Brooks v. Lawrence , 1 Edm. Sel. Cas. 496 ( 1847 )

Edmonds, J.:

As to the defendant Ward, he received the goods under his general practice to receive from plaintiffs goods directed to Lawrence & Trimble and to Tiffany, Ward & Co., and forwarded them by sea. There was no actual conversion by him, and the action is founded solely upon his negligence in sending the goods hy sea when they ought to have gone by land. If this was negligence in him, it was equally negligence in the plaintiffs, and they cannot found an action on their own negligence.

Besides, Ward was in a public employment, merely the conduit through whom the goods passed, and answerable only for sending them forward in good faith. There is no evidence of want of good faith in him, but it seems that he delivered the goods where he had been accustomed to deliver under similar circumstances. There is then no ground for imputing a conversion to him.

As to the other defendants, they were merely forwarders. Were they such for these plaintiffs? There was no intercourse between them and the plaintiffs, except through the acts of Ward, who, though he might be their agent to receive goods which they had a right to possess, cannot be regarded as their agent to commit a tort, unless some particular instruction was shown.

Besides it was no performance of the plaintiffs’ contract Avith the OAvners of the (goods to deliver them to L. & T., or their cartman. It Avas negligence in them to do so. Their whole claim against th ( defendant is founded on that negligence, and to allow then to recover would be to transfer the consequences of that ne Vligence from themselves to the defendants.

The plaintiffs must be nonsuited.