
    George Foggan, Resp’t, v. The Lake Shore & Michigan Southern Railway Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Carriers—Conversión—Wrongful delivery.
    Plaintiff shipped several car loads of hay by the defendant’s road, four of which were delivered. He then directed defendant not to deliver any moré without the bills of lading, as the consignees had failed to pay for that already delivered, but the other two carloads were delivered in violation of this notice. In an action for conversion of the hay, Held, that the jury were warranted in finding a verdict for the two car loads delivered in violation of the direction given.
    Appeal from a judgment entered in Erie county clerk’s office October 25, 1890, on the verdict of the jury at the circuit; and also from an order dated October 15, 1890, denying the defendant’s motion for a new trial.
    
      Charles A. Pooley, for app’lt; Adelbert Moot, for resp’t.
   Macomber, J.

The action is trover, for the recovery of the value of two car loads of hay alleged to have been converted by the defendant to its own use.

The whole number of car loads of hay which the plaintiff shipped was eight, four of which were delivered before the middle of January 1889. On the 21st day of January, 1889, the plaintiff informed the defendant’s agent that he did not want any more of the hay delivered to the consignees without a bill of lading, because they had failed to pay for what had already been delivered. Subsequently to that the remaining two cars were forwarded and were delivered to the consignees in violation of this notice. Under the facts disclosed, the jury was warranted in finding a verdiet for the two car loads of hay which were delivered in violation of the direction given to the defendant by the plaintiff, and in violation of the latter’s agreement Laws of 1858 (chap. 326), p. 533; Colgate v. Penn. Co., 102 N. Y., 121; 1 N. Y. State Rep., 166.

But it is argued by the learned counsel for the appellant that, assuming the plaintiff’s statement to be true, he cannot claim for the car the bill of lading of which was dated on the 15th day of January, and which, he argued, had been delivered to the consignee, and was being unloaded at the time the plaintiff saw the defendant’s agent and made the agreement above mentioned. But, if we understand the evidence correctly, it is by no means certain that the car, the bill of lading of which is dated January 15 th, had been delivered at the time of making the arrangement. On the contrary, from an examination of the testimony, it is found that there was sufficient evidence to enable the jury to say that the car load represented by the shipping bill of January 15th had not, nor had any part of it, been unloaded on the 21st of that month, when the agreement was made.

The witness Merrifield shows to whom bills of lading had been delivered by the plaintiff, and that he received the orders endorsed on the bills of lading at about the time of their date; and the order on the bill of January 15th is dated January 27th. It may be reasonably inferred' that Merrifield did not receive the bills before the date of the orders on the back thereof. He then went in search of the cars and found them; and discovered that they were being unloaded at that time, which appears to be a date later than the 21st of" January, Furthermore, this point, now brought to our attention, was not raised upon the trial nor upon the motion for a new trial made at the circuit, so far as the record before us shows. In the motion made by the defendant’s counsel, for a direction of a verdict in behalf of the defendant, no suggestion was made that the cáse of the one car was different from that of the other. The trial proceeded upon the hypothesis,' that if the plaintiff was entitled to recover for the contents of the one, he was likewise entitled to recover for the contents of both. The ground of the motion for a new trial at the special term is not stated in the case. The order merely recites the making of the motion upon the judge’s minutes, and this is followed by an order denying the same.

The judgment and order should be affirmed.

Dwight, P. J. and Lewis, J., concur.  