
    George W. Platt and Nathan C. Platt, plaintiffs and appellants, vs. Henry Wells, President of the American Express Company, defendant and respondent.
    1. The duty of a carrier of goods is discharged hy delivering them either to the person to whom they are directed or to some one authorized hy him to receive them.
    2. The consignee, if not presumptively the owner of the goods, so far as the consignors are concerned, is at least to be treated as their agent.
    3. Consignors who, after being notified that the goods have been obtained from the carriers of them by a third person, by authority of the consignee„not only makes no objection to such delivery, but in an action against such third person upon a note given to them for the price of such goods, make oath that it was received for goods sold and delivered, will be deemed to have ratified the delivery to such third party.
    (Before Robertson, Ch. J., Garvin and McCunn, JJ.)
    Heard February 8, 1864;
    decided February 13, 1864.
    
      Appeal by the plaintiffs from a judgment entered against them upon the report of B. W. Bonney, Esq. referee. The plaintiffs sued the defendants to recover the value of a box of jewelry, owned by the plaintiffs and entrusted to the defendants, as carriers, and not delivered to the consignee. The complaint avers that on the 9th June, 1855, the plaintiffs delivered to the defendant a box marked “ Daniel C. Munro, Elbridge, New York,” which the defendant agreed to deliver to the said Daniel C. Munro. The contents of the box are stated to be of the value of $4000. That the defendant did not deliver the said box to Munro. That “ Munro has frequently demanded the box.” That freight on the same was paid by some person other than Mfinro, to whom the box was delivered. That the box had been parted with by the plaintiffs on a “ conditional sale ” of the merchandise to one L. P. Anderson. That the condition was, that the box should be delivered to Daniel C. Munro. That by reason of the failure to deliver the box and its contents to Munro, the plaintiffs have suffered the loss of the box and its contents. By the answer, the receipt of the box admitted by defendant; to be delivered as called for in the receipt, which was done. That by the terms of the receipt the company were not to be liable for any loss, unless the just and true value of the box and contents was stated, for an amount exceeding one hundred and fifty dollars. That the defendant falsely and fraudulently represented the value to be four thousand dollars, and no more. That the real value of the box and contents was the sum of eight thousand dollars. That the American Express Company did forward the box and its contents, and did deliver the same according to their undertaking. The issues in the action were referred for trial to the Hon. B. W. Bonney, as sole referee. On the trial before him, the following facts were proved : On the 30 th day of May, 1855, the goods contained in the box in question, and of the value of $8000, were sold by the plaintiffs to La Rue P. Anderson, and were charged to him in the plaintiffs’ books. The sale was made on the condition that Anderson should give to the plaintiffs therefor a note for the value of the goods, payable one year from date, to be signed by him, (Anderson,) and one Daniel 0. Munro, of Elbridge, in the county of Onondaga, and to be guaranteed by John Munro, of Elbridge aforesaid ; and it was also agreed-between the plaintiffs and Anderson that the merchandise selected by Anderson should be by the plaintiffs sent to Daniel G. Munro, to be by him delivered to Anderson, on, upon, or after the making and delivery to the plaintiffs of the note. The goods were delivered by the plaintiffs to the American Express Company on the 9 th day of June following, directed to Daniel C. Munroe, and a receipt taken in the following words :
    
      “ American Express Company,
    Foreign and Domestic Agents, Express Forwarders.
    New Yobk, June 9, 1855.
    Platt & Brother has delivered to us one box, value four thousand dollar's, marked as follows: Daniel C. Munro,
    Elbridge, New York, which we undertake to forward to Junction only, perils of navigation and transportation excepted. And it is hereby expressly agreed that the said American „ Express Company are not to be held liable for any loss or damage, except as forwarders only, nor for any loss or damage of any box, package or thing, for over $150, unless the just and true value thereof is herein stated ; nor for any loss or damage by fire ; nor upon any property or thing unless properly packed and secured for transportation; nor upon fragile fabrics, unless so marked upon the package containing the same; nor upon any fabrics consisting of or contained in glass. For the proprietors. (Signed,)
    Bailey.”
