
    ROSEBROOKS against DINSMORE.
    
      Court of Appeals;
    
    
      January Term, 1867.
    Evidence.—Action against Carrier.—Variance.
    In an action against a carrier, under a complaint which alleges that before the arrival of the goods at their original destination the consignee had left that place, and the carrier was directed to forward the goods from thence to him at another place, but that he neglected so to do, and so negligently acted that the goods were lost,—evidence that when the property had reached its destination the consignee’s agent demanded a delivery of it, which was refused by reason of the negligence of the defendant, the carrier—will sustain a recovery, there being no objection taken at the trial to the variance.
    An objection at the trial might be obviated by amendment.
    Appeal from a judgment.
    This action was brought by Henry W. Rosebrooks, plaintiff (and respondent), against William B. Dinsmore, president of Adams Express Company, defendant (and appellant), to recover the value of goods shipped for plaintiff by the defendants in the fall of 1862, from New York, to a consignee (Cantwell) at Harper’s Ferry, Virginia.
    The complaint, after alleging that the defendants were a joint stock company, and Dinsmore the president thereof, proceeded as follows :
    “ That between the 24th day of October, 1862, and the 1st day of November, 1862, Butler H. Bixby, Francis M„ Bixby and John C. Mather, who were, and still are, co-partners in business in the city of Hew York, shipped from the city of Hew York a large quantity of goods, wares and merchandise, hereinafter particularly described, by said Adams Express Company, directed to one William Cantwell, at Harper’s Ferry, in the State of Virginia.
    “ That the said goods, wares and merchandise were of the worth and value of the sum of twelve hundred and twenty-four dollars, and are described as follows: [specifying the goods.]
    “That said goods were received by said Adams Express Company, and by them agreed to be forwarded to said Harper’s Ferry, and the same were actually forwarded to Harper’s Ferry by said Adams Express Company.
    “That said Adams Express Company received as a consideration for forwarding said goods as aforesaid, the sum of forty-seven dollars and forty cents.
    “ That said Butler H. Bixby, Francis M. Bixby and John C. Mather, at the time of the shipment of said goods, wares and merchandise were the owners thereof, and so continued to be owners of said goods, wares and merchandise, until their loss or destruction, as hereinafter more particularly described.
    “That before the arrival of said goods at Harper’s Ferry, said William Cantwell, the consignee thereof, had removed from said Harper’s Ferry, of which removal said Adams Express Company was duly notified ; and thereupon said Adams Express Company were duly notified and directed to forward said goods to the address of said William Cantwell, at the city of Washington aforesaid.
    “ That said company accepted to forward said goods to Washington as aforesaid, but instead thereof, said company so negligently acted in the premises at Harper’s Ferry aforesaid, that said goods, through the negligence and improper care of said Adams Express Company, were wholly lost or destroyed.
    “That said Butler H. Bixby, Francis M. Bixby, and John 0. Mather, on the sixth day of November, 1863, and after the destruction and loss of said goods, wares and merchandise, as aforesaid, duly assigned, for a valuable consideration, their claim against said Adams Express Company growing out of the matters hereinbefore set forth, to the plaintiff in this action, who now owns and holds the same.
    “Wherefore, &c.”
    Upon the trial before the referee, it appeared that a portion of the goods arrived at Sandy Hook, a place about a mile from Harper’s Ferry, on the opposite side of the river, and, shortly after, the consignee demanded the goods there of the agent of the defendants, who refused to deliver them. The referee reported in favor of the plaintiff for the value, at Harper’s Ferry, of the goods so demanded, with interest. Judgment was entered on the report accordingly, with costs. From this judgment the defendants appealed to the general term of the superior court, in which the action was brought, who reversed the judgment, and ordered a new trial, on the ground that the evidence amounted to a variance, leaving the cause of action unproved in its entire scope and meaning.
    The decision of the court is reported in 4 Bob., 672.
    
    From their ordór the plaintiffs now appealed to the court of appeals.
    
      Torrance & Spaulding, for the plaintiff, appellant;
    —cited Belknap v. Sealey, 14 N. Y., 144 ; Parsons v. Suydam, 3 E. D. Smith, 280 ; Manice v. Brady, 15 Abb. Pr., 173 ; Day v. Roth, 18 N. Y, 448 ; Stevens v. Boston & Maine R. R. Co., 1 Gray, 277.
    
