| Mass. | Oct 15, 1870
If the controversy in this case were between two parties claiming the same personal property as purchasers from a former owner, its determination might depend upon ascertaining which first obtained actual or constructive possession of the goods by delivery from the seller, and the points made by the defendants would then require consideration. Merchants’ National Bank v. Bangs, 102 Mass. 291" court="Mass." date_filed="1869-09-15" href="https://app.midpage.ai/document/merchants-national-bank-of-cincinnati-v-bangs-6415772?utm_source=webapp" opinion_id="6415772">102 Mass. 291.
The facts reported show that the relation of buyer and seller did not exist in the transaction between the plaintiff and the firm of Rice Brothers in Milwaukee. They were his agents to purchase, and bought upon his order; they advised him of the purchase on the day it was made, and inclosed in the letter to him a memorandum or bill of parcels, in which they state that they are produce commission merchants and buyers of grain, &c., for eastern account, describing this property as bought for his account, and charging him with their commissions in the purchase. There is nothing in the other facts stated inconsistent with the relation of principal and agent thus recognized. The general ownership of the goods so bought was in the plaintiff indeed, but, as factors for their purchase, Rice Brothers had a lien on them for the money paid and liabilities incurred in respect to such purchase. They were not required to part with their possession, or to deliver them to the principal, or to a common carrier subject to his absolute control, unless their advances and charges were paid or secured to their satisfaction. A bill of lading was accordingly taken by the firm for the property, consigned to their own order, indorsed in blank by them, and annexed to a draft on the plaintiff for the amount of the purchase money and their commissions, which was" forwarded through the banks for acceptance. ■ There vas no implied assertion in this of general property in the goods consigned. It was a proper course to take to protect their special property and preserve the lien in their favor against the general owner. To this extent it might be effectual. It gave them no right to assert absolute ownership over it, or to change its destinar
The refusal of the defendants to deliver the goods upon the plaintiff’s request was a conversion by them at Salem, and. the plaintiff is entitled to recover their value at that place. But as the defendants paid the freight from Milwaukee to Salem in good faith, and discharged the goods from a lien therefor in favor of the carrier, to which they were subject as against the plaintiff himself, the amount so paid must be deducted from the value as a payment which enured to his benefit.
The plaintiff urges against this rule of damages, that the property was carried to Salem without authority from him; that no freight charges, as against him, could be earned upon it; and that no debt was discharged by the defendants for which he was liable.
A carrier who receives goods from a wrongdoer, without the consent of the owner, express or implied, can certainly have no right to detain them against the true owner for the payment of freight; on the principle that no man’s property can be taken from him without his consent. Robinson v. Baker, 5 Cush. 137. But when the freight is earned in good faith, under a contract of transportation made with an agent of the owner, who, according to the usages of the business, is clothed with apparent authority by his principal, then the charges for freight will constitute a valid lien upon the property, although the agent by an accidental or intentional departure from his instructions sends the goods by a route not intended, or to the wrong place. A factor to purchase has apparent authority to direct where the goods bought shall be sent; and if successive carriers transport goods according to the directions of the forwarding agent, they act under the authority of the owner and cannot be considered wrongdoers.
The case must go, according to the terms of the report, to an assessor to ascertain the damages which the plaintiff is entitled to recover by the rule here given. Ordered accordingly.