
    Scovill and others against Griffith.
    Although the. terms of a receipt in the nature of a contract cannot be varied by parol evidence, Held on the facts of this case, that parol evidence of the circumstances under which such an instrument was executed was competent.
    The mere omission of a common carrier to transport and deliver property to the consignee within a reasonable time, does not necessarily render him liable for its value.
    The carrier is liable for the damages .caused by such omission, but the owner cannot, on the sole ground of unreasonable delay in the conveyance and delivery of the property, refuse to receive it and recover against the carrier as for its conversion.
    Action commenced in the supreme court in 1849 against the defendant as a common earner to recover for his omission to transport to and deliver at Albany merchandise, shipped by the plaintiffs on board the defendant’s boat at New-York, consigned to Albany whereby, as the plaintiffs alleged, the property, being of the value of three hundred and twenty-four dollars, became lost to them, and they also lost the benefit of the sale of the same to one Greenman, to the damage of one hundred dollars; the plaintiffs demanded judgment for four hundred and twenty-four dollars, being the amount of the value of the merchandise and the damages alleged to have been sustained by not selling it.
    The cause was tried in the city of New-York, before Mr. Justice Edwards and a jury. It appeared that on and prior to the 24th of May, 1849, the defendant was the owner of a line of barges, known as “ Griffith’s New-York and Troy Line,” employed in transporting goods and merchandise on the Hudson river; that the plaintiffs were merchants in the city of New-York; that prior to the delivery of the property in question on board the defendant’s boat, the plaintiffs had contracted to sell it to one Greenman, they to deliver it at the store of Ainsworth & Northrop, in Albany, when it was to become his. A witness on the part of the plaintiffs testified that on the 23d of May, the defendant agreed with the plaintiffs to transport all the merchandise they might desire to send to Troy or Albany at six cents a package; that the defendant, on this occasion, informed the plaintiffs that his boats did not go to Albany, but that when they wished the goods to go to Albany, to send the car-man with them to his office, and he would give directions as to the boat they should be delivered upon. White, a carman, sworn on behalf of the plaintiffs, testified that on the 24th of May he, at the plaintiffs’ request, delivered nine packages of medicine on board the barge McCoun, then lying at one of the piers in New-York, she being one of the boats belonging to the defendant’s line, to be transported and delivered at Albany; that when he received the packages he took with him the plaintiffs’ receipt book with the receipt hereinafter set out written therein, except the name of the boat and the signature thereto ; that he called with the goods at the office of the defendant’s line to get directions as to the boat upon which they should be delivered ; that he showed the receipt written in the book to a person in the office, who directed him to deliver the packages on board the McCoun; that on going to the boat the captain, Wilson, when he saw the goods were marked for Albany, refused to receive them, saying the boat did not go there; but upon being informed by the witness that there was an understanding with the defendant that they should be taken on the boat, he received them, inserted the name of the boat in the receipt and signed it. The receipt was as follows:
    “ New-York, May 24, 1849.
    “Received from A. L. Scovill & Co., in good order, on board the Griffith’s line, bound for Albany, marked S., S. H. Greenman.
    “Care of Ainsworth & Northrop,) McCoun,
    “No. 15 State-street, Albany. ) 9 boxes Mdse.
    “ Wilson.”
    This witness further testified: That when the captain saw the packages marked, as stated in the above receipt, he said they should be marked Troy instead of Albany, and that he, the witness, replied that they were correctly marked, and showed him the above receipt prepared for signature, and also informed him that he was directed at the office to deliver them on that boat; that the captain still declining to receive and receipt them, he commenced reloading them on his cart, when the captain told him that his boat did not go to Albany, but to leave the goods and lie would take them; that thereupon they were delivered on board and the receipt signed. The plaintiffs further proved, that the usual time for transporting merchandise from New-York to Albany was twenty-four hours; that Greenman, who resided