text:
    Darby Ginnon, an infant, by John Ginnon, his guardian, plaintiff and appellant, vs. The New York and Harlem Railroad Company, defendant and respondent.
    1. In an action to recover damages for injury caused by the negligence of the defendant, no difficulty arises from making a distinction between gross and ordinary negligence, so far as the plaintiff is concerned; since any negligence on his part deprives him of all light of action.
    2. The doctrine that negligence is a pure question of law, when the facts constituting it are conceded, and must therefore be determined by the court,' was early admitted, and has been constantly adhered to, in the jurisprudence of this state. Per Robertson, Oh. J.
    3. The refusal or neglect of the driver of a street railway car to stop the same, so as to enable a passenger to descend safely, will not justify the latter in incurring an extra hazard, by descending from the car while it is in rapid motion.

      4. The fact that multitudes daily step in safety from railroad cars while the latter are in motion, does not necessarily relieve such act from the imputation of negligence, even when done with care. If there he no danger in such act, unless carelessly done, and the constant practice of mankind is proof thereof, the servant of the company will still he justified in recommending a passenger not to descend while the car is in motion, although the latter asks him to stop.
    6, If there is any danger in such an act, the passenger is as much bound to avoid it, as the railroad company are not to contribute to its occurrence. They are not responsible for the consequences of his own voluntary act. /
    6. In estimating the elements of danger, an injured party may be absolved, from an imputation of negligence by surprise created by noise, bustle, hurry and confusion. But only in case there was a rate of speed within which an attempt to step off cars in motion might safely be made, with ordinary caution, would any surprise which prevented the discovery of, or a mistake as to, the time when such degree of speed was reached, relieve the passenger from the charge of negligence in selecting an improper time to descend.
    (Before Robertson, Ch. J. and Monell and McCunn, JJ.)
    Heard November 19, 1864;
    decided December 31, 1864.
    Appeal from a judgment dismissing the plaintiff’s complaint, and from an order made at a special term, denying a motion for a new trial.
    Darby Ginnon, the plaintiff, a boy about 17 years of age, got upon one of the defendants’ city cars, with a large leather sack containing shoe trimmings. He was on the front platform with this sack. He did not ask the conductor for a seat. He did not try to go into the car. The conductor collected his fare, on the platform. ■ When the car got near Sixth street,- going up the Bowery, the plaintiff told the driver to stop. The driver did not stop. He spoke to him again, and he testifies that the driver told him to jump off, or get off. He did not speak to the conductor. He attempted to get off on the east side of the car. He took the bundle in his left hand, and took hold of the railing with his right hand. He put his left foot on the step, and as he was going to step off with his right foot, his left foot slipped, and went under the car, and was crushed by one of the wheels, before the car stopped. The plaintiff was in the daily habit of riding on the cars. He was in the employ of one Pepper, (a shoe dealer,) carrying shoes and collecting money from his employer’s customers. ,

      The action was brought-to recover damages for the above mentioned injuries to the plaintiff's person, which were alleged to have been caused by the defendant’s negligence. On the trial, the plaintiff requested the judge to submit specific matters of fact to the jury, and especially that he should leave it to their determination whether there was any want of ordinary care on the part of the plaintiff, contributing to the injury he received. The judge refused, and ordered the complaint to be dismissed.

      A. Matthews, for the appellants.
    I. The right to recover in this action depends upon the conclusion whether this boy exercised ordinary care or prudence, under all the facts and circumstances of this case, in getting ready to alight, or in endeavoring to alight, from the defendant’s cars, in obedience to their commands. This was necessarily an “ inference of fact,” from a proper estimate of all the cicumstances, and should have been submitted to the jury to decide.
    1. The legal principles enunciated by the courts of this state, in this class of cases, sustain this proposition.

      (a.) “As a general rule, questions of negligence belong exclusively to the jury.” Instances to the contrary “ must' be rare.” (By Court of Appeals, Selden, J., Bernhardt v. R. & S. R. R. Co., 23 How. R. 168.)
    (6.) “ If there are inferences to be drawn from the proof, which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary care and prudence would be likely to do, under the circumstances proved, this involving, as it generally must, more or less of conjecture, can only be settled by a jury. It is not easy to suppose a case in which the court would be warranted in holding, as a matter of law, that negligence was proved.” (Ibid.)
    (c.) Negligence is “ determined by an inference of the mind from the facts of the case ; and as minds are differently constituted, the inferences, from a given state of facts, will not always be the same.” “ Where either the facts or the inference to be drawn from them are in any degree doubtful, the better way is to submit the whole matter to a jury, under proper instructions as to the law, This is the more necessary in cases of negligence, because of the great variety of considerations which enter into that question. The same facts might constitute great negligence in one case which would scarcely amount to slight negligence in another. Again, negligence, which is nothing more than the want of care—proper care—is more or less affected by the conduct or action of the opposing party.” (Per Supreme Court, Hogeboom, J., McGrath v. Hudson River R. R. Co., 32 Barb. 147.)

      (d.) “ Negligence is in all instances a question of fact, and it is only where a question of fact is entirely free from doubt, that the court has a right to apply the law without the action of the jury.” (Per Supreme Court, Ingraham, J., Bernhardt v. R. and S. R. R. Co., 19 How. 204.)
    (e.) “ It by no means necessarily follows, because there is no conflict in the testimony, that the court is to decide the issue between the parties as a question of law. The fact of negligence is very seldom established by such direct or positive evidence that it can be taken from the consideration of the jury and pronounced upon as matter of law. Presumptions of fact, from their very nature, are not strictly objects of legal science, like presumptions of law.” (By Court of Appeals, Johnson, J., Ireland v. Oswego Plank R. Co., 13 N. Y. Rep. 533. See also Keller v. N. Y. Central R. R. Co., 24 How. Rep. 174.)
    2. The practice of the court in this class of cases, in the application of these rules, is in conformity with the plaintiff’s request. (Clayards v. Dethick, 12 Adol. and Ell. N. S. (64 Eng. C. L. R.) 439. Ireland v. Oswego, &c. P. Road Co., 13 N. Y. Rep. 526. Brown v. N. Y. Central R. R. Co., 31 Barb. 385. McGrath v. Hudson River R. R. Co., 32 Barb. 146. Bernhardt v. R. & S. R. R. Co., 19 How. 199. S. C. Court of Appeals, 23 How. 166. Keller v. N. Y. Central R. R. Co., 24 How. 172. Drew v. Sixth Av. R. R. Co., 26 N. Y. Rep. 49. Meyer v. Second Av. R. R. Co., 8 Bosw. 305.)

      II. The inference of negligence on the part of the plaintiff might perhaps have been made by the jury, but it was not so clear as to be decided without their intervention.

      C. W. Sandford, for the respondent.
    • I. A plaintiff suing for injuries caused by negligence of the defendants or agents, must fail unless he can show that he was free from negligence himself. (Wilds v. Hudson River R. R. Co., 24 N. Y. Rep. 430.)
    II. To carry a case to a jury, the evidence on the part of the plaintiff must be such, as if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendants. (Wilds v. Hudson River R. Co., supra. Johnson v. same, 20 N. Y. Rep. 73. Steves v. Oswego and Syracuse R. R. Co., 18 N. Y. Rep. 422.)
    III. Negligence is a question* of law, where there is no dispute about facts, and a nonsuit should be ordered when the proof will not warrant a recovery against the defendant. (Wilbrand v. Third Av. Co., 3 Bosw. 314. Haring v. N. Y. and Erie R. R. Co., 13 Barb. 9. Terry v. N. Y. Central R. R. Co. 22 Barb. 574. Willetts v. Buffalo and Rochester R. R. Co., 14 Barb. 585. Spencer v. Utica and Schenectady R. R. Co., 5 Barb. 337. Hatfield v. Roper, 21 Wend. 615. Tonawanda R. R. Co. v. Munger, 5 Denio, 255. S. C., 4 Comst. 359. And the three cases cited on second point.)

    IV. The plaintiff's negligence was the cause of the accident. He had no right to interfere with the driver. The conductor was the sole manager of the car. He should have applied to him to stop the car. His attempt to jump from the car, was gross negligence. He should have remained on the car until it did stop.
   By the Court, Robertson, Ch. J.

The main questions in this case are the sufficiency of the evidence to establish negligence on the part of either or both parties. No difficulty arises from drawing the line of demarcation between gross and ordinary negligence, since any negligence on the part of the plaintiff deprives him of all right of action. ( Wilds v. The Hudson R. R. Co., 24 N. Y. Rep. 430.)

