A. W. Burritt Co. v. New York Central & Hudson River Railroad , 135 N.Y.S. 557 ( 1912 )

Lehman, J.

The defendant received a car-load of lumber consigned by a straight non-negotiable bill of lading to the plaintiff at Rew York. It failed to deliver this lumber to plaintiff but delivered it to one W. G. Maher upon an order purporting to be signed “A. W. Burritt Company per J. T. O’R.” This order was signed by J. T. O’Reill, an employee of Maher but not of the plaintiff, and the jury’s verdict has established that O’Reill had no authority from the plaintiff to bind it. It appears, however, that prior to this delivery the plaintiff had agreed to sell this car-load of lumber to W. G. Maher but had not sent him any invoice or memorandum of sale as it was doubtful of his financial security. When it discovered that the lumber was actually delivered to Maher it sent him an invoice showing that the car-load was sold to him. This invoice is dated August first before the delivery to Maher. Subsequently and with knowledge of these facts it paid the defendant by check its transportation charges, it filed a mechanic’s lien against Maher, and it filed its claim for the value of the lumber against Maher in the bankruptcy court. The case was submitted to the jury upon the theory that defendant was liable to the plaintiff if it did not receive in order from the plaintiff to deliver the lumber to-Maher, and that this- evidence was admissible only upon the point whether the order to deliver the lumber was in fact made by authority from the plaintiff. There is no dispute but that the defendant is as a matter of law relieved from liability if in fact it delivered the lumber to the real owner entitled to its possession, even without the order of plaintiff, since the bill of lading was not negotiable. The subsequent acts of the plaintiff point so eloquently to a complete ratification of the delivery to Maher and show so completely that the plaintiff regarded Maher as the owner of the lumber that I do not think it possible, in spite of plaintiff’s explanation, to hold that the plaintiff is entitled to recover upon this record. The exceptions to the charge and the requests to charge sufficiently pointed out this issue to the trial judge and require a reversal of the judgment.

Judgment should be reversed and a new trial granted, with costs-to appellant to abide the event.

Seabury and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.