      Clarence A. Seward, for the defendant, respondent.
    —I. If the gravamen of the complaint was,—(1.) Neglect to forward the goods from Harper’s Ferry to Washington; and (2.) Negligence and improper care of the goods at Harper’s Ferry, whereby the goods were destroyed,—then the plaintiff entirely failed to prove his case, and the referee erred in not dismissing the complaint. There was not a particle of proof of any neglect of duty at Harper’s Ferry, or -of any request or agreement to carry the goods from Harper’s Ferry to Washington. The complaint remained unproved in its entire scope and meaning, and, under section 171 of the Code, the complaint should have been dismissed for a failure of proof. The referee has rendered judgment, not for a refusal to forward, nor for neglect of the care of the goods at Harper’s Ferry, both of which charges were based upon contract, but ex delicto, for a conversion of some of the goods at Sandy Hook. This he could not properly do (Bailey v. Ryder, 10 N. Y., 363; Voorhies' Code, § 171, and cases cited in notes; Saltus v. Genin, 3 Bosw., 250 ; Whitcomb v. Hungerford, 42 Barb., 177 ; Cowenhoven v. City of Brooklyn, 38 Id., 9 ; Gaspar v. Adams, 28 Id., 441). The case was not one of a simple variance, nor one authorizing an amendment, or a conformation of the complaint to the facts proved. There was an entire failure of proof, and the plaintiff should have been nonsuited. .But, if the case was one of variance, an amendment should not have been allowed without putting the plaintiff to his motion, because the variance was material, and misled the defendant. To spring a trap upon the defendant in a final report, without giving him an opportunity to show how he had been misled, was not according to the defendant his legal rights. He came to try the allegations of his neglect at Harper’s Ferry, and his neglect to transport the goods from Harper’s Ferry to Washington. He did not come prepared to try the question of his conversion of the goods at Sandy Hook. Ho such issue was made. He was invited to no such repast. He had not fortified himself with evidence as to what transpired at Sandy Hook. Under the circumstances of the case, there is warrant for saying, that if the complaint had been for the conversion of the goods at Sandy Hook, the defendant could have proved that Cantwell, who demanded the goods at that place, assented to the reasonableness of the demand for the receipts, and promised to procure them, and assented to the retention of the goods until the receipts were produced. This suggestion is supported "by the fact that Cantwell sent for the receipts, and they were forwarded to him. If he promised to procure the receipts, and assented to the retention of the goods until the receipts were produced, then the detention of the goods at Sandy Hook was not a conversion. The defendant was misled by the complaint into believing that no such proof would be required, and hence did not attempt to provide it. Hiving judgment against him, therefore, upon the ground of a conversion at Sandy Hook, was giving judgment against him upon a cause of action as to which he had no opportunity to defend himself; and the judgment, should, for that reason, be reversed.
    II. There was no conversion of the goods at Sandy Hook. Cantwell was the agent of the shippers, and had no interest in the goods.
    III. The referee erred as to the measure of damages. The proper rule is, to give such damages only as will put the owner in statu quo. There are various portions of the evidence tending to show a violation of this rule:
    IV. The damages on the other two shipments should be reduced.
   Scrugham, J.

—The gravamen of the action is the loss of the property through the negligence of the defendant.

The agent of the plaintiff’s assignor had the right to demand and receive it, when he applied for it at Sandy Hook; the property was not then in transitu, but had reached its destination, as the contract was to convey it to Harper’s Ferry, or to the defendant’s agency nearest or most convenient to it. Such was Sandy Hook, and the goods could not at that time be taken farther by the defendant.

The agent of the plaintiff’s assignor was authorized by the defendant’s agent at Harper’s Ferry to apply for the goods at Sandy Hook.

The refusal to deliver them was wrongful, and its re-suit was their loss. The wrong would not have been committed but for the negligence of defendant in not sending a proper way-bill.

The box of candies was delivered, by mistake of defendant’s agent, to the wrong persons, and lost to plaintiff’s assignor.

There can be no doubt of this being attributable to defendant’ s negligence.

It was not claimed on the trial that the case proved varied from that pleaded ; nor was any of the evidence objected to on the ground that it did not correspond with the allegations of the complaint.

If that objection had then been taken, the referee might have permitted an amendment of the complaint, and if the defendant alleged surprise, might have imposed terms to prevent it. It was late for the defendant to be surprised after report.

The order granting a new trial should be reversed, and the judgment entered on report of referee affirmed.

Judgment accordingly.  