The doctrine that negligence is a pure question of law when the facts constituting it are conceded, and must therefore be determined by the court, was early admitted, and is constantly ■ adhered to in the jurisprudence of this state. (Foot v. Wiswall, 14 John. 304. Steves v. Oswego and Syracuse R. R. Co., 18 N. Y. Rep. 422. Dascomb v. Buffalo and State Line R. R. Co., 27 Barb. 221.) However much language inconsiderately employed in some cases may seem to throw a doubt upon it, it is true the cases do not always clearly distinguish between the facts which constitute and the circumstances which establish negligence, and do not define the nature of the facts whose admission makes negligence entirely a question of law. The mere circumstances of a case, as they are termed, may not be the subject of conflicting evidence and yet how far they may establish the essential fact of negligence by inference when they do not do it directly, is a proper question for a jury. (Dascomb v. Buffalo and St. Line R. R. Co. ubi sup.) As negligence, is the absence of the care and vigilance usually bestowed by prudent men either in a transaction of a particular kind, (Ernst v. Hudson R. R. Co., 24 How. Pr. 97,) or generally in all their actions, (Center v. Finney, 17 Barb. 94,) what would be such care in a particular case may be a subject of inference from numerous facts and circumstances, and may therefore be properly submitted to a jury. Thus, caution in the construction of a public work, (Brown v. Mohawk and Hudson R. R. Co., How. App. Gas. 66; Polar v. N. Y. Central R. R. Co., 16 N. Y. Rep. 476,) and care in the transportation of merchandise, have been held to be proper questions for a jury.

Cases of negligence are not taken out of the general rule, that a plaintiff should be nonsuited when a verdict in his favor would be set aside as against the weight of evidence. (Wilds v. Hudson R. R. Co., ubi sup.) There are certain acts which it is clear no person of ordinary foresight and caution would do or fail to do, as the case might be. To drive a wagon across a railroad without previously looking out for a locomotive is negligence in law. (Brooks v. Niag. Falls R. R. Co., 27 Barb. 532. Owen v. Hudson River R. R. Co., 2 Bosw. 374. Dascomb v. Buffalo &c. R. R. Co., ubi sup.) So to permit an infant to wander into a highway unattended, (Hartfield v. Roper, 21 Wend. 615,) unless excused by the other circumstances of the case, (Oldfield v. N. Y. and Harlem R. R. Co., 14 N. Y. Rep. 310,) or a lunatic to remain unattended in a railway car, who was ejected for not paying his fare ; Willetts v. Buffalo &c. R. R. Co., (14 Barb. 585,) was equally so. And there are Other acts which are undoubted acts of negligence. To spring from a car when moving at a high rate of speed, except for the purpose of saving one’s life or limbs, (Eldridge v. L. Island R. R. Co., 1 Sandf. 89,) would, in law, clearly be such an act as to exempt the owners of the cars from all responsibility for any injury produced thereby. It would be an act of negligence, at least, if not willfulness. Whether stepping or jumping off while the cars were at a less or low rate of speed, would be so palpably an act of negligence as to be a matter of judicial cognizance, and therefore a question of law, is to be considered, as upon the determination of that question-this case turns.

The propriety of the plaintiff’s presence on the front platform of the car, from which he attempted to step when he received the injury complained of) and the effect of the direction of the driver to him to leave, at least so far as it was at all coercive, were equally immaterial on the question. Such presence was by consent of the agents of the company, and therefore rightful; besides the injury was not received by being there, but in the attempt to leave. The suggestion of the driver, whether it was to get off, or jump off, was not in fact and was not intended as a command to be enforced, or which any demonstration was made to enforce. At the most it was a mere advice or a' direction. Whether the plaintiff could be absolved from a charge of negligence to which he would otherwise have been amenable, by following such advice, presents other considerations.

The refusal or neglect of the agents of the defendants, to stop the cars and enable the plaintiff to descend safely, did not justify him in incurring extra hazard, if any, by descending from the cars while in motion. He had an ample remedy for being carried beyond his intended stopping place. Such an abduction would closely resemble false imprisonment. Yet restraint of one’s liberty in any other mode, would not render the party guilty of such restraint liable for damages for an injury sustained by the imprisoned party in a desperate and reckless attempt to escape, unless under a reasonable apprehension of greater evils by remaining confined, similar to the act of springing from cars to avoid a greater prospective injury.

The fact that multitudes daily step in safety from railroad cars while in motion does not necessarily relieve such act from the charge of negligence, even when done with care. If it does, it either makes the plaintiff’s injury the result of an unforeseen cause or of some inattention or carelessness on his part. If there be no danger in such act, unless carelessly done, and the constant practice of mankind is proof thereof, the agent of the company was fully justified in recommending the plaintiff to descend while the car was in motion^ although he asked him to stop. If there was any danger in such an act, the plaintiff was as much bound to avoid it as the defendants were not to contribute to its occurrence. They are not responsible for the consequences of his own voluntary act. If such stepping off the cars, while in motion, were a safe and usual mode of quitting them, the plaintiff, if embarrassed by any hurry, surprise or confusion, should have displayed such embarrassment to the agents of the defendants in order to enable them to exert extraordinary caution for his protection in the case. But there was no evidence of any surprise ; the mere direction of the driver to get off should not produce any surprise if it were an ordinary occurrence. In estimating the elements of danger, an injured party may be absolved from an imputation of negligence by surprise created by noise, bustle, hurry and confusion. But only in case there were a rate of speed within which an attempt to step off cars in motion might safely be made with ordinary caution would any surprise which prevented the discovery of, or a mistake as to, the time when such degree of speed was reached, relieve the person stepping off, from the charge of negligence in selecting an improper time to descend.

There are no circumstances in the case, bearing on the question of due caution by the plaintiff, to modify the character of his actual conduct in stepping from the cars while in motion, except his request to stop, and the suggestion by the driver to him to descend ; neither of which alter it. All the evidence as to his youth and inexperience, his previous riding in the cars, his payment of his fare on the front platform, his inability to procure a seat inside of the car or to reach the conductor when desirous of getting off, by reason of the mass of passengers in the car, was, for reasons already given, quite immaterial ; none of such facts affect the question of negligence in getting off the car while in motion. They did not warrant his so getting off and incurring an unnecessary hazard, rather than be carried out of his way. Such risk was not the natural and necessary consequence of such circumstances. If any act had been done by any of the agents of the defendants to induce the plaintiff to believe the car was about to be stopped, and in consequence thereof he stepped off, believing that it was stopped, there might be some reason for making the defendants responsible. But there is not the slightest evidence of any such act in the case.

The refusal of the driver to stop being an act not of negligence but willfulness, it is not to be assumed that he expected that the plaintiff would take the risk of stepping off while the car was in motion. The cause of action in this case, properly stated, should therefore rather be, attempting to carry the plaintiff beyond his stopping place, against his will, and after a request by him to stop. In such a case he could hardly recover for damages incurred by attempting to quit the car while in motion. The refusal to stop was also not the immediate cause of the injury. His own act of stepping off before the car was stopped which was such cause, although provoked, was not caused by such refusal, and therefore the latter cannot be claimed to be an act of negligence which gave a right of action. Nor am I prepared to admit that the direction of the driver to leave, given and received as advisory, could make a case of negligence against the defendants, any more than it could excuse the plaintiff’s want of care in stepping off while the cars were moving. Even if he were authorised to give such advice, it could only be construed as a representation or warranty of safety ; for injury from following which, the action should be on contract, and not in tort for negligence. There is no allegation in the complaint that the plaintiff’s incautious act of stepping off before the cars had stopped was in consequence of any such express or implied representation by the defendants or their agents as to the security of such act.

If there be any degree in the speed at which a car is required to move in order to make stepping from it, while moving at that rate, negligence as matter of law, although motion at an inferior rate would not have the same effect, there was no proof of the speed in this case. And the actual result of such act in question is at least prima facie evidence that the speed at which the car was moving at the time of the accident rendered it dangerous so to step off, and there was no evidence to the contrary.

The complaint was therefore properly dismissed, and the judgment should be affirmed, with costs.

