O'Dougherty v. Boston & Worcester Railroad

Talcott, J. The referee, after finding that Warren, the messenger of the Pawners’ Bank, had, upon the order of the defendant, received the goods from the warehouse, where they had been stored by the defendant, and carried them to the Pawners’ Bank, and left them in the building occupied by the bank, and that J. O. Dougherty, the assignee, did not know of or authorize the delivery to Warren, or [480] any other person, proceeds to further find that “ a few days thereafter the said consignee, at the request and for the benefit of McGilvery, called at the bank, saw said goods, and designated what portion of them, should be held by said Pawners’ Bank as security for the loan to said McGilvery of $1,000, and on several other occasions subsequently said consignee, at the request of said McGilvery, called at said bank, selected and took and caused to be taken away to the auction store of said McGilvery small parcels of said goods, and knew of the sale of said goods in said auction store.” Thus it appears that after the erroneous delivery by the defendant, if it were such, the consignee took control of the goods at the place where they had been delivered and were. The Pawners’ Bank, so far as appears, neither had nor claimed any interest in the goods until after the consignee had been a party to the arrangement by which it made a loan on the portion designated by the consignee, and up to that time, if the delivery was erroneous and the defendant had been advised thereof by the consignee or otherwise, the defendant might, and doubtless would, have reclaimed the property, and by another delivery have at least reduced the claim against them for the first erroneous delivery to a mere nominal one. The following principles of the law of carriers we take to be well settled: The consignee is presumptively the owner, and is by the carrier to be regarded as absolute owner until notice to the contrary appears. And any delivery which discharges the carrier, as between him and the consignee, is good against the consignor. The consignee, or his authorized agent, may receive goods addressed to him at any place, ■either before or after their arrival at their place of destination, and such acceptance operates as a discharge of the carrier from his liability. And any act of the owners, with knowledge of the erroneous delivery by which they assume to take control of the goods at the place of delivery in fact, amounts to a ratification of an erroneous delivery, so far as the value of the property is concerned, leaving, perhaps, the carrier responsible for the mere damages resulting legitimately from the delivery at the wrong place. Green v. Clark, 5 Den. 503; Sweet v. Barney, 23 N. Y. 335. In Green v. Clark, supra, it is said by the court: “Any act of the owners indicating an intention to hold on to the salt at Sandusky City as their own, and therefore wholly inconsistent with the supposition that the defendants were to be held liable for a breach of duty, amounts to a positive ratification of what had been done without authority.” We do [481] not see why the same rule must not necessarily be applied to the acts of the consignee in exoneration of the carrier, though it should afterward turn out that as between the consignor and consignee the former was the true owner. As to the carrier, the consignee is owner, and to be treated, and his orders and acts regarded as such. We are, therefore, of the opinion that upon the findings of the referee, and conceding the delivery to the messenger of the Pawners’ Bank to have been without original authority from the consignee, that his subsequent assumption of control over the goods, and taking an active part in pledging them to the Pawners’ Bank and sending them elsewhere for sale, was a ratification of the unauthorized delivery by the consignee, and that the consignee, being the ostensible owner, had authority to bind, and did bind, the consignor by such ratification and assent to the erroneous delivery, consequently that the defendant is not liable to the plaintiff for the value of the goods, and if there should be any doubt about the foregoing conclusion, we are of opinion that the case should undergo another investigation upon the facts. (The remainder of the opinion is devoted to a consideration of the evidence taken before the referee, and no question of law is passed upon.) Judgment reversed and new trial ordered.