Stewart v. Bremer

The opinion of the court was delivered, January 3d 1870, by

Asnbw, J. —

We discover no substantial error in this case. In the whole transaction in respect to the tools in question, Moses Bennington was acting in his own behalf, and not as agent for Bremer, and the plaintiff and Leopold, the owner of the tools, were so informed at the time of the transaction. Bennington was, therefore, not the servant of Bremer, and not liable over to him for negligence or breach of duty. If liable to any one, he was liable to the plaintiff in trespass for taking the tools out of his custody, or to Leopold the owner. Both were present and acting in the affair, and both understood Bennington to claim the tools in his own right, while as to Bremer they knew he had not been paid the freight, and that his liability as a carrier had not fairly begun. The tools were put aboard the stage at the upper end of the town, a short distance from the station, and Stewart was to come over and pay the freight. He did come over, made no tender of the money, at first took the amount he had advanced for Leopold, the owner of the tools, and then returned it at Leopold’s instance., The whole transaction plainly shows that the carrier’s duty had not fairly begun, and consequently that the contract for carriage was not fully consummated. If Bennington had no right to the possession of the tools, he was a trespasser and the remedy of the plaintiff is against him.

Judgment affirmed.