McCunn, J. dissented.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court, Garvin, J.

license: Public Domain

text:
    Abraham Wise and others, plaintiffs and respondents, vs. Hezekiah S. Chase and others, defendants and appellants.
    1. The acceptance of vouchers or certificates of a government officer for goods received for the use of government, of the same amount as the value of merchandise sold hy vendors to persons in whose favor such vouchers are issued, under an agreement hy the latter to deliver similar certificates to such amount, and a written receipt therefor given by such vendors, expressly stating such receipt to be “ in payment of bill of goods,” will not so extinguish all claim for the price of such goods as to preclude the vendors from recovering so much thereof as shall be equal to any amount which government officers shall afterward legally deduct from the amount certified to in such vouchers, with the assent of such vendees.
    2. A finding by. a referee, in such case, that vouchers were not delivered in payment and satisfaction of the demand of the plaintiffs on account of the sale and delivery of the goods, is fully justified by the evidence.
    3. The government not having recognized the vouchers for the amount named therein, but only for about $6000; Held that the defendants had not complied with their agreement to furnish vouchers for the amount of the plaintiffs’ bill of goods.
    (Before Moncrief, Garvin and McCunn, JJ.)
    Heard December 12, 1864;
    decided December 31, 1864.
    Appeal from a judgment entered upon the report of a referee. The action was brought to recover a balance of $2444.31, claimed to be due for goods alleged to have been sold and delivered by the plaintiffs to the defendants, in January, 1862— the total of the amount alleged to have been sold being $8624. 67. The defense was, that the goods were bought to fulfill, in part, a contract to furnish goods to Governor Robinson, of Kansas, and were to; be paid for in vouchers to be issued by the governor’s quartermaster, for goods delivered and accepted under such contract, to the amount of $8624.67, and that they were so paid for. One Wheeler (prior to the transaction in question) had entered into a contract with Governor Robinson, of Kansas, to furnish goods to the government. This contract had been assigned by Wheeler to the defendants, and the defendants had been recognized by the government as the actual-contractors. At the time of the transaction in question, the defendant, McKinny, who conducted it on behalf of the de-

      fend ant, and negotiated and made with the plaintiffs whatever bargain was made, exhibited this contract to the plaintiffs. These goods were bought to be delivered in part performance of this contract. This the plaintiffs knew at the time. The agreement under which the goods were sold and delivered, was as follows:

      “ Hew Yoke, January 27, 1862.
    Having .this day purchased of Wise & Arnold six thousand gray flannel over shirts, at $11.75 per dozen; six thousand Canton flannel drawers, at $5 per dozen ; two hundred overalls, at $5.50 per dozen; and two hundred jumpers, at $5.50 per dozen; we do hereby agree to deliver to said Wise & Arnold Governor Robinson’s vouchers, by his quartermaster, within a few days after the arrival of said goods at their destination, at jSt. Louis, for the amount of said goods.
    (Signed,) • Chase, McKinney & Co.”
    The referee refused to admit evidence, on behalf of the defendants, of any agreement between the 'parties in relation to the mode or medium of payment, other than the above paper, or to admit evidence of any thing said between the parties at the time that paper was executed.
    . The referee found the following facts, viz : That the plaintiffs, on or about the 27th day of January, 1862, at the request of the defendants, sold and delivered to them, at St. Louis, divers quantities of merchandise, at prices agreed upon, amounting in the aggregate to the sum of eight thousand sik hundred and twenty-four dollars and sixty-seven cents, (8624.67.)
    2. That the defendants agreed to deliver to the plaintiffs, within a few days after the arrival of said goods at their destination, at St. Louis, Governor Robinson’s vouchers, by his quartermaster, for the amount of said goods, and did deliver said vouchers.
    3. That the said vouchers were not delivered in payment and satisfaction of the demand of plaintiffs against defendants, on ■account of the sale and delivery of said merchandise. They consisted of a bill of défendants against the United States government for goods charged at higher prices than were allowed by the government. The vouchers were rejected by the government, but a sum of $6000 was allowed thereon, and received by the defendants, and by them paid over to plaintiffs.
    4. That the defendants have returned to plaintiffs a portion of the said merchandise, amounting, at the prices agreed upon, to the sum of $183.33, and have paid to plaintiffs, on account of said sale and delivery, the sum of six thousand dollars as aforesaid, but that no further or greater sums on account thereof had been paid.
    And the referee found, as matters of law, that the defendants were indebted to the plaintiffs (after allowing the said payments of $183.33 and $6000,) in the sum of twenty-eight hundred and seventy-six dollars and fifty-five cents (2876.55,) said sum including interest, and that the plaintiffs were entitled to judgment for that sum, with costs. "

      Titus B. Eldridge, for the appellants.
    I. If exhibit A is to be regarded as necessarily expressing the entire contract between the plaintiffs and defendants, and as well that relating to the time and medium of payment agreed upon, as that relating to the price of the goods, then the judgment is clearly wrong. This paper, viewed as embracing the entire contract, imports that payment was to be made for the goods by delivering to the plaintiffs “ Governor Robinson’s vouchers, by his quartermaster, within a few days after the arrival of said goods at their destination at St. Louis, for the amount of said goods.”
    II. If the written agreement does not necessarily import that these vouchers were to be delivered and received as payment, and that the plaintiffs, after receiving them, were to look solely to the government, and if there be nothing in the legal import of this paper which precludes either party from showing by parol how the goods were to be paid for, then the referee erred in excluding the evidence offered by the defendants on that point. The. answer alleges that payment was “ according to an agreement made between the plaintiffs and defendants at and prior to the sale,”' to be made “ by delivering to said plaintiffs the said vouchers.” The referee excluded evidence offered by the defendants to prove that such an agreement was in fact made. In this he was clearly wrong, unless the written paper contains the contract, as to the manner in which payment was to be made, with such precision and exactness as to exclude all parol proof in reference to that question. • And if the paper contains the entire contract, then it is clear that it was agreed they should be thus paid for.
    III. The complaint states that the agreement was that the defendants should pay “ in proper and valid vouchers.” The written contract declares by whom the vouchers arre to be issued. It imports nothing as to their validity, except that they shall be issued to and received by the defendants, in good faith. No fraud, misrepresentation, or bad faith is imputed by the evidence, either to the quartermaster in issuing, or to the defendants in obtaining, these vouchers; so that if the plaintiffs actually received them as payment, the judgment is for that cause erroneous. The vouchers delivered were accepted as being in all respects such as the defendants had contracted to furnish. The referee finds that the defendants “ did deliver such vouchers"—meaning thereby such vouchers as they had agreed to deliver.
    IY. The referee, although he has found that the defendants did deliver such vouchers to the plaintiffs “ for the amount of said goods,” yet further finds “ that the said voúchers were not delivered in payment and satisfaction of the demand of plaintiffs against defendants, on account of the sale and delivery of said merchandise.” This finding of fact is excepted to. The plaintiffs, on the delivery of vouchers to them, gave a receipt, which stated that they had received these vouchers “ in pay- • ment of bill,” of the goods in question ; and the plaintiff, Wise, so testified. Rushmore and H. A. Gouge testify to the same fact. It is therefore clear, on the evidence actually givén, that these vouchers were delivered and accepted as payment.
    Y. The whole evidence shows very clearly a perfect understanding between the plaintiffs and the defendants, that a delivery of these vouchers to the plaintiffs satisfied all liabilities of the defendants to them; and that after such delivery was made and accepted, the plaintiff’s only resource for ultimate payment was to the government.
    VI. It is therefore confidently submitted, that the judgment is clearly wrong. The written agreement is an absolute contract to accept the vouchers as payment. If the defendants can be mistaken in this view, then it was manifest error to exclude proof of an agreement, in fact, outside of the paper, to take them as payment. And it is entirely clear that they were delivered and accepted as actual payment.

      S. P. Nash, for the respondents.
    I. The alleged vouchers were never obligations of any kind whatever. They were simply the defendants’ bills rendered to the government, at prices which the government did not allow. The receipt, therefore, given the plaintiffs, did not .conclude them. It was based upon, and assumed, good faith on the part of the defendants, whereas the “ vouchers ” were, like bank checks, drawn for a larger amount than the drawer has in bank. The obligation of a third person received in payment may conclude the creditor, though it fail to produce the amount for which it is taken ; but the debtor cannot discharge his liabity by his own checks, notes, or mere paper devices, unless they are good for what they profess to be, no matter how strong a receipt he persuades the creditors into giving. (Hill v. Beebe, 3 Kern. 556. Higby v. N. Y. and Harlem R. R. Co., 3 Bosw. 497. Hendrickson v. Beers, 6 id. 639.)
    II. The subsequent dealings of the defendants, as shown by their own testimony and correspondence, fully justified the finding of the referee, that the vouchers were not received in payment, and the question was one of fact, purely. (Torry v. Hadley, 27 Barb. 192. Noel v. Murray, 3 Kern. 167. 1 Duer, 385.)
    III. None of the exceptions of the defendants are well taken.
    IY. The report was in accordance with the equity of the case as well as the law, and the judgment should be affirmed, with costs.
   By the Court, Garvin, J.

It is not disputed that the plaintiffs sold to the defendants goods to the amount of $8614; and that after deducting all payments, and goods returned, there remained a balance due of $2441.34, for which.the plaintiffs have not been paid, and the defendants are liable,' unless' the terms of the contract and subsequent acts of the parties show payments or discharge the defendants from liability. The sale was-made by a writing dated Eew York, January 27, 1862* viz : “ Having this day purchased of Wise & Arnold (enumerating the articles with prices) we do hereby agree to deliver to said Wise & Arnold, Governor Robinson’s vouchers, by' his quartermaster, within a few days after the arrival of said goods at their destination at St. Louis, for the amount of said goods.