in the western part of the state, advised Ainsworth & Northrop that the property would be delivered there for him about the 26th of May, and that he called and sent there for it several times soon after that date, and that, it not arriving, he gave them no further directions in reference to it. The plaintiffs further proved that the packages were taken by the boat to Troy, where they remained in the defendant’s warehouse until the 7th of July, 1849, when they were delivered by the defendant to a carrier to be taken to Albany and delivered to Ainsworth 5c Northrop; and that the carrier on that day took them to the latter firm at Albany and offered to deliver them, subject to the payment of five shillings, his charge foz bringing them from Troy; but the latter firm refused to receive the goods because, as they stated, the time for delivery had passed and they had orders not to receive-the property; and that thereupon the carrier stored tin packages in Albany, where they remained at the time on the trial. The plaintiff proved the value of the property to be $324.
    Wilson, the captain of the McCoun, was sworn on the part of the defendant, and after testifying that she was one of the boats in defendant’s line, and that its business was to transport property between New-York and Troy, and that the McCoun was not accustomed to take goods to Albany, he was asked by the defendant’s counsel to state the circumstances under which the receipt above set out was signed by him. To this the counsel for the plaintiffs objected, and excepted to the ruling of the justice permitting Mm to do so. The witness then testified, that when the caiman came with the property he told him that the boat did not take goods to Albany and refused to sign the receipt, and directed him to take the packages to the Albany and canal line that ran to Albany, the boats of which were in the same slip with the McCoun; that the carman stated that he thought Greenman could receive the property as well at Troy as at Albany; that he took the packages to Troy, and they were placed in the defendant’s warehouse there. On his cross-examination, he testified that he signed the receipt; that they were not accustomed to receive merchandise for points below Troy; that he, the witness, had no authority to make contracts for the transportation of property. The defendant gave further evidence tending to disprove the alleged contract between the plaintiffs and defendant as to transporting merchandise to Albany, and also tending to prove that when the carman called at defendant’s office with the packages in question, he was not directed to deliver them to the McCoun or any of the boats of the defendant’s line, but that he was then told that defendant’s, boats did not run to Albany and he had better deliver the property -to an Albany line; and that the carman insisted that the goods were to go by defendant’s line, and they were received with the understanding that they should be taken to Troy. It further appeared that the packages arrived at Troy on the 26th or 27th of May.
    The court, among other things, charged the jury that if, from the testimony, they should'find that there was an agreement by the defendant, or those whose acts would bind him, to carry the property in question to Albany, yhen a question arose as to the rule of damages. That mere delay, although unreasonable, did not make the defendant chargeable for the value of the goods. That in this case there was no claim that the property was injured or deteriorated by the delay. That if they had been materially injured or deteriorated, this might authorize an abandonment of them by the owner, and give the plaintiffs a right to charge the defendant for their value; but as it was, the rule would be the difference between the highest market price of the goods, when or after they should have been delivered, and when they were actually tendered, and the expense the plaintiffs were put to by the delay. To this portion of the charge there was no exception.
    The plaintiffs’ counsel requested the judge to charge, that if there was an agreement to carry the goods to Albany, that unreasonable delay in the delivery of goods made the defendant liable to account for their full value; that the law imposed this liability upon common carriers, as a penalty for delay, although it might not b.e so with, other bailees. The court refused to so charge, and the counsel for the plaintiffs excepted. . The jury rendered a verdict in favor of the plaintiffs for $10; and a judgment was rendered in favor of defendants for the amount of their costs, less the $10. This judgment was affirmed by the supreme court at a general term in the 1st district. The plaintiffs appealed to this court.
    
