author: By the Court. Woodruff, J.

text:
    Edward C. Richards, Plaintiff, v. Robert F. Westcott, et al., Defendants.
    1. A city express company, engaged in carrying parcels between the City of Hew York and Brooklyn, and in carrying the trunks of travellers to and from the passenger dépóts of the various railroads, are common carriers, and perform their duties under the responsibilities of common carriers.
    2. Where such a company is employed to carry a traveller’s trunk to a passenger dépót, and, by mistake, it is wrongly delivered; and, being recovered, it is forwarded to the traveller’s destination, but is found to-have been opened and a portion of its contents stolen: the company are not liable to a third person for a box of jewelry belonging to him, which the traveller had, as agent for such third person, packed in his trunk, and which he was intending to dispose of as merchandise.
    3. A common carrier is entitled to protection against liability, sought to be thrown upon him, by concealment or fraud, which he would not otherwise have assumed ; and no one has a right, by any concealment or artifice, to disarm him of that vigilance, which the nature and extent of the danger reasonably demands ; or to deprive him of the increased compensation which a more hazardous or responsible service justly entitles him to receive.
    He is not, therefore, when engaged in carrying a traveller’s trunk, containing the traveller’s wearing apparel and equipments, presented to him and paid for as ordinary travelling baggage, liable for the loss of a box of jewelry, put up for sale as merchandise, and packed in such trunk.
    4. Where a complaint charged the defendants, as common carriers generally, without describing their route, proof that their route was confined to Hew York and Brooklyn creates no variance. Under an averment, that they undertook to carry from Brooklyn to Buffalo, if it be proved that they undertook to carry to Hew York, and, having delivered the goods at the wrong place, they undertook to recover and deliver them at Buffalo, the variance is not fatal.
    5. Where the plaintiff avers a delivery of goods to the carrier by himself, and a promise to himself to carry, and it appears that the agent of the plaintiff delivered the goods, and the promise was made to him, there is no variance.
    6. In declaring against a common carrier, for loss of goods, it is enough that the plaintiff avers the delivery of the goods, and the defendants undertaking or duty, and its neglect or breach, without an averment that the plaintiff .was himself without fault.
    (Before Bosworth, Woodruff and Pierrepont, J. J.)
    Heard, Feb. 8th,;
    decided, March 13th, 1858.
    This action comes before the General Term upon a general verdict for the plaintiff, taken, as the case states, “subject to the opinion of the Courtaccompanied by the answers of the jury to specific questions submitted to them.
    The action was tried on the 11th day of February, 1857, before Mr. Justice Slosson and a jury.
    Fo question arose on the pleadings, except the question of variance.
    The complaint was as follows:—“ The complaint of the plaintiff respectfully shows, that the defendants, on the 7th day of Fovember, a.d. 1855,were common carriers of goods and chattels, for hire; that, as he is informed and believes, on or about the said day, the said plaintiff caused to be delivered to the said defendants, at the City of Brooklyn, in the State of Few York, as such carriers, one trunk, containing, among other things, one box of jewelry, to be safely and securely carried and conveyed, by the said defendants, from the City of Brooklyn to the City of Buffalo, in the State of Few York, and there securely to be delivered to the plaintiff, for a certain reasonable reward to the defendants in that behalf; and plaintiff further says, that the said box of jewelry was the property of him the said plaintiff, and was of the value of $353.43. And the plaintiff furthers says, that, as he is informed and believes, the defendants then and there accepted and received the said trunk and box of jewelry aforesaid, and promised safely and securely to convey and deliver the same. Yet the said defendants, not regarding their duty as common carriers, did not safely or securely carry said trunk and box of jewelry from Brooklyn to Buffalo, or deliver the same securely to the plaintiff; but so negligently conducted themselves in that behalf, 'that said trunk, as the plaintiff is informed and believes, was broken open and robbed, and said box of jewelry taken therefrom, and not delivered to the plaintiff; and said box, of the value aforesaid, is wholly lost to the plaintiff; and the plaintiff says, that by reason of the premises, he has sustained damage to the amount of $450, for which amount he demands judgment against defendants, together with costs.”
    The defendants answered the complaint by appropriate denials of liability, etc., but admitted that they were common carriers of goods and, chattels.
    The plaintiff’s proofs were mainly derived from the testimony of Wm. P. Davis, who detailed the circumstances upon which the defendants’ alleged liability arose, as follows:
