
    Isaac Polack and Joseph Goldstone, Respondents, v. William J. O’Brien, Appellant.
    Third Department,
    June 27, 1906.
    Bailment — reshipment of goods by bailee through same carrier used by bailor — when bailee not liable for loss of goods by carrier.
    ' When a bailor sends goods to a bailee to perform work thereon without instructions as to the manner of their return, and the bailee reships the goods to the bailor through the agency of the same carrier employed by the bailor in sending them, and they are lost by the carrier, the bailee is not liable for the loss. Under such circumstances the carrier is not the agent of the bailee so as to make the latter liable for the carrier’s negligence.
    The fact that the bailee wrote to the bailor that he had shipped the goods by a certain boat, does not estop him from contending that the express company which lost the goods before delivery to the boat was not his agent.
    (By Smith, J.): A bailee’s contract to redeliver goods is not absolute, but he is only hound to use diligence to redeliver safely. Delivery to a reputable carrier is not negligence.
    Appeal by the defendant, William J. O’Brien, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Rensselaer on the 5th day of March, 1906, upon the decision of the court rendered after a trial before the court without a jury at the Rensselaer Trial Term.
    The plaintiffs are copartners dealing in bristle in the city of New York. Defendant is a brush manufacturer in the city of Troy. In July, 1902, plaintiffs sent to the defendant at his place of business in Troy a quantity of bristle on which the defendant was to perform certain specified work at an agreed price, and when the work was performed the bristle was to be returned to the plaintiffs. The work was duly performed by the defendant according to the contract. The bristle was then properly packed and directed to the plaintiffs at their place of business in New York, and was delivered by the defendant to “ Clum’s Express” with instructions to take it to the Citizens’ Steamboat Company in Troy, which was a common carrier of freight by water, plying its boats on the Hudson river between Troy and New York city. The trial court has found that the bristle was lost or unaccounted for by Clum’s Express, and that it was not delivered to the steamboat company in Troy.
    The judgment herein awards to the plaintiffs the value of said bristle, after deducting therefrom the defendant’s claim for his services thereon, and certain transportation charges advanced by him on the delivery to him of the property. From this judgment the defendant appeals.
    
      John, T. Norton, for the appellant.
    'Benjamin E. De Groot and Edward L. Nugent, for the respondents.
   Cochrane, J.:

The learned trial court held that the property was lost by reason of the defendant’s negligence. This conclusion was based on the assumption that Clum’s Express was the agent of the defendánt, and hence that the defendant was liable for the negligence of its agent or servant. The relationship, however, of principal and agent between the defendant and Clnm’s Express cannot be predicated on the facts which have been made to appear.

Clum’s Express is conceded to have been a common carrier. The evidence shows that it delivered much merchandise for different parties to the steamboat company. This was a matter of daily occurrence. A few months prior to the transaction in question the defendant had received from the plaintiffs other bristle under a precisely similar contract. On that ■occasion the property was transported by the plaintiffs to the defendant through the medium of the Citizens’ Steamboat Company and Clnm’s Express,

the property having heen taken by the express from the steamboat dock in Troy to the defendant at his place of business. Such property likewise was returned by the defendant to the plaintiffs through the medium of the same common carriers. On the occasion in question the property was received by the defendant in the same manner, the defendant advancing for the plaintiffs to the express its transportation charges. On neither occasion does it appear that Glum’s Express in conveying the property from the steamboat dock to the defendant’s place of business was acting under his directions; nor does it appear that it had general directions from him to deliver property intended for him. When the defendant delivered the property to Glum’s Express for return to the plaintiffs he merely adopted the same agencies and instrnmentalities-for effecting such return as the plaintiffs themselves adopted in transporting to him he property. The case is entirely destitute of evidence showing, that said express stood in any other relation to the defendant than did the steamboat company, and it is impossible to see how under the 'circumstances the defendant’s liability to the plaintiffs is any different than it would be if the property had been lost by the steamboat company instead of by Glum’s Express. It is even more difficult to infer that the express was the agent of defendant than it would be to infer that it was the agent of plaintiffs,' inasmuch as it was first selected by the plaintiffs as their carrier in delivering the property on both occasions to the defendant, and it is a reasonable inference from all of the evidence that its charges in both directions on both occasions were to be paid by plaintiffs. Plaintiffs call attention to a letter which the defendant wrote them when he delivered the property to Glum’s Express,, in which letter he stated that he had shipped such property “ by Troy boat.” The purpose of this letter was to apprise the plaintiffs when and where in Hew York they might expect their property. It does.not appear that it misled the plaintiffs or placed them at any disadvantage in reference to the property. It does not estop the defendant from claiming that Clujn’s Express was not his agent nor under the circumstances of this case does it tend to establish such agency.

The plaintiffs as bailors had the burden of proof to show negligence on the part of the defendant, their bailee. “ As a general rule when a bailee fails on demand to deliver to the bailor property to which the latter is entitled the presumption of liability arises and if the goods cannot be found it furnishes the imputation of negligence as the cause. (Fairfax v. N. Y. C., ete., R. R. Co., 67 N. Y. 11.) But such prima fade caso may be overcome when it is made to appear that the loss was occasioned by some misfortune or accident not within the control of the bailee; then the onus continues upon the bailor to prove that it was chargeable to the want of care of the bailee.” (Stewart v. Stone, 127 N. Y. 500 ; Claflin v. Meyer, 75 id. 260.) This onus in this case the plaintiffs have failed to sustain.

It may yierliaps be inferred from the evidence that it was a part of the contract obligation assumed by the defendant to redeliver the property to the plaintiffs, but it cannot be inferred that such redelivery was to be made at the plaintiffs’ place of business in the city of New York or even at the steamboat dock in the city of Troy. One of the plaintiffs testified: There wasn’t any understanding in relation to that at all; nothing said whatever by me as to how they were to be shipped or by what line they were to be shipped. The only transaction in relation to bleaching the bristle or finishing it for ns was through letters merely notifying him of our shipment to him of certain bristles that we would like to have him finish.” When the defendant redelivered the property to the same common carrier which the plaintiffs had adopted in making the delivery to the defendant the latter had fulfilled his contract obligation, and his liability in respect to the property terminated. He did not disregard any instructions given by the plaintiffs. Nor did he assume to act on his own responsibility in selecting a method of reconveying the property to the plaintiffs. He used the same instrumentalities which the plaintiffs had used for the purposes of transportation. He selected their common carriers. On another trial a different state of facts may be developed, but on the evidence before us we can discover no negligence, or disregard of duty, or breach of contract.

The judgment must be reversed on the law and the facts and a new ti'ial granted, with costs to the appellant to abide the event.

All concurred.

Smith, J. (concurring):

I concur in the reversal of this judgment upon the ground that the defendant’s liability must rest upon negligence which lias not been proven. His contract to redeliver the goods was not absolute, but was to use reasonable diligence to safely redeliver. The evidence is not as complete as might be wished, though I think it sufficiently appears that Glum’s Express was a common carrier which was generally engaged and trusted fo'r the delivery of goods between Troy and Lansingburg. A delivery, therefore, to Clum’s Express should be deemed an act of reasonable diligence as a step in the redelivery to plaintiffs of their goods. It does not appear that this express was in any discredit or that there was any fact which would lead the defendant to distrust this agency. Recognizing that a failure to redeliver by bailee is prima facie evidence of negligence, I still think that upon all the evidence defendant has shown full execution of a bailee’s duty to exercise reasonable care to redeliver to the bailor.

Judgment reversed on the law and facts, and a new trial granted, with costs to appellant to abide event.  