
    Robert M. Oderkirk, App’lt, v. James C. Fargo, as President, etc., of The American Express Co., Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 6, 1890.)
    
    1. Common carriers—Negligence—Delivery.
    On the arrival of a trunk sent by express to plaintiff he called at- the office and requested permission to take out a few things and leave the trunk to be called for the following day, and was told ho could do so on receipting for it and paying the charges, and it would he all right. The following day the trunk was delivered to persons who called for it and said it was receipted for and the charges paid, but such persons were not authorized by plaintiff to receive it. Held,, that there was no delivery to and acceptance by plaintiff of the trunk, but its cus:ody remained as before; that the question of defendant’s negligence as warehouseman should have been submitted to the jury, and that a nonsuit was error.
    .3. Same—Authority op agent to bind company by contract.
    If the arrangement for leaving the trunk was made before the payment of charges and signing the receipt, and with a view to give plaintiff a reasonable opportunity to send for it, it was within the apparent scope of the agent’s authority, and would bind the company in the absence of any notice to plaintiff of any restriction on the agent’s authority.
    Appeal from a judgment of Jefferson county court, entered "February 12, 1890, in favor of the defendant against the plaintiff dismissing the complaint with costs. The action was commenced in justice’s court, and was brought to recover the value of a trunk and its contents, which had been sent by direction of plaintiff by express from Stony Creek, Warren county, N. Y., to Water-town, FT. Y., and carried over the defendant’s line from Borne to Watertown, but not, as claimed by plaintiff, delivered to him. 'The plaintiff recovered before the justice, the defendant appealed ■to the county court, and upon the trial there the plaintiff was non-suited.
    A. G. Emerson, for app’lt; Thos. F. Kearns, for resp’t.
   Mekwix, J.

Upon the trial of this case it appeared that the trunk of plaintiff reached the office of the defendant company at Watertown on Saturday, October 26, 1889. The following Monday, in the forenoon, the plaintiff, who lived a short distance out •of town, called at the office and found there his trunk. He testifies that on that occasion he said to the agent of the company, there in charge of the office, that he wanted, to take some things ■out that belonged to one Smith and then leave the trunk there ■till the following day or the next to enable him to have it taken To his place by some teams drawing brick, and the agent replied that if the plaintiff paid the charges and signed the receipt book he could take the things out and leave the trunk, and it would be all right; that he then paid the charges and signed the receipt, -opened the trunk and took out some things, then locked it and left it there. Upon the following Wednesday he went again to the office and was informed by the agent that the trunk had been delivered to other parties the day before upon the supposition that the plaintiff sent for it The plaintiff further testified that he never authorized anyone to go and get the trunk, and had ■never received it. '-As to the delivery, the agent testified that two men with a team called at the office, asked for the Oderkirk trunk, said that the charges were paid and that it was receipted for, and that he then pointed out to them the trunk and they took it, and that he did not ask them for any order or whether they had any authority from Oderkirk to send for it, and he didn’t know who the men were.

The claim of the defendant is that upon the plaintiff’s evidence there was a complete delivery to the plaintiff and the company ceased to be liable in any capacity, and that any agreement with the agent that the trunk might remain did not bind the defendant.

The court adopted this view and granted a nonsuit. The plaintiff asked to go to the jury apon the question whether there was such a delivery by defendant and acceptance by plaintiff as: terminated the obligation of the defendant as a common carrier also on the question whether the delivery of the property by defendant’s agent to a third party was such negligence as rendered the defendant liable as warehouseman; also as to whether the defendant did not assume the obligation of gratuitous bailee and was not guilty of such gross negligence in the misdelivery of the property as made it liable.

The court denied each of these requests and the plaintiff excepted.

The property was allowed to remain at the express office for the convenience solely of the plaintiff. This, according to the doctrine laid down in Fenner v Buffalo & State Line R. R. Co., 44 N. Y., 505, would relieve the defendant from liability as a common carrier. In that case the goods, after the freight was paid and the receipt signed, were for the convenience of both parties allowed to remain over night in the freight house of the defendant, and during the night the freight house and goods were burned up without any fault or negligence of defendant. It was held that defendant could not be held as an insurer.

It does not, however, follow that because liability as a common, carrier had ceased there was no liability at all. In Tarbell v. Royal Exchange Shipping Co., 110 N. Y., 170; 17 N. Y. State Rep., 153, it is said “that in many cases a carrier’s whole duty in respect to goods carried by him is not discharged by a constructive, delivery, terminating his strict responsibility as a carrier. Although a consignee may neglect to accept or receive the goods, the carrier is not thereby justified in abandoning them or in negligently exposing them to injury. So long as he has the custody of the. goods, although there has been a constructive delivery winch exempts him from liability as carrier, there supervenes upon the-original contract of carriage, by implication of law, a duty as bailee or warehouseman, to take ordinary care of the property.”' Upon that basis the defendant, in that case, was held to be liable for a portion of the goods lost or taken by wrong parties during the process of delivery.

In Matteson v. N. Y. C. & H. R. R. R. Co., 76 N. Y., 381, which was an action to recover for loss of baggage, the plaintiff upon her arrival at her destination gave her checks, three in number, to the baggage-master for the purpose of obtaining one of her packages, and informed him that she desired to leave the other two there for a week or two. This, the baggage-master told her, she could do by giving him the checks, and he assured her that the trunks would be just as safe without the checks as with them. The checks and two trunks were thereupon left with him, and when plaintiff called for one of the trunks afterwards it could not be found, it having been delivered by the baggage-master to a. stranger. The baggage-master was prohibited by the defendant from thus keeping baggage, and he testified that he so informed plaintiff, but this she denied. It was held to be a, question for the jury whether there was a delivery of the trunk by defendant to plaintiff and a termination of its responsibility.

In the present case, according to the evidence of the plaintiff, the agent of the defendant, before the charges were paid and the property receipted, agreed that plaintiff might take away a portion and leave the balance, with the assurance that it would be all right If this was so, it should not be said, as matter of law, that there was a delivery to, and acceptance by, the plaintiff of the whole. There was no termination of the transaction with the carrier. The custody of what was left remained as it had been before. It was in the office of the company and under the control of its agent.

But it is said that the agent of the company had no power to bind the company to the agreement or consent that the property be left. This seems to have been the main ground for the non-suit. The agent testifies that he had no such authority, but he does not say that he so informed the plaintiff. If, as testified to by the plaintiff, and as might have been found by the jury, the arrangement for leaving the trunk was made before the payment of the charges and the signing of the receipt, and with a view to give the plaintiff a reasonable opportunity to send for his goods, it would be a matter within the apparent scope of the authority of the agent managing there the business of the company, and would bind the company in the absence of any notice to the plaintiff of any restriction on the agent’s authority. Curtis v. Avon, G. & M. M. R. R. Co., 49 Barb., 148; Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y., 278 ; Story on Agency, § 126. At least it should not be said, as matter of law, that the company would not be liable.

It follows that the nonsuit was improperly granted, and that the request of the plaintiff to go to the jury on the question of the negligence of the defendant as warehouseman should have been granted.

Judgment reversed upon the exceptions and new trial ordered, costs to abide the event

Martin, J., concurs.  