Witbeck v. Schuyler

By the Court, Ingalls, J. The liability of the defendants is resisted on the sole ground that the trunk was not delivered to the agent of the defendants authorized to receive the .same; that the delivery to the captain was not a delivery to .the defendants, and therefore that they were not liable. The referee finds that the only duty of the captain was to navi-gate. .the. ..boat,... and. that. other, agents were .appointed .to [471] receive and deliver freight and receive the pay therefor. It does not appear that either the plaintiff or his father knew of that -arrangement; nor that they had any knowledge or notice that the captain was not authorized to receive the trunk. Witbeck had on several occasions sent articles by the captain and paid the defendants therefor.. The captain was in attendance upon the boat, assumed to receive the articles for transportation, and did not notify the plaintiff or his father that he was not authorized to receive the same. From these facts it would seem that it might be implied that the captain was authorized to receive the trunk, and the defendants thereby rendered liable for the loss. In Bridenbecker v. Lowell, (32 Barb. 18,) Allen, J. remarks : “ A general agency is therefore constituted not by the authority which the agent actually received from his principal, but that which the latter allows the agent to assume.” (Dunning v. Roberts, 35 Barb. 467. Dows v. Greene, 16 id. 77. Paley on Agency, p. 293.) “ To charge a carrier with the receipt of goods to be conveyed, it is sufficient to show a delivery to his servant usually employed in that business.” This is just: as the principal has the selection and control of his agent, he should be responsible for his acts performed within the scope of the apparent authority which the principal allows him to assume. The fact that the defendants received compensation from Witbeck, on several occasions, for goods similarly shipped, is strong evidence of the recognition of the authority of the captain thus to act. The counsel for the appellants relies upon the case of Blanchard v. Isaacs, (3 Barb. 388.) That case is quite distinguishable from the one at bar. In that case the coat was delivered to the driver of a stage coach, where the business was merely the transportation of passengers, with their baggage. And the party who delivered the coat was not a passenger, and was informed by the driver that he could not enter it upon the way bill, but would deliver it to the next agent, at Schuylerville. And with a knowledge of these' facts the coat was delivered properly at [472] the risk of the owner. In the case at har the transportation of goods and merchandize was the regular business of the defendants, and no information was given to Witbeck that the captain was not the proper person to receive the trunk. He was then in charge, and assumed to act, and Witbeck reasonably concluded that he was the proper person to treat with. (Langworthy v. N. Y. and H. R. R. Co., 2 E. D. Smith, 195.) I am therefore of opinion that the judgment should be affirmed, with costs. [Albany General Term, September 19, 1865. Judgment affirmed. Bogeboom, Milla• and Ingalls, J us tices.]