Titsworth v. Winnegar , 1867 N.Y. App. Div. LEXIS 221 ( 1867 )

By the Court, E. Darwin Smith, J.

The defendant is sued as a warehouseman. Warehou«emen are bound, like all bailees who receive a benefit from the bail- ' ment of goods, to exercise ordinary care and diligence, and are responsible only for ordinary neglect. The salt, for the loss of which the defendant is sued, was confessedly never received by the defendant at his warehouse, never was in his warehouse, or stored by him in any buildings or place provided by him for the receipt and storage of property. The consignment of it by the bill of lading was a request to him to receive it in store for the owner, at his place of business at Mount Morris, wkere it was the duty of the carrier to deliver it. When the captain of the canal boat, in charge of the salt, presented to the defendant the bill of lading and informed him that his boat had arrived within about a mile and a half of Mount Morris and could come no further, for the ice in the canal; and requested the defendant to pay his charges for the freight, the defendant was under no obligations to receive the property or pay such charges. The receipt indorsed on the bill of lading, and the other proofs, show that he did, however, so far receive the salt where it was, as to take possession of the bags of salt and remove them from the boat to his warehouse and pay the captain’s bill for the freight of the whole quantity of salt, leaving in the boat the three bags and three hundred barrels of salt, not counted, as the receipt states. By reason of the consignment to him in the bill of lading of the salt, the receipt and removal of a part of it to his warehouse and the payment of the whole freight to the captain, upon his avowal' that he wanted to go home and should leave his boat there with the salt in it until spring, I think the defendant so far acquired a speeial interest in, or lien upon all of the said salt, that if nothing else appeared he might perhaps be . deemed to have possession and control of the same, after the captain left the boat, so far as to be responsible for that degree of care in respect thereto, which warehouse-men or depositaries for hire are bound to exercise over property in their possession. But when the plaintiff himself came- to Mount Morris and found the three hundred barrels of salt remaining aboard the canal boat, where it was left by the carrier, and after having seen it and found it was all right, paid the defendant his charges in respect to the salt received, and his advances of freight to the captain, the condition of things was entirely changed. The defendant’s lien upon the property for his advances to the captain was then discharged. The plaintiff, as. owner of the property, was then entitled to take immediate possession and control of the property. It was not, after that time, subject to any lien or claim of the defendant for storage or other services. It was not in his custody, or possession, or care, so as to entitle him to make any charge-in respect to it for storage or otherwise. The hoat in which this salt was then remaining belonged to the carrier who had not fully discharged his duty in respect to said salt. It would have been his duty on the opening of navigation in the spring, as soon as he was able to do so, to transport the said salt to its original destination at Mount Morris and deliver it, in fact, to the defendant at his warehouse. ¡For this service he had been paid. ' The defendant did not hire this boat for the winter for the storage of the salt, or acquire in any way, that I can see, any control or possession of it for the storage of said salt during the winter or otherwise. The account between him and the plaintiff was closed in respect to said salt when the latter paid his charges in respect to it, in full. The boat captain' testified that he could not get to Mount Morris with his boat, because the canal, was frozen. The canal boat was not left in charge of the defendant, but the captain testified that he left it in charge of a man named ¡Frettenburgh, who lived on the opposite side of the river from Mount Morris. The defendant therefore had no possession of, or control of, the boat during the winter. The basis of the claim against a warehouseman for neglect . in the care of goods is that he is in possession of the . goods as a depositary for hire. It is in respect to this right to receive compensation for storage that he is liable for injury to the goods, or their loss, in, consequence of, or arising from his neglect. Here there was no such right. Ho storage was paid to or claimed by the defendant for the salt remaining in the boat, and none could legally be demanded or recovered by the defendant. The liability of warehousemen rests upon contract implied in law. Here there is no consideration for any contract to take care of this salt, and none can be implied. There was no duty to take care of the salt, because there was no assumpsit to pay for such care, and no lien could exist upon property remaining in the possession of the carrier.

[Monroe General Term, December 2, 1867.

J. C. Smith, Welles and E. D. Smith, Justices.]

If these views are correct, the defendant is in no way responsible for the loss of or injury to the salt in question, and several of the exceptions taken to the charge of the judge, and to his refusals to charge as requested, are .well taken, and the judgment should be reversed and a new trial granted in the court below, with costs to abide the event,

Judgment reversed.