Sherman v. . Hudson River Railroad Co.

Earl, J. The cotton was shipped from Cairo, consigned to “Byron Sherman, 41 Warren street, Rew York.” The thirteen bales were all marked with the capital letters, “ F. B.,” in a diamond figure; and these marks as well as the direction to the consignees were upon the shipping bill issued at Cairo, and forwarded to and received by the plaintiffs in due course of mail. The cotton reached Albany by the Rew York Central railroad, and by its agents was delivered to the defendant to be transported to Rew York and delivered to the consignees. Upon delivering to the defendant, the agents of the Rew York Central Railroad Company delivered with the cotton a freight bill containing the back charges on the same, the number of bales and the marks upon the bales, in which the consignee’s name was mentioned as “ Ryan” Sherman instead of “Byron ” Sherman. This freight bill gave the only infor.mation the defendants received as to the. destination and consignee of the cotton. The cotton was immediately transported to Rew York, and reached there on the 14th day of December, 1864. The defendant changed the name of the consignee to Ryan & Sherman, and in that name made its entries and made out its bills. Rot finding these supposed consignees, it kept the cotton until December twenty-first, when it stored the same, for the supposed consignees, with *259 Mulligan & Dudley, warehousemen. The consequence was that plaintiffs did not find or receive the cotton until February sixth. In the mean time there had been a large decline in the price of cotton, and this action was brought to recover damages, for the delay in delivering the cotton, suffered by the decline in the price thereof. It is the duty of a carrier to transport goods committed to hi in in a reasonable time, and if from mere negligence or a plain violation of duty he omits to transport them beyond a reasonable time, and. their market valu'e falls in the mean time, the true rale of damages is the difference in their value at the time and place they ought to have been delivered and the time of their actual.delivery. (Ward v. The New York Central Railroad Co., 47 N. Y., 29.) It is hot only his duty thus to transport the goods, but he has not performed his contract as carrier until he has delivered or offered to deliver them to the consignee, or done what the law esteems equivalent to delivery. When the consignee is unknown to the carrier a due effort to find him and notify him of the arrival of the goods is a condition precedent to the right to warehouse them; and if a reasonable and diligent effort is not made, the carrier is liable for the consequences of the neglect. If, in the mean time, the goods depreciate in value, the rule of damages is as above stated. [Zinn v. The New Jersey Steamboat Co., 49 N. Y., 442.) If plaintiffs’ case comes within these rules and no rule of law was violated upon the trial, the recovery was right and must be upheld. The appellant alleges several grounds of error which we will proceed to examine separately : ■ 1. The referee does not expressly find, as matter of fact,that the defendant was guilty of negligence — that is, there is not such a finding among the findings of fact. But among the conclusions of law there is a finding that the defendant was guilty of negligence, and if an express finding of fact that the defendant was thus guilty were necessary to uphold this judgment, this would be deemed sufficient. A finding of negligence is, generally, an inference from many facts — from *260 all the evidence in the case; and when it is found in the report of a referee, no matter where it is placed, it must be deemed his inference from all the evidence submitted to him upon the question. Besides, the facts found here warrant the finding of negligence, and would justify no other conclusion. The agents of defendant were clearly misled by their own mistakes in changing the name of the consignees to Ryan & Sherman and inquiring only for them. If they had retained the name of Ryan Sherman as consignee they would probably have found Byron Sherman. But there was no excuse for not delivering the cotton to Byron Sherman when he called for it; he called about the time of the arrival of the cotton, and several times during the months of December and January, at the general freight office, and had with him the bill of lading forwarded to him by mail, which contained his name as consignee, the true number of bales with the marks on them, and exhibited it to defendant’s agents in charge of such office and inquired for his cotton and could'1 obtain no information about it. The probabilities are very strong that but for the mistake of changing the name of the consignee to Ryan & Sherman, the discovery would have been made, when Byron Sherman first called, that he was the consignee. The referee was, therefore, fully justified in finding that the delay in the delivery of the cotton was caused by the negligence of the defendant. 2. It is claimed that the mistake of the Hew York Central Railroad Company, in giving to the defendant the name of Ryan Sherman as consignee, caused the mistake of defendant, or contributed to that mistake, and that plaintiffs cannot, therefore, recover, as the former company was their agent for the delivery of the cotton to the defendant. An answer to this claim is, that there is no such finding; the referee based his final conclusion of law upon the negligence of defendant, and the evidence tended strongly, if not irresistibly, to show that plaintiffs’ damage was caused solely by its negligence. In the case of transportation of property over several railroads constituting a continuous line, none of the roads can *261 be said to be agents of the owner; each is exercising an independent employment, and is a contractor with the owner, the contract being either express or such as the law implies; each is responsible for its own negligence; and, while the owner may lose by the negligence of either, he can in no proper sense be made responsible for such negligence. In this case the defendant could only be made responsible for the damage caused by its own negligence ; and such was the decision of the referee. 3. It is claimed that the referee allowed too much damage. The proof showed that this cotton was worth, per pound, on the day of its arrival, December fourteenth, one dollar and thirty-three cents; December seventeenth, one dollar twenty-eight cents; December twenty-first, the day the cotton was warehoused, one dollar twenty-five cents, and February sixth, the day of its delivery, eighty-two cents. The referee allowed plaintiff fifty cents per pound in making up the amount of damage awarded; this was a liberal allowance, as defendant should have been allowed a reasonable time for delivery, and the damage should have been computed from the lapse of such time. But before judgment the plaintiffs deducted from their recovery the sum of $745.54; and after such deduction their recovery was only at the rate of forty-two cents per pound ; and such a recovery was fully warranted by the evidence. In this respect, therefore, the defendant has no reason now to complain. The judgment must, therefore, be affirmed, with costs. All concur. Allen, J., not sitting. Judgment affirmed.