
    John Purcell, Appellant, v. John M. Jaycox et al., Respondents.
    (Argued December 4, 1874;
    decided December 15, 1874.)
    Plaintiff, residing at B., purchased of defendants, doing business in S., a barrel of gin which was shipped to him. He shipped it back, notifying the defendants that he had so done, claiming it was deficient in quantity. Defendants replied, refusing to receive it and directed their receiving clerk not to do so. A carman in their employ, having general authority to receive all goods directed to defendants, took it from the depot, receipting therefor. Defendants declined to receive it and directed the carman to return it to the depot; this he did not do. Plaintiff was sued for the price of the gin and judgment obtained for the agreed price. This he paid upon the assurance that the gin had been reshipped to him. In an action to recover back the amount paid, held, that defendants were liable; that although the carman’s receipt for the gin did not bind defendants to an acceptance, or amount to a rescission of the contract of sale, it charged them with the temporary custody of the property; that the fact that the property was shipped to defendants without authority, did not change the relationship of the carman and make him agent for plaintiff, as he received the property solely by reason of his authority as defendants’ agent; and that they were reponsible for loss arising from his negligence and misconduct; also that the judgment so obtained against plaintiff was no bar to this action, as it was not inconsistent with the claim here, that after sale and delivery the property came again into defendants’ possession.
    
      Purcell v. Jaycox (3 N. Y. S. C. [T. & C.], 406) reversed.
    Appeal from, order of the General Term of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a verdict. (Reported below, 3 N. Y. S. C. [T. & C.], 406.)
    This action was brought to recover the price paid for a barrel of gin purchased by the plaintiff of the defendants, and which the complaint, in substance, alleged had come into the possession of defendants and they refused to deliver it up.
    The plaintiff, a retail merchant at Elmira, in November, 1868, ordered a barrel of gin of the defendants, wholesale liquor merchants at Syracuse, and they sent it to him on a credit of two months. On the arrival of the gin at Elmira the plaintiff examined it, and claiming that it was deficient in quantity shipped it back to the defendants by railroad and informed them of such shipment. The defendants notified the plaintiff that they would not receive the gin back, and that it was at the Binghamton railroad depot subject to his order. They also notified their shipping clerk not to receive it. When the cask came back to Syracuse, Mr. Holbrook, a carman who carted goods for the defendants by the load, and who had general authority to receive all goods coming to the depot directed to defendants, took it upon his cart, gave his receipt for it, and proceeded with it to the store of the defendants. The latter refused to receive it and directed Holbrook to return it to the depot where he received it. This he did not do and it has never since been found.
    On the 21st of January, 1869, after the term of credit had expired, the defendants brought an action against the plaintiff to recover the pried of the gin and recovered a judgment for $130, which the plaintiff paid upon the assurance of the defendants that they had reshipped the gin to him.
    Further facts appear in the opinion.
    
      W. C. Ruger for the appellant.
    The judgment roll in the action of defendants against plaintiff is no bar to plaintiff’s recovery herein. (Yates v. Fassett, 5 Den., 31.)
    
      Jno. C. Hunt for the respondents.
    The receipt signed by the defendants’ carman did not necessarily bind the defendants or show the property to be in their possession. (1 N. Y. S. C., 145; Waggoner v. Finch, 1 Hilt., 213.) The judgment record in the action of defendants against plaintiff was conclusive upon the question of final delivery. (3 Comst., 512; 3 Seld., 352; 5 Bosw., 456; 18 Barb., 474 ; 40 id., 512; 43 id., 815; 2 Cow., 328; 2 Hill, 68, 478; 23 Wend., 222; 2 N. Y., 184, 188, 189 ; 34 id., 473 ; 37 id., 444; 41 id., 113, 115; 8 J. R, 470; 9 id., 232, 244; 12 id., 347; Smith’s L. Cas., 400, 402, 404.) There was no conversion of "the property for which defendants are liable. (35 How. Pr., 459 ; 1 Wend., 172 ; 8 id., 474.)
   Rapallo, J.

The evidence clearly established that Holbrook, the carman of the defendants, had general authority tó receive for them all goods directed to them and arriving at the Binghamton railroad depot at Syracuse. That his authority was recognized by the railroad company and goods were delivered to him without any special order from the defendants and he always receipted for the goods so delivered to him, and that the defendants were in the habit of settling monthly with the railroad company for the freight upon all goods thus received by Holbrook. Also that the deliveries to him included returned goods as well as goods ordered by the defendants.

Although Holbrook’s receipt of the barrel in question did not bind the defendants to an acceptance of it, nor amount to a consent on their part to the rescission of the contract of •sale, we think it was sufficient to charge them with its temporary custody. If Holbrook had left it at the depot, the railroad company would have been responsible to the plaintiff for its care. The delivery to Holbrook clearly discharged the • company from all such liability. When Holbrook took the barrel to the defendants’ store and was there directed by the shipping and receiving clerk to take it back to the railroad depot, and undertook that service, he was acting in the service of the defendants and under their orders, and was entitled to compensation therefor from them ; and we think that they are responsible for the loss arising from his negligence or misconduct in the performance of this duty. Holbrook could not have obtained possession of the barrel but for the authority conferred- upon him by the defendants, and although they were not bound to accept it, yet when it got, even contrary to their intentions, into the hands of their agent having general authority to receive goods for them, they became charged with its custody and were bound to discharge themselves of the responsibility thus cast upon them.

It appears that they had instructed their receiving clerk not to receive this barrel, but it does not satisfactorily appear that Holbrook had received any such instructions. His testimony is inconsistent with his having received them: In the performance of his general duty he took the barrel away from the depot, and by this interference with the plaintiff’s property deprived him of his recourse against the railroad company. This act having been done by Holbrook on behalf of the defendants, and in conformity with the general authority with which they had clothed him, they must be held responsible.

We do not think there was any error in receiving in evidence the receipt given by Holbrook at the time of the delivery of the property to him. It was a part of the transaction and done in accordance with the usual course of dealing of the defendants with the company. •

No question was raised at the trial in respect to the pleadings and therefore none can be raised here. Neither was there any exception to the charge. The point that the judgment recovered by the defendants against the plaintiff for the price of the barrel of gin, as for goods sold and delivered, is a bar to this action, was not in our opinion well taken. It establishes that the goods were delivered by the defendants to the plaintiff, but that is not inconsistent with the claim now made: that after such delivery the plaintiff returned the property to the defendants and that it came again into their possession.

We have considered the position taken in the opinion delivered at General Term, that the plaintiff, having shipped the property to the defendants without authority, the carman was his agent and not that of the defendants ; but we do not think this position tenable. As we have already observed, the general authority conferred by the defendants on their .carman was sufficient to authorize him to receive it and to charge- them compensation for transporting it, and it was only by reason of this authority that he was enabled to obtain possession of it.

The order of the General Term should be reversed and the judgment entered on the verdict of the jury affirmed with costs.

All concur.

Order reversed, and judgment accordingly.  