Chase, McKinney, & Co.”

■ Vouchers were delivered to the plaintiffs by the defendants, amounting to the sum of more than eight thousand dollars, and a receipt was.given by the plaintiffs, which acknowledges the receipt of Governor Robinson’s quarter master’s vouchers to the amount” specified, “inpayment for bill of goods,”' of such a date. These vouchers were simply certificates, or receipts that the goods had been received for account of the United States, from the defendants, hut were not, in any sense, obligations to pay. Afterwards a deduction was made by the government commissioners and the vouchers cut down to the sum of $6000, for which the defendants had a warrant upon the United’ States treasury, which was indorsed over to the plaintiffs, and they received the money, leaving the sum claimed in this action unpaid. The referee reported in favor of the plaintiffs for the amount claimed, with interest; upon which judgment was entered* with costs. The defendants appealed.

• Th'e important question to he considered is, whether the ¿cceptance of the vouchers by the.plaintiffs, and the receipt given by them to the defendants, extinguished the plaintiffs’ demand as against the defendants. There is no question that the plaintiffs had the vouchers, and sent them on.to Washington to the quarter master general; who appointed a commission to. examine the claim and reduced it. On the trial the referee found that the said vouchers were not delivered in payment and satisfaction of the demand of the plaintiffs against the defendants on account of the sale and delivery of said merchandise.” I think this finding is fully justified by the evidence. 1. There is not any thing in the contract of sale to show that the vouchers were to be received by the plaintiffs in payment; but it simply provides that vouchers are to be delivered for the amount of said goods. 2. Ho money could be obtained from the government on the vouchers merely. It was necessary they should be presented, audited and a warrant drawn upon the treasury by the proper officer, payable to the order of the defendants, without whose indorsement the money could not be drawn. This is the common and ordinary mode of business with the United States. Thus it is seen the vouchers were not obligations of any kind, either against a corporation, an individual, or the government. Again, the receipt taken in its broadest sense, was open to explanation; and however strong its terms (in a transaction of this description) would not conclude the plaintiffs. The vouchers did not represent the amount the government would pay, for it turned out that they were only for about $6000 ; in other words, the government only recognized them for that amount. It may therefore be said, that the defendants did not furnish vouchers for the amount of the plaintiff's bill of goods, as in their contract they were bound to do, but only for a part thereof; they had the form without the substance. A payment in genuine bank bills of a bank which has failed is a nullity, and will not discharge the debt, although neither party may know of the failure. (Thomas v. Todd, 6 Hill, 340.) Both parties, when the receipt in this case was given, may have supposed the vouchers would be taken by the government as the proper evidence of the amount for which the claim of the defendants would be audited and a warrant issued therefor, but it turned out otherwise, and the vouchers were rejected and repudiated, and Commissioners fixed the amount to be paid. The justice of this case is clearly with the plaintiffs. The defendants had their goods, and are bound to pay for them. We think the findings of the referee were justified by the facts disclosed in the case. The several objections and exceptions taken by the defendants are untenable. The judgment should be affirmed, with costs.


author:
By the Court, Robertson, Ch. J.
      Monell, J. (dissenting.)

text:
    Henry T. Hills et al. plaintiffs and appellants, vs. James Lynch, sheriff, &c. defendant and respondent.
    1. The selection hy a purchaser, of a particular carrier, of the goods purchased, necessarily destroys all right on the part of the vendor to employ any other.
    2. The mere right of accepting or rejecting undelivered merchandise, and thus completing or repudiating a contract of purchase, is not a subject of levy or sale.
    3. Where goods purchased, are directed hy the purchaser to be delivered to a particular carrier, for transportation, but hy mistake of the cartman employed to cart them, and contrary to his instructions, they are delivered to a different carrier, and while in possession of the latter are levied upon by the sheriff, under execution against the purchasers, the goods will be regarded as being unlawfully in the possession of such carrier, when so seized; and the vendors may reclaim them, in order to forward them by the proper method of transmission, which can alone bind the purchasers.
    4. Such a delivery to the carrier is no more a delivery to the purchasers than a deposit of the goods with any other person, to be delivered to the pnrchasers.
    ' The carrier is at most the vendor’s agent, and cannot refuse to re-deliver the goods to them on demand, at any time before they reach the purchaser’s possession.
    B. There is no principle which will convert a carrier, not only not selected by a purchaser, but entirely different from the one designated by him, into his agent, to accept the delivery of goods for him. Per Robertson, Oh. 3.

    (Before Robertson, Ch. J. and Moneli and Garvin, JJ.)
    Heard October 11, 1864;
    decided December 31, 1864.)
    Action to recover the possession of personal property alleged to have been unlawfully taken from the plaintiff and carried away and detained by the defendant. The defendant justified the taking, as sheriff, under and by virtue of an execution issued against William J. Dunlop and Marvin 0. Dutton, in an action brought against them, in the Supreme Court, by William Graham and James Aitken; the defendant alleging, in his answer, that the property in question belonged to the said Dun-lop and Dutton. The action was tried before the Hon. O. L.Monell, one of the justices of the court, on the 6th day of May, 1864, without a jury, a trial by jury being waived, by oral consent, in open court, and entered in the minutes. The court found the following facts; the same being admitted by the written stipulation of the respective parties, viz :

      First. That at the time hereinafter mentioned, the plaintiffs were wholesale jobbing merchants in dry goods, in the city of New York. On or about the 15th day of September, 1862, the goods, which are the subject ¿f this action, were owned by the plaintiffs, as copartners, and were sold by them for net cash, meaning payable in thirty days, to Dunlop and Dutton, composed of William J. Dunlop and Marvin 0. Dutton, of Lock-port, N. Y., and were charged to them, on the books of the plaintiffs.

      Second. That at the time of the purchase nothing else was done by the plaintiffs or Dunlop or Dutton, except that the plaintiffs and Dunlop & Dutton selected the goods, and agreed upon the price, and Dunlop & Dutton directed the said goods to be sent by the plaintiffs to the People’s Line of steamboats, on the Hudson river, to be forwarded to them by the said steamboat company, and the New York Central Railroad Company.

      Third. That, afterwards the goods were packed in two cases, and marked and directed by the plaintiffs to Dunlop & Dutton, at Lockport, N. Y., and a bill or invoice of the goods, charging the same as sold by said plaintiffs to Dunlop & Dutton, including the charge for the cartage to the steamboat, was by the plaintiffs placed in one of the cases of goods to be. forwarded to the said Dunlop & Dutton, on the same day on which said goods were packed, as aforesaid.

      Fourth. The cartman received from the plaintiffs the goods, at the store of the plaintiffs, in the city of New York, marked . or addressed Dunlop & Dutton, Lockport, N. Y., with instructions by the plaintiffs to deliver the same on board the People’s Line of steamboats, but, instead of taking such goods to the People’s Line of steamboats, he, in violation of said instructions, delivered the same at the office of the Hudson River Railroad Company, in the city of Hew York, for transportation by railroad company to Dunlop & Dutton, at Lockport, Hew York, instead of the People’s Line of steamboats, and received from said Hudson River Railroad Company a receipt, prepared before hand by the plaintiffs, in duplicate, which he delivered to the plaintiffs on the same day, and of which the following is a copy:
    “ Hew Yoke, Sept. 15th, 1862.
    Received from Messrs. Hills, Vedder & Coi, in good order, oh board the People’s Line and' H. Y. C. Rd. for Lockport, H. Y., the following packages :
    Marked Dunlop & Dutton, Lockport, H. Y.
    (2 cases dry goods. One duplicate signed. Bill.”)
    The said receipt being signed by the said railroad company, without authority, from the said People’s Line of steamboats.

      Fifth. On -the 15th day of September, 1862, the execution referred to, in the answer, was duly issued, and delivered to the defendant, and based upon the judgment, and in form and substance, and in all respects-as set forth in said answer, and on the 15th day of September, 1862, the defendant, as sheriff of said city and county of Hew York, acting under said execution, levied upon and seized the said cases of goods, while they were on the cars of the Hudson River Rail Road Company, at 31st street,‘in the city of Hew York, on route to Lockport, via Albany, after they had been transported by said railroad company from their depot at Chambers street, where they had been received from said,plaintiffs to 31st street.

      Sixth. The said Dunlop & Dutton have never paid for the said goods, nor any part of them, nor given any written obligation .so to do. The defendant, as sheriff, sold the said goods under the said execution.

      Seventh. On the 1st day of October, 1862, the plaintiff learned from Dunlop, & Dutton that the said goods had not reached Lockport, and they demanded the goods of the defendant, who refused to deliver the same to them.

