Murray v. Warner , 1875 N.H. LEXIS 124 ( 1875 )

Carriers — Delivery. 1. The first question reserved is, whether this action can be maintained in the name of the present plaintiff: and upon this point the authorities are quite uniform. A bailee of goods for hire may sustain an action against a carrier for negligence; and it can make no difference whether such bailee was himself a carrier, to whom the goods had been originally intrusted for carriage to a point not on his route. These goods were delivered by the owner, Haley, to the plaintiff, to be carried to Amesbury, and payment for the same to be collected in spring-beds. It is unnecessary to inquire whether, if this were a case between Haley and Murray, there is evidence of a contract on the part of Murray for the carriage of these goods to a point beyond his line, and by an agent not in his employ — Knapp v. Express Co., ante 348 — or whether his responsibility ended at the terminus of his route; for the right of Murray to maintain this action does not depend on his liability to Haley. He had the possession and custody of the goods as bailee, and not as servant of Haley; and the defendant is liable, if liable at all, for his failure to perform the duty imposed upon him by contract or by law.

In Freeman v. Birch, 1 Nev. Man. 420, the plaintiff, a laundress residing at Hammersmith, was in the habit of sending linen to and from London by the defendant's cart, which travelled from Chiswick to London. A basket of linen belonging to Spinks was sent by the defendant's cart, and on its way to London part of the contents was either lost or stolen. Spinks did not pay the carriage of the linen. It was objected that the action was misconceived, and should have been brought by the owner of the linen. The objection was overruled, and a verdict returned for the plaintiff. The verdict was sustained, upon the ground that the laundress retained a special property in the goods.

To the same point is Mayall v. B. M. R. R., 19 N.H. 128, where GILCHRIST, C. J., says, — "If a person has a beneficial interest in the performance of a contract, or a special property or interest in the subject-matter of the agreement, he may support an action in his own name upon the contract." In Elkins v. B. M. R. R., 19 N.H. 337, it was held by the same learned judge, that where a bailee of property delivers it to a carrier for transportation, either the bailee or the bailor may maintain an action against the carrier to recover for the loss of the property. "The rule in such cases is stated by PARKE, B., to be, that either the bailor or the bailee may sue, and whichever first obtains damages it is a full satisfaction" — Nicolls v. Bastard, 2 Crompt. Mees. Ros. 660; and in Woodman v. Nottingham, 49 N.H. 387, NESMITH, J., says, — "A bailee, having a special property, may recover the whole value of the property, holding the value beyond his own interest in trust for the general owner, and the judgment recovered by the bailee may be pleaded in bar to any action that might be afterwards brought by the general owner for the same property." See, also, 2 Kent's Com. 566, 2 Blk. Com. 396, Gr. Ev., sec. 637, note 4.

2. The instructions to leave the bundle at the American House were only a part of the directions to the defendant. He was also directed by the bill which accompanied the bundle to collect pay upon delivery of the goods in six spring beds; and subsequently, when he called for further explanation, was instructed to collect the beds, or their value, $27, in money. He did not, therefore, perform his whole duty when he left the bundle at the American House, where it was directed to be left. Where a common carrier has tendered the goods entrusted to him to the consignee and demanded payment, and the consignee has had a reasonable time to call for and receive them, he holds the goods as a warehouseman, and not as a common carrier, and is thereafter responsible for the care of a warehouseman merely. Weed v. Barney, 45 N.Y. 344. But the defendant, whether holding these goods as common carrier or warehouseman, could not disregard the conditions upon which the delivery was authorized. If, while holding them in the latter capacity, they had been been destroyed by extraordinary peril, he would not have been liable for their loss. Weed v. Barney, supra. But there is no pretence of anything of that sort here. When payment was refused, the defendant might have discharged himself from further liability by placing the goods in store Salinger v. Simmons, 2 Lansing 325, Williams v. Hillard, 22 How. 137 — or he might have notified the plaintiff, and asked for further instructions, or have returned the goods to the plaintiff. But he could not, after having undertaken to carry the goods upon the conditions imposed, relieve himself of responsibility by abandoning them to the clerk of the American House, with the declaration that he had "nothing to do with them."

A mis-delivery of goods by a common carrier is a conversion of them, and renders him liable in trover, for it is an unlawful act — Bowlin v. Nye, 10 Cush. 416, Devereux v. Barclay, 2 B. A, 702, Hawkins v. Hoffman, 6 Hill 586; and delivery by a warehouseman of goods to a third person, even by mistake, renders him liable for the goods. Lichtenhein v. Railroad, 11 Cush. 70. Delivery to the right person, in violation of the conditions upon which delivery is authorized, would seem to be as much a wrongful act as delivery to the wrong person.

By leaving the goods with the clerk of the American House, the defendant made him his agent; and if the goods may be regarded as left at the American House in store, the defendant was bound to see that they were not delivered to Abell, except upon his complying with the terms imposed by the plaintiff. His neglect to do so must render him liable to the plaintiff. The presiding judge has found, that the defendant, before he examined the bill, understood that the goods were to be paid for on delivery; but, upon examining the bill and finding that it was payable in spring beds, and Abell asserting that Haley had received them, he sent for and received explicit instructions to get either the spring beds or their value in money, according to the bill; — for, suffering these instructions to be disregarded, he has become liable to the plaintiff for the value of the goods intrusted to him.