Odell v. Boston & Maine Railroad , 109 Mass. 50 ( 1871 )

Wells, J.

By the contract of purchase the hay was- to be delivered by Swasey, the seller, to the plaintiff, at the depot of the defendant in Exeter. Swasey did deliver the hay sued for, at the place agreed on, directing it to be marked with the plaintiff’s name and transported to him in Boston. As a carrier, it was the business and the duty of the defendant to receive the hay and transport it as directed. Upon receipt of the hay by the defendant, the title became immediately vested in the plaintiff. The provision for weighing, after its arrival in Boston, was merely to determine the amount to be paid by the plaintiff. Neither his title to the hay nor his obligation to pay for it depended upon a compliance with that provision.

The defendant, having made a misdelivery of the hay, is liable to the owner for its value, unless protected by some ground of excuse by which the plaintiff is bound.

The defence relied on is that Swasey authorized its delivery to the parties to whom the defendant’s agent ■ had, by mistake, directed it; and that it was delivered accordingly, without notice that Swasey had ceased to have the right to control its destination.

But the hay had already been sent forward. The defendant had no right to assume that it was then the property of the consignor and not of the consignee: If it did so, it took the risk of the consignor’s title proving to be good.

It is contended that the defendant rightly followed the instructions of Swasey, as agent of the plaintiff in forwarding the hay. But Swasey did not profess to act for the original consignee in the directions he then gave. Upon the defendant’s evidence, those directions were manifestly given by way of changing the destination of the hay to other consignees, and not by way of cor* recting or explaining the mistake in its entry upon the way bill. under the directions previously given. Besides, Swasey had no authority to change its destination.

In either aspect, the defence fails.

Exceptions overruled.