      Eighth. The value of the said goods, upon which this-aetion was brought, was one hundred and ninety-two dollars and thirty-eight cents, ($192.38.)
    And, as a conclusion of law from the said facts, the judge found that the plaintiffs were not entitled to maintain this action, and that their complaint herein should be dismissed upon the merits, with costs to the defendant.
    Judgment of dismissal being entered accordingly, the plaintiffs appealed.

      T. Darlington, for the appellants.
    The facts in this case being established, the question as to whether the plaintiffs are entitled to recover becomes a question of law merely, and turns substantially upon-the question whether there had been such a delivery by the plaintiffs of the goods in question to Dunlop & Dutton, and such an acceptance thereof by said Dunlop & Dutton from the plaintiffs, prior to the levy thereon by the sheriff, as to vest the title in the said Dunlop & Dutton. The inquiry therefore will be, who had the title to the goods at the time of seizure by the sheriff ? The goods were of the value of $192.38. The plaintiffs insist that the alleged sale by them to Dunlop & Dutton was void under section 3, title 2, chap. 7, part 2, Revised Statutes ; and that the goods could not, under the circumstances, become the property of Dunlop & Dutton until safe arrival at Lockport, and actual acceptance by them there.
    I. No note or memorandum of the contract in writing has been subscribed by either of the two parties to the contract. (Davis v. Shields, 26 Wend. 341.)
    II. The buyers did not at the time pay, nor have they since paid, any part of the purchase money.
    III. The plaintiffs have never delivered the goods in question to Dunlop & Dutton. The goods never passed out of the possession of the plaintiffs or their agents. Dunlop & Dutton having directed the plaintiffs to convey the goods to them by “ the' People’s Line of steamboats on the Hudson river,” the plaintiffs disregarded and neglected that direction, and delivered them to the Hudson River Railroad Company for conveyance by land. Had the plaintiffs delivered the goods to “ the People’s Line,” it would perhaps have amounted to a delivery to the agent of Dunlop & Dutton, and passed the title to them, but by neglecting and disobeying the instructions and delivering the goods to the Hudson Eiver Eailroad Company, they made that company their own agent, and took upon themselves the burden of delivering the goods to Dunlop & Dutton, at Lock-port. The delivery to “ the People’s Line” was a condition precedent to transfer of the title.
    1. The mere making and setting aside of goods sold, with' the view of appropriating them to the vendee, and in compliance with his request, is not a sufficient delivery under the statute, if the contract be by parol. (2 Starkie on Evidence, 611. Story on Sales, § 279. Astley v. Emery, 4 Maule & Selw. 262. Anderson v. Hodgson, 5 Price, 630. Howe v. Palmer, 3 Barn. & Aid. 321.)
    2. A true test of the title to the goods in question will be found in investigating the inquiry, “ Whether the plaintiff can now recover against Dunlop & Dutton, for the price of the goods ?” Clearly they cannot. Because they have not delivered the goods. The only cases in which a delivery to a carrier have been held to be a delivery to the vendee are the following : (a.) Where a particular carrier is agreed upon by the parties, or named by the purchaser, and the goods delivered to him. (b.) Where no agreement is made nor any direction given by the purchaser to’ a particular carrier, and the goods are forwarded in the usual way, (though it is doubtful whether recent cases go as far as this.) (c.) Where there is a general order for conveyance by carrier, no carrier being specifid, and the conveyance adopted is the usual or only one, or that by which goods have previously been sent to the same order, (d.) Where the vendee assents to the mode adopted. In all these cases, the goods are at the risk of the vendee, and an action against hitáis for goods sold and delivered, because the carrier is the agent of the vendee. But if the goods be directed to be delivered to one carrier, and are actually delivered to another, or if the rections of the vendee are disobeyed in any material respect, the reason of the rule fails because the carrier cannot be considered the agent of the vendee. (Story on Sales, § 276. Blackburn on the Contract of Sale, 27-41. Vale v. Bayle, 1 Cowp. 294. Clarke v. Hutchins, 14 East, 475. Hanson v. Armitage, 5 Barn. & Ald. 557. Anderson v. Hodgson, 5 Price 630. Astley v. Emery, 4 Maule & Selw. 262. Hart v. Bush, 1 Ellis, Bl. and Ellis, 494. Norman v. Phillips, 14 Mees. and Wells. 276. Nicholle v. Plume, 1 C. & P. 272. Farina v. Home, 16 Mees. and W. 119. Meredith v. Meigh, 2 Ell. and Bl. 364, (overruling Hart v. Satley, 3 Camp. 528.) Whiting v. Farrand, 1 Conn. 60. The Frostburg Mining Co. v. New England Glass Co., 9 Cushing, 115.) 3. A further test will be found in investigation of the inquiry, “ Suppose these goods had been lost in transitu by negligence of the Hudson River Railroad Co., could Dunlop & Dutton have recovered the value of the goods from the company ?” Clearly not. If a vendor takes upon himself to deliver goods to the vendee, he stands to all risks, though if the vendee order a particular mode of conveyance, and that mode is followed, the vendor is excused. (Angell on Carriers, secs. 496 and 498. Coats v. Chaplin, 3 Ad. and Ell. N. S. 483. Coombs v. Bristol R. R. Co., 3 Hurl. and Norm. 510. Selwyn’s Nisi Prius, (ed. 1831,) p. 518.)
    IY. There has been no acceptance and receipt of these goods by Dunlop & Dutton. This point is virtually included in the third point; for as it has been demonstrated that there has been no delivery to Dunlop & Dutton, it follows that there can have been no acceptance by them. The general rule is this : To bind the vendee, the acceptance must be final, complete and irrevocable, and the subject matter must have come into the absolute possession of the purchaser or some one authorized finally to receive it for him. (Jordan v. Norton, 4 M. and W. 153. Bill v. Bament, 9 Mees, and Wels. 36. Dole v. Stimpson, 21 Pick. 384. Parker v. Wallis, 5 Ell. Bl. 21. Holmes v. Hoskins, 9 Exch. 753. Shindler v. Houston, 1 Comst. 261.

      Outwater v. Dodge, 6 Wend. 397. Kent v. Hutskinson, 3 Bos. & Pul. 233.)
    Y. Even if the goods had reached their destination, Dunlop & Dutton were • not obliged to receive them, inasmuch as the plaintiffs had exceeded their authority as agents by sending the goods by the Hudson river railroad, where additional.expenses would have been incurred, instead of by the steamboat as directed. (Fleeman v. McKean, 25 Barb. 474. Smith v. Lynes, et al., 1 Seld. 41. Corning v. Colt, 5 Wend. 253. Vincent v. Conklin, 1 E. D. Smith, 203. Bruce v. Pearson, 3 John. 534. N. Y. F. I. Co. v. DeWolf, 2 Cowen, 56. Chapin v. Potter, 1 Hilton, 366.)
    It is argued by the defendant:
    ■ That as Dunlop & Dutton could have accepted the goods at the 31st street station, and waived the nondelivery at the “ People's Line,” and as their acceptance would have completed the sale to' them, therefore the sheriff could receive the goods for them, and thus make the goods the property of the said Dunlop & Dntton, and then, as their property, could properly levy on the goods. The fallacy in this argument is, that it assumes that the sheriff could make a binding contract, for Dunlop & Dutton when they had failed to do so. The sheriff's acceptance of the goods would not have enabled us to maintain an action against Dunlop & Dutton on this void contract. The sheriff was the agent of Graham and Aitken, the plaintiffs in the execution; He was acting for Graham and Aitken, in the seizure of the goods, and had no authority over the goods prior to the instant when the execution was levied, and then by virtue thereof only. The doctrine is novel, that the sheriff in levying an execution can act as the agent of both plaintiff and defendant, pt least on the method suggested.
    Again the defendant argues :
    That the cartman who took the goods from the store of the plaintiffs was the agent of Dunlop & Dutton, inasmuch as he was to be paid by them, and that therefore when the plaintiffs delivered the goods to the cartman, with directions to deliver to “ the People's Line,” they had carried out their instructions from Dunlop & Dutton, and that delivery to the cartman was therefore delivery to Dunlop & Dutton. ' This argument is entirely fallacious, inasmuch as it assumes that the cartman was the agent of Dunlop & Dutton. In fact, he was the servant of the plaintiffs, and their agent. If the instructions of Dunlop and Dutton had been to deliver to a cartman with instructions to the cartman to deliver to “ the People’s Line,” the argument might hold, but their instructions to the plaintiffs were “ to deliver to the People’s Line,” and this the plaintiffs were bound to do, before they or any third person could claim that the goods had been delivered to Dunlop & Dutton.

