Bush v. Romer

Barnard, P. J. This is a plain case. The defendants are common carriers. As such, they undertook to transport for the plaintiff, from Albany to Hyde Park, a quantity of trees, and deliver them to the plaintiff there. They did not so deliver them; but did deliver them to a Mr. Witherwax, who had no authority to receive them for the plaintiff. Hnder this state of facts, the plaintiff is entitled to recover the value of the trees. The case of Viner v. New York, etc., Steamboat Co., 50 N. Y. 23, is a decisive authority. That case holds, that the liability of the carrier continues until the property is delivered according to the consignee’s order; and it is no answer for a wrong delivery to say, that it was done by mistake, and with no bad intent. The judge-who tried this case charged in the language of that case, and the defendants excepted to it; and it is claimed in the points by the defendants, that it was in effect directing a verdict for the plaintiff. It is, notwithstanding its effect, a legal charge. No question is raised as to the freight in the pleadings, and none was suggested on the trial. The judgment should be affirmed, with costs. Judgment affirmed.