Fitzhugh v. . Wiman , 9 N.Y. 559 ( 1854 )

The contract of the master of the vessel was for transportation to and delivery at Oswego, and the only legitimate construction of the bills of lading is, that the delivery at Oswego was to be to the consignees named there. As to the further destination of the property, the bills of lading imposed no obligation upon the vessel or the master, nor conferred upon him any authority. His rights and his duties were merely to make delivery according to the bills of lading, he receiving the freight and charges specified.

As to the contract for transportation, a bill of lading is like any other contract in writing, and cannot be altered or contradicted by parol. As to the quantity of property acknowledged by it to have been received, it has been sometimes held to be open to explanation, as a receipt. But the cases have never gone to the extent of holding that the agreement between the parties, as to the destination of the property, or the freight to be paid, or any other of the terms of the contract for carriage, could be varied by parol. The judge, at the trial, therefore, ruled correctly in rejecting the defendant's offer to show by parol an agreement with Steel, that if the propeller could not conveniently get up to Fitzhugh's wharf, or deliver the property to Fitzhugh Co., it might be delivered to any other persons or at any other place. Even if Fitzhugh Co. had refused to receive the property, or declined to pay the vessel's lien upon it for freight, the master would not thereby have acquired any right to ship the property to any other place or to deliver it to any other person, except only as a mere custodian to preserve his lien. No such question, however, arises in this case; for Fitzhugh Co. offered to pay the freight, and it was not for the purpose of preserving his lien for freight, or upon the ground of its non-payment, that the master delivered the property to the defendant. The defendant received the property from the master with notice both from the bills of lading and from the agent or clerk of the plaintiffs of their claims, and of the master's want of right, and without the assent of Fitzhugh Co., and without any shadow of authority or excuse, retained the possession of the property and transported it from Oswego. Though it afterwards came to the possession of the persons for whom it was designed at New-York and Albany, it is clear beyond all doubt that both the master of the propeller and the defendant had been guilty of an unlawful conversion of the property, for the whole value of which they might, in an action by the party entitled, have been made responsible. (Syeds v. Hay, 4 TermR., 260.) That both the original taking of the property by the defendant and his refusal upon demand to deliver it to Fitzhugh Co. were wrongful, is entirely clear. He could earn no freight by the carriage of the goods, nor be entitled to reimbursement for expenditures on account of them. (Lempriere v. Pasley, 2Term R., 486, 490.) The subsequent receipt of the goods from the defendant by the persons to whom they were destined is no bar to an action against him, nor any ratification of the delivery to him by the master. It could only go in mitigation of damages.

The next question relates to the right of the plaintiffs to maintain this action. It is an action in which the plaintiffs asked by their complaint to recover the possession of personal property, with damages for its taking and detention.

It appears from the evidence that Steel, the shipper of the property, was not the owner, but was possessed of it for the owners, with authority to forward it in the manner in which it was consigned by the bills of lading. He had liens upon the several parcels while in his possession, amounting together to $51.70. Previous to the actual shipment of the property, Steel had contracted with the plaintiffs that they should carry the property from Oswego to New-York and Albany to the respective consignees at those places at the lowest current rates for transportation. Upon the shipment of the property the bills of lading were signed in triplicate, one set being retained by the clerk of the vessel and the others delivered to Steel. The plaintiffs paid to Steel his charges above mentioned, and in consideration thereof one set of the bills of lading was delivered to them by him. The third set was sent by Steel to Strachan Scott in New-York and to Cummings in Albany for the property consigned to them respectively. Fitzhugh Co. were to receive the property at Oswego and transport it to New-York and Albany, and there collect the amount advanced by them and their compensation for carriage and other charges. As the property never came into the actual possession of the plaintiffs, it is necessary, in order to make out their right to maintain this action, or even an action for its conversion, to show that either the general or some special property in the goods was vested in them. When the property in question was in Steel's possession at Chicago, he had a special property in it by virtue of his lien. And as he had the possession for the purpose of forwarding, by authority of the owner, he might have carried the goods himself in his own vessel to Oswego or New-York and retained his lien, or he might have delivered them to the propeller to be carried upon the terms of receiving from them the amount of his lien, and in that case the right of lien for the charges so paid, they being actually due to Steel, would have passed to the carrier. Then it would seem to follow that Steel might have shipped the property to himself at Oswego and thereby retained a constructive possession of the property, the carriers in such case being but his servants, and the carriage of the goods from the one place to the other being subservient to the general purpose of the owners and in pursuance of Steel's authority from them. When, therefore, Steel put the property on board the propeller and took the bills of lading by which the property was deliverable to Fitzhugh Co., at Oswego, and there delivered the bills to them upon and in consideration of their payment of his charges, the property at the time and until the delivery of the bill of lading remaining under his control, his special property became vested in the plaintiffs.

