to that city. The bags were consigned to S. H. Wilson & Co., Oswego, and were received for shipment by
The wrongful delivery rendered the appellant liable for conversion. (Guillaume v. Hamburgh & American Packet Company, 42 N. Y. 212; Hawkins v. Hoffman, 6 Hill, 586.)
In" Wait’s Law and Practice-(Vol. 1 [7th ed.], 412) is the following concise statement of the-rulé: “ If á common carrier delivers goods to the wrong person, although by his own innocent mistake or by his being imposed upon, he is liable to the true owner for the value. The carrier delivers at his peril. He is responsible as an insurer. And a wrongful delivery by him is treated-at common law ' as a conversion of the property.” ¡Nor would it benefit the defendant if the .liability were that of a warehouseman or of an involuntary bailee, for the wrongdoing consisted in the affirmative act of delivering the goods to a person not the consignee. (Bank of Oswego v. Doyle, 91 N. Y. 32.)
It is claimed that thé appellant is relieved from liability by reason of stipulations contained in the shipping receipt delivered to "the respondent upon the acceptance of the package for shipment. The receipt contains clauses limiting its liability -for loss as forwarders only and within its own lines of communication, and not for any default of connecting companies. There is nothing, however, Whereby it absolved itself from the common-law liability as a carrier for a wrongful delivery. The receipt then has this clause: “ And
The judgment and order should be affirmed, with costs.
Adams, P. J., McLennan and Williams, JJ., concurred; His-cook, J., not voting.
Judgment and order affirmed, with costs.