    “In the fall or winter of 1835—November or December—I went to defendants’ office, in Brooklyn, and left instructions for them to send to my house, in Brooklyn, and take my trunk to the dépót of the New York and Brie Railroad, in New York City, at foot of Duane street, and, at the same time, a box that was in Court street, Brooklyn—box to go to freight-dépót, same place— trunk to go to passenger-dépót. The trunk was to go with me to Buffalo, by the New York and Brie Railroad, and the box was directed for Janesville, Wisconsin, by the same road. The trunk contained my wearing apparel and a box of jewelry belonging to the plaintiff. It was in my hands for the purpose of selling. Bach article of the jewelry was numbered. The numbers were contained in an invoice made by me.—(A copy of the invoice was produced by the witness.)—These are the numbers: No. 395, 10 brooches; No. 463, 3 rings; No. 486, 6 rings; No. 496, 5 gold lockets; No. 502, 3 gold lockets; No. 503, 3 gold lockets; No. 504, 2 gold lockets; No. 510, 8 gold lockets; No. 520, 6 gold lockets; No. 525, 25 prs. ear-rings; No. 571, 12 prs. ear-rings; No. 605, 4 watch-keys; No: 786, 4 bracelets; No. 857, 3 finger-rings; No. 888, 23½ pwts. 21 gold rings; No. 896, 6 prs. sleeve-buttons; No. 900, 15 prs. sleeve-buttons; No. 934, 2 lockets; No. 935, 1 locket; No. 960, 15 prs. sleeve-buttons; No.. 962, 10 prs. ear-rings; No. 968, 25 prs. ear-rings. Was purchased at auction, of James Manchester. I went over to dépót about 4½ p. M. Did not find my trunk there. Remained there till after the boat left. Trunk had not then come. I saw it taken from my house before I went over. I helped put the box in Court street, the trunk being then in defendants’ wagon. I returned to defendants’ office that evening, and informed them that my trunk had not been left at the depot; they said it had surely gone. I said I had waited until after 5 P. M., and on inquiry at the office of dépót, was assured no such trunk had been left there. I went over to the dépót next morning, and made further inquiry. No such trunk had been left there. I went to defendants’ office again, and the man there said they could not tell, that day, what had become of it, but were endeavoring to find it. I told him I wanted to go immediately to Buffalo. In the afternoon he told me they had found it; that boy, through mistake;' had put it on North River boat; that boy was a green hand, and they discharged him. I told them there was something valuable in the trunk, and that I wanted to know about it, as I wanted to leave immediately for Buffalo. H*e told me to go to the defendants’ office in New York, and see them. I went, but did not find them. I then went back to Brooklyn office; the same man told me if I would go on they would get the trunk and deliver it to me at United States’ Hotel, in Buffalo, without any expense to me. I went to Buffalo that evening, and put up at United States’ Hotel; remained there, perhaps, four days, and while there my trunk came there. I examined it, and found it had been broken open, and the box of jewelry taken out. I did not notice that any thing else was gone. The jewelry was purchased by me for Mr. Richards, at auction, at an assignee’s sale, I having authority from him for the purchase.”
    On his cross-examination he said:—“ I have stated all that was said between me and the man in office, at time I called and left the order."
    “ Several other witnesses were sworn, and examined on the part of the plaintiff, among whom was a Mr. James Manchester, who testified that he had been in the jewelry business about eleven years, and kn'ew the jewelry in question; that he sold it to plaintiff, as assignee of Thomas Manchester, and that the sale was made at auction, by Mr. Leeds as auctioneer; that the same cost, originally, to manufacture, 346.32; that its market value, in fall of 1855, in this city or in Buffalo, was an advance of 25 per cent, on its cost.
    “ Plaintiff’s counsel next read parts of depositions taken under a commission issued in this case, in reference to the condition of trunk when it came to the City of Buffalo.”
    ' The defendants moved for a non-suit upon grounds substantially the same as the points urged by their counsel, upon the argument, hereinafter stated.
    The defendants then gave evidence, tending to show that the ' defendants were a company, engaged in the busitiess of carrying goods and trunks between New, York and Brooklyn exclusively, under the name of “Westcott & Co.’s New York City and Brooklyn Express.”
    That the uniform custom of express companies is, to charge for carrying money and jewelry according to their value. That the defendants charge for carrying a traveller’s trunk, is two shillings. That they never take jewelry and valuables unless they can get a receipt for it at the place of delivery by them ; that trunks, to be delivered at the dépóts, they leave without taking receipts; that they cannot get receipts for them at the dépóts; that they should not have taken this jewelry if they had known it was in the trunk, as they could not get receipts for trunks at the dépóts; that the charge for carrying the jewelry, if they had known .what it was, and had undertaken to carry and deliver it, would have been seventy-five cents; that Davis paid two shillings for carrying the trunk to the passenger-dépót, and four shillings for carrying the box (which he said contained pictures,) to the freight dépót; that the defendants had, on other occasions, taken packages for Davis. And Davis, being recalled by the plaintiff, testified that the defendants had carried his trunk for a,year, and he had never been asked any questions respecting its contents.
    The defendants gave evidence, also, of the usage of express companies, in charging a higher price for carrying jewelry and valuables, than for a traveller’s trunk, and also of some other facts; but it is believed, that the special finding of the jury, and the further facts stated in the opinion of the Court, are all that are material to the full understanding of the points decided by the Court. Except, that the evidence was, that the trunk was not opened while in the actual charge of the defendants' servants, who were examined; and that it was put by them, by mistake, on the steamboat Isaac Newton, and carried to Albany. They sent for it to come back, and it was afterwards sent by the defendants to Buffalo.
    The proofs being closed, the following questions were written down at the request of the respective counsel, and submitted by the Court to the jury.
    The answers of the jury thereto appear after each question respectively.
    1st. Was the trunk in question delivered to the defendants by Mr. Davis, to be transported from Brooklyn to the New York and Erie Railroad dépót 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 pre-pay 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 traveller’s trunk, in the common meaning of that word ?

