
    The Long Island Railroad Company, Appellant, v. The Structural Concrete Company, Respondent.
    (Supreme Court, Appellate Term,
    May, 1908.)
    Conversion (Tortious) — What constitutes — Waiver or acquiescence. Where, upon the arrival at plaintiff’s railroad yards of a ear of cement purchased by defendant but billed to its consignor, a notice of the arrival, having printed on its margin a statement that a bill of lading or written order must accompany the order to obtain the goods, was sent to defendant and the car was placed on a private siding as previous car-loads similarly shipped had been, and defendant, without presenting the bill of lading, paid the freight charge and unloaded the car, and the plaintiff, being unable to make delivery to the consignor, paid it the value of the cement, it cannot recover of defendant as for conversion.
    Appeal from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, dismissing the complaint, rendered after a trial had before the court without a jury.
    Joseph F. Kenny (Dominic B. Griffin, of counsel), for appellant.
    Purdy, Squire & Rowe (Allen C. Rowe, of counsel), for respondent.
   Giegerich, J.

The plaintiff, a common carrier, seeks in this action to recover the value of a car-load of cement alleged to have been converted by the defendant.

The car-load of cement in question was a part of a quantity purchased by George A. Varney & Co. from the United Building Material Company. The defendant claimed to have purchased the cement from George A. Vamey & Co. and to have paid for it before the plaintiff made any demand for payment.

The car-load in question, with two other car-loads, was shipped from Egypt, Penn., to the “ United Building Material Company Hty (notify) Structural Concrete Company C/O People’s Hygienic lee Company, East New York.”

The defendant was engaged in doing certain work requiring cement for the Hygienic Ice Company at the latter company’s place of business in East Hew York.

When the car-load in question arrived at the yards of the plaintiff, a notice, addressed to the defendant- in care of the People’s Hygienic Ice Company, was sent, stating that a car loaded with cement consigned to the defendant had arrived at East Hew York. There was printed on the margin of this notice a statement that a bill of lading or a written order on firm letter head must accompany the notice in order to obtain the goods.

Hear the storage yard of the plaintiff company at East Hew York, the People’s Hygienic Ice Company had a private side track having switch connection with the plaintiff’s tracks. The ear in question, like previous car-loads that had been shipped in similar manner, was placed on this private siding; and its contents were then taken out by the defendant and used. On some previous occasions the plaintiff’s freight agent had received bills of lading before delivering the cars on this private siding and in some cases he had not

The freight on the car-load in question was paid by the defendant.

The defendant never paid the plaintiff company the value of the contents of the car, but did pay the freight charge when the same was presented.

Subsequently the United Building Material Company demanded the car-load from the plaintiff company, which, being unable to deliver the same, paid the value thereof.

On behalf of the plaintiff it is urged that the facts make out a case of conversion on the principle that, where a common carrier delivers goods By mistake, the person to whom they are delivered is liable iri conversion, citing Hutchinson Carriers (3d ed.), § 863.

It is unnecessary to determine what would .be the situation if the plaintiff had delivered the goods by mistake, in the usual acceptance of that term, and the defendant had received them through mistake or in bad faith. But in this case it would appear that the car-load was delivered intentionally by the plaintiff’s agents and was received in good faith by the defendant and that the goods were paid for by the defendant to the person from whom the defendant purchased the same. Under- such circumstances I think the loss should remain where it is and that the trial justice was right in dismissing the complaint.

The judgment should be affirmed, with costs.

Gildersleeve, J., concurs in result.

Greenbaum, J. (concurring).

The facts here appearing are readily distinguishable from the case relied upon by the appellant, in which it was held that an action in conversion may be maintained by a common carrier against the party to whom it delivered goods by mistake. Hudson Biver E. E. Go. v. Lounsberry, 26 Barb. 597.

In such a case the carrier is involuntarily deprived of the goods in which it has a qualified title.

In the case at bar the cement intrusted for delivery to the plaintiff by the consignor was delivered to the rightful party, and the only mistake made by the plaintiff was to deliver it without the presentation of a. bill of lading.

It appears, however, that previous similar shipments of cement had been made the defendant by the same consignor and deliveries made by plaintiff without requiring production of the bill of lading.

It also appears that the defendant had purchased a lot of cement, of which the shipment in question was a part, of the firm of Varney & Go., who in turn had purchased it from the United Building Material Company, the plaintiff’s consignor, under an agreement to make direct shipments to defendant.

Previous shipments had been made as follows:

The United Building Material Company would ship the goods to' defendant who invariably forwarded the cash, after receipt of the material, to Varney & Co., for the value of the shipment. Varney & Co. had a credit with the United Building Material Company.

In this instance the latter company, seemingly doubting the solvency of Varney & Co., did not send on its bill of lading in advance of payment as on previous occasions, but expected the plaintiff to collect upon delivery. But this fact was not communicated to defendant, who paid the plaintiff the freight charge of sixty dollars as demanded, and upon receipt of the merchandise promptly paid its value, as was its practice and agreement, to Vamey & Co., from whom it was purchased.

The mistake of the plaintiff in delivering the goods without presentation of the bill of lading, if construed as a conversion on the part of the defendant, would result in a double payment for the goods by the latter. In other words the defendant, one of two innocent parties, would suffer from the mistake of the other innocent party, a consequence at variance with the settled law to the contrary.

There was no conversion under such a state of facts; and the doctrine of subrogation to the rights of the consignor would have no application here, because the consignor would have no right of recovery against the defendant.

Another obstacle to plaintiff’s case is that there is no proof of the return to defendant of the sixty dollars for freight charges paid or an offer to return.

I concur in an affirmance of the judgment.

Judgment affirmed, with costs.  