
    Edward C. Richards, Plaintiff and Appellant v. Robert H. Wescott and Joseph A. Hyatt, Defendants and Respondents.
    1. Where an ordinary traveling trunk is delivered as such to expressmen, to be carried by them and left'at a designated railroad passenger depot, and it contains valuable jewelry belonging to a third person, which fact is not disclosed to them, and the trunk and all of its contents, except the jewelry, are delivered, and the jewelry is lost without their fault, they are not liable for it.
    2. The acceptance of such a trunk, on an application to receive and deliver it, is an undertaking to carry and deliver it, with the articles of personal conve“nience ordinarily carried by travelers that may be contained therein, and nothing more.
    3. To hold them responsible in such a case for the safe delivery of jewelry therein, belonging to a third person, and intended by him for sale as merchandize, would operate as a fraud on them, which the law will not sanction, though there may have been no actual intent to defraud,-in not disclosing the contents of the trunk.
    (Before Bosworth, Oh. J., and Pierrepont and Monorief, J. J.)
    Heard May 17,
    decided June 2, 1860.
    Appeal by the plaintiff from a judgment ordered at a trial had June 10,1859, before Mr. Justice Pierrepont and a jury.
    This action is brought against the defendants as common carriers, to recover the value of a box of jewelry, alleged to have been delivered to the defendants at Brooklyn, Nov. *7, 1855, in a trunk to be carried by them to Buffalo, and there delivered to the plaintiff. This case was previously tried, and the proceedings on that trial are reported in 2 Bosw. 589. By consent of the parties, the jury on the present trial found as facts, the same facts as were found by the jury on the former trial. The facts' as found, and the proceedings on the trial had subsequently to such finding, are stated in the case as follows, viz :
    1st Ques. Was the trunk in question delivered to the defendants by a William P. Davis, to be transported from Brooklyn to the New York and Erie railroad depot in New York city? A. Yes.
    2d. Did it at that time contain the jewelry in question ? A. Yes.
    3d. Was the trunk and jewelry delivered at the depot in New York? A. No.
    4th. What was the value of the said jewelry? A. $432.90.
    5th. Did Davis prepay for its'transportation? A. Yes.
    6th. Were the contents of the trunk asked for by the defendants, or made known to them by Davis, at -the time of its delivery to them for its transportation? A. No.
    7th. Is it the custom‘of the city express companies in general, or of the defendants’ company in particular, to charge for the transportation of articles according to their value ? A. It is when articles are known to be of extra value.
    8th. Was the usage or rule in the above particular (if the jury shall find such to have been proved) communicated to Davis before the defendants undertook the transportation of said trunk, or was such usage known to him ? A. It was not communicated to Davis, and we have no proof that he knew it of his own knowledge.
    9th. Was the trunk in question a traveler’s triink, in the common meaning of that word ? A., It was.
    10th. Was this trunk to be delivered at the passenger depot or at the freight depot, at the city of New York? A. Passenger depot.
    11th. If you say that the trunk was not delivered at the depot in New York city, what became of it ? A. By mistake it was delivered to the People’s Line steamer, Isaac Newton.
    12th. If, in answer to the last question, you say it was delivered by mistake at the wrong place, and afterwards 'sent by the defendants to Buffalo, state whether that was done by the defendants voluntarily, and without any further pecuniary compensation or consideration ? A. It was.
    13th. Upon the arrival of the trunk in Buffalo; what were its contents, and was the jewelry in the trunk? A. The trunk was broken open and the jewelry missing.
    
      • 14th. If you say, in answer to the last question, that the jewelry was not in the trunk on its arrival at Buffalo, was it lost or abstracted before or after its delivery at the wrong place in the city of New York (such place being the steamboat Isaac Newton, belonging to the People’s Line,) or was it lost or abstracted before the agreement of the defendants to deliver the same in Buffalo? A. After its delivery at the wrong place, but we have no evidence or means of knowing whether lost or abstracted before or after the agreement to deliver the same in Buffalo.
    15th. What was the customary charge for the transportation of a traveler’s trunk from'Brooklyn to New York? A. Twenty-five cents.
    16th. If you say Davis prepaid for the transportation of the trunk, did he so pay as a distinct item, or was the charge for the trunk and box of pictures lumped together, and paid as one item? A. As two distinct items.
    llth. Who was the owner of the jewelry in the trunk? A. Mr. Richards, the plaintiff.
    18th. Was the jewélry intended for merchandise, or did it constitute a part of a traveler’s equipments or baggage ? A. It was merchandise.
    19th. Did the defendants know that Davis had on former occasions carried jewelry in his trunk? A. No.
    The defendants here rested, and their counsel ■ on the above findings of fact, and on the whole case, moved for a non-suit on the following grounds :
    
      First. No allegation in complaint that trunk was - lost, without fault of the plaintiff, and the proof shows that accident may have happened through fault of plaintiff. Plaintiff’s negligence was, in not telling the carrier that the trunk contained jewelry. It was delivered as a trunk of ordinary clothing.
    
      Second. Fraud upon carrier in not disclosing contents of trunk.
    