      A. It was.
    10 th. Was this trunk to be delivered at the passenger dépót, or at the freight dépót, at .the City of Hew York?

      A. Passenger dépót.
    11th. If you say that the trunk was not delivered at the dépót in Hew 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 Hew 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 traveller’s trunk from Brooklyn to Hew York ?

      A. Twenty-five cents.
    16th. If you say Davis pre-paid 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 for as one item ?

      A. As two distinct items.
    17th. Who was the owner of the jewelry in the trunk ?

      A. Mr. Richards, the plaintiff.
    18th. Was the jewelry intended for merchandise, or did it constitute a part of a traveller’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 jury, under the direction of the Court, found a verdict for •the plaintiff, and assessed his damages at $432.90; and the Court ordered the verdict to be taken, subject to the opinion of the Court at General Term, and to" be heard there, in the first instance, on the questions of law reserved at the trial, or arising under the special findings; judgment, in the mean time, to be suspended.

      Chauncey Shaffer, for the plaintiff.
    The “ questions of law reserved at the trial, or arising under the special findings,” are, first, on the motion for nonsuit on five points presented.
    On the first'point, the law is, “When there is no notice, the party who sends the goods is not bound to disclose their value unless asked.” “If he makes no inquiry, and no artifice is made use of to mislead him, then he is responsible for loss, however great the value.” (Story on Bailment, section 567, 5th edition ; with references. 2d Kent, page 602, 6th edition.)
    This action being in tort, variance between complaint and proof is not fatal. (18 Barbour, 500; 19 Wendell, 541.)
    Proof shows there was neither “inquiry or artifice to mislead;” or notice to' the plaintiff or his agent.
    Defendant could not limit his liability by notice. (1 Kern. 485.)
    The second point is covered by the law applicable to the first.
    To the third point—to make a failure of consideration, and no contract to carry jewelry. There was a contract to carry trunk; and there being no proof of “artifice” or fraud, he was not bound to disclose contents, as seen by law to'first point.