      A. J. Vanderpoel, for the respondent.
    I. The title to the goods was in Dunlop & Dutton, the execution debtors at the time of the levy. 1. The goods had been sold, after being selected by the seller and purchaser, leaving no question of identity undetermined. The price had been agreed upon, and no question was made of non-compliance with the terms of sale. They were charged on the plaintiff’s books to the sellers, and with the bill packed in a case whereon the purchasers’ names and residence were marked, who requested shipment by the People’s Line. 2. The plaintiffs delivered the goods to the carrier employed at the direction and expense of the purchasers. The sellers did not intend to retain any possession or control of the goods, but designed to part with them and to deliver them to the purchasers’ agents. 3. Dunlop & Dutton have not objécted that the title of the goods did not pass to them. 4 The cáse does not present a point of stoppage in transitu.

    II. As matter of law, the plaintiffs cannot take advantage of the fact, that a mistake was made by the person employed at Dunlop & Dutton’s expense, as to the line by which the goods were to be transported.
    1. The delivering in a particular manner, or the shipment by a special conveyance, was not a condition precedent to the vesting of the title to the goods in the vendees. In this case the seller acted merely as agent of Dunlop & Dutton in making the shipment.
    2. Even if it had been a condition that the plaintiffs should deliver at a certain place, and they, intending to deliver, erred as to the place, it would only lie in the mouth of Dunlop & Dutton, or their successors in interest, to raise the objection—■ the plaintiffs cannot avail themselves of it. After placing these goods on board of the cars, they could not refuse to complete the sale.
    3. Dunlop & Dutton were at liberty, in case of a loss of the goods after they were placed on the cars, to sue the carrier and recover for the loss. The plaintiffs in this action could not have maintained suit against the carriers for the loss. (People v. Haynes, 14 Wend. 546. Terry v. Wheeler, 25 N. Y. Rep. 520, 524. Dutton v. Solomonson, 3 B. & P. 582. Dyer v. Forest, 2 Abb. 282.)
    III. Dunlop & Dutton could not defend an action brought by Hills, Vedder & Co. for the price of the goods : the goods came to the use of Dunlop & Dutton.

    IV. If Dunlop & Dutton, or their conventional transferee, could accept the goods at any point, or could waive conditions (if the purchase had been conditional,) we submit that the sheriff, acting under process, (who is a quasi transferee by operation of law,) could accept or waive in the same manner. He is the representative of Dunlop & Dutton, and can act in their stead. (Beals v. Allen, 18 John. 363.)
    V. It nowhere appears that Dunlop & Dutton have disaffirmed or objected to the' sufficiency of the delivery. The plaintiffs intended to part with the possession and title. The goods went to the use and benefit of Dunlop & Dutton.
   By the Court, Robertson, Ch. J.

It fully appears from the facts found by the decision of the court at special term in this case, that nothing remained to be done to separate and determine the subject of the agreement to sell, or fix its price, as well as. that no act of acceptance or dominion by the vendees, such as marking or the like, had been performed. There is also no question made of their solvency, so as to justify a stoppage in transitu; so that neither the delivery of such goods, nor the right of the plaintiffs to claim them, can be governed by any of such considerations. And the only questions left are whether the delivery by the plaintiffs to a carrier different from the one selected by the buyers was a delivery to them, and whether the right of the latter to elect to accept such goods as delivered to them was transferred to the sheriff by the judgment and execution against them and levy by him.

The principle on which the delivery of goods by a vendor1 to a carrier to be transported to a distance and delivered to a vendee is considered as made to him, if it be so, can only rest on the presumption that the contract in such cases is something more than the mere sale and delivery of the goods; that it involves an agreement by the vendor to forward them and to select the agent by whom they are to be carried, who thus becomes the agent of the vendee to receive them. Where no restrictions are laid upon the vendor, he would in such case have a right to forward in the ordinary mode and select the usual common carriers engaged in transporting on the usual route for reaching their destination. There can be no delivery except in the mode fixed by the buyer or to his agent, or by his acceptance of the goods delivered. (Hague v. Porter, 3 Hill; 14Í.) Mere words are not sufficient, without some act either enabling the vendee to get possession of the goods or amounting to a transfer either of possession or evidences of title and its acceptance. (Shindler v. Houston, 1 N. Y. Pep. 261.) The mere setting apart goods in the vendor’s possession is not sufficient, (Id.;) and any decisions apparently to the contrary, (Brewer v. Salisbury, 9 Barb. 511, Dows v. Morewood, 10 id. 183,) must be considered as overruled. Even delivery to a carrier selected by the vendee has been held in England not to be sufficient to constitute a delivery to him, (Meredith v. Meigh, 2 EL & Bl. 364; Holmes v. Hoslcins, 9 Exch. 753 ;) or- even a delivery at a particular place selected by the vendee, where a previous separation of the articles was necessary. (Hunt v. Hecht, 8 Exch. 814.)

The delivery by the plaintiffs to the Hudson River Railroad Company was no more than the deposit of the goods with any other person, to be delivered to the purchasers, would have been. Such company was the plaintiffs’ agent, and could not refuse to redeliver such goods to them on demand at any time before they reached the purchasers’ possession. The selection of the People’s Line of steamboats as the carrier, by the purchasers, necessarily destroyed any right on the part of the plaintiffs to select any other. It is even more than doubtful whether the vendees could have recovered for any loss of the goods by such carriers, although théy might have accepted and ratified such delivery. (Coombs v. Bristol R. R. Co., 3 Hurl. & Norm. 510. Coats v. Chaplin, 3 Adol. & El. (N. S.) 483. Angell on Carriers, §§ 496, 498.) In order to change the title to chattels, the delivery of them to the vendee or his agent duly authorized by him to receive them, whether actual or symbolical, must be final and irrevocable, saving the right of stoppage in transitu, and the acceptance must be complete and unconditional. (Jordan v. Norton, 4 Mees. & W. 153. Bell v. Bament, 9 id. 36. Parker v. Wallis, 5 Ell. & Bl. 21. Kent v. Huskinson, 3 Bos. Pul. 233. Dole v. Stimpson, 21 Pick. 384.) I am not aware of any principle which could convert a carrier, not only not selected by a vendee, but entirely different from the one selected by him, into an agent for him, to accept the delivery of goods.

Nor do" I see how either the plaintiff in the judgment against the vendees, or the sheriff (the defendant) can be converted into their .agent to accept a delivery of the goods at the Hudson river railroad depot instead of on board one of the line of . steamboats. Until the acceptance of the goods by the buyers the bargain was not complete, and they could at any time have rejected the goods. None of their creditors could complete for them a mere inchoate purchase. The mere right of accepting or rejecting undelivered merchandise, and thus completing or repudiating a contract of purchase, was not a subject of levy or sale. The seizure by the defendant could not give the plaintiffs a right of action against the vendees for goods sold and delivered ; in a case where such goods were delivered not to any agent of theirs, constituted such expressly' or by implication of law, but in opposition to their express instructions.

The seizure by the defendant cannot be justified, therefore, ■by any supposed actual delivery of the goods to any agent of the vendees, or inchoate delivery to them, or'any parting with the possession by the plaintiffs with intent to transfer the title and an acceptance thereof by the defendant as the agent of such vendees. But in fact the delivery of the goods to the railroad company was by mistake and contrary to the instructions of the plaintiffs to their cartman who carried them there. They were, as ■ regarded the plaintiffs, unlawfully in the possession of the company when seized, and the plaintiffs had a right to reclaim them in order to forward them by the proper means of transmission, which could alone bind the vendees. The defendant had no more right to take them in the depot, because it was that of a common carrier, than in any store • in the city, in which such cartman might have thought proper to deposit them.

The question may still remain, however, how far the cart-man who received the goods to take to the steamboat, may be considered the agent of the vendee, or the common agent of buyer and seller, in transporting the goods to such steamboat. The plaintiffs seem to have treated him as an agent .of the vendees, by charging the expense of cartage to them in the bill- inclosed with the merchandise. Transportation either to a railway or a steamboat necessarily involved the employment of a cartman. The one employed, wilfully or accidentally took the goods to the wrong carriers ; the direction to him remains unrevoked, and they may be considered in law as still on their way to the right destination. Some custom may govern the cartman’s relation to the parties., But as the case stands, it must go back for a new trial. Judgment must be given accordingly.

Monell, J. (dissenting.)

Ho question arises in this case upon the right of stoppage in transitu. Such right can only be exercised upon the insolvency of the vendees. It is in the nature of an equitable lien for the unpaid purchase money of goods, under which the vendor may repossess himself of the goods, upon the insolvency of the vendee ; it cannot be exercised at the mere caprice of the vendor when no such insolvency exists. (The Constantia, 6 Rob. Adm. 321.) Hor is there any question arising under the statute of frauds. That statute is invoked only when there is a breach of a contract of ■sale, by the vendor in refusing to deliver, or of the vendee in refusing to accept. A lien upon the goods for the price, exists in favor of a vendor so long as the goods remain in his possession. The lien ceases when the goods have passed out of the possession of the vendor.

