Lester v. Delaware, Lackawanna & Western Railroad , 73 Hun 398 ( 1893 )

MERWIN, J.

On the 1st day of November, 1889, the plaintiff and one P. O’Donnell entered into a written agreement under seal, as follows:

“This agreement, made this 1st day of November, 1889, between D. P. Lester, of Oswego, N. Y., of the first part, and P. O’Donnell, of the same place, party of the second part, witnesseth, that the party of the second part hereby agrees to sell for the party of the first part, for such length of time as shall be mutually agreeable, a furnace attachment known as ‘Norcross Furnace Governor,’ and fixtures, acting as the agent for party of the first part to the extent and in the mariner herein stated, and in such places as party of the second part may desire, on the following conditions; viz.: Party of the first part is to furnish party of the second part with said governors at $4.50 apiece or. set, and discs, damper, bars, tubes,- &c., at reasonable market value; the party of the second part paying expense of packing, carting, shipping, and the said property to remain the party’s of the first part until paid .for. Party of the second part is to pay-over-to party of the first part, as fast as collected, the moneys received for the sale of such governors, fee., on the basis as aforesaid, retaining the balance for his own use and for services in making such sales, and to become personally responsible to party of the first part for the collection of all goods sold by him, guarantying the payment thereof, and to render an account every 30 days to the party of the first , part, showing amount sold, amount of goods on hand, and names and addresses of parties to whom sold, including persons to whom sold or delivered on approval. All sales to be for cash. The freight on all goods returned to Boston or elsewhere, not sold, is to be paid by party of the second part.

“D. P. Lester; [L. S.]

“P. O’Donnell. [L. S.]”

H. D. Trask & Co., of Boston, were the proprietors and manufacturers of the Norcross furnace governors. With them, the plaintiff, about the 1st November, 1889, made an arrangement by which they on November 11, 1889, shipped to O’Donnell, at Ft. Plain, N. Y., 50 sets. These reached O’Donnell, at Ft. Plain, about the middle of November, and they were received by him under and in pursuance of the agreement between him and plaintiff. Of these, O’Donnell sold 20 sets at Ft. Plain, and received the pay therefor. The balance were shipped by him to Norwich about the 23d December, and this is the shipment referred to in the complaint. The consignees in the shipping bill were “O’Donnell & Williams.” Williams was a man in the employ of O’Donnell. The plaintiff lived at Oswego, and a day or two before the 6th January, 1890, he had a talk with Mr. Taylor, the freight agent of the defendant at that place, about the goods in question, but Taylor declined to take any responsibility in the matter. Thereupon, on the 6th January, the plaintiff sent to the freight agent of defendant at Norwich a telegram as follows: “Goods consigned to Williams & O’Donnell belong to me. Deliver only upon my written order. D. P. Lester.” This was received at Norwich the same day. Upon its receipt, Mr. Boyce, the agent at Norwich, sent a telegram to Mr. Taylor, the freight agent at Oswego, in substance directing him to inform Lester that they could not hold the goods, if demanded by Williams & O’Donnell on the bill of lading. This notice or telegram did not, according to the evidence of the plaintiff, reach him till the evening of the 9th January. On the 10th January the plaintiff mailed a letter to Mr. Boyce, stating that he was the owner of the goods, and desired them to be reshipped to Oswego, and that he would advance the freight, if desired. He also offered to furnish •evidence of his right to have possession. This letter reached Mr. Boyce on the 11th January. In the mean time, and on the 7th or 8th January, O’Donnell & Williams called at the freight office for the goods, and were told that they would not be delivered unless they produced the bill of lading or shipping bill. They were also told by the freight agent that he had received from D. P. Lester, •of Oswego, a telegram to hold the goods; and they replied that they had had some difficulty with him, but they would pay for the goods, ■or the matter would be all straightened out. Afterwards, and on the 10th January, O’Donnell & Williams produced the bill of lading or shipping bill, delivered it to the defendant’s agent, paid the freight, and the agent thereupon delivered to them the goods. This was before the letter, of plaintiff, of 10th January, was received. O’Donnell, or O’Donnell & Williams, upon receiving the goods, went to selling them at Norwich, and sold and delivered there 12 sets; and the balance O’Donnell took to Syracuse, and sold them there later on in the winter or spring. This action was commenced on January 22, 1890. On the 18th February, 1890, O’Donnell paid the plaintiff $144 in payment for the 32 sets sold by O’Donnell at Ft. Plain and Norwich. This sum is arrived at by taking the price stated in the contract. That left 18 sets unaccounted for. The recovery here is for the value of those at five dollars a set, with interest from January 10, 1890.

In Transportation Co. v. Barber, 56 N. Y. 552, it is said by Judge Grover that "a bailor can confer upon his bailee no better title than he has himself, except in cases of negotiating bills of lading, and like cases. If the owner demands the property of the bailee, and he refuses to deliver it to him, he is at once liable to him in an action for its conversion.” A similar view is taken by other authorities. Ang. Carr. § 335; Hutch. Carr. § 407; Story, Bailm. § 450; Wilson v. Anderton, 1 Barn. & Adol. 450; Rogers v. Weir, 34 N. Y. 471. In some of the authorities, it is said that the remedy of the bailee for protection against different claimants is through a bill of interpleader. Assuming, then, that, if the plaintiff was the owner and entitled to the possession of the goods, it was the duty of the defendant to deliver them to him, though consigned to a different party, the question then is, has the plaintiff shown himself to have been the owner and entitled to the possession at the time he gave the notice, on 6th January? There is evidence tending to show that the plaintiff was the owner, but was he entitled to the possession? The goods were received by O’Donnell under the agreement of November 1, 1889. He then became the possessor for the purposes of the agreement, and the possession was necessary in order to carry out the evident purpose of the agreement. This agreement, for aught that appears, was in full force on the 6th January, 1890, when plaintiff sent the telegram to defendant’s agent. O’Donnell, who was a witness for plaintiff, testifies that it was then and afterwards in force, and this the plaintiff, in his evidence, does not deny. O’Donnell, immediately after receiving the goods from defendant, went on, and in his usual way sold and delivered 12 sets, and these the plaintiff on the 18th February received the pay for from O’Donnell, at the price named in the agreement, although the value in fact was more. This clearly indicates that the contract was considered to be in force after the defendant’s delivery. That being so, the plaintiff had, I think, no right to treat the delivery by defendant as a conversion. The plaintiff had a right to terminate at pleasure the agreement, but he had not done so. The defendant is not chargeable with any notice to be derived from statements made by the plaintiff to defendant’s freight agent at Oswego before the plaintiff sent the telegram, on the 6th January. The agent at Oswego had nothing to do with the goods at Norwich. That matter was not within the scope of his agency or employment. The plaintiff, in his telegram, did not demand possession, and the letter of plaintiff was not received until after the delivery to O’Donnell. We think that the plaintiff failed to show a conversion by the defendant, and therefore the judgment should be reversed.

Judgment reversed, and new trial ordered; costs to abide- the event. All concur.