    On the 13tli June, 1855, a note for $8500 was sent by Anderson, in a letter signed La Due P. Anderson and Daniel O. Munro, for the goods in question. On the same day Anderson, at Auburn, wrote to the plaintiffs that he had received the goods, and had compared them with the invoices, and found certain errors which he wished corrected. The plaintiffs acknowledged the receipt of Anderson’s letter, and made deduction on their books of errors pointed out by Anderson, to the amount of $11.50. The invoices of the goods had been handed by the plaintiffs to Anderson, in Hew York, before the goods were forwarded, and at the time of the sale. Munro knew nothing of the intention of Anderson to purchase the goods ; he was ignorant of the arrangement or understanding between plaintiffs and Anderson on the subject; he had neither been • advised with, nor had he agreed that the goods should be marked to him ; he had received no letter or advice from the plaintiffs that the goods had been marked or sent to him. He had not signed the note. As to him, the note, and the letter of June 13th, in which it was enclosed, have been proved by the plaintiff’s to be forgeries. The letter from the plaintiffs to D. C. Munro, of June 9th, 1855, was never received by bim. The box arrived at Junction on the 11th day of June, 1855. On the day that the box arrived at the Junction, Anderson went to the house of Munro, and told him he had a box coming directed to him, Munro, and asked Munro to go to the depot with him, “ and get it—the box—as it was directed in his (Munfo’s) name.” Munro could not go, and told Anderson to go and get the box. Anderson said he would have difficulty, as the box was directed to Munro. Munro said he (Anderson) could get it without him as well as with him. “ That he could get the box.” That he (Munro) had nothing to do with it. Anderson went directly from Munro’s house alone, to the railroad depot. He had been at the depot a few days before, and said he was expecting a box marked D. C. Munro; Munro and Anderson had often been at the railroad together; they had, in fact, been at one time partners in business, and had shipped and received property together ; and Anderson had been in the habit of getting Munro’s letters from the post office, with Munro’s consent. Anderson brought the box to Munro’s house on the evening of the 11th June. He told Munro “he had the box.” It was in his wagon, at Munro’s door. Anderson was asked to bring it in the house ; he declined ; but he asked Munro to come to Auburn, where he was about to take the box, and where it was to be opened, and where he (Munro) could get a part of the contents ; to which Munro assented, and he went the next day, and did get a portion of the contents. On the 18th June, 1856, after the note was due, Munro received information from the plaintiffs, by letter, that they held the note in question. This was the first information Munro had of the forgery. Munro, on the 21st June,-1856, wrote them it was a forgery. Munro has never made any claim or demand on the Express Company for the box in question, other than the demand made by Anderson, on the 11th June, when he received it. Munro and Anderson had business relations together after the delivery of the box, and during the years 1855 and 1856. The plaintiffs and Anderson also had such relations, and kept up a correspondence; and in February, 1856, the plaintiffs sold Anderson a further bill of goods. On the 25th day of June, 1856, and after they knew of the forgery and the receipt of the box by Anderson, the plaintiffs made affidavit and brought action in United States District Court in Wisconsin, against Anderson, on the note in question ; setting Up in the affidavit that the note was given “for goods sold and deliveredThey attached certain property of Anderson in that suit. The plaintiffs, in July, 1856, actually received of Anderson about $900 of the goods in question. On the 3d July, 1856, for the first time, Platt & Brother made a complaint against the Express Company, and then the complaint was, “that the box had not been delivered to Munro” bio formal claim or demand was made until May, 1861, when this action was brought.
    The referee reported from the facts found and proved, as a conclusion of law, “ That the delivery, by the American Express Company, of the said box, in the manner and under the circumstances above found and reported, was a sufficient performance by said company of their contract or obligation to deliver the same, and exonerate the company from any liability to the plaintiffs therefor.”
    Judgment dismissing the complaint, with costs, having been entered, the plaintiffs appealed.
    
      
      Wm. R. Martin, for the appellant.
    The conclusion of the referee was single and general, that the delivery was sufficient. The case does not present any conflict of evidence. (Scranton v. Baxter, 4 Sandf. 5.) The referee’s conclusions of law are not sustained by the facts proved, and are erroneous.
