Long Island Railroad v. Structural Concrete Co.

Giegerich, J. The plaintiff, a common carrier, seeks in this action to recover the value of a car-load of cement alleged to have been converted by the defendant. [168] The car-load of cement in question was a part of a quantity purchased by George A. Varney & Co. from the United Building Material Company. The defendant claimed to have purchased the cement from George A. Vamey & Co. and to have paid for it before the plaintiff made any demand for payment. The car-load in question, with two other car-loads, was shipped from Egypt, Penn., to the “ United Building Material Company Hty (notify) Structural Concrete Company C/O People’s Hygienic lee Company, East New York.” The defendant was engaged in doing certain work requiring cement for the Hygienic Ice Company at the latter company’s place of business in East Hew York. When the car-load in question arrived at the yards of the plaintiff, a notice, addressed to the defendant- in care of the People’s Hygienic Ice Company, was sent, stating that a car loaded with cement consigned to the defendant had arrived at East Hew York. There was printed on the margin of this notice a statement that a bill of lading or a written order on firm letter head must accompany the notice in order to obtain the goods. Hear the storage yard of the plaintiff company at East Hew York, the People’s Hygienic Ice Company had a private side track having switch connection with the plaintiff’s tracks. The ear in question, like previous car-loads that had been shipped in similar manner, was placed on this private siding; and its contents were then taken out by the defendant and used. On some previous occasions the plaintiff’s freight agent had received bills of lading before delivering the cars on this private siding and in some cases he had not The freight on the car-load in question was paid by the defendant. The defendant never paid the plaintiff company the value of the contents of the car, but did pay the freight charge when the same was presented. Subsequently the United Building Material Company demanded the car-load from the plaintiff company, which, being unable to deliver the same, paid the value thereof. On behalf of the plaintiff it is urged that the facts make out a case of conversion on the principle that, where a com [169] mon carrier delivers goods By mistake, the person to whom they are delivered is liable iri conversion, citing Hutchinson Carriers (3d ed.), § 863. It is unnecessary to determine what would .be the situation if the plaintiff had delivered the goods by mistake, in the usual acceptance of that term, and the defendant had received them through mistake or in bad faith. But in this case it would appear that the car-load was delivered intentionally by the plaintiff’s agents and was received in good faith by the defendant and that the goods were paid for by the defendant to the person from whom the defendant purchased the same. Under- such circumstances I think the loss should remain where it is and that the trial justice was right in dismissing the complaint. The judgment should be affirmed, with costs. Gildersleeve, J., concurs in result.