      Third. A total failure of consideration between parties, no contract to carry jewelry.
    
      Fourth. Contract proved different from that in complaint; not a variance, but a total failure of proof. Contract alleged is to carry to city of Buffalo. Proof shows it was to carry to depot, New York. Subsequent agreement to carry to Buffalo not sustained by any consideration, or if there was, then the defendants are liable only as private carriers, and not as common carriers.
    
      Fifth. Contract was with DaVis to take his trunk. No contract with the plaintiff.
    
      Sixth. That oh the facts the plaintiff was not entitled to recover.
    And the plaintiff asked that the case go to the jury with the following instruction:
    “If the jury think there was no intentional fraud practiced by Davis in delivery of the trunk, they must find for the plaintiff.” Which the court refused, but granted the non-suit, and to which plaintiff’s counsel excepted.
    The testimony on the second trial was the same as on the first, except that some additional testimony was given by the defendants.
    Judgment of non-suit having been entered, the plaintiff appealed from it to the general term.
    
      R. A. Watkinson, for Appellant.
    I. Plaintiff was entitled to have the case go before the jury, as a new trial had been awarded, and the question involved under the opinion of general term, and as put before the court on second trial, was one oí fraud. (Zabriskie v. Smith, 3 Ker. 332; Nichols v. Pinner, 18 N. Y. 297; Griffin & Buel v. Marquardt, 17 N. Y. 30.)
    II. The non-suit was erroneous. The first, third, fourth, and fifth grounds are insufficient; and so decided by this court in this case. (2 Bosworth R. 589.)
    III. The second is erroneous, because the question of fraud was not set up in the answer.' And it cannot be proven under a mere denial of receipt of goods. Nor can the court infer fraud, and remedy the defect. In a court of law fraud must be proved. (Angell on Carriers, § 265 ; 1 Parsons on Con. 719; Jackson v. King, 4 Cowen, 220.)
    IV. There cannot be fraud without intent, and acts alone prove intent—which is a question for a jury; and no intent to defraud is shown. Constructive fraud is not applicable' here. (2 Kent, 484; Jones v. Howland, 8 Metc. 377; Gallatian v. Cunningham, 8 Cowen, 370.)
    V. It is the duty of the carrier to ask contents. And until asked, it is not the owner’s duty to disclose contents. And the mere packing valuables in a traveler’s trunk is not such an indication of fraud as the law requires to be shown. (2 Kent, 6th ed. 602; Story on Bail. § 567; Hollister v. Nowlen, 19 Wend. 245; 9 Wend. 115.)
    VI. Concealment is not per se a fraud, for the law says : The owner need not disclose contents, until asked, and no case goes the length of the application in this case. Carrier must show fraud affirmatively. (Hollister v. Nowlen, 19 Wend. 245 ; Nichols v. Pinner, 18 N. Y. R. 295; Batson v. Donovan, 4 B. & Aid. 21; Walker v. Jackson, 10 Mees. & Welb. 160, 169.)
    VII. Defendant is a common carrier, and as such held to the responsibility of an insurer against all except acts of God—if no artifice is used to deceive. (Dorr v. N. J. St. Nav; Co. 1 Kern. 485; Russell v. Livingston, 19 Barb. 346.)
    VIII. Defendant cannot limit-his liability by custom or notice. (1 Kern. 485.)
    IX. The law applicable to carriers of passengers cannot be applied here, it is not dependent on the kind of freight they carry, but it is modified tó them, because they are paid only for a passenger and baggage. (1 Parsons on Con. 673; Hawkins v. Hoffman, 6 Hill, 586.)
    X. The third ground taken for non-suit is erroneous, because loss of timé and a suspension of a right, was a good consideration to support second contract. 2 Kent, 6th Ed. 465.)
    XI. Carrier is liable if he voluntarily undertakes, whether interested.in means of transportation or not. (Fairchild v. Slocum, 19 Wend. 329; 25 Wend. 661; 13 Barb. 361; 
      Russell v. Livingston, 19 Barb. R. 352; Moore v. Evans, 14 Barb. R. 524.)
    XII. Defendant voluntarily, for a good consideration, contracted to convey trunk as first given to him, to Buffalo.
    13. To arrive at the intent to defraud, the whole tenor of Davis’ conduct must be viewed together. ! And it shows no intention to impose on carrier.
    
