Thompson v. Fargo , 44 How. Pr. 176 ( 1870 )

Peckham, J.

To sustain an action against a common carrier for failing to deliver goods, the plaintiff must be the owner or have some special interest in them (Kerulder agt. Ellison, decided in this court last December and not reported : Greene agt. Clark, 12 N. Y., 343).

Prima facie, the consignee is the owner.

If this had been a sale of goods by the consignor, ordered by the consignee, without stating in what way or any manner to send, them, but only where, the consignee would have had sufficient title to maintain the action, because the title in such case, as a general rule, would not pass by the mere delivery to the carrier. In this case, however, the plaintiff never; owned the money ordered to be sent to the consignees, hence, if he simply fulfilled the- orders of the owners and sent the money to the consignee by a suitable and proper conveyance, his duties and liabilities were discharged. • He then had no further right or interest in the matter.

The action was brought and tried upon the assumption that the plaintiff properly collected and sent the money due from the government to the Whites. There was no allegation or suggestion that he had not 'sent the money by the usual and proper mode; that he had not fulfilled the directions of the Whites; that he was not authorized by them to do precisely what he did. The referee has substantially so found as matter of fact, and there is "no exception to any of his findings of fact.

It is to late here for the plaintiff to attempt to vary these findings of fact to sustain his judgment.

It is the right and interest of the defendant to see that this package is delivered to none but the true owner. A wrongful recovery against this defendant will afford it no defense as against the true owners or their representatives.

This is not a case of fictitious consignee. The Whites were alive, and in the civil war. This was their pay, and, if they have died since this proceeding, that gives no right to this plaintiff to sue upon these facts.

It follows that the referee erred in finding for the plaintiff, and the judgment of the general term affirming that judgment must be set aside and a new trial granted, costs to abide event.

Peckham reads for reversal and new trial. Chief J. Grover and Folger concur. Allen not sitting. Rapallo not voting.