The only question in this case, therefore is, whether at the time of the levy the goods were out of the plaintiff’s legal possession. Within the decision in People v. Haynes, (14 Wend. 546,) the sale was complete without an actual delivery to the purchasers. In that case, the goods were selected by the purchasers, and directed to be forwarded to hiip at Boston, and to be sent on board the steamboat. The Chancellor says, (p. 563 :) “ The delivery of the hox on board the boat, to be sent on to the vendee’s residence, and detained there according to the directions on the box itself, was a valid delivery- of the goods, so as to divest the vendors of the possession, as well as of the title; leaving them the mere right of stoppage in transitu.”

Except as affected by the statute of frauds, a bargain and sale of goods, without delivery, is sufficient to divest the vendor’s title and vest it in the purchaser. If the sale be for cash, the vendor has a lien for the price, so long as the goods remain in his possession, (Story on Gar. § 499,) but, where the sale is upon a credit, and there is no agreement in respect to the delivery or possession of the goods, the purchaser has at once a complete right, not only of property, but of possession. (1 Pars. on Cont. 440.)

Delivery of goods to the vendee, either actual or construetive, will not take the case out of the statute of frauds, as respects the vendee. There must he an acceptance of the goods by him. The seller is bound by his delivery, and cannot reclaim his goods ; but the buyer has his option to keep the goods, and pay for them, or return them and not pay. (2 Pars, on Cont. 322.)

The distinction between a lien for the purchase price of goods, and the right of stoppage in transitu is clear. The former exist so long as the goods remain in the seller’s possession, and where the payment of the price is a condition precedent; no lien exists when the sale is on credit, and it ceases the moment the goods have passed out of the vendor’s possession. (Story on Cont. § 500.) The right of stoppage in transitu continues until the goods have arrived at their place of destination, and been transferred to the actual possession of the buyer. Possession is the test of a right of lien. Non-delivery to the vendee is the test of a right of stoppage in transitu. Although the right of stoppage continues until the goods have reached their destination, yet if the vendee meets them upon the road, and takes them into his own possession, the right of stoppage is lost. (Mills v. Ball, 2 B. & P. 457.) The right to intercept the goods in their passage is also affirmed in Oppenheim v. Russell, (3 B. & P. 42,) where Chambre, J. says: “ If goods are intercepted before the consignor has exercised his right of stoppage in transitu, and the purchaser takes an actual delivery from the carrier before the goods get to the end of their journey, such a delivery to him will be complete.”

. As between the plaintiffs and Dunlop & Dutton, the sale was'eomplete. The goods were selected and the price agreed upon. Nothing remained to be done, except to deliver. The sale was on a credit. The goods were put in boxes, the boxes marked and directed to Dunlop & Dutton, at Lockport, and delivered to a eartman to be forwarded to their destination.

There is no doubt, had the boxes, been delivered to the People’s line of steamboats, instead of to the Hudson river railroad, that the delivery would have been, complete. (People v. Haynes, supra. Waldron v. Romaine, 22 N. Y. Rep. 368.) The title, not only, but the possession also, would have passed to the purchasers, the plaintiffs’ lien for the price would have been lost, and they would have been left with a bare right of stoppage in transitu ; and such a delivery would have been sufficient to have taken the case out of the statute of frauds.

The cartman who received the boxes, from the plaintiffs, delivered them, in violation of their directions, to the railroad company, instead of to the steamboat line. The cartman was selected by the plaintiffs, but the cartage was charged to Dun-lop & Dutton. When the boxes were delivered to the cart-man they passed out of the plaintiffs’ possession. The lien for the purchase money was gone, and the sellers could not reclaim their goods, except under the right of stoppage in transitu. And this is so, although the purchasers were not bound to accept, and might refuse to accept. For the purpose of changing the actual possession, the delivery to the cartman was sufficient. Per Tracy, senator, (People v. Haynes, supra, 565.)

If the question arose between Dunlop & Dutton and the plaintiffs, and the former were seeking to compel a delivery of the goods bargained and sold, it might be that the delivery to the cartman, or the delivery by him, in opposition to the plaintiffs’ direction, would not take the case out of the statute. But no such question arises here, and I think there is no doubt that Dunlop & Dutton could have intercepted the goods at 31st street, and accepted a delivery there, even against the consent of the carrier. (Mills v. Ball, Oppenheim v. Bussell, supra.) And such acceptance would have taken the case out of the statute. But the statute of frauds is not involved. The simple question is, whether the delivery to a cartman, and a deposit by Mm, with the railroad company, although in violation of the plaintiffs’ directions, was such a disposition of the goods as would deprive the plaintiffs of their lien for the purchase money.

I shall not contend that if the goods had been lost, the vendees would be liable. The delivery to a carrier other than the one selected by them would probably relieve them from liabilty. But it does not lie with the plaintiffs to say that the purchasers shall not have their goods because they, the plaintiffs, undertook to forward them by a different conveyance. They took the risk of the goods reaching their destination, but they could not disaffirm the sale on that account, For as we have seen, Dunlop & Dutton could have intercepted and accepted the goods at any intermediate place; and their acceptance would have, made the sale and delivery complete.

In all the numerous cases to which we have been referred upon the subject of constructive delivery, the question has arisen under the statute of frauds, or in cases where it has been sought to cast the burthen of loss upon the purchaser. Ho case can be found, where the vendor has undertaken to deliver, and parted with the possession, which holds that he may reclaim or retake possession, except under the right of stoppage in transitu. Upon principle he has no such right. The bargain and sale was complete, and except for the statute of frauds, the purchasers could have claimed a delivery anywhere, even in the plaintiffs’ storehouse. Shall they be allowed to avail themselves of their own wrongful act, in transmitting the goods by a different carrier to deprive the purchasers of their right to receive them ? I think not. The sale on credit; the packing the goods selected by the purchasers; boxing and directing them and putting them in transit, was all the plaintiffs could do to consummate the sale. That they did all this, or any part of it, imperfectly, or in a manner different from the instructions of the purchasers cannot enlarge or prolong the lien, or defeat the right of the latter to claim acceptance.

If the plaintiffs’ lien was gone and the • purchasers could accept delivery anywhere, as I think I have shown they could, then the only remaining question is, were the goods, while in transit, subject to levy and sale under an execution issued upon a judgment against Dunlop & Dutton ?

The judgment creditor of Dunlop & Dutton was entitled to succeed to all their rights and interests, and to reach, by process, all their property. The defendant, by authority of the execution, could seize any property of the judgment debtors and could sell any and all their interests. The purchaser would acquire all the interests and rights of the debtors. If the title was conditional, the purchaser could perform the condition and get a good title, as upon the sale of personal chattels mortgaged or pledged. (Strong v. Taylor, 2 Hill, 326, 328.)

It was competent for the sheriff to seize the goods in transit, as the property of Dunlop & Dutton, and the act of seizure was an act equivalent to the actual acceptance by them.

In Buckley v. Furniss, (15 Wend. 137,) the goods were ¡purchased in Troy and were in transit to the purchaser at Titus-ville. They were levied upon by the sheriff, at Malone, eight miles from their destination, under an execution against the purchaser. The vendors sued the sheriff, claiming the goods under their right of stoppage in transitu, and the court sustained the claim, on the ground that the goods had not reached their destination, or come to the actual possession of the vendee, and the right of stoppage in transitu was not lost. The court say: The defendant Furniss, as an attaching creditor, could have no better right to the goods than Titus (the vendee) had himself. * * * The process does not proceed on the ground of defeating a prior right in a third person, but on the ground of acquiring such interest in the property attached as the debtor had himself.” In Le Ray De Chaumout v. Griffin, cited in 15 Wend, at p. 144, it is said that the judgment creditors, represented by the sheriff, had no better right to the iron than the purchasers had themselves, and that the plaintiff clearly had the right to stop the goods notwithstanding the levy. To the same effect is Covell v. Hitchcock, 23 Wend. 611. I cite these cases as showing, inferentially at least, that although the sheriff, as the representative of the creditors, had no better right to the property than the purchaser had, yet that he had the same right. And also that such right, whatever it may be, is subject to levy, while in transit, and which levy can be defeated by the exercise of the right of stoppage in transitu.

It seems to me, therefore, that if any acceptance of the 'goods, by Dunlop & Dutton, was necessary to complete their title, such acceptance was exercised by the sheriff in making the levy. But as I do not think, an actual acceptance was necessary I will not discuss the question. By the sale and delivery to the cartman, the plaintiffs became dispossessed of the goods ; they lost their lien upon them for the purchase money, and they cannot avail themselves of the mistake of the cartman in shipping, to regain possession, or to prevent a delivery.

I think the judgment was right and should be affirmed.