    I. It is well settled as the rule of law, that it is the duty of a carrier to seek the consignee and make a tender of the property, or give notice to him or his authorized agent. From this duty he can only be discharged by special contract or affirmative proof of opposite usage. (Schroeder v. Hudson R. R. 5 Duer, 62.) In Haslam v. Adams Ex. Co. (6 Bosw. 243,) a deposit within the front door of the consignee’s place of business, with notice to a boy in the consignee’s office úp stairs, was held not to be a good delivery. The rule laid down in these recent cases is well sustained on the authority of Gibson v. Culver, (17 Wend. 305, and cases cited.) A carrier remains liable till the actual delivery of the goods to the consignee, or, if the course of business be such that the delivery is not made to the consignee, until he give notice. (Fish v. Newton, 1 Denio, 45.) The carrier is bound to deliver to the consignee personally, or to give notice to him ; or, if that cannot be done after reasonable efforts, he may be discharged from responsibility by storing them with some responsible bailee. (Price v. Powell, 3 Comst. 322.) Landing property on the wharf, without notice to the consignee, was held not a good a delivery in Ostrander v. Brown, (15 John. 39.) A delivery to a cartman, who was usually or always employed to transport the consignee’s goods, was- held not to be a good delivery in Goold v. Chapin, (10 Barb. 612.). The carrier was held liable for a loss after notice, and before actual delivery, in Foy v. Troy and Boston R. R. (24 Barb. 382.) When goods are received by the carrier, addressed and consigned, they must be understood, in the absence of any proof to the contrary, to have agreed to deliver them to the consignee. (See also Krender v. Woolcott, 1 Hilt. 223; Rowland v. Miln, 2 id. 150.) In Sweet v. Barney, (23 N. Y. 
      
      Rep. 335,) a carrier, sued by consignee, was discharged by a delivery to the authorized agent of the consignee, which was held to be a good delivery as against the consignee. In this case the rule was laid down that an express carrier is bound to deliver the goods at their destined place to the consignee, or as the consignee may direct. In general, the delivery must be to the owner or consignee himself, or to his agent, or the goods must be carried to his residence br place of business, unless he directs otherwise. (See also Story on Bailm. § 543 ; 2 Kent’s Com, 604, 5 ; Angell Com. Car. §§ 315, 324, 5, 6.)
    1. It has been expressly held that the present defendants are common carriers, and liable to rules of law applicable to common carriers. (Russell v. Livingston, 19 Barb. 346. Sherman v. Wells, 28 id. 403.) The allegation that they do business as expressmen and forwarders is enough. They are common carriers. (Newstadt v. Adams, 5 Duer, 45.) Their receipt and admission brings them within the rule. (Blossom v. Griffin, 3 Kern. 569. Wilcox v. Parmelee, 3 Sandf. 610. Read v. Spaulding, 5 Bosw. 404. Sweet v. Barney, 23 N. Y. Rep. 335. M. M. Ins. Co. v. Chase, 1 E. D. Smith, 115. Ladue v. Griffith, 25 N. Y. Rep. 365.)
    2. In this case none of these requirements as to delivery have been fulfilled. The defendants did not deliver it to Munro personally. They did not give him notice of its arrival. They did not prove any usage. “ What is delivery is a question of law, not of opinion. It is not within the legitimate province of custom-to control or interfere with a question of this kind.” (Suydam v. Clark, 2 Sandf. 133. Haslam v. Adams Ex. Co., 6 Bosw. 243.) They did not prove any special contract limiting their liability to deliver. The insertion of the word “Junction,” in the receipt, fixed that, (the place on their line of transportation nearest to consignee’s house,) as the place of delivery, and the defendants were not obliged to go to the consignee’s residence. They were liable until the delivery was made, at the Junction, to the consignee personally, or to his authorized agent, or notice was given to him, or the goods were deposited with a responsible bailee. To exonerate themselves, they were hound to make some other responsibile party .liable. Instead of this, they delivered the box to Anderson, and the plaintiffs have suffered the loss of the goods.
