
    Russell & Annis v. Livingston & Wells.
    Where a package, delivered to common carriers for transportation along their route, on its way to a consignee upon a lateral route branching off from that of the carriers, is addressed to the care of the agent and representative of the carriers at the place where the carriage by them is to terminate, such address is to be regarded as a direction to have the package stopped at the place where such agent is in charge of the carriers’ business, and does not import that upon receiving it he ceases to be the agent of the carriers in respect to its custody and becomes that of the consignee.
    Appeal from the Supreme Court. The action was brought to recover the value of a package of money delivered to the defendants, as common carriers, to be carried to the plaintiffs, and which was lost. Upon the trial at the Ontario circuit, the plaintiffs proved the "delivery at Amsterdam, by the teller of the Farmers’ Bank of Amsterdam to a messenger in the employment of the defendants, and then in a railroad car used by the defendants for the transportation of packages intrusted to them, of a package of money containing $981. The package was marked and directed* and was so directed in pursuance of the order of the plaintiffs. It was proved that the defendants’ business was carried on along the line of the Central railroad from Albany to Buffalo, and that they had agents and kept offices in the cities and principal villages along the line of the railroad, solely for their express business. The agent at Canandaigua was a witness for the plaintiffs, and testified that he was in the habit of receiving packages at the cars; if the place of destination was on a side route, off from the railroad, he kept them till they were called for; if directed to persons in his village he delivered them personally; he had an iron safe to keep them in, which was the joint property of himself and the defendants; he frequently received express packages addressed to consignees off the railroad, and further addressed to his care as “ express agent,” and that he treated and delivered them, as he did all other packages, as before mentioned. Dawley, the defendants’ agent at Vienna, was also a witness for the plaintiffs. He proved the receipt of the packages in question by him; the package was kept over night, in his office, in an iron safe belonging to the defendants. He corroborated the testimony of the agent at Canandaigua as to the defendants’ mode of doing their business. He further testified that he was in the habit of sending packages to Port Gibson, which is off the line of the railroad, by a stage line • the package in question was sent in that manner the next morning after it arrived at Vienna, and was lost.
    
      “ Russell & Annis,
    “ Port Gibson.
    “ Care of Dawley,
    “Express Agent, Vienna.—$981.”
    
      The defendants’ counsel asked the court to nonsuit the plaintiffs, on the ground that, from the evidence, the duty of the defendants was to carry the -package to Vienna and there deliver it to Dawley, and, having done that, their liability was at an end. The judge decided that the defen'■dants were to be held as common carriers from Amsterdam to Vienna, but not from Amsterdam to Port Gibson; and that the evidence established that Dawley was the agent of the plaintiffs to receive from the defendants the package in question at Vienna, and that it was delivered by the defendants to him, and held by him, as such agent, for which reasons the defendants were not liable. lie directed a nonsuit and the plaintiffs took exceptions. The judgment thereupon entered for the defendants was on appeal affirmed by the Supreme Court, at general term in the seventh district, and the plaintiffs appealed to this court.
    
      Henry R. Selden, for the appellants.
    
      Cambridge Livingston, for the respondents.
   Johnson, Ch. J.

The plaintiffs were nonsuited at the trial, upon the ground that the evidence established that Dawley was their agent to receive the package in question at Vienna, and that it was delivered by the defendants to him and received and held by him as the plaintiffs’ agent.

The testimony of the defendants’ agent at Canandaigua showed that the practice at his agency was to retain packages addressed to persons and places not on the direct line of the express routes, until they were called for, or written directions were received from the consignee; and that packages so directed, and further addressed to his care as “ express agent,” were dealt with in the same manner. Dawley, the agent at Vienna, likewise stated that he treated and delivered packages addressed to consignees off the line of the railroad, and to his care as “ express agent,” in the same way as he did all other express packages. He also stated that he had heard the testimony of the Canandaigua agent and agreed with him as to the defendants’ mode of doing their business. So far as his recollection served him to specify cases in which he had such packages addressed to persons off the direct line, he had received specific instructions from the consignees; but in one case he thought he had sent a package to persons whom he named, and could not say whether or not they had given him any instructions. It is manifest therefore, that the ruling at the trial was based upon the legal effect of the direction upon the package; for all the other evidence in the case tended to show that, according to the usual course of the defendants’ business, what Dawley did at Vienna with this package was done as the agent of the defendants and not of the plaintiffs.

Ordinarily, the address of a package to the care of any one is an authority to the carrier to deliver it to such person ; but when the person to whom it is thus addressed is the agent and principal representative of the carrier himself, at the point where the carriage is to terminate, it may be regarded as a mere expansion of the ordinary direction to have it stopped at the place on the route where that agent is in charge of the business. It should be so regarded; for there is no probable reason why a person sending a package should be supposed to choose to terminate the carrier’s responsibility and substitute that of the carrier’s agent, when by such change no new duty would be created, and the package would be dealt with in either case by the same person and in the same way. The only object in giving such a direction which could be supposed would be to change the responsibility from the carrier to the agent appointed by the carrier; and as such a change would usually impair the security of the owner, as he must be taken generally to know more about the carrier whom he employs than about the carrier’s agent, of whom he will commonly know only the name, it would be acting against the natural presumptions which arise from the situation of the parties to attribute to the owner such an intention.

It was therefore erroneous to hold as matter of law that Dawley received the package as the plaintiff’s agent, and there must be a new trial.

Selden, J., expressed no opinion. All the other judges concurred, intending, however, to exclude any implication that the defendants were under an obligation to transport the package to Newark.

Judgment reversed and new trial ordered.  