      II. D. Sedgwick, for Respondents.
    I. This ease is res judicata in this court. The court having determined thé law upon the same facts now before it, will not reverse or review its former decision. (Richards v. Westcott, 2 Bosw. 589.)
    II. The non-suit was properly granted.
    1. The facts having been found by the jury, the necessary result of the application to those facts of the law of the case, as already determined, was a non-suit.
    2. The non-suit was quite independent of any question of fraud. The court had decided, that the rules governing the liabilities of carriers who transport the luggage of a passenger, as an incident to the conveyance of his person, and who, by the law of the State, are common carriers, in respect to such luggage, govern also the liability of other carriers receiving and conveying such luggage, as such. Under these rules, the carrier receiving a traveler’s trunk, is liable only for such a trunk and its appropriate contents —not for merchandise it may contain; and the traveler’s secret motives do not affect the carrier’s liability. It is his acts, not his thoughts, which produce the injurious consequence, and are alone material.
    In the present case, the merchandise was that of a third party—not of the traveler—who had no interest in it. (Richards v. Westcott, 2 Bosw. 589, and cases there cited.)
    ' 3. Assuming the question of fraud to have been necessarily involved, there was still, after the facts had been found, nothing left for the jury. At law as well as in equity, the question of fraud on a conceded or established state of facts, is one for the court—not the jury. Fraud becomes no longer a question of motive, but a matter of legal intendment. The natural -sequence, not the motive of the act, is the point of inquiry. (Sturtevant v. Ballard, 9 Johns. 342; Divver v. McLaughlin, 2 Wend. 599; Jackson v. Mather, 7 Cowen, 301; Kean v. Newell, 2 Missouri, 9; Coleman v. Wolcott, 1 Conn. 285, 294; Stevens v. Fisher, 19 Wend. 181; Dormick v. Reichenback, 10 S. and R. 84-90; Rea v. Alexander, 5 Iredell, 644, 647; Swift v. Fitzhugh, 9 Port, 39, 67; Pothill v. Walker, 3 Barn. & Aid. 125; Story v. Norwich and Worcester R. R. 24 Conn. 94; Edgell v. Hart, 5 Seld. 213; People v. Cook, 4 Seld. 79; Cunningham, v. Freeborn, 11 Wend. 240.)
    4. There was no request on the part of the plaintiff that the case should be left generally to the jury, but merely a request after the facts had been found, and the findings admitted by consent, and after the motion thereon for a non-suit had been made, that the case should go to the jury, coupled with an erroneous instruction.
    5. The cause of action stated in the complaint, is unproved in its entire scope and meaning. It is not merely a case of variance: it is a failure of proof. (Code, §§ l7l, 142; See 2d sec. of point 1 of defendants on former argument, 2 Bosw. 598.)
    6. On the several principles stated under the 2d, 3d, 4th, and 5th points for the defendant on the former argument of this case, (2d Bosw. pp. 598, 599, 600,) and the authorities there cited, which principles were sanctioned by this court in their opinion, (2 Bosw. pp. 603-606,) the non-suit was right. The judgment of non-suit should be affirmed.
   By the Court. Bosworth, Ch. J.

This employment was to carry a trunk, described as being a traveler’s trunk, and to carry it so that Davis might have it at the depot, to be taken with him as a traveler’s trunk.

The trunk itself, and all of its contents, were delivered at a place to which the defendants agreed to forward it, and the plaintiff to receive it; except that portion of the contents which consisted of articles not constituting any part of the usual contents of a traveler’s trunk.

The plaintiff now seeks to charge the defendants with the value of jewelry which was in the trunk, an article which the defendants were not only not asked to carry, but which, from the terms of the application made to them, they might justly suppose formed no part of the contents of the trunk.

The decision in this case, when it was before the general term, in February, 1858, (2 Bosw. 603-606,) disposes of all questions "presented by the present appeal. The same evidence was given by the plaintiff, and the same facts were found on the first trial as on the second.

On the second trial “ the plaintiff asked that the case go to the jnry with the following instruction: ‘If the jury think there was no intentional fraud practiced by Davis in delivery of the trunk, they must find for the plaintiff;’ which the court refused, but granted the non-suit, and to which plaintiff’s counsel excepted.”

In Pardee v. Drew, (25 Wend. 462,) Ch. J. Nelson says, “I would not say the plaintiff intended to impose upon the defendant, and under the cover of baggage obtain the transportation of merchandise, free of expense; this is not material. It is enough that such is the practical effect of his conduct.”

So in The Great Northern Railway Co. v. Shepherd, (14 Eng. L. & Eq. 367-370,) Baron Parke says, “Whether this was done with any fraudulent intention it is not material to inquire, for if without any fraud the passenger had so conducted himself that the company were not apprised of the nature of what he was carrying, it is the same in effect as if a fraud had been intended.”

The defendants, from the application made to them, could only regard this trunk as being the ordinary baggage trunk of a traveler, containing the usual personal conveniences belonging to Davis in that character, and had no reason to suspect that it contained, in addition, jewelry to be sold as merchandise, belonging either to Davis or the plaintiff, or to any other person.

We think that Pardee v. Drew, and The Great Northern Railway Co. v. Shepherd, (supra) are decisive against the plaintiff’s right to recover, and that he was properly non-suited. '

j The fact that the defendants were employed to carry the 'trunk only, and not its owner also, can make no difference in respect to the rights of the parties. The deception, in effect, practiced upon the defendants, however honest the actual intent of Davis, is the same in this case as if they had undertaken to carry Davis also.

It is this practical fraud, in case the defendants were to be held responsible, which prevents liability attaching, and not anything peculiar in the law applicable to passenger carriers.

The rule is that a defendant is not to be charged, when charging him would sanction and give effect to a fraud, in effect, practiced upon him by the plaintiff.

The judgment should be affirmed with-costs.

Ordered accordingly.  