      J. H. Reynolds, for the appellants.
    
      C. Van Santvoord, for the respondent.
   Hand, J.

The jury have found the contract of bailment in this case, and assessed the damages for its violation by the defendant. As to the time in which his contract is to be performed, a common carrier is bound to use all reasonable diligence. That was not done in this case; and on the question of damages, the jury probably took a view of the circumstances very favorable to the defendant. But their verdict cannot be disturbed solely upon that ground. Nor did the judge err in the admission of evidence as to the circumstances under which the receipt was given. The proposition was not to vary or explain the terms of the receipt; and the defendant had a right to show, if such was the fact, that it was obtained from his agent or servant under such circumstances as did not bind him.

There was no exception to the charge as given; and the only question really arising on this bill of exceptions is, whether the judge should have told the jury that, if there was a contract to carry the goods to Albany, .the plaintiffs yvere entitled, as a matter of law, to recover the full value of the goods on account of the delay. The plaintiffs asked for an unqualified charge on this point, without reference to the motives of the defendant, or any circumstances that might .be supposed to explain the transaction. I think the judge could not have charged as requested. The plaintiffs state in their complaint that the property was wholly lost to them, and that they-Iost the sale to Greenman. But the testimony does not sustain that allegation; not in a legal sense.

Before the Code, a good way of ascertaining legal obligations was by considering the remedies by which they were enforced. A supposed uniform and universal remedy in all cases has, in a measure, deprived us of these aids; but still some light may be obtained from analogy. This property was, from some cause, detained in Troy, some half dozen miles from Albany, about six weeks; and the defendant, during that time, made no effort to send it to its destination. This was inexcusable delay, and undoubtedly entitled the plaintiffs to all real damages sustained by them which were the natural consequence of the neglect. But it does not follow that the plaintiffs had a right to refuse and abandon the property and recover its full value. There is no evidence of a refusal to deliver, nor indeed that the plaintiffs ever demanded the property or gave the defendant notice that it had not been received. They were not bound to do either to give them a right of action. But the judge could not say to the jury, as matter of law, that there had been a conversion; nor does it appear that the property had deteriorated in condition or had seriously depreciated in value, nor was it lost. Where there has been a deterioration and loss, the carrier is liable. (Davis v. Garrett, 6 Bing., 716; Ellis v. Turner, 8 T. R., 531; Story on. Bail., § 508.) In Ellis v. Turner, which was an action on the case, the carrier conveyed the goods beyond the place of destination, intending to deliver them on his return, but they were greatly damaged by the sinking of the vessel without any want of ordinary care or attention of the master or crew, and the carrier was held liable to make good the loss. Under the former system, to maintain trover against a carrier, there must have been an unjustifiable refusal to deliver or delivery to a wrong person, .or sale or destruction, oi some actual wrong or injurious conversion; something more than mere omission. (Packard v. Getman, 4 Wend., 613; Hawkins v. Hoffman, 6 Hill, 586; 2 Saund. R., 49, i. k. m.) It was not necessary that the wrong should be intentional; but, as a general rule, a mere non-feasance did not and does not work a conversion. And indeed every unauthorized intermeddling with the property of another is not a conversion. It was held by the court of exchequer in England that the act of the ferry-man in putting the horses of the plaintiff on shore out of his ferry-boat, though the jury should find it was done wrongfully, was not a conversion of the property, unless done with the intent to convert it to his own use or that of some third person, or unless the act had the effect to destroy it or change its quality. (Fouldes v. Willoughby, 8 M. & W., 540.) If it had appeared in this case that the defendant, from gross negligence, evincing a disregard of his contract and the rights of the plaintiffs, had carried the property by and on to another port, and had, with actual knowledge of all the facts, kept it several weeks, I am not prepared to say the jury might not have found that there was something more than omission, or that the evidence would not have sustained a verdict that the defendant was guilty of conversion, if rendered under a proper charge from the court. However, that point need not be decided here, for it was not raised upon the! trial; the plaintiffs putting this part of their case upon the ground of mere delay, insisting that the.defendant should pay for the property as a penalty for that delay, and thus, as it were, impliedly treating the case as a continuing bailment, rather than one of loss or actual conversion to the use of the defendant. If the facts of the case would not have sus tained trover, the remedy would naturally have been an action of assumpsit or case; and the plaintiffs have not shown that they would have been entitled to recover for the full value of the property in either of those actions.

There were extra charges for taking the goods from Troy to Albany, but no demand therefor appears to have been made upon the consignee; and, besides, the refusal to receive them was not put upon that ground.

I think the judgment should be affirmed.

Gardiner, Ch. J.

The action was against the defendant as a common carrier, for the non-delivery of a quantity of medicine shipped at New-York and consigned to certain persons in Albany.

For the defendant, one Wilson was called as a witness, and was asked by the counsel for the defendant “to state the circumstances under which the receipt for the property was signed.” This was allowed and the plaintiffs excepted. I can perceive no objection to this ruling of the learned judge. The plaintiffs had previously proved by the carman employed to deliver the goods, that the captain of the boat refused to receive the property on seeing that it was directed to Albany, saying that his boat did not go there; and was induced to take the medicine and sign the receipt, on his informing him that there had been an understanding to that effect with Mr. Griffith, the defendant. The defendant had a right to explain these circumstances, which formed a part of the plaintiffs’ evidence by his own witness; and the question to which the objection applied went no further. The evidence was also admissible to repel the inference of a conversion, upon which the plaintiffs now insist, by showing that the carriage of the goods to Troy was not an exercise of authority over them, or an user in opposition to the rights of the owners, but in subordination to them. (8 Mees. & Welsby, 547.) If the defendant agreed to transport the goods to Albany, but informed the plaintiffs that his boat, in the usual course of her business, went to Troy in the first instance, this would not change or modify the contract but would be conclusive evidence to show that in taking the goods beyond the port of destination the carrier did not intend to convert them to his own use, or that of any other person.

The second, and most important question arises upon the ' charge as to the measure of damages. The judge instructed the jury, that as the property was not injured or deteriorated, the rate of damages was the difference between the highest market value, when, or after the goods should have been delivered, and when they were actually tendered. In this part of the charge the plaintiffs acquiesced ; they however requested the judge to charge, “ that if there was an agreement to carry the goods to Albany, that unreasonable delay in their delivery made the defendant liable for their full failure.” This was refused, and I think justly. The mere omission of the carrier to deliver property in a reasonable time, is not a conversion or equivalent to a conversion: this has been repeatedly adjudged. (6 Hill, 588 and cases; Angel on Carriers, §§ 431-433.) The owner is entitled to a full indemnity, but not necessarily to- the full value of the goods where, as in this case, they have been offered to him vand refused. If special circumstances exist, such as have been supposed by the counsel for the plaintiffs in his argument, they might be shown and damages given accordingly; but in a case where the market value of the property remains the same between the time of delivery demanded by the contract and the one actually made or tendered, and where the facility for the disposition of the goods, if for sale, is unchanged, it seems to me a most unreasonable rule that a carrier should be compelled to pay the full value of the property without regard to any other circumstance than an omission to perform his contract within a reasonable time.

The whole argument in support of this rule is based upon the hypothesis, that the omission was itself a conversion. This I think is not supported either by principle or authority.

The judgment should be affirmed.

Judgment accordingly.  