Sword v. Young

TURKEY, Oh. J. On May 18, 1889, J. E. Gil-lenwaters, over the assumed and fictitious name of “ Ohaides G-. Magrauder,” wrote to Sword & Son, of Cleveland, Ohio, to send to them (representing Magrauder as a firm name) a hrick machine. The machine was shipped, and came to Knoxville on the cars of defendant, East Tennessee, Virginia, and Georgia Railroad. Shortly after its arrival Gillenwaters presented the hill of lading made in the name of “ Charles G. Magrauder,” demanded the machine, which was delivered to him, paid the freight, and receipted in the name of Charles G. Magrauder. ETo questions were asked, and he was not required to identify himself as the consignee, nor was the hill indorsed. Defendant Garland claims to have purchased the machine from his brother-in-law, Gillenwaters. lie afterward sold it to Young & Tindall. Complainants were, of course, never paid the price for the machine, and now sue the defendants, Gillenwaters and Garland, Young & Tindall, and the railroad company. There can be no question of the liability of Gillenwaters and Garland. "Was the conduct of the carrier such as to amount to a conversion and make it liable? It is a well-settled general rule that the carrier must deliver to the consignee at the place appointed. Chancellor Kent declares the law to be that “a common carrier is in the nature of an insurer, and is answerable for accidents and thefts, and [128] even for a loss' by robbery. , He is answerable for all losses which, do not fall within the excepted cases of the act of God .and public enemies. This has been the settled law of England for ages, and the rule is intended as a guard against fraud and collusion, and is founded on the same broad principles of public policy and convenience'which govern in the case of inn-keepers. This principle of extraordinary responsibility was taken from the edict of the praetor in the Roman law, and it has insinuated itself into the jurisprudence of all the civilized nations of Europe.” 2 Kent, 805, 9th Ed. This is equally the rule in this country. It can make no difference that the defendant earner thought, because G-illenwaters had the bill of lading, that he was Charles G. Magrauder. If he was a stranger, as the proof shows him to be, it was the duty of the carrier to have required him to identify himself as the consignee or his rightfully-constituted agent. 33y its failure, Gillenwaters was enabled to practice that fraud intended to be guarded against by the rule from Kent, as well as a theft, or its equivalent — the obtaining of the goods by false pretenses. That Gillenwaters had succeeded in deceiving the complainants by representing himself as Ma-grauder, is no excuse to the defendant for its failure to use an effort to discover his true character. The consignment was to Charles G. Magrauder. That name was fixed on the machine, and it was [129] a duty to deliver to him only, or, if he could not be discovered, to notify the consignor. (October 4, 1890.) There is no difference between this case and one in which a consignment has been made to an actual person, and the goods delivered by accident, •mistake, or carelessness to a cheat who represents himself as the real consignee. It is necessary in both to have proof of identity or authority to receive. We have no doubt of a confederacy between G-illenwaters and Gt-arland. The decree will be against them, in the first instance, for the value of the machine; then against the carrier. A majority of the Court holds that no decree can be had against Young & Tindall. Modify the Chancellor’s decree accordingly.