
    David P. Lester, Resp’t, v. The Delaware, Lackawanna & Western Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 3, 1893.)
    
    Carriers—Conversion—Wrongful delivery.
    In an action against a railroad company for conversion of personal property, it appeared that plaintiff entered into a written agreement with M. whereby plaintiff was to furnish M. a furnace attachment at a certain price per set, M. to sell same and turn over a certain portion of the proceeds as collected, the title to the property to remain in plaintiff until paid for. While this agreement was in force plaintiff shipped to M. by defendant, a quantity of the goods, but before their arrival telegraphed defendant “ goods consigned to M. belong to me, deliver only on my written order.” Thereafter, M. produced the bill of lading or shipping bill, paid the freight, and received the goods from defendant. M. sold a portion of the goods so received and remitted to plaintiff, after the action was begun, his share of the proceeds. The agreement by its terms could be terminated at pleasure. Held, that it clearly appeared that the agreement was considered in force by plaintiff after defendants' delivery, and therefore he had no right to treat the delivery as a conversion.
    Appeal from a judgment entered in Oswego county on December 2,1892, in favor of the plaintiff for the sum of $105.75 besides costs. The case was tried before the court without a jury at the Oswego circuit in April, 1892.
    This action is brought for the conversion of a quantity of personal property. In the complaint it is alleged that the defendant is a common carrier, and that as such in December, 1889, it received into its possession a quantity of goods, consisting of about forty-one sets of “Norcross governors and fixtures,” the property of the plaintiff, to be shipped from some point within this state to Norwich, N. T., and consigned to “ Williams & O’Donnell; ” that the defendant transported the goods to Norwich, and while it there held them the plaintiff notified the defendant that he was the owner of the property and that the defendant must not deliver the same except upon plaintiff’s written order; that thereafter and on or about January 18, 1890, the defendant wrongfully and unlawfully delivered the goods to Williams & O’Donnell, and thereby converted the said property to its own use.
    In the answer it is admitted that the defendant is a common carrier and that as such in December, 1889, it received into its possession certain goods' to be delivered to “ Williams & O’Donnell,” and transported the same to Norwich, N. Y., and that a delivery of said goods was made to Williams & O’Donnell. The other allegations of the complaint are denied.
    
      William Kernan, for app’lt; D. P. Lester, for resp’t.
   Merwin, J.

On the 1st day of November, 1889, the plaintiff and one P. O’Donnell entered into a written agreement under seal as follows:

“ This agreement, made this 1st day of November, 1889, between D. P. Lester, of Oswego, N. Y, of the first part, and P. O’Donnell, of the same place, party of the second part, witnesseth: That the party of the second part hereby agrees to sell for the party of the first part, for such length of time as shall be mutually agreeable, a furnace attachment, known as ‘Norcross Furnace Governor ’ and fixtures, acting as the agent for party of the first part to the extent and in the manner herein stated, and in such places as party of the second part may desire, on the following conditions, viz.:
“ Party of the first part is to furnish party of the second part with said governors at $4.50 apiece, or set, and discs, dampers, bars, tubes, etc., at reasonable market value, the party of the second part paying expense of packing, carting, shipping, and the said property to remain the party’s of the first part until paid for. Party of the second part is to pay over to party of the first part, as fast as collected, the moneys received for the sale of such governors, etc., on the basis aforesaid, retaining the balance for his own use and for services in making such sales, and to become personally responsible to party of the first part for the collection of all goods sold by him, guaranteeing the payment thereof, and to render an account every thirty days to the party of the first part, showing amount sold, amount of goods on hand, and names and addresses of parties to whom sold, including persons to whom sold or delivered on approval. All sales to be for cash. The freight on all goods returned to Boston or elsewhere not sold is to be paid by party of the second part.
“D. P. Lester, [l. s.]
“P. O’Donnell, [l. s.] ”

H. D. Trask & Go. of Boston were the proprietors and manufacturers of the Norcross furnace governors. With them, the plaintiff, about the 1st November, 1889, made an arrangement by which they on November 11, 1889, shipped to O’Donnéll at Fort Plain, N. Y., fifty sets. These reached O’Donnell at Fort Plain about the middle of November and they were received by him under and in pursuance of the agreement between him and plaintiff. Of these O’Donnell sold twenty sets at Fort Plain and received the pay therefor. The balance was shipped by him to' Norwich about the 23d December, and this is the shipment referred to in the complaint. The consignors and the consignees in the shipping bill were “ O’Donnell & Williams. ” Williams was a man in the employ of O’Donnell.

