
    The Miles Manufacturing Company, Respondent, v. North German Lloyd Steamship Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    March, 1915.)
    Carriers — bills of lading — where agent cannot be held liable, for ambiguous acts of principal — action to recover for breach'of contract to carry — agency.
    Where an agent acts gratuitously he cannot be held liable for the ambiguous acts of his principal where he acts in good faith.
    ■ A bill of lading calling for the shipment of goods for delivery at Genoa to the order of the shipper or its assigns contained a direction that B be notified and -provided that the bill of lading duly indorsed be given to the steamer’s agent in exchange for a delivery order. The shipper two weeks after the vessel sailed wrote the steamship company that the consignment should have been addressed to a designated point at which its steamers did not touch and which was about 300 miles from "Genoa by rail and requested in said letter that the goods be shipped to the corrected address with the least possible delay and expense. Accordingly, without requiring the surrender of the original bill of lading, the steamship company shipped the goods by rail and delivered them to B without the surrender of the bill of lading which two months thereafter was still in the hands of the shipper, and a draft drawn by him on B for the balance of the purchase price was not paid. In an action to recover for breach of contract to carry, held, that the request of the shipper by his letter was not only something that defendant was in no way obligated to do but was wholly inconsistent with the “ order ” bill of lading and contradictory of and canceled the clause therein requiring that the original duly indorsed be given to the steamer’s agent in exchange for a delivery order.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, before the court without a jury for $98.52. Case tried on agreed stipulation as to facts.
    Choate, Lerocque & Mitchell (William R. Bayes, and Nelson Shipman, of counsel), for appellant.
    Isaac N. Miller (Jacob Landy, of counsel), for respondent.
   Shearn, J.

The action is brought to recover damages for breach of contract. The contract is a bill of lading calling for the shipment of goods from the port of New York to be delivered “ at the port of Genoa unto order or to his or their assigns.” The margin of the bill of lading contained the following statement: “ Party to be. notified: Quirino Borelli Ortono, Sardinia. N. B. When goods are shipped ‘ to order ’ it is desirable to have the above information. ’ ’

The bill of lading also contained the provision: “ It is mutually agreed * * * 17. That this bill of lading, duly endorsed, be given to the steamer’s agent in exchange for a delivery order.”

Two weeks after the steamer sailed the shipper wrote the steamship company that the consignment should have been addressed Ortona a Mare, Province of Chieti, and said: “I wish that you would kindly instruct your agents abroad to ship these goods to the address as corrected with the least possible delay and expense.” Defendant’s steamships do not touch Ortona a Mare and the distance by rail between that place and Genoa is about 300 miles.

On receipt of the letter defendant mailed same to its agents at Genoa, who forwarded the goods by rail to Borelli at Ortona a Mare, taking therefor from the railroad a receipt without requiring the surrender of the original bill of lading, and upon arrival of the goods at destination the railroad delivered' same to Borelli without the surrender of the bill of lading. The shipper drew a draft on Borelli for eighty-four dollars and eleven cents, the balance of the purchase price, but the draft was not paid.

The bill of lading was an “ order ”• or negotiable bill of lading, which merely required the defendant to carry the goods to Genoa, the end of its route, and place of final destination, and there deliver them unto order ” of the shipper, that is to say, to such person as might present the bill of lading there duly endorsed. If Borelli, the party named in the bill of lading as the one to be notified of the arrival of the goods, became the holder of the bill of lading, he could only require delivery, at the place of destination mentioned in the bill of lading, Genoa, and he was bound to take the goods there and ship them to his own address at his own expense. Neither he nor the consignor could require the defendant to do this under the terms of the bill of lading.

The subsequent request of the shipper by his letter of September 23, 1912, requesting defendant to ship the goods “ wdth the least possible delay ” and expense to Borelli’s corrected address, 300 miles beyond the agreed place of destination, was not only something that defendant was in no way obligated to do but was wholly inconsistent with the order ” bill of lading and outside of its terms, and was contradictory of and cancelled the clause in the bill of lading requiring that the original, duly endorsed, be given to the steamer’s agent in exchange for a delivery order.

In fact, although the shipper had made the written request that the goods be forwarded from Genoa to Borelli’s corrected address “ with the least possible delay ” and expense on September 23, 1912, the original bill of lading was held by the shipper in New York as late as November 22, 1912. For the defendant to have awaited the arrival of the original bill of lading before delivering the goods to the railroad for shipment to Borelli would have involved two months’ delay and the expense of storage for that period. Certainly this was inconsistent with the shipper’s request to forward the goods from Genoa to Borelli’s corrected address with the least possible delay ” and expense.

The shipper’s instructions are at least capable of being interpreted as waiving the clause in the bill of lading requiring the defendant to keep the goods at Genoa until the bill of lading was presented. An agent cannot be held liable for the ambiguous instructions of his principal when he acts in good faith, particularly where the agency is undertaken without any consideration. In forwarding the goods beyond the agreed destination, without waiting for the bill of lading, the- defendant acted at the shipper’s request, as the shipper’s agent, solely for his accommodation and complied with the shipper’s request in good faith as the request might fairly be interpreted, and in so doing.was guilty of no breach of contract.

Judgment- reversed, with costs, with the direction that judgment be entered for the defendant on the stipulated facts, with costs.

Guy and Pendleton, JJ., concur.

Judgment reversed, with costs, with direction that judgment be entered for defendant on stipulated facts, with costs.  