
    David P. Lester, Resp’t, v. Delaware, Lackawanna and Western Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 26, 1895.)
    
    1. Carriers—Delivery—Wrong person.
    Wliere a carrier delivers goods to the wrong person, the fact that the owner receives payment for a portion of the goods, does not, if he does not intend a waiver, constitute such waiver of such claim against the carrier for the balance.
    2. Same—Laches. ' "
    Where a carrier delivers goods to the consignee four days after notice by the real owner to the carrier’s agent, wliere the goods were, not to do so except on his written order, and the agent, in reply to such notice, and three days afterwards, advises the owner that he cannot hold the goods if demanded on a bill of lading, and to send orders through the shipping office, and the owner, on the next day, writes such agent that he wants the goods reshipped to him and he will advance freight, the owner is guilty of no laches that will prevent him from recovering from the carrier for the conversion of the goods, inasmuch as there appears to be no delay by such owner which affects the ground on which the carrier acted.
    
      3. Same—Demand.
    In such case, no further demand is necessary to entitle the owner to main* tain an action against the carrier for such conversion.
    4. Same—When maintained.
    In such case, it is no defense, after termination of the agency and notice by the owner not to do so, that the consignee had a lien on the goods for freight paid, where it appears that he at the time owed the owner a larger sum.
    Appeal from a judgment entered on a decision of the court rendered after trial before the court without a jury in favor of .plaintiff.
    W. & N. E. Kernan, for app’lt; D. P. Lester, for resp’t.
   MERWIN, J.

— In this case, upon a former appeal (73 Hun, 398 ; 55 St. Rep. 923) a judgment in favor of the plaintiff was reversed mainly on the ground that the plaintiff had not shown the termination of the contract between himself and his agent, O'Donnell, and therefore had not shown himself entitled to the possession of the goods which were delivered by the defendant to O’Donnell, and for the conversion of which this action was brought on the theory of a wrongful delivery by the defendant to O’Donnell. Upon the trial now under review there is evidence tending to show that, prior to the claim by plaintiff to defendant that he owned the goods, and was entitled to the possession thereof, the contract between the plaintiff and O’Donnell was terminated; and the trial court so found. The evidence upon this subject was not given upon the first trial, and the appellant claims that it is not sufficient to sustain the finding. An explanation was given by the plaintiff for its absence upon the first trial. Whether the explanation was satisfactory, and whether the evidence as given was reliable, were matters for the trial court to consider. We are of the opinion that its conclusion upon the subject should not be disturbed. It is suggested that at the time the plaintiff claimed to to terminate the contract O’Donnell had a lien on the goods for freight previously paid. It, 'however, appears that O’Donnell at that time owed the plaintiff a much larger amount for prior sales, and no tender on the part of plaintiff was necessary.

The plaintiff, after the commencement of this suit against the defendant, received from O’Donnell payment for a portion of the goods claimed to have been converted by defendant; the plaintiff, as he testifies, stating at the time that a suit was pending against the defendant, and he would take the money, and apply it on his claim. The appellant claims that in taking this payment the plaintiff recognized the right of O’Donnell to receive the goods from the defendant, and so waived his claim against the defendant for the balance. Clearly, according to the plaintiff’s evidence, there was no intent to waive his claim for the balance against the defendant. It should not be said as matter of law that there was -any waiver, or any ratification of O’Donnell’s authority to receive the goods. The defendant, by the reduction of the amount of the damages, gets all the benefit it is entitled to from the payment. We are referred to the case of Green v. Clark, 5 Denio, 497, 503, but the views of Chief Justice Beardsley, as there stated, did not meet with the approval of a majority of the court.

It is further claimed that the plaintiff was guilty of laches, and that no proper demands was made. The plaintiff, on the 6th January, 1890, sent a telegram to the freight agent of the defendant at Horwich, where the goods were, stating that the goods belonged to him, and forbidding delivery only on his written order. In reply to this the agent at Horwich sent a telegram to the freight agent of the defendant at Oswego, telling him to advise the plaintiff “that we cannot hold freight for Williams & O’Donnell if demanded on B. L. Tell him to send his orders thro’ shipping ‘ office.” This message was delivered to the plaintiff, as he testifies, on the evening of January 10th. On the 11th the plaintiff wrote a letter to the Horwich agent, saying that: “I desire the goods reshipped to Oswego at once, and, if desired, I will advance the freight. Please advise me if the request will be complied with. Should you entertain any doubt as to my right to the possession of the goods, I will furnish you with evidence showing same.” This was received by the agent on the 11th, but was not answered. On the 10th he delivered the goods to Williams & O’Donnell, they presenting the bill of lading and paying the freight. At or before the delivery the agent told Williams & O’Donnell that he had received a telegram from Mr. Lester to hold the goods, and they replied that “they had had some difficulty with him, and that accounted for that; but they would pay for the goods, or the mat-, ter would be all straightened out; ‘pay for the goods,’ they said.” The agent at Horwich seems to have acted on the theory that the bill of lading was conclusive as to the right of Williams & O’Donnell to receive the goods, although he then had notice of the claim' of plaintiff. It is not now claimed by the defendant that this position is tenable. Hor is it apparent that there was any delay or laches on the part of the plaintiff that could affect the ground or reason on which defendant acted. It is conceded that plaintiff was the owner of the goods, and he was entitled to the possession if the contract between him and O’Donnell was terminated. ' The plaintiff in that case had the right to treat the delivery as wrongful, and, if so, it amounted to a conversion (McEntee v. Steamboat Co., 45 N. Y. 37, 39), and no further demand was necessary (Delameter v. Miller, 1 Cow. 75 ; Boyce v. Brockway, 31 N. Y. 493; Campbell v. Parker, 9 Bosw. 326). As the case now stands, we find no good ground for reversing the judgment

Judgment affirmed, with costs.

All concur.  