    II. The plaintiffs never parted with their title to the goods in question. They did not sell to Anderson absolutely, nor did they give him, or consent that he should have possession of it, nor did he ever acquire title or right to the possession of the goods.
    1. Anderson was, in fact, engaged in defrauding the plaintiffs.
    2. The proof is clear and uncontradicted that the express terms and conditions of the sale were, that the plaintiffs should receive for the goods a note made by Anderson and D. C. Munro, and guaranteed by John Munro. The plaintiffs expressly refused to deliver the goods to Anderson, with his assent, but were to send them by the defendants to Munro, to be put under his control. The note was then to be executed and sent to the plaintiffs. If there was any failure in the fulfillment of these terms, the goods were to be returned to the plaintiffs.
    3> The conditions on which the plaintiffs consented to part with their goods were never performed.
    4. The plaintiffs, therefore, had good, sole, and exclusive title to the property, even as against a bona fide purchaser of the property. (Strong v. Taylor, 2 Hill, 326. Keeler v. Field, 1 Paige, 312. Dewolf v. Firemen In. Co., 20 John. 214. Russell v. Nicoll, 3 Wend. 112. Kimberly v. Patchin, 19 N. Y. Rep. 330. Copland v. Bosquet, 4 Wash. C. C. R. 588. Brower v. Peabody, 3 Kern. 123. Russell v. Minor, 22 Wend. 659. Leven v. Smith, 1 Denio, 571.)
    5. No title was acquired by means of the forged note sent to the plaintiffs. (Brower v. Peabody, 3 Kern. 123. Ash v. Putnam, 1 Hill, 302.)
    6. The invoices made out in Anderson’s name, did not, nor did their delivery to him, give him any title. It was was not necessary to repeat the terms of sale in the bill of items. The blank for terms was not filled. The terms were simultaneously stated elsewhere. The bills must be regarded as subordinate to, and interpreted in conformity with, the contract. (Russell v. Nicoll, 3 Wend. 119.)
    7. The emphatic point made by the plaintiffs on this conditional sale was, that they would not sell or deliver to Anderson, or have any direct understanding with him. in regard to the goods ; but, that they would deliver to Munro, so as to fix his liability to them.
    8. The defendant cannot dispute the plaintiffs, title; certainly not in favor of Anderson, who acquired nothing by his fraud, or unperformed contract. (Story’s Agency, § 217. Story on Bailm. § 450, 582. Sheridan v. New Quay Co., 93 Eng. Com. Law R. 617.)
    III. The plaintiffs, being the owners of the property, and entitled to control it, delivered it to the defendants, who were responsible parties.
    1. The legal import of the contract of the 9th June, 1855, was, that the plaintiffs expressly directed the defendants to deliver the goods to D. O. Munro, and to no one else; and that the defendant undertook to make a good delivery to him, and to no one else. Upon this agreement or obligation of the defendants, the plaintiffs parted with the actual possession of the goods ; upon assuming this obligation, the defendants acquired the actual possession of them.
    2. The defendants were therefore bound, in order to exonerate themselves, to deliver the goods; so as to charge some other responsible party, they were bound to deliver them to Munro.
    3. If they had made a good delivery to' Munro, he would have become liable to the plaintiffs for the value of the goods. He would not have acquired any right to them on the facts of this case, and if he had converted them to his own use, or had delivered them to Anderson, he would have become liable for their value. He was a responsible party. The plaintiffs would not have lost their property. They would either have received the note required as a condition of the sale, or Munro would have returned the goods, or become liable for their conversion. The defendants must prove that they made a good delivery to Munro; that he authorized Anderson to receive them for him, or they are liable to the plaintiffs. (Sweet v. Barney, 23 N. Y. Rep. 335.)