The plaintiff lived at Oswego and a day or two before the 6th January, 1890, he had a talk with Mr. Taylor, the freight agent of the defendant at that place, about the goods in question, and Taylor declined to take any responsibility in the matter. Thereupon on the 6th January the plaintiff sent to the freight agent of the defendant at Norwich a telegram as follows: “ (roods consigned to Williams & O’Donnell belong to me. Deliver only upon my written order. D. P. Lester.”

This was received at Norwich the same day. Upon its receipt Mr. Boyce, the agent at Norwich, sent a telegram to Mr. Taylor, freight agent at Oswego, in substance directing him to inform Lester that they could not hold the goods if demanded by Williams & O’Donnell on the bill of lading. This notice or telegram did not, according to the evidence of the plaintiff, reach him till the evening of the 9th January. On the 10th January the plaintiff mailed a letter to Mr. Boyce stating that1 he was the owner of the goods and desired them to be reshipped to Oswego and that he would advance the freight if desired. He also offered to furnish evidence of his right to have possession. This letter reached Mr. Boyce on the-11th January.

In the meantime, and on the 7th or 8th January, O’Donnell & Williams called at the freight office for the goods and were told that they would not be delivered unless they produced the bill of lading or shipping bill. They were also told by the freight agent that he had received from D. P. Lester,' of Oswego, a telegram to hold the goods, and they replied that they had had some difficulty with him but they would pay for the goods or the matter would be all straightened out. Afterwards, and on the 8th January, O’Donnell & Williams produced the bill of lading or shipping bill, delivered it to the defendant’s agent, paid the freight, and the agent thereupon delivered to them the goods. This was before the letter of plaintiff of 10th January was received. O’Donnell, or O’Donnell & Williams, upon receiving the goods went to selling at Norwich and sold and delivered there twelve sets and the balance O’Donnell took to Syracuse and sold them there later on in the winter or spring. This action was commenced on January 22, 1890. On the 18th February, 1890, O’Donnell paid the plaintiff $144 in payment for the thirty-two sets sold by O’Donnell at Fort Plain and Norwich. This sum is arrived at by taking the price stated in the contract. That left eighteen sets unaccounted for. The recovery here is for the value of those at five dollars a set, with interest from January 10,1890.

In Western Transportation Co. v. Barber, 56 N. Y., 552, it is said by Judge Grrover that “ a bailor can confer on his bailee no better title than he has himself, except in cases of negotiating bills of lading and like cases. If the owner demands the property of the bailee and he refuses to deliver it to him, he is at once liable to him in an action for its conversion.” A similar view is taken by other authorities. Angelí on Carriers, § 335 ; Hutchinson on Carriers, § 407; Story on Bailments, § 450; Wilson v. Anderton, 1 Barn. & Adolph, 450; Rogers v. Weir, 34 N. Y., 471. In some of the authorities it is said that the remedy of the bailee for protection against different claimants is through a bill of interpleader.

Assuming then that if the plaintiff was the owner and entitled to the possession of the goods it was the duty of the defendant to deliver them to him though consigned to a different party, the question then is, has the plaintiff shown himself to have been the owner and entitled to the possession at the time he gave the notice on 6th January ? There is evidence tending to show that the plaintiff was the owner, but was he entitled to the possession ? The goods were received by O’Donnell under the agreement of November 1, 1889. He then became the possessor for the purposes of the agreement and the possession was necessary in order to carry out the evident purpose of the agreement. This agreement, for aught that appears, was in full force on the 6th January, 1890, when plaintiff sent the telegram to defendant’s agent. O’Donnell, who was a witness for plaintiff, testifies that it was then and afterwards in force and this the plaintiff in his evidence does not deny. O’Donnell immediately after receiving the goods from defendant went on and in his usual way sold and delivered twelve sets, and these the plaintiff on the 18th February received the pay for from O’Dopnell at the price named in the agreement although the value in fact was more. This clearly indicates that the contract was considered to be in force after the defendant’s delivery. That being so, the plaintiff had, I think, no right to treat the delivery by, the defendant as a conversion. The plaintiff had a right to terminate at pleasure the agreement but he had not done so.

The defendant is not chargeable with any notice to be derived from statements made by the plaintiff to defendant’s freight agent at Oswego before the plaintiff sent the telegram on the sixth of January. The agent at Oswego had nothing to do with the goods at Norwich. That matter was not within the scope of his agency or employment.

The plaintiff in his telegram did not demand possession, and the letter of plaintiff was not received until after the delivery to O’Donnell.

We think that the plaintiff failed to show a conversion by the defendant, and, therefore, the judgment should be reversed.

The judgment reversed and new trial ordered, costs to abide the event.

Hardin, P. J., and Martin, J., concur.  