Hall v. Boston & Worcester Railroad

Foster, J. The plaintiffs purchased and paid for fifty barrels of flour, and received a bill of sale from Clap & Brother, together with an order by them upon the defendant corporation to deliver that number of barrels. The defendants had at that time in their freight house a larger number belonging to Clap & Brother. The order was presented to the proper clerk of the railroad corporation by the teamster of the plaintiffs, who gave a receipt for" fifty barrels, and received in return “ a flour check ” or order upon the clerk whose business it was to deliver such freight, for the same number in favor of the plaintiffs. This flour check or order was presented to the delivery clerk and left in his possession. Under it, he delivered to the plaintiffs twenty-two barrels of flour and indorsed them on the check or order. All these yroeeedings were in conformity with the usual course of such business, as recognized and permitted by the officers of the railroad corporation. But the remaining twenty-eight barrels were never in fact received by the plaintiffs, but were by mistake delivered to some unauthorized stranger by the delivery clerk. The facts disclose a sufficient selection and separation of the twenty-eight barrels as the property of the plaintiffs. The vendors ordered their delivery; the corporation by its agents accepted the order and agreed to deliver the flour. It was their [443] duty to select the barrels to be delivered to the plaintiffs; and they necessarily made an actual selection and separation of twenty-eight barrels under the order before the misdelivery to the stranger, otherwise they could not have committed the mistake and indorsed the amount wrongly delivered on the plaintiffs’ check. These proceedings were quite sufficient to vest in the plaintiffs the title to the twenty-eight barrels now in controversy. Even without the misdelivery, the effect of the vendor’s order, when accepted by the parties who had the custody of the whole property, and were to select out of the whole the portion to be delivered, under the circumstances and according to the usual course of business, would have transferred the property in twenty-eight barrels to the plaintiffs, as against the creditors of the vendor, and so as to subject the vendees to the loss in case of fire. Cushing v. Breed, ante, 376. The plaintiffs have therefore a property and right of possession sufficient to maintain the present action. The remaining question is, Are the defendants liable for a conversion of the property ? It is insisted on their behalf that this depends upon the amount of care they were bound to exercise, and the degree of negligence of which they were guilty. But this is an erroneous view of the law. A misdelivery of property by any bailee to a person unauthorized by the time owner is of itself a conversion, rendering the bailee liable in trover, without regard to the question of due care or degree of negligence. This is a well established legal principle, applicable to every description of bailment. The action of trover is not maintained by proof of negligence, but only of misfeasance amounting to a conversion. And a delivery to an unauthorized person is as much a conversion as would be a sale of the property, or an appropriation of it to the bailee’s own use. In such cases neither a sincere and apparently well founded belief that the tortious act was right, nor the exercise of any degree of care, constitutes a defence even to a gratuitous bailee. Lichtenhein v. Boston & Providence Railroad, 11 Cush. 70. Polley v. Lenox Iron Works, 2 Allen, 182. Lawrence v. Simons, 4 Barb. 354. Esmay v. Fanning, 9 Barb 176. The question whether [444] the defendants were warehousemen bound to exercise ordinary care, or gratuitous bailees liable only for gross negligence, is therefore wholly immaterial. Furthermore, when the freight was received into the depot, the railroad corporation became liable as warehousemen. Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263. The point that the owners of the property failed to remove it within a reasonable time does not appear by the exceptions to have been raised at the trial. The mere fact of a sale by the original owners to the plaintiffs would not change the character of the bailment and diminish the responsibility of the warehousemen. The effect of an unreasonable delay by the owner to remove the property upon the liability of a railroad which has freight on hand ready to be delivered might under some circumstances require consideration. But in the present case no such question arises. Exceptions overruled.