Stevens v. Boston & Maine Railroad , 67 Mass. 277 ( 1854 )

Shaw, C. J.

This action is similar to that brought by the Norway Plains Company against the same defendants, ante, 263, and is brought to recover the value of twelve bales of flannel destroyed by the same fire.

A question arose on the evidence, whether there was not a mutual mistake, as well on the part of the plaintiffs, by their agent George, as on that of the defendants, by their agent Peabody, so that they were equally in fault in not discovering that the parcel, of which one was examined, were the goods of the plaintiffs. But George expressly testifies that, although he knew that the bulk of the goods were to be directed to Philadelphia, yet he did not know the mark “ S. S. F.” and therefore had no reason to believe that these were the plaintiffs’ goods, when Peabody said they were not, and that these goods came from North Andover, Stevens & Son’s having come from South Andover; whereas Peabody had, or ought to have had, the means of know ing that these were Stevens & Son’s goods.

The defendants were bound to make a right and true delivery of the goods, when the freight was paid, and they were duly demanded, and were responsible for the conduct of their agent employed for that purpose. Upon the evidence, we are of opinion, that Peabody, the delivery agent, in declaring that the goods were not there, but had been delivered, and that the goods which were there came from another place, which was not true, in failing to examine the marks of the goods by the way-bill, and generally in the hurried and superficial manner in which he examined these goods, when a slight degree of care and attention would have discovered the truth, was chargeable with negligence in the delivery of the goods, for which the corporation are responsible.

A question was raised in the argument, whether, were this an action of trover, the evidence reported would have been sufficient to prove a conversion. This action being brought under the new practice act, in which the distinction in the form of actions is, to a great extent, abolished, the question is in no other sense material, except that it might bring the case within the operation of a well known rule of evidence, that the value of the property, at the time of the conversion, is the measure of damages in trover. But whether, strictly considered, the evidence reported would have been proof of conversion in trover, or not, we think that, as the negligence of the agent of the corporation in this case prevented the plaintiffs from getting theij goods into their own possession on Monday afternoon, by means whereof they remained in the depot and were burnt, the loss was so directly the consequence of this default on the part of the corporation, that the value of the goods, in either aspect, is the just rule of damages. Judgment on the verdict.