    IV. The delivery was not good as against Munro ; Anderson was not his authorized agent.
    1. The whole conduct of Anderson was a fraud upon the plaintiffs, and an attempt to defraud Munro. Out of these transactions the defendants seek to isolate such as will show authority from Munro to Anderson to receive the box. Even if there were such facts, the defendants cannot avail themselves of portions of the transaction, selecting such as are beneficial to themselves. No one can extract benefit from a fraud. They must take the whole transaction. (Nixon v. Palmer, 4 Seld. 400. Cobb v. Daws, 6 id. 335. Blossom v. Griffin, 3 Kern. 574.) In fact, they delivered the box to Anderson without any knowledge of the facts of this transaction. If they had known it all, they would have been bound to deliver the box to Munro in such a manner as to, charge him with the goods. Under the facts which they did know, that they had a valuable box addressed to Munro, and belonging either to him or to the consignor, and to no one else, they were equally bound to deliver it so as to charge Munro. This they have entirely failed to do.
    2. Munro did not give any authority to Anderson to get the box.
    ' 3. The delivery to Anderson was not afterwards ratified by Munro. Eo new fact was communicated to him. They must show that he had. a full knowledge of all the facts affecting his rights, and intended his acts to relate to the delivery. (Nixon v. Palmer, 4 Seld. 400. Seymour v. Wyckoff, 6 id. 224.)
    4. It is not pretended that Anderson obtained the box from the defendants on any representation that he came from Munro, or with any pretense of authority or agency.
    V. The delivery was not good as against Munro.
    ■ 1. In Sweet v. Barney, (23 N. Y. Rep. 335,) the delivery was to an authorized agent of the consignee, (from whom it was stolen before it reached the consignee,) and it was held sufficient against the consignor, because the consignee was charged, and the consignor must follow them. There was no question as to the authority of the agent. To bring this case within that rule, the defendants must show affirmatively, that Anderson was Munro’s authorized agent, and that they had made a delivery that charged Munro to the consignors. Munro had no title to the goods at all, and no delivery to him could be good that did not make him liable to the plaintiffs for their value. The defendants must show that, on the facts of this case, they have a good defense against Munro, on the question of delivery.
    2. The plaintiffs should have been allowed to show that, acting on the theory that the defendants had done their duty, and after notice, they had endeavored to make Munro liable on the alleged delivery by the defendants; that on that issue they had failed to hold him, after two trials, after notice to the defendants to supply the proof of the delivery, Munro himself and the defendants’ agent being witnesses on those trials. This evidence was rejected.
    3. Upon the reason of the decision in Sweet v. Barney, the converse of the rule, pari ratione, holds in the present case. Where the consignor, after notice to the carrier, and using the carrier as a witness, fails against the consignee, he will not, in his suit against the carrier, be defeated on the ground that the carrier has charged the consignee.
    VI. The defendants are liable for a, wrongful delivery to Anderson.
    1. The' carrier will be responsible for a delivery to a wrong person, though it be entirely by mistake or gross imposition, and, as against the consignee, even for a delivery to the owner. The wrongful delivery is treated as a conversion. (Cases before cited. Story on Bailm. §§ 450, 545, b. Angell on Carriers, §§ 324, 5, 6,432, 335. Powell v. Myers, 26 Wend. 591. De Mott v. Laraway, 14 id. 225. Wells v. Steam Nav. Co., 4 Seld. 375. Miller v. Steam Nav. Co., 13 Barb. 361. Per
      
      kins v. N. Y. Cen. R. R., 24 N. Y. Rep. 196. Davis v. Pattison, Id. 317.)
    2. All the facts of this case point to this misdelivery as the proximate and sole cause of the injury to the plaintiffs. The negligence is on the part of the defendants. The evidence of their agents shows that, without knowledge, inquiry, explanation, or excuse, the delivery was made to the first person who came for it.
    3. Sufficient demand has been made. Ho demand is necessary. (Davison v. Donadi, 2 E. D. Smith, 121. Dunlap v. Hunting, 2 Denio, 643. Esmay v. Fanning, 9 Barb. 176. Sharp v. Whipple, 1 Bosw. 557. Schroeder v. Hudson River R. R., 5 Duer, 62.)
    
    VII. The plaintiffs never ratified the delivery by the defendants to Anderson, nor are they estopped, as against the defendants, from alleging that it was wrongful.
