
    Witbeck vs. Schuyler and Aikin
    The defendants being the owners of a steamboat, and their regular business being the transportation of goods and merchandise thereon, the plaintiff delivered to one A., the captain of such steamboat, while in charge thereof, a trunk containing clothing, for transportation from Albany to New York. Held, that the plaintiff had a right to'conclude that A. was the proper person for him to treat with, in the absence of any information to the contrary; and that the defendants were liable as common carriers for the loss of the goods; notwithstanding it was proved that they kept an agent at Albany, whose busines it was to make contracts for the receipt and delivery of freight, and that the only duty of the captain was to navigate the vessel.
    
      Held, also, that the fact that the defendants had received compensation from the plaintiff, or his father, on several previous occasions, for goods similarly shipped, was strong evidence of a recognition of the authority of the captain to act as their agent in receiving goods for transportation.
    A principal should be held responsible for the acts of his agent, performed within the scope of the apparent authority which the principal allows him to assume.
    THIS is an appeal from a judgment-entered upon the report of a referee, in favor of the plaintiff, for $217.84. The action was brought by the plaintiff against the defendants as common carriers, to recover the value of a quantity of clothing taken from a trunk of the plaintiff while upon the defendants' boat, on a passage from Albany to Hew York. The referee finds, in substance, that the boat Avas run by the defendants for the transportation of freight &c. from Albany to Hew York; that the trunk, with its contents, was placed upon said boat for transportation to Hew York, and delivered to the defendants at Albany, by delivering the same to Henry Acker, the captain of the boat, who received the same. That the defendants kept an agent at Albany whose business it was to make contracts for the receipt and delivery of freight, and other agents to tally freight and attend to the delivery thereof; that the duty of the captain was to navigate the vessel, and nothing else; that the plaintiff, on several preAÚous occasions, sent articles to Hew York upon the boat, and generally made the arrangement for the transportation with captain Acker, and paid the charges for the articles to the defendant; that the plaintiff had no knowledge or notice that the captain’s duties were confined to navigating the boat. That on the arrival of the boat in Hew York the trunk was found to have been broken open and its contents, to the value of $60, taken therefrom. The plaintiff offered to pay the charges for transportation as agreed with ■ the captain, which was refused. The referee reported in favor of the plaintiff, and a judgment was accordingly entered for $217.84, and the defendants appealed therefrom.
    
      Ira Shafer, for the appellants..
    
      G. B. Gochrane, for the respondent.
   By the Court, Ingalls, J.

The liability of the defendants is resisted on the sole ground that the trunk was not delivered to the agent of the defendants authorized to receive the .same; that the delivery to the captain was not a delivery to .the defendants, and therefore that they were not liable. The referee finds that the only duty of the captain was to navi-gate. .the. ..boat,... and. that. other, agents were .appointed .to receive and deliver freight and receive the pay therefor. It does not appear that either the plaintiff or his father knew of that -arrangement; nor that they had any knowledge or notice that the captain was not authorized to receive the trunk. Witbeck had on several occasions sent articles by the captain and paid the defendants therefor.. The captain was in attendance upon the boat, assumed to receive the articles for transportation, and did not notify the plaintiff or his father that he was not authorized to receive the same. From these facts it would seem that it might be implied that the captain was authorized to receive the trunk, and the defendants thereby rendered liable for the loss. In Bridenbecker v. Lowell, (32 Barb. 18,) Allen, J. remarks : “ A general agency is therefore constituted not by the authority which the agent actually received from his principal, but that which the latter allows the agent to assume.” (Dunning v. Roberts, 35 Barb. 467. Dows v. Greene, 16 id. 77. Paley on Agency, p. 293.) To charge a carrier with the receipt of goods to be conveyed, it is sufficient to show a delivery to his servant usually employed in that business.” This is just: as the principal has the selection and control of his agent, he should be responsible for his acts performed within the scope of the apparent authority which the principal allows him to assume. The fact that the defendants received compensation from Witbeck, on several occasions, for goods similarly shipped, is strong evidence of the recognition of the authority of the captain thus to act. The counsel for the appellants relies upon the case of Blanchard v. Isaacs, (3 Barb. 388.) That case is quite distinguishable from the one at bar. In that case the coat was delivered to the driver of a stage coach, where the business was merely the transportation of passengers, with their baggage. And the party who delivered the coat was not a passenger, and was informed by the driver that he could not enter it upon the way bill, but would deliver it to the next agent, at Schuylerville. And with a knowledge of these' facts the coat was delivered properly at the risk of the owner. In the case at har the transportation of goods and merchandize was the regular business of the defendants, and no information was given to Witbeck that the captain was not the proper person to receive the trunk. He was then in charge, and assumed to act, and Witbeck reasonably concluded that he was the proper person to treat with. (Langworthy v. N. Y. and H. R. R. Co., 2 E. D. Smith, 195.) I am therefore of opinion that the judgment should be affirmed, with costs.

[Albany General Term,

September 19, 1865.

Judgment affirmed.

Bogeboom, Milla• and Ingalls, J us tices.]  