9 N.Y. 335 | NY | 1861
Lead Opinion
That these defendants were common carriers can hardly be doubted. Persons whose business it is to receive packages of bullion, coin, bank notes, commercial paper, and such other articles of value as parties see fit to trust to their care for the purpose of transporting the same from one place to another for a compensation, are common carriers, and responsible as such for the safe delivery of property intrusted to them. (Russell, v. Livingston, 19 Barb., 346; Sherman v. Wells, 28 Barb., 403.) Such was the business of these defendants, and such their responsibility.
The consignee is the presumptive owner of the thing consigned ; and when the carrier is not advised that any different relation exists, he is bound so to treat the consignee; but this presumption may be rebutted; and if in an action for non-delivery by the consignor against the carrier, that presumption be overcome, the action is properly brought in the consignor’s name. (Price v. Powell, 3 Comst., 322.) But in this case, unless a delivery of the money be established, the plaintiffs’ right, to recover was made out.
There was no notice that the contents of the package in question belonged to the consignors; nor was there any fact proved, calculated to weaken the presumption of ownership in
The principal question, then is, was there a delivery good against the bank; if there was, the plaintiffs must follow the bank; they have no cause of action against these defendants. It is conceded that the liability of a carrier begins with the receipt of the goods by him, and continues until the delivery of the goods by him, subject to the general exceptions. And an express carrier is bound to deliver the goods at their destined place, to the consignee, or as the consignee may direct. In general, the delivery must be to the owner or consignee himself, or to his agent (11 Met., 509), or ihey must be carried to his residence, or they may be taken to his place of business, when from the nature of the parcels that is the appropriate place for their delivery. But there is no rule of law requiring a delivery at the consignee’s residence or place of business, when he is willing to accept it at a different place, or directs a delivery at another place. The consignee, or his authorized agent, may.receive goods, addressed to him in the hands of a carrier at any place, either before or after their arrival at their place of destination, and such acceptance operates as a discharge of the carrier from his liability. It was held in Lewis v. The Western Railroad (11 Met., 509), that if A, for whom goods are transported, authorizes B to receive a delivery thereof, and to do all acts incident to the delivery, and transportation thereof to A, and B instead of receiving the goods at the usual place of delivery, requests the agent of the railroad to permit the car which contains the goods to be hauled to a near depot of another company, and such agent
Had the consignee in this case received the package in question at the defendants’ office, I think no one would doubt the defendants were discharged. The case then turns upon Messenger’s agency. If an authorized agent in the premises, a delivery to Mm was as effectual as a delivery to the principal. The question of agency was a question of fact, and was settled by the verdict of the jury.
We tMnk the’ delivery at the office of the defendants’ to the authorized agent of the consignee was proper, and operated to discharge the defendants from their obligations as carriers.
This disposes of the case unless there was some error committed at circuit in submitting the question of Messenger’s authority to the jury, or in the courts refusing to charge as requested. I have been unable to discover any such error. The evidence submitted was competent—it was of the most perfect and satisfactory Mnd, and not only justified but required the verdict rendered. The judgment should be affirmed.
All the judges concurred, except Davies, J., who upon a previous argument of the cause (this being the tMrd) delivered the following opinion:
Dissenting Opinion
The plaintiffs in 1854 were dealers with the People’s Bank of the city of Hew York, and were accustomed to make deposits therein, which in the usual course of banking business were passed to their credit, and upon or against which they drew drafts or checks. Being at a distance from the bank, and consequently unable either personally or by a clerk to make a deposit in the bank in the usual way,
The question presented for our consideration in this case is, whether the defendants have performed the service which they undertook. There is no ground for the assumption, that the money transmitted by the defendants was the property of the bank. It was sent by the plaintiffs to be deposited with the bank as their, property, and there is no reason to infer that it was sent to pay an antecedent debt. There is no proof that any such debt existed, and it might as well be said that the money of any depositor when set aside to be deposited in a bank became the property of the bank and ceased to be that of the depositor. It is placed in the bank for safety, and as a convenient mode of transacting business and for making payments by the depositor by checks or drafts on the bank. It could be attached and reached as the property of the depositor. The ordinary presumptions applicable to a consignment of property, as to the ownership by the consignee, have no application to the present case. Have the defendants performed the service which they undertook ? It is contended on their behalf that they have, because they delivered the package to an agent of the bank, and, as they assume, under such circumstances as would render the bank liable to the plaintiffs for the money transmitted.
It would seem to be a sufficient answer to this defence to say, that such was not the contract made by the defendants with the plaintiffs, and that they have no legal right to make a new contract, or do something which they contend is equivalent to that undertaken to be done by them: There is no pretence that the plaintiffs were parties to any such modification of the contract, made or had any knowledge of it, or in any
It is no answer to the claim of the plaintiffs, for the defendants to say that they have made such a delivery to the" bank, as will legally compel it to respond to the plaintiffs for the amount of this money. It is sufficient for the plaintiffs to reply that they are not bound to litigate that question. That is a matter between the defendants and the bank. The plaintiffs employed the defendants to do a certain thing, to make the deposit for them in the bank; this they undertook to do for reasonable hire paid to them. They have not done it, and the plaintiffs had a right to have the deposit made as agreed upon,. and in consequence of the defendants’ default" in' not making it, to recover from them the amount so entrusted to them for this purpose.. If they have any claim upon others, it is for them to enforce it and not the plaintiffs.
The learned judge at the circuit therefore erred in refusing to charge the jury as requested by the counsel for the plaintiffs, and in charging that if a delivery was made so as to render the bank liable for the money of the plaintiffs, it was such a delivery as-was called for by the contract.
Judgment affirmed.