    There is no estoppel of the plaintiffs as to the defendants. The plaintiffs have done nothing on which the defendants have relied or acted. (2 Abb. Dig. 587. Bank of Beloit v. Beale, 7 Bosw. 611, 627. Green v. Russell, 5 Hill, 183. Leger v. Bonaffe, 2 Barb. 475.)
    VIII. The plaintiffs have the title to the goods, and the right of action. Ho one but the plaintiffs has any property in the goods. Any presumption of ownership must give way to the real ownership, and the action he brought accordingly. (Price v. Powell, 3 Comst. 322. Dows v. Cobb, 12 Barb. 310. Green v. Glarke, 2 Kern. 343. Adams v. Bissell, 28 Barb. 382. Sweet v. Barney, 23 N. Y. Rep. 335.)
    IX. The fact that the value of the goods was marked $4000 does not bar the action, nor limit the defendants’ liability to $150.
    1. The words “just and true value ” are not to be construed with strictness. (Blossom v. Griffin, supra.) The provision of the contract, in this respect, is merely a limitation of the defendants’ extraordinary liability by law as common carriers. It does not shield them from their own neligence or wrongful act. (Stoddard v. L. I. R. R., 5 Sandf. 180-3-6.) They cannot stipulate that they may, on such a ground, convert goods and escape liability.
    2. There was no fraud by the plaintiffs. The value marked was a conventional sum fixing the rights and risks of the parties. They have not shown' that any greater care would have been taken if it had been valued higher. It came within the class of valuable packages. They received pay and took risk according to that valuation. This is the literal and reasonable construction of the receipt. The restriction is nob that they will not be liable at all; but goes only to the measure of liability. It cannot operate as a bar.
    
      H. C. Van Vorst, for the respondent.
    I. The delivery of the box of merchandize to the carriers consigned to D. C. Munro, without any explanation or statement to the contrary, gave rise to the presumption that he was the owner of the goods ; such is the legal inference from this act. (Angell on Carriers, § 497. Everett v. Saltus, 15 Wend. 475. Fitzhugh v. Wiman, 5 Seld. 562. Sweet v. Barney, 23 N. Y. Rep. 335.) The delivery of the goods so consigned, put them, so far as the carrier was concerned, at the absolute disposal of Munro.
    II. The delivery of the goods to the consignee or to his agent, or any delivery which would be satisfactory to, or which would be assented to, or ratified by him, would discharge the carrier.
    1. After the package gets in the hands of the carrier, he is to look to the consignee, the presumed owner; and if he makes a delivery of the merchandise which the consignor should direct, acquiesce in, or ratify, it would be sufficient. (Sweet v. Barney, 23 N. Y. Rep. 336. Angell on Carriers, § 323.)
    2. When the carrier is not advised that any different relation exists, he is bound to regard the consignee as the owner, and it follows, that a" delivery which discharges the carrier, as against the consignee, is good as against the consignor.
    III. The delivery- of the box to Anderson, under the facts and circumstances of this case, was a delivery of the same to Munro, the consignee ; such delivery was made with the knowledge and consent of Munro, and in fact, by his direction ; Anderson was authorized to go and get the box.
    IY. Munro immediately adopted and ratified the delievery of the box by the defendants to Anderson ’ he at no time objected, but assented to, and confirmed such delivery. The box was brought at once to his house by Aoderson, and was actually a delivery to him there.
