56 Barb. 662 | N.Y. Sup. Ct. | 1869
By the Gourt,
Upon the question whether the plaintiff delivered to the defendant all the oats which he received oil his boat at Buffalo, the evidence was conflicting. The defendant showed by his witnesses that when delivered the weight was some two hundred bushels less than it was when received by the plaintiff, as shown by the shipping bill. The plaintiff showed by his testimony that some of the weights at Brooklyn, when it was delivered, were not accurate, and his proofs are strong to show'that at least all that he received was delivered to the defendant. 'So too, in regard to the receipt which the plaintiff gave to the defendant for the $23.77. If the defendant’s witnesses are to be believed, it was intended as a receipt in full; but if the evidence on the part of the plaintiff* is correct, it was not supposed to be a receipt in full, but a -receipt merely for the amount which the plaintiff had received of him.
The court below was the best judge of the credit to be given to the several witnesses. It has determined both of these questions in favor of the plaintiff, and we cannot disturb the determination which it has made of them. The result of his decision of these questions of fact is that
To determine this, it is first necessary to inquire whether it appears that he was consignee of the cargo or not; and I think this involves the question whether the copy of the shipping bill offered by the plaintiff was properly admitted in evidence. It is true that the shipping bill introduced on the part of the defendant shows that the cargo was to the care of the defendant; but I think the effect of that is controlled by the special character which the clause immediately thereafter assigns to him, the more especially as it is also consigned to the “ care of James 0. Bennett & Co.” And also because the plaintiff was not a party to that. He was not aware of it, and it did not influence his action. But without spending much time on that question, as I do not deem it important, was the copy offered by the plaintiff' properly admitted by the court ?
There, was a conflict as to whether the original was stamped or not. The witness for the defendant testifies that it was not, and the plaintiff testifies that he thinks it was. The court decided that question, and although the witness for the defendant swears quite confidently, while the plaintiff appears to be more uncertain, still it was the province of the court to determine the fact, and it has done so, and admitted it, and its decision of that question must stand.
We must assume, then, that there was a valid shipping bill of which that was a copy, and the testimony shows that when the plaintiff reached Hew York with his boat he showed that shipping bill to the defendant, and took his directions concerning the delivery of the cargo.
By that shipping bill the defendant was the regular and only consignee of the cargo, and by the terms of it the plaintiff was clearly bound to regard and treat him as such,' and owed to him all the- duties which the master can owe
This question has too often been before us for adjudication to leave it an open one now. It will not do to allow such a consignee, after he has, as such, succeeded in depriving the carrier of the possession of the cargo, and of the lien upon it for his freight, to set up that he has no real interest in the property, and thereby turn him over to others for his remedy.
If a shipper or consignor would relieve the consignee, who is merely agent for the shipper, from personal liability to the carrier, he must do it by letting it appear so on the shipping bill, and thus caution the carrier to protect himself, by holding on to his lien until he receives his compensation. The shipper must not throw the carrier off his guard by signing with and delivering to him a shipping bill which represents the agent as the real consignee. When they do so, and the agent is thereby enabled to obtain possession of the property as consignee, they must not be permitted to change his status to the injury of the carrier.
If I am right in these conclusions, it disposes of the case; for although the defendant’s counsel proposed some twenty other findings of fact which were not found by the court below, yet they are all either included in those that were found, or were entirely immaterial, under the principles which I assumed. And there was no exception to evidence of the least materiality except such as I have herein examined.
The judgment should be affirmed.
Bacon, Foster, Mullin and Morgan, Justices,]
