
    William E. Lee, Respondent, v. Erie Railroad Company, Appellant.
    Third Department,
    May 3, 1916.
    Carrier — delivery of car at siding — demurrage — conversion of carload of lath — statement of plaintiff as to charge for demurrage did not mislead carrier.
    Where a contract for the transportation of a carload of lath requires the carrier to place the ear conveniently for unloading, it cannot insist upon payment of demurrage or enforce a lien therefor until it has delivered the car on a private siding of the consignee who had requested such delivery.
    In an action against the carrier for conversion of the carload of lath, evidence that plaintiff, when informed that unless he paid more than the defendant had a right to demand, the ear would not be placed on his track, stated that such charge for demurrage could not be made “ on a car that had not been placed,” considered and held, not to have misled defendant into a belief that even if it placed the car on plaintiff’s track, the latter would not pay the lawful charge thereon.
    The refusal of the carrier to deliver the car on plaintiff’s track except on compliance with its unlawful and excessive demand for demurrage charges constituted a conversion of plaintiff’s property.
    Kellogg, P. J., dissented.
    Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 9th day of August, 1912, upon the decision of the court, a jury having been waived.
    
      Standifield, Lovell, Folds & Sayles [Henry B. Collin of counsel], for the appellant.
    
      Thomas M. Losie, for the respondent.
   Cochrane, J.:

The defendant has been held liable for converting a carload of lath belonging to the plaintiff. The controversy grows out of the application of certain car service rules for demurrage duly promulgated and rendered effective according to law. The carload in question originated in the State of New Hampshire and was consigned to William Gr. Baker, but was intended for the plaintiff and its destination was Elmira, N. Y. It reached the defendant’s yard in Elmira on the morning of August 27, 1906. Plaintiff, had a private track as lessee thereof connecting with the defendant’s tracks at Elmira. The plaintiff not being the consignee, the defendant could not place the car on his private track until it had satisfied itself that the car was in fact intended for him and that he was willing to accept the same. Immediately on its arrival and in the forenoon of said August twenty-seventh the defendant mailed to the plaintiff a postal card informing him of the arrival of the car and stating the freight charges to be sixty-four dollars and sixty cents, and bearing on its face the following printed matter: Gar service in accordance with rules of the car service association will be applied.” The plaintiff received said postal card in the afternoon of the same day, but did nothing in reference thereto until the afternoon of August thirtieth, when he called at the freight office of the defendant and paid the freight and took a receipt therefor. He then directed the cashier to whom he made the payment to have the car placed on his track, and the cashier thereupon immediately gave instructions to have it so placed. At that time the car stood opposite the passenger station, but in a position not accessible for unloading. The defendant did not then nor at any time thereafter place the car on the plaintiff’s track.

It was claimed by the defendant at the trial, and is now claimed, that at the time of the payment of the freight there was under'the car service rules in force a charge of one dollar which had accrued for demurrage between the time of the arrival of the car at the Elmira yard of the defendant and the time when the plaintiff paid the freight thereon, and for the purposes of this appeal it will be assumed that such claim is tenable. The trial justice, however, has found on conflicting evidence that nothing was said when the freight was paid about a demurrage charge, and that the .defendant then agreed to place the car on the plaintiff’s track. This it failed to do. It has also been found by the trial justice that oh the following day the defendant demanded three dollars demurrage, and notified the plaintiff that it would not place the car on his track until such demurrage was paid. The plaintiff testified that not a word had been said prior to that about demurrage in any amount, and that he then told the defendant’s agent that he did not know how he got a charge of three dollars demurrage on a car that had not been placed,” and that he refused to pay the demurrage. If the car had been placed on the plaintiff’s track on the previous day as the defendant had promised not more than two dollars demurrage could have been demanded when the defendant made its demand of three dollars on August thirty-first.

The failure to place the car on the plaintiff’s track on August thirtieth when the freight was paid was not the fault of the latter. When, therefore, on August thirty-first the defendant demanded three dollars for demurrage there was only in fact one dollar due, and the defendant was making an unlawful and excessive demand. Its refusal to deliver the car on the track of the plaintiff except on compliance with its unlawful and excessive demand for demurrage charges constituted a conversion of the plaintiff’s property. It was a part of the implied contract duty of the defendant to place this car on the plaintiff’s private track and until it did so it had not performed its contract and no freight or demurrage charges although previously earned were collectible. The contract of transportation by a common carrier includes placing the cars conveniently for loading and unloading. The incidental consignee can require the car to be placed at a convenient point for unloading and a' reasonable opportunity therefor. When the consignee, as in this case, has his own track and requires the car to be placed thereon for unloading it is the duty of the transportation company to comply with’his requirement. This was not done in the present case, nor was the car ever in a position where it could be conveniently unloaded. In New York Central & H. R. R. R. Co. v. General Electric Co. (167 App. Div. 726) it was said by this court, speaking through Mr. Justice Woodward (at p. 732): “We believe it may be laid down broadly that transportation by railroad of carload lots, under present-day conditions, requires the convenient placing of the car for loading, and an equally convenient placing of the car for unloading, and that the mere question of whether • the tracks are upon the property of the shipper or upon the right of way of the transportation company is of no consequence upon this point. Primarily it is the duty of the transportation company to afford sidings and a convenient place of loading or unloading and a proper placing of the cars. If the shipper furnishes the sidings it does not relieve the transportation corporation of the duty of conveniently placing the cars.” The contract obligation of the defendant," therefore, and the express directions of the plaintiff required the defendant to place this car on the plaintiff’s private track on August thirtieth when the plaintiff signified that the car was intended for him and directed that it be placed on his track. Nothing in the car service rules appearing in" the record changes this contract obligation of the defendant, And assuming as we do the correctness of the defendant’s contention that one dollar demurrage had at that time accrued, the defendant could not insist on its payment or enforce its lien therefor until it had performed its contract by depositing on the track of the plain-' tiff the car in question which until so deposited had not fully arrived at its destination.

The defendant now urges that the plaintiff did not at the time place his refusal to pay the demurrage on the ground that the car had not been placed on his track, but that his real attitude was that he would not under' any circumstances pay any demurrage charges because the defendant was not entitled to make the same. The version of the transaction as given by the plaintiff and which has been accepted by the trial justice does not justify this contention of the defendant. On August thirtieth, when the plaintiff paid the freight, he gave instructions that the car should be placed on his track, which the defendant agreed to do. Nothing was then said about demur-rage nor until the following day when the defendant informed the plaintiff that unless he paid more than the defendant had a right to demand the car would not be placed on his track. The plaintiff then seems to have placed his refusal to pay on the specific ground that the charge for demurrage as made by the defendant could not be made “on a car that had not been placed.” According to his testimony that was substantially all that was said between the parties. Whatever may have been in his mind or whatever his views may have been on the subject he said nothing to mislead the defendant into believing that even if it placed the car on his track he would not pay the lawful charge thereon. The trial justice has not found nor do we think it could fairly be found from the evidence that the plaintiff waived the placing of the car on his track and the complete performance by the defendant of its contract obligations before it could demand payment of a proper charge for demurrage. The mistake originated with the defendant and seems never to have been corrected by it.

The judgment should be affirmed, with costs.

All concurred, except Kellogg, P. J. dissenting, and Lyon, J., not voting.

Judgment affirmed, With costs.  