These positions are supported by the principles of the cases ofSweet v. Pym (1 East, 4), McCombie v. Davies (7East), Urquhart v. McIver (4 John., 116) and Allen v.Williams (12 Pick., 297.) In Sweet v. Pym, the party having the lien had shipped the goods in pursuance of the owner's orders to be delivered to the owner. It was held that after the vessel sailed the shipper could not stop the goods upon the owner's insolvency, the custody having been changed by their delivery to the captain. In McCombie v. Davis, where a broker having the possession of his principal's property, and having a lien for a certain sum, had pledged the property to the defendant for money advanced to himself, and the defendant set up the broker's lien and claimed to retain under it, Lord ELLENBOROUGH said it was quite clear that a lien could not be transferred by the tortious act of the broker in pledging the principal's goods; and after consulting the other judges added, "that he would have it fully understood that his observations applied to a tortious transfer of the goods of the principal, by the broker undertaking to pledge them as his own, and not to the case of one who, intending to give a security to another to the extent of his lien, delivers over the actual possession of goods on which he has the lien to that other, with notice of his lien, and appoints that other as his servant to keep the possession of the goods for him, in which case he might preserve the lien." The principle of this last case is fully recognized in Urquhart v. McIver.Allen v. Williams shows that by the mere filling up of the bill of lading with the plaintiff's name as consignee, the rights of the parties were not altered, and that it took effect only upon the negotiation of it with Fitzhugh Co.

The motion for a nonsuit, upon the ground that the plaintiffs had shown no special property or sufficient interest in the goods to maintain the action, was properly denied. Indeed, the interests of commerce would seem to require a broader rule. Inland navigation in this country requires so many trans-shipments of property, that if the consignee at an intermediate port of trans-shipment has not the right to claim, by virtue of the mere consignment to his care, the actual possession of the property, as against every one not claiming rightfully under the owner, the interest of owners must be greatly jeoparded in many cases. Whether any such right can be maintained consistently with decided cases, is, to say the least, very doubtful; but no expression of opinion upon that question is necessary in this case.

The judge directed the jury to ascertain separately the amount of the profits which the plaintiffs would have made by the transportation of these goods from Oswego to Albany and New-York, and judgment was given for that amount besides the advances. With reference to this point, the case is to be considered as if the property had come to the actual possession of the plaintiffs, for that we have already seen to be the legal effect of the acts of the parties. In that case the plaintiffs, even as against the owner, having the possession, with a lien for advances, and having contracted to carry the property to its final destination, would have been entitled to receive their advances and the profits they would make upon the carriage of the goods from him upon a demand by him for redelivery. That would have been the measure of the value of their special property. The restoration by the defendant of the property itself to the final consignees was received in evidence. But for that restoration the plaintiffs would have had judgment for a return or the whole value, and are now to be taken to have waived judgment for a return or the whole value, and to have taken, instead, an assessment of the value of their special property.

The judgment should be modified so that the plaintiffs shall have judgment for a return, or the value of their special property, including both the items before referred to.

The whole court concurring,

Ordered accordingly.