    Y. The damages which the plaintiffs have sustained, do not arise from the breach of any contract made by the defendants ; it proceeds from the fact that the note sent by Anderson to them was, as to Munro, a forgery. It grows out of a fraud committed upon the plaintiffs by Anderson, their own customer, and through his failure to fulfil an executory contract with them ; of which contract the defendants knew nothing, and to which they were in no sense parties, and for a neglect to perform which by Anderson they are not liable,
    YI. The plaintiffs have ratified by their acts the delivery of the goods, in the manner in which it is proved to have been made, and are estopped from making any demand upon the defendants. First. On account of the delay in making any objection to the delivery. The delivery was made on the 11th June, 1855, and no complaint was made to the defendants until 3d July, 1856. Eor more than one year the plaintiffs had remained silent. It was the duty of the plaintiffs to have ascertained at once, and without delay, whether a proper delivery had been made, and if any objection was to be urged, it should have been interposed forthwith, so as to have enabled the defendants to protect themselves, while the transaction was fresh. The plaintiffs had dealings with Anderson for months afterwards. In February, 1856, they sold Anderson a bill of merchandize which was also directed to be sent to Daniel 0. Munro, Auburn, (not. Munro’s residence,) and which he did not receive; and of the shipment of which he was never advised, and which Anderson prust have got. Second.' The plaintiffs brought an action against Anderson in the United States District Court for Wisconsin, in the month of July, 1856, upon the “note in question,” alleging it to have been given for goods sold and delivered. This was after they had discovered the alleged fraud. After they had been advised by Munro that the note was a forgery, they still treated it as valid against Anderson, and as given for goods sold and delivered ; and claimed to recover from him on it. This was an affirmance of 'the- sale and delivery of the goods. The sale was no longer a “ conditional one,” as alleged in the complaint; it has no.w become, by plaintiffs’ election, perfect and complete, and the title of the goods became vested in Anderson. There is also evidence that the plaintiff’s have obtained a judgment against Anderson on the note. In July, 1856, the plaintiffs got about $900 of the goods from Anderson, It is submitted that the above acts amount to an affirmance of the sale and delivery of the goods. When a party, who has been defrauded, would rescind, he must do nothing to affirm the transaction. He must repudiate the whole matter at once; he cannot rescind, and at the same time affirm ; he cannot sue for the price, and at the same time claim a return of the goods. (2 Kent’s Oom. 1th ed. 480, and cases cited in the note.) And finally, it thus appears that after Anderson had received the box by the direction, and with his knowledge and consent, Munroe himself received about $300 of the goods. The plaintiffs, with a full knowledge of the fact, affirmed the delivery, and sued Anderson upon the note as an evidence of his indebtedness to them for the goods sold and so delivered. The plaintiffs have Anderson’s note still, and have a judgment upon it against him. In addition to all this, it is now sought by the plaintiffs to recover of the carrier the value of the merchandize, on the alleged ground that it was not delivered. These positions are inconsistent, and irreconcileable with the established principles of law and the maxims of equity. And it is insisted that before maintaining any action founded upon a recission of the contract of sale, or an alleged failure on the part of Anderson and Munro to fulfill the executory contract, or upon an alleged failure on the part of the Express Company to deliver the goods—all that had been received by plaintiffs and by Munro, whether money or note, should have been tendered and delivered to the defendants. The plaintiffs cannot hold on to these and still maintain an action against the defendants.
    VII. The various exceptions taken by the plaintiffs to certain ‘rulings and decisions of the' referee were improperly taken, and the rulings and decisions themselves are correct. But even had the decisions excepted to been in favor of the plaintiffs, it would not have changed the result, as the sole ground upon which the referee based his judgment was, “ that the delivery by the defendants of the said box in the manner and under the circumstances above found, and repeated, was a sufficient performance by the said company of their contract or obligation to deliver the same.” Upon the other grounds of defense set up, the referee passed no opinion.
   By the Court,

Robertson, Ch. J.

Mr. Munro, to whom the box of jewelry in question was directed, had neither made nor offered to make any contract with the plaintiffs ; that fact was not communicated to the defendants ; they were equally ignorant of whatever fraud, if any, had been perpetrated by Anderson in inducing the plaintiffs to send it so directed. Their duty ended with delivering the goods either to Munro or some one'authorized by him to receive them. Whether Munro was a party to the fraud in taking possession of them, or was deceived by Anderson in procuring authority from him to receive them, was immaterial to the defendants. Munro was the trusted agent of the plaintiffs, if not the presumptive owner of the goods, so far as they were concerned. (Sweet v. Barney, 23 N. Y. Rep. 335, 6. Everett v. Saltus, 15 Wend. 475. Fitzhugh v. Wiman, 5 Seld. 562.)