      To the fourth point—“ Contract proved different from that in copiplaint.” This being in tort, variance is not fatal. (18 Barb. 500; 19 Wend. 541.) Proof does not vary from complaint. “ Subsequent agreement not supported by consideration.” This is untrue in point of fact. The original consideration supports the extended contract. “ Any damage or suspension, or forbearance, of a right, is sufficient to sustain a promise.” (2 Kent, 6th ed., page 465.) And Davis proves the extended contract in view of “ damage,” “suspension,” and “forbearance.”
    But if there was no consideration, he is nevertheless, liable, having voluntarily undertaken to extend the contract as by same testimony. (Story on Bailments, 5th edition, §§ 170, 171 b; 2 Kent, pages 568-9, 6th edition. See, also, Parsons on Contracts, 2d edition, 671 and 672, 687 note; 13 Barbour, 361; 10 Id. 612).
    A person who agrees to convey goods from one point to another, whether interested in the means of transportation or not, is a common carrier. (19 Wend. 329; 25 Wend. 661; 14 Barb. 524; 19 Id. 349 ; Parsons on Contracts, 650, 653, 657).
    As to the fifth point, the proof shows Davis to have been plaintiff’s agent.
    If the motion on the nonsuit was properly denied, then the law on the facts, as found in the verdict, is for the plaintiff. (Interrogatories the 13th, 16th, 17th.)
    On the 9th, 10th, and 18th findings, proof shows defendants carriers of goods, and not of passengers; and they are liable accordingly. (Parsons on Contracts, 2d edition, 675.)
    On the 8th finding, proof also shows they are not in the habit of asking contents.
    On the seventh, proof shows they did not ask contents, as before stated. That they were not in the habit of doing so, and no deceit was used. And they cannot limit their liability by usage or custom. (1 Kernan, 485.)

      H. D. Sedgwick, for the defendants.
    I. The nonsuit should have been granted, and the complaint dismissed. (Oakley v. Morton, 1 Kern. 26-33; Brazill v. Isham, 2 Kern. 9-17; City of Buffalo v. Holloway, 3 Seld. 496; Thurman
      v. Stevens, 2 Duer, 609; Garvey v. Fowler, 4 Sandf. 666; Lienan v. Lincoln, 2 Duer, 670; Lawrence v. Whight, 2 Duer, 673; v. Morewood, 5 Sandf. 557; Bristol v. Rensselaer and Saratoga Railroad Co., 9 Barb. 158; 1 Chitty Pl, 417, 418; Code, §§ 142, 148, 275; Noxon v. Bentley, 7 How. 316.) 1. The complaint does not aver that the bailor was free from fault, and the proof shows that his fault occasioned the loss. 2. The contract proved, is entirely different from that alleged, a. The complaint charges that the defendants are common carriers, without specifying their route or the class of their business. The loss was proved to have occurred beyond the limits of their route, and the risk was not proved to have been one within the line of their business. The complaint avers a contract by the defendants as common carriers, to take a trunk to Buffalo. The proof shows a contract to take it to the railway station in this city. (2 Greenl. § 290; Tuckerr v. Cracklin, 2 Stark. 385; Steph. N. P. 992; Fowles v .Great Western Co., 16 L. & E. 531; Edw. on Bailments, 552, 554, 555, 559.) b. Even if the subsequent agreement to forward the trunk to Buffalo, made by the defendants without consideration, could establish a liability against them, such liability could not be proved in this action. But under this agreement they were not liable. No negligence was shown, and the loss occurred by robbery, for which neither mandataries nor private carriers for hire are responsible. (Angell on Carriers, § 60, and cases cited; Story on Bailments, §§ 213, 457, 339, 410, 413, 515; Edw. on Bailments, 105, 448, 449, 567, 568, 569, 288, 554, 133; Brind v. Dale, 8 Car. & Payne, 207; 1 Parsons on Con. 633, 606, 620; Beardslee v. Richardson, 11 Wend. 26; Schmidt v. Blood, 9 Wend. 268; Foote v. Storrs, 2 Barb. 326; Ackley v. Kellogg, 8 Cow. 223; Latham v. Rutley, 2 B. & C. ,20; Whalley v. Wray, 3 Esp. 74; Kimball v. Rutland Bk. 26 Vermont, 247, 258, 259; Hersfield v. Adams, 19 Barb. 577.)
    II. The negligence and fault of the bailor contributed directly to the loss, and bar a recovery in this action. (Edw. on Bailments, 452, 471; Tonawanda Railroad Co. v. Munger, 5 Denio, 255, Aff’d; 4 Comst. 349; Armisted v. White, 6 Eng. Law & Eq. 349 ; Burgess v. Clements, 4 M. & S. 306; Miles v. Cattle, 6 Bing. 743.)
    III. As common carriers, the defendants are not liable. The