New trial granted.


author: By the Court, McCunn, J.

text:
    Abraham J. Van Winkle, plaintiff and appellant, vs. The Adams Express Company, defendant and respondent.
    1. A common carrier who has contracted to carry goods to a specified point is not justified iri storing the goods at an intermediate point, because he considers the further carriage thereof would be unsafe.
    2. If he has any doubts about the safety of any portion of the route, he should inform the consignor thereof, and notify him that unless the goods are called for at an intermediate point, he will store them there.
    3. A person holding himself out to the world as a carrier to a certain place; whose custom it is to carry goods to that place; who tells a consignor and his agent that he carries to that point, and charges freight thus far, is liable for any neglect to carry the goods the whole distance; unless he expressly limits his liability to an intermediate point, at the time.
    4. Where a package sent by express was marked “ 0. O. D. $292Held that this was ample notice to the express company of the value of the package, to enable the owner to recover beyond the extent of $50, as limited in its receipt.
    (Before Moncrief, Garvin and McCunn, JJ.)
    Heard December 12, 1864;
    decided December 31, 1864.
    Appeal from a judgment entered upon the report of a referee. The action was brought against the defendants, as common carriers, to recover the damages sustained by the plaintiff, by reason of the defendants’ failure to perform their agreement to transport and deliver a box of maps directed to Messrs. Dunn
      & Ritchie, at Shreveport, Louisiana, which the plaintiff had entrusted to them for that purpose.
    The answer admits that the defendants agreed to take the maps to New Orleans, hut denies the agreement to transport them to Shreveport; that the maps are now at New Orleans, well and properly stored, and that there is due on said maps, to them, $75 for freight, storage, &c.
    The action was referred to a referee. On the trial before him, it was proved that plaintiffs had been in the habit of sending packages by the defendants ever since the company was formed, some seven or eight years. The defendants had frequently carried goods to the place of destination, and collected bills when requested so to do, and their business was the usual business of express companies. The defendants having carried packages for the plaintiff ever since the company was formed, and collected bills on C. O. D. packages and returned the money t.o plaintiff, the plaintiff, on the first or second of March, 1859, requested Mr. Naughton, their agent, to go to the office of defendants and find out whether they carried goods to Shreveport, Louisiana, and the price for sending 100 maps and 200 manuals: Mr. Naughton called at defendants’ office, and inquired of the clerk in the office, if the company earned goods to Shreveport; the clerk said they did. Naughton then asked him what the freight would be on a box the same size as a box he had in the basement, containing-maps. The clerk said it would cost $20 from New York to New Orleans, and $1 per hundred from New Orleans to Shreveport; Naughton asked the clerk how soon he could send it. The clerk told him he would have to get it there on the Friday following to go by that steamer. Naughton told the clerk he would send the box to the company on Friday afternoon. On the Friday following, Naughton, in pursuance of the above agreement, delivered the box to the express company, and took a receipt for a O. O. D. package from the company. Before Naughton delivered the box he reported to the plaintiff what had occurred. Naughton stated at the interview with the defendants, the contents of the box; the company made no demand for freight, but said if the box was sent them by the fourth, they would take it. The defendants charged on the way bill, for the whole route from New Orleans to Shreveport, the sum of $31.35; they agreed to take the box to New Orleans for'$20, and $1 per hundred from New Orleans to Shreveport. The other material facts appear in the opinion of the court.
    The referee reported in favor of the defendants, and for the dismissal of the complaint; and judgment being entered accordingly, the plaintiff'appealed.

      B. C. Thayer, for the appellant.

      S. P. Nash, for the respondent.
   By the Court, McCunn, J.

This is an action to recover damages against the defendants as common carriers. The complaint alleges that by reason of the neglect or refusal on the part of defendants to deliver a box of maps to Dunn & Ritchie, Shreveport, Louisiana, he, the plaintiff, has sustained damages. The defendants answer, that they agreed to take the goods to New Orleans, and no further, and that they performed their contract accordingly. ■

The case is rendered somewhat difficult from the unskillful manner in which the referee proceeded, and from his confused and mixed form of findings of law and of fact. The vital questions, however, in the case, and those upon which the controversy must turn in the end, are as follows : • Was there a contract on the part of the defendants with the plaintiff to carry the goods to Shreveport, and if there was not, was it the general custom on the part of defendants to receive goods thus marked under such circumstances, and forward the same to their places of destination ?

As to the question of contract between the parties, it appears in evidence that on the 2d March the defendants’ agents told Naughton, the plaintiff’s clerk, that they carried goods to Shreveport; that they then' computed the freight for him, and in that computation the clerk included the entire distance from Hew York to Shreveport; that next Friday he and the cartman brought the goods : that the defendants received the same and gave the following receipt:

“ Adams Express Company. Great Eastern, Western, and Northern Express Forwarders. New York, March 4th, 1859. Eeceived of John G. Wells, Esq. one box maps, marked S. D. Wood, care of Messrs. Dunn & Bitchie, Shreveport, Louisiana, C. O. D. $292. To be forwarded to-- only. It is further agreed, and is part of the consideration of this contract, that the Adams Express Company are not to be responsible, except as forwarders, for any loss or damage arising from the dangers of railroad, steam or river navigation, leakage, fire, or from any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of ourselves, our agents, or servants, and we in no event to be liable beyond our route as herein receipted; valued under fifty dollars, unless otherwise. herein stated. All articles of glass will be taken at shipper’s risk only, the company refusing to be responsible for any injury by breakage or otherwise. Freight-. For the company. Westcott.”

And in that receipt they did not limit their liability by inserting in the usual blank printed in the receipt, left for that purpose, the words “ Hew Orleans.”

Another portion of the evidence is, that they had frequently sent packages of a similar kind, and that a similar receipt had been taken, and that Adams & Co. had been in the habit of receiving and forwarding similar goods to Shreveport, and charging freight throughout, all of which testimony is uncontradicted, and to my mind there never was a clearer proposition, under such circumstances, than that this evidence amounted in law to a contract, on the part of the defendants, to carry the goods to Shreveport.

As an elementary principle, when the terms of a contract are doubtful, the parties have a right to look into the facts and circumstances connected with the entire transactions transpiring immediately before the execution of the instrument, so as to inform the mind of the court what was in truth intended by the parties. (2 Ellis and Blackburn, 517.)

It is contended on the part of the defendants’ counsel, and I believe the referee so found as a fact, that owing to the unsafe manner of transportation from New Orleans to Shreveport, they (the defendants) were justified in storing the goods in New Orleans; in other words, that they had a right, under such circumstances, to put an end to the contract the moment the goods arrived at New Orleans. I can find no good reason to justify the company in pursuing such a course.

The defendants’ witness, Mr. McKeever, testifies that the reason why the box was not forwarded by the Shreveport boat was, that they did not consider the boats responsible, and they were fearful the money for the maps would not be paid, therefore no effort, he says, was made to send the goods to Shreveport. But is it not fair to expect that, knowing all about the means of conveyance from New Orleans to Shreveport, and about the want of responsibility of the river boats, if they intended to limit their liability to New Orleans, they should have said so ? Was it not to be expected that they should have at least disclosed their doubts about the boats at the time they received the goods, and was it right that they should,'without fully informing the plaintiff of all these facts, charge freight to Shreveport ? On the contrary, were they not bound to inform the plaintiff of the danger contingent on the trip from New Orleans to Shreveport, the uncertainty of the boats, and the fact that unless the goods were called for at New Orleans they would store them there ?

The witness, McKeever, testified that the usual course for the company to pursue was, to send the goods by boats from New Orleans to Shreveport, directed to White, Smith & Baldwin, of the latter place, their agents. This being so, by virtue of their own testimony, the case is at once carried beyond the current of the rule laid down by the chancellor in the case of /St. John v. Van Banff or d. The case under consideration is different from that.

There the defendants informed the community how far they carried, and the extent and limit of their route; that their custom was to place the goods, at the end of their route, in a position to reach their destination hy the ordinary means of conveyance, thereby limiting their liability. Here the defendants, by their own testimony, show that their custom was to carry to Shreveport,, and in fact so told the plaintiff and his agent, and so held themselves out to the world.

After a careful examination of this case, I am of opinion that the defendants did agree to carry the goods to Shreveport, and that the referee, in his refusal so to find as a matter of fact, and to find, as a conclusion of law, that there was a contract, committed an error, and the judgment should be reversed.

A question has arisen, as to whether the defendants were sufficiently informed of the value of the goods, so as to enable the plaintiff to have a recovery beyond the extent of $50, as limited in their receipt. I am clearly of opinion that they had ample notice of the goods being of the value of $292, and that the referee should have found that fact, and that he committed an error in not doing so.

The judgment should be reversed, and a new trial ordered, . with costs to abide the event. The order of reference is discharged.'