
    Harry Buchholz, Respondent, v. James Damick, Appellant.
    Fourth Department,
    November 14, 1906.
    Sale — when agent of express company reimbursing consignor may bring action against the consignee as assignee of the consignor.
    A consignor shipped goods through an express company to the defendant. The plaintiff, a driver for the express company, claimed to have delivered the goods to the defendant (which delivery was found as a fact on the trial), but failed to take a i eceipt therefor. The consignee refused to pay for tire goods, claiming that they had not been delivered, whereupon the consignor made a claim against the express -company, which, being unable to produce a receipt, paid the consignor the value of the goods and thereupon required the plaintiff, its ■ driver, to make good the loss. The plaintiff, on reimbursing the express company, took an assignment of the consignor’s claim against the defendant. The defendant contended that the plaintiff could not recover as a matter of law on the theory that the express company and the plaintiff in paying for the goods were volunteers and had no interest in the controversy.
    
      Meld, that the plaintiff was entitled to recover, for, on paying the'value of the goods, he was subrogated to the rights of tire express company and the consignor. . .
    (Per Keuse, J.): The payment made by the express company to the consignor was not a payment of his claim against the buyer, but was a settlement of a claim for alleged conversion or misdelivery of the goods.
    Appeal by defendant, James Damick, from a judgment of the County Court of Ontario county in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 26th day of May, 1906, pursuant to an order of said County Court entered in said clerk’s office on ,the 26th day of May, 1906, affirming a judgment of the City Court of Geneva rendered on the 22d of March, 1906, and also from the said order directing the entry of the' judgment appealed from.
    
      Nathan D. Lapham, for the appellant.
    
      E. A. Griffith, for the respondent.
   Williams, J.:

The judgment appealed from should-be affirmed, with costs.

The facts must, for the purposes of this appeal, be regarded as settled, are somewhat peculiar, and arc, briefly, as follows:

October 23, 1905, one Podworslcy of Auburn, ¡R. Y., sold the defendant 1,000 cigars at the agreed price of thirty-three dollars, and the firm of Onorato & Brother 200 cigars at the agreed price of - six dollars- and sixty "cents. ■ Both purchasers lived at Geneva, hi. Y., and were- to pay for the cigars on delivery at Geneva. On the same day these cigars were puf up in separate packages and addressed to the purchasers but were tied together, and the whole . ■ shipped by the American Express to' defendant. They were received at the express office in Geneva October 24, 1905, and were delivered by the plaintiff, the express company’s driver, to the ■deféndant the same day, but no receipt was taken therefor from the defendant. Bills were sent by Podworsky to the purchasers.óf the cigars, and were returned with the claim that the cigars had not been received. Podworsky thereupon made claim against the express company for the value of the cigars. There was then controversy between the plaintiff and the defendant as to the delivery of the goods, plaintiff claiming he did deliver them, and defendant claiming he did not. The express company having no receipt from defendant for the cigars, paid Podworsky therefor January 20, 1906, and took his receipt. They required the plaintiff to- pay -them the. amount and he has paid seven "dollars and fifty cents thereon. March 1,1906, plaintiff took from Podworsky an assignment of his interest in the cigars, and March 3, 1906, brought, this action to recover.the value thereof. The controversy between the parties as to the delivery was tried out, and the city, judge found the cigars were delivered to defendant, and judgment was awarded for the value, thereof, The defeodant, with a finding that he libs had the cigars and has not paid for them, claims that the driver cannot, as- a matter of law, recover from him. the value thereof. The driver "lias not liad the benefit of the cigars^ and yet, for his failure to get defendant’s receipt therefor upon- delivery, which it was his 'duty to do, as between him and the express company, has been required by the' company to pay the claim made by Podworsky. Podworsky has his pay for the cigars, and has assigned all his interest therein to the driver, who had the real controversy with the defendant as to the delivery of'the cigars:

The defendant’s claim-to be relieved from the payment for. the cigars which he lias had the benefit of is based upon the proposition ' that the express' company and its driver, in paying Podworsky. for the cigars^, were volunteers, had no interest in the controversy between.Podworsky and the defendant as to the delivery of the cigars, and, therefore, cannot recover of defendant.

It seems to us that the principle sought tb be applied is not fatal to a right to recover here, because the plaintiff had a direct interest in the cigars here. The express company, as it might well do, required him to pay the claim made by Podworsky. He assented to it, and Podworsky’s interest was thereupon assigned to him by the direction or consent of the express company, who had advanced the money. If it be 'paid that the assignment was made after Podworsky had been paid, and had nothing to assign, we reply, even if that be conceded, that the plaintiff was then entitled to be. subrogated to the rights of the express company and of Podworsky.

We think, upon the established facts, the judgment of the City Court was justified, and that the judgment of the County Court affirming it should not be disturbed.

All concurred.

Kruse, J. (concurring):

I concur in the opinion of Mr. Justice Williams, but desire to add a single suggestion. I think the payment made by .the express company to the consignor and seller of these goods was in no sense a payment of the claim of the seller for the purchase price of the goods owing to him by the defendant, the purchaser thereof. The claim which the express company paid was for the alleged conversion or misdelivery of the goods, the defendant claiming he had never received them, and thereupon the consignor asserted its claim against the express company, not for the purchase price, but for damages for non-delivery.

" It is true that it appears that the goods had in fact been delivered to the consignee, but that affords no ground for saying that the express company paid the. debt of the consignee for the purchase • price. Very likely the express company could have recovered back the money from the consignor which it paid under a misapprehension and mistake of fact. However that may be, I think the payment of the money by the express company for the value of the goods upon the claim made against it was not a payment of the debt of the consignee, either voluntarily or otherwise.

Judgment affirmed, with costs.  