French v. Star Union Transportation Co.

Morton, C. J. We see no principle upon which the plain • tiffs can maintain this or any action upon the facts agreed. The defendant received the goods of the plaintiffs, and by its bill of lading agreed to transport them to Cincinnati and to deliver them to the consignees. It did transport the goods safely to Cincinnati, where they arrived on May 2, 1881, and were placed in the defendant’s warehouse ready for delivery. On the next day, May 3, they were attached as the property of the consignees in a suit against them, by an officer, who took possession of them and retained them until May 7, when, the suit having been settled, he delivered them to the consignees. The defendant is not liable on its contract of carriage, because it has performed it. It is not liable in trover for the conversion of the goods, because the surrender of the possession to an officer, attaching them upon legal process against the consignees, was not tortious on the part of the carrier, so as to make it liable for converting them to its own use. Stiles v. Davis, 1 Black, 101. Edwards v. White Line Transit Co. 104 Mass. 159. The plaintiffs contend that the defendant is liable, under the second count of the declaration, for negligence in permitting the attaching officer to deliver the goods to the consignees. It appears that, on May 4, some one on behalf of the plaintiffs telegraphed to the defendant’s agent in Boston to hold the goods. This was after the goods had been taken from the defendant by the attaching officer. The plaintiffs’ argument is, that, upon receiving this message, it was the duty of the defendant to telegraph to its agent in Cincinnati, and to notify the officer, and thus, on behalf of the plaintiffs, stop the goods in transitu- It does not distinctly appear that the plaintiffs had any right of stoppage in transitu; but, if we assume that they had, and also assume that they might exercise this right while the goods were in the hands of the officer, they had no right to impose upon the defendant, without its consent, the active duty of notifying the officer, or of taking any other steps to stop the 291 goods in transitu. If the plaintiffs lost anything, it was from their own want of diligence in taking the proper steps to assert their right of stoppage in transitu, and not from the neglect of the defendant to perform any duty it owed to the plaintiffs. Judgment for the defendant affirmed.