Munro knew that Anderson meant to buy jewelry in New York, for he had refused to indorse his note for the purpose, but was destitute of any information from the plaintiffs as to the sending of the box or the object.of its direction. Under these circumstances, Anderson, on calling on him, informed him, “he (Anderson) had a box containing jewelry directed to him (Munro,) which had been so directed at the request of one of the plaintiffs, and asked him to get it, because it was so directed.” Munro first said, he (Anderson) could get it just as well without him, as if he were there ; to which Anderson replied, “ he did not know as they would let him have the box.” Munro said “ he thought they would ; that he (Anderson) could get the box as well without him as with him ; ” when Anderson repeated they would not let him have it. Munro again said “ he thought they would,” but finally told him “ to get the box.” Upon this, Anderson immediately left to get the box, brought it to Munro’s house, told him he had it; declined to bring it in, and carried it away. Munro not only made no objection to all this, but subsequently received from Anderson part of the contents, in payment of an old debt. He was so strongly impressed with the belief that he did authorize Anderson, in some way, to get the box, that he testified that he “ did not know but Anderson asked him if he (Anderson) should tell them that he (Munro) told him he might get it, and if he did, he (Munro) told him to say so.” This, it is true, is merely hypothetical when standing alone, but, taken in connection with the rest of Munro’s testimony, is strong evidence of the impression on his mind, that he had been applied to by Anderson for authority to get the box, and that he used some language warranting Anderson in getting the box, as his agent. Without such authority, the latter, in order to get it, must have been guilty of the crime of obtaining it by false pretenses, or a constructive larceny. Munro then knew that Anderson applied to him for authority, and immediately went to get the box, and on the strength of what he said obtained it, brought it to his (Munro’s) door, and carried it away, he subsequently receiving part of the contents. After what passed, he must have supposed that Anderson used his name to get the box, or in some way induced the defendants to believe he had his authority for getting it. Yet he seems to have made.no inquiry on the subject, nor does he appear to have warned the defendants that they had delivered the box without authority. Probably he thought he never could be made liable, provided he did not receive the box personally ; he had made no personal contract with the plaintiffs ; Anderson procured the box to be sent on, and was the party to be benefited; it was sent to a. station near his house, and might have been a matter of mere accommodation.

There was, therefore, at least, some evidence that the defendants delivered the property in question to Anderson, as Munro's authorized. agent. Besides this, the plaintiffs, a few days afterwards, received a letter from Anderson, stating that he had examined the goods sent, with the bills, and found all correct, with certain specified exceptions, to which the plaintiffs replied, explaining the objections. A note signed by Anderson for the price of such goods, with forged signatures, was received by the plaintiffs, not to become due until a year afterwards. The latter, on discovering .the forgery, which was after such note became due, commenced a suit on it, in Wisconsin, against Anderson, in which an attachment was issued. One of the plaintiffs, in an affidavit made to obtain such an attachment, stated that such npte was given for a valuable consideration, to wit, “ for goods sold and delivered.” The plaintiffs, after the notice to them, by the correspondence with Anderson, that the goods had been delivered to him, thereby ratified such delivery. (2 Kent’s Com. 7th ed. 480, note, cases cited. Green v. Clark, 5 Denio, 503.) It is true, they were probably induced not to make any objection or inquiry for a year by the forged note, but after the discovery of such forgery, they still assumed the ownership of the note, by suing upon it, and swearing that it was received for goods sold and delivered, and thereby were enabled to seize certain goods. The defendants never heard an objection to the delivery until a short time before they were sued, and after the suit against Anderson, although as between the plaintiffs and Anderson, the delivery to, or rather retention of, the goods by the latter, by the agency of a forged note, would not have prevented the former from reclaiming them. Yet, if the plaintiffs had, even by such means, been induced to sanction their delivery by the defendants, they would thereby have discharged the latter from liability as carriers. They not being parties thereto, were not responsible for impositions practiced on the plaintiffs by Anderson, to induce them to sanction the delivery after knowledge of it.

The referee has not found expressly the agency of Anderson in receiving the goods for Munro, or the sanction by the plaintiffs of their delivery. One or the other was necessary to sustain his report and judgment, but there is sufficient prima facie evidence of both. They are certainly, at least, not so clearly disproved as to warrant an interference with such judgment.

The judgment must be affirmed, with costs.  