      common carrier, it is settled, has the right to limit and define his liability. 1 By confining his business to an established route. 2 In respect to the nature of the goods he receives for transportation. He has the right to say what kind of goods he will take, having reference to their value and bulk, and within reasonable limits, whether, and under what circumstances he will take any goods. 3. In respect to the amount of his reward; he has the right, within proper limits, to apportion the reward to the risk. (Sewall v Allen, 6 Wend. 335; 1 Parsons on Con. 649, 650, 711, 2d. ed.; Jer. on Car. 56; Dorr v. N. J. Steam Nav. Co., 4 Sandf. 136; Stoddard v. Long Island R. R. Co., 5 Sandf. 180; New Jersey Steam Nav. Co. v. Merch. Bk, 6 How. 344, 416, 417, 418; Moore v. Evans, 14 Barb. 524; Parsons v. Monteith, 13 Barb. 353; Edwards v. Sherratt, 1 East. 604; Edwards on Bailments, 443.) 4 The rights which the law gives, it will protect and enforce. The carrier thus having the right to refuse particular liabilities, will be given the reasonable means and opportunity to exercise it. He is therefore entitled, before assuming a risk in relation to goods, to know their nature and value. (1 Parsons on Con. 654, 2d ed.; Great North. Bailway Co. v. Shepherd, 14 Eng. Law & Eq. 367.) 5. Whether or not it be the duty of the carrier in general, to inquire as to the nature and value of the goods delivered to him, such duty certainly does not exist where, by reason of fraud, or other circumstances, such as the appearance of the goods, he is reasonably deceived as to their nature and value. (Edwards on Bailments, 472 ; vide cases cited supra and infra.)

