Cohen v. Koster

Ingraham, J.: It appears in this action that the plaintiff was the owner of certain merchandise which he delivered to one McDonald, a public truckman, late in the afternoon of September 3, 1907, for transportation ; that McDonald did not deliver the merchandise that afternoon, but kept it on his truck, drove the truck into the defendant’s stable and left it there; that the defendant’s employees, in ■ the regular course of their duties, unhitched the horses attached to the truck and backed the truck into its usual place among many other trucks which defendant had on storage or livery; that it had been the practice of some of McDonald’s drivers, unknown, however, to McDonald, to send their assistants and sometimes strangers with trucks to the defendant’s stable at night, the trucks having at times merchandise upon them, and that at times strange boys were sent for trucks in the morning; that this practice had continued a number of months. On the morning of September 4, 1907, about the time that McDonald’s truck was usually called for, ■ a young man, a stranger to the defendant, came to the defendant’s stable, the defendant and his employees then being engaged in hitching and sending out several hundred trucks, and asked for McDonald’s truck; that the stranger described the horse that he wanted; the horse described, which belonged to McDonald, was hitched to the truck and the stranger drove it off with the plaintiff’s [572] case of goods on it. The horse -and track were subsequently found abandoned on the street, but no trace of the .casé was .ever discovered. Subsequently the plaintiff’s .assignor demanded' from the-defendant the -case that McDonald had ¿eft on the .defendant’s, premises the night before, which demand was: refused, and -the question submitted is whether the defendant was liable to the-plaintiff for the value of this case of merchandise. Undoubtedly, McDonald was a bailee and liable to the plaintiff’s-assignor for failure to deliver the merchandise intrusted to him for transportation. But there was no relation between the plaintiff and the defendant.. The defendant received no merchandise for storage for the plaintiff; had no notice of the plaintiff’s owning any merchandise upon his premises, and so far as I can see was under no-obligation to either store this merchandise for the plaintiff or deliver it to the plaintiff on demand. The defendant never voluntarily accepted any of the plaintiff’s assignor’s goods for storage- .and there is no statement that he or his employees ever knew that there was .any merchandise upon McDonald’s track when it. was returned to the .stable for storage' during the night. I cannot. se.e that -defendant was tinder .any (obligation -to store it, protect it or deliver it to the plaintiff’s assignor. - If .the -defendant had received notice -that this merchandise ¡belonged to the plaintiff®assignor, and after ¡such notice had delivered it to a stranger -a different question would have been presented:; but in the absence -of some notice to-the defendant or his -.employees that there was merchandise upon the tra-elc which belonged to the plaintiff’s assignor or to which he was ¡entitled I cannot see that an obligation..existed-on the part of' the defendant to protect this.inerehandise-or that the defendant was-liable for its value because the -same was -not delivered to plaintiff’s assignor on demand. It is plain that a .delivery of the mevchandiseto McDonald would hav-e -discharged the defendant from any liability to the plaintiff’s -assignor. The fact that the track 'with the merchandise upon it was delivered to a -stranger who represented himself as being authorized by McDonald to receive it could not be a conversion of .the plaintiff’s .assignor’s property by -the defendant, for .the defend ant. was -under no -obligation to hold the merchandise-to -the plaintiff’s assignor. "To establish" a conversion of the property a demand was necessary, but when the demand .was made the573 property was not in defendant’s possession. There was not, therefore,. a conversion nor could the defendant be liable to the plaintiff’s assignor for negligence in delivering the truck to the wrong person. As before stated,, the defendant owed, no- duty to the plaintiff’s assignor to- protect, his property,, and. a. liability' for negligence must depend upon a duty owed by the. defendant to the plaintiff which the defendant negligently performed. The plaintiff, as- I understand- it,, does not claim liability for negligence but depends upon his cause, of action, for conversion; but: to hol-di the, defendant, liable for conversion it.must appear that he assumed and exercised dominion or control over the property,, and having possession refused to ■deliver it to the owner. The case of McKillop v. Reich (76 App. Dir. 334) is plainly not applicable,., as in that case- the carriages in which the personal property was contained were delivered to the •defendant by the, plaintiff. The personal property in the carriages was- taken from them,, and. under'the direction of the person found in charge of. the stable was- placed in the office and defendant notified that, the plaintiff had left the articles- in. the office,, to which the -defendant responded,, “ All right.” He thereby became a, bailee of the. property for the plaintiff, and under those circumstances- was held liable for the return of the. articles.. But in this ^ case -the •absence of any notice to the defendant that the plain tiff.’a- assignor's goods were upon liis- premises or under his control, or that he ever assumed or exercised volition over them relieves him front liability. I think,, therefore,, there- must be judgment for the defendant. Laughlin and Houghton, JJ., concurred; McLaughlin and Clarke, JJ., dissented.