3 Lans. 201 | N.Y. Sup. Ct. | 1870
By the Court —
Two principal questions are presented in this case:
1st. Were the defendants, while operating the railroad, common carriers, and liable as such; and,
2d. If they were so liable, did they hold the wheat in question at the time when it was burned, as common carriers, or only as warehousemen ?
The first question we have examined in another case against these defendants already decided at this term (Rogers et al. v. Wheeleer et al.), arising out of loss of wheat by the
The decision in that case is decisive of the first question above stated in this.
The learned referee to whom this case was referred, and who heard and decided the issues therein, held, upon the second question, that the wheat destroyed, for which the action is brought, was held by the defendants as warehouse-men, and not as common carriers. This decision relieved them from liability in this case, even if they were common carriers, and it became unnecessary therefore for the referee to decide the question whether they were or not.
The question thus decided by the referee in favor of the defendants is the one which now presents itself for our decision. The facts on which the question depends are as follows: The defendants, as trustees of the second mortgage bondholders of the Northern Railroad Company, were engaged in the business both of operating the railroad and of storing grain. They had a warehouse at Ogdensburgh where they stored grain to await the orders of the owners. When an order for the shipment of grain was given, if accepted, defendants entered it upon their books, at the warehouse, and forwarded the grain upon the railroad to the person to whom it was ordered without any further act on the part of the consignor. When an order was put in for grain to be sent forward, the charge for storage ceased.
On the 8th day of July, 1864, a cargo of 6,000 bushels of wheat was received by defendants for the plaintiff, at their warehouse, to be held subject to his order. On the 26th day of July, 1864, plaintiff sold 1,400 bushels of the grain to D. C. Brookins, of Potsdam. On the 27th of July, 1864, plaintiff delivered an order to defendants
The referee held that the sale by Wade to Brookins, and the delivery and acceptance of the order at the warehouse, passed the title of the 1,000 bushels of wheat from Wade to Brookins; and that Wade, as assignee of Brookins, became possessed of all the legal rights held by Brookins, to recover the value of the 1,400 bushels of wheat. But he also held, that the relation of consignee and carrier never attached as between Brookins and defendants in this case as to said wheat.
That at the time of said sale and transfer from Wade to Brookins, said wheat was in the possession of defendants as warehousemen; that said sale did not, of itself, change that relation, nor did the direction to forward said wheat by railroad, and the entry of such direction in the books of the warehouse, Eo mstcmti, change the defendants from warehouse men to carriers, with the liabilities of that relation in respect to said wheat; that such change under the circumstances would not legally take place until the defendants, by some act, entered upon the discharge of their business as carriers, in respect to said property, the same as if the wheat had been in the warehouse of a third party.
That at the time of this loss, the defendants were still warehousemen as to this wheat, and in the absence of all claim or proof of negligence, were not liable for its loss.
The defendants, on accepting the order to carry the wheat to Potsdam, assumed the same relation as though they then received it for that purpose; manifestly, it can make no difference, that the defendants already had possession when they undertook to transport the wheat. Did they from the acceptance of the order, hold it only for the purpose of transporting it without further direction? This is the test, as shown by all the authorities; and see 1 Smith’s Leading Cases, 393, and cases cited. Under this test, I see no reason to doubt that the defendants were, at the time of the loss, holding the wheat as common carriers, and no longer as warehousemen, and were, therefore, liable.
The judgment must be reversed and a new trial granted, costs to abide the event.
Hew trial granted.