    IV. No contract was entered into, nor liability assumed by the defendants, in reference to which, any breach or loss has been shown. There was no acceptance of the jewelry. There was no default in relation to it by the carrier. The defendants’ engagement and liability were in respect to a traveller’s trunk only, not jewelry or merchandise. (Story on Bailments, § 533, 2; Jer. on Car. 60; Angell on Car. §§ 140, 141, 322; Blanchard v. Isaacs, 3 Barb. 388; Theobald’s Ap. to Jones on B., 4th ed. p. 15; Tower v. Schenectady Railroad Company, 7 Hill, 47; Packard v. Getman, 6 Cow. 757; 2 Bl. Com. 451; Cohen v. Frost, 2 Duer, 335, 341.)
    V. By the settled law of this State, no recovery can be had in this action. 1. The liability of a common carrier once fixed, is, in respect to the subject-matter of the contract, always the same. The liability of a. passenger-carrier in respect to the luggage of such passenger, is that of a common carrier. (Angell on Carriers, § 107; Hollister v. Nowlen, 19 Wend. 234.) 2. But the carriers of passengers’ luggage, although thus common carriers in respect of it, are not liable for any jewelry or merchandise it may contain. (Orange Co. Bank v. Brown, 9 Wend. 85; Pardee v. Drew, 25 Wend. 459; Hawkins v. Hoffman, 6 Hill, 586; Grant v. Newton, 1 Smith, C. P. 95; Blanchard v. Isaacs, 3 Bar. 388; 2 Parsons, 720, 2d ed.)
    VI. The contract, if it existed, was avoided by the fraud of the bailor. 1. The reasonable and general usage proved of paying an extra freight for valuable articles, and limiting the carrier’s responsibility in respect to them, formed part of the contract. (2 Pars, on Con. 57; Story on Bailments, § 14; Baxter v. Leland, 1 Blatch. C. C. R. 526; Van Santvoord v. St. John, 6 Hill, 157; Farmers’ and Mechanics' Bk. v. Champlain Transp. Co. 18 Verm. 131; Edw. on Bailments, 287.) 2. Independently of usage, on general principles, his concealment of the contents of the trunk evinced bad faith. His conduct was fraudulent, and avoided the contract which it induced. (1 Parsons, 719, 720, 2d ed.; 2 Pars. 275, 2d ed.; 2 Kent, 603, 604; Gibbon v. Paynton, 4 Burr. 2298; Jer. on Car. 34, 35, 40, 55; Tyly v. Morrill, Carthew, 485; Batson v. Donovan, 4 Barn. & Ald. 21; cases cited under 2d sub. of Point V.)
    VII. The defendants are entitled to judgment.
   By the Court. Woodruff, J.

The objection that the variance between the allegations and the proof precludes a recovery, was properly overruled. The complaint states that the defendants are common carriers generally, without specifying any particular route, or between what places they are pursuing their business ; and then avers that the plaintiff caused the trunk containing the property in question to be delivered to them at Brooklyn, to be conveyed by them from Brooklyn to Buffalo, and that they accepted it, and promised to convey and deliver the same: but not regarding their duty as common carriers, they so negligently conducted themselves that the trunk was broken open, and robbed, and the property in question, was taken therefrom, and not delivered, but was wholly lost to the plaintiff, etc.

The proof showed that the trunk was delivered to the defendants at Brooklyn, to be carried to the passenger depot of the New York and Erie Railroad Company, to go with the agent of the plaintiff by that railroad to Buffalo. And that by reason of the failure of the defendants to deliver the trunk at that depot, (it having been put on board a North River steamboat by the defendant’s agent,) the defendants undertook to regain the possession, and then, without further charge or expense, to deliver it to the plaintiff’s agent, at a hotel in Buffalo.

This was undoubtedly a variance; but a variance only in some particulars. By the provisions of the Code, “ No variance between the pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defence upon the merits. And whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the Court, and in what respect he has been so misled.” (§ 169.)

No such' proof was offered, nor indeed was it claimed on the trial that the defendants were misled. We do not perceive that such a claim could be made with any plausibility. The successive undertakings of the defendants were, in effect here described with single reference to a final result, to carry from Brooklyn and deliver at Buffalo. The defendants were fully apprized of the claim of the plaintiff, and of the substantial fact upon which it rested, and of the ground upon which they were sought to be charged.

Nor is it material in this case that the complaint avers, and the answer admits, that the defendants are common carriers, without specifying the termini of their route. The proof showed that they are at least common carriers between Brooklyn and the respective railroad depots in New York, and it is proved that they received the trunk to carry on the route of their accustomed business, and the proof does not show that they have performed the duty thereby cast upon them. It is not shown that the loss of the property occurred on any other route. No proof given on the trial shows that the trunk was opened between New York and Buffalo. Having received the trunk, the liability of the defendants, as common carriers, continued until they had performed the duty which, as such carriers, they did assume. The trunk having never been afterwards produced, and safely and securely carried and delivered, the defendants, before they can claim exoneration, on the ground that they were not common carriers between Hew York and Buffalo, must, at least, show that, when, after their mistaken and negligent delivery on board the steamboat, they regained its possession, it was safe; not then broken and rifled.

It is, therefore, unnecessary for us here to say whether, had they shown that it was thus safe when they began to carry it to Buffalo in pursuance of their second undertaking, they would have been any the less liