Russell v. Livingston , 19 Barb. 346 ( 1855 )

By the Court,

Welles, J.

I agree with my learned brother before whom this action was tried, wherein he holds that the business of the defendants, in the course of which, by their agent, they received the package of money in question, was that of common carriers; and-that being such common carriers, they were responsible as such for its safe delivery according to the legal obligations attaching to persons standing in that character, ,^T also agree with him that the fair construction of the words in the direction on the package, “ care of Mr. Dawley, express agent,” was, that the package should, on its arrival at Vienna, be committed to the care of Dawley, not as express,agent, but as an agent of the plaintiffs to receive and hold and forward the package, to the plaintiffs. That if it had been intended that the package should remain with the defendants in the hands of their agents, the words “ care of Dawley, express agent,” would not have been necessary; that it may properly be assumed that this was known to the plaintiffs when they gave instructions as to the directions to be placed on the pack- , age ; and that their intention was that Dawley should take care of it in like manner that any other person would, if named for that purpose, instead of him. But these and other considerations have irresistibly impelled me to a conclusion adverse to the plaintiffs’ right to recover.

When the package was received by Dawley, as the agent of the plaintiffs, and designated by them as such, the duties of the defendants as common carriers had ended. Occupying the double capacity of agent of the plaintiffs for receiving the package, and as general local agent of the defendants, at Vienna, in relation to their business as common carriers, Dawley might, in the latter character, have refused to part with it until the defendants’ charges were paid. As agent for the defendants, he was neither required nor authorized to commit it to the hands of any one but the plaintiffs or their authorized agent. Whatever he did, therefore, in that direction, was necessarily as agent for the plaintiffs. It should be borne in mind, that the defendants’ business as common carriers was confined to carrying between cities and villages on the rail road. Port Gibson was not on the rail road, and not a place included in any of their routes, and was not the place to which they undertook to carry the package in question. The duty of the defendants was to carry it to Vienna and deliver it to Dawley, and having done that, as before remarked, their duty was performed and their liability at an end. This view derives strength from the fact that the defendants charged freight on the package only from Amsterdam, where they received it, to Vienna, where they were to deliver it.

[Monroe General Term, March 5, 1855.

Johnson, Welles and T. JR. Strong, Justices.]

It seems to me that the fact that the charges were unpaid, and that the defendants therefore had a right to detain the package until they were paid, proves nothing against them. They clearly had the right to waive the lien, which I think it is evident they did. Dawley, as the defendants’ agent, consented that the same Dawley as the plaintiffs’ agent should forward the package to the plaintiffs, with the account for the charges to be collected. How, it may be asked, could the char- ' ges be actually paid and the lien thereby practically removed ? Clearly in no way except by Dawley paying himself.

In my opinion the judgment should be reversed and a new trial granted, with costs to abide the event.

Ordered accordingly.