Ostrander v. Brown & Stafford

Platt, J. delivered the opinion of the court. In a case where the precise place of delivery is material, it may he proper to allow evidence of a local usage. For instance, the usage at Havanna is often proved to show that some species of cargoes, such as slaves, are to he delivered at the Moro Castle, and that other articles are deliverable only on the wharfs in the inner harbour. But in this case, it seems to me, that the only question is, not whether the tea was delivered at the right place, but whether it was delivered at all, to Mounsey and Olmstead ? If it be true, that one of the consignees Avent on board the vessel and saw a list of the goods, (which I think is not proved,) that would not be evidence of a delivery. The goods xvere then in the hold of the vessel. The master, soon afterwards, put them on the dock, but not in the presence, nor with the knoAvledge of either of the consignees. , No notice was given to Mounsey and Olmstead that the-goods were unladen, or that they had arrived. But a cartman Avho “ had often carted for them and Avho, no doubt, had often carted for fifty other persons, came, by the direction of Mr. Keeler, (a stranger to the plaintiffs beloAV,) and on that day carried one load to the store of the consignees; the residue was left all night on the wharf, and the next day, the same cartman found some of them in a strange Avaggon, and the box of tea has not since been heard óf. In truth, the only acts done by Mounsey and Olmstead or their clerk, were to receive in store such articles as the cartman brought to them, and to pay him for carting them; and there is no proof that they ever had any other knowledge of the goods. The weight of evidence clearly shows that neither of them were on board the sloop. Admitting, then, that the wharf was the place of delivery, a mere landing the goods on the wharf was no delivery. A delivery, in this case, implies mutual acts of the carrier and the consignees. A tender, merely, of the goods to the consignees, without their acceptance, would not be a performance of the car [43] rier’s duty in such a case. Suppose the consignees had been dead, or absent, or had refused to receive the goods in store, what would have been the carrier’s duty ? Certainly he would have no right to leave them on the wharf, or in the street, without protection. He would not be justified in abandoning the goods. He had notice that Stafford and Brown were the owners ; and if Mounsey and Olmstead would not take charge of the goods as consignees, he ought to have secured them on board his vessel, or in some other place of safety; and that would have entitled him to his freight with all extra charges. The fiecision of the court below on the question of local usage, was on a point which is immaterial in this case. The second exception was, I think, properly abandoned on the argument; and the opinion of the court below on the last point, to wit, that the cartman was not to be regarded as the general agent of the consignees, for receiving • goods, merely on the ground of his being often employed by them to cart goods, was undoubtedly correct. Because a merchant usually selects a cartman, and employs him exclusively in carrying goods, according to his orders, it by no means follows that such cartman is his general agent for receiving goods, without orders. The defendants in error are, therefore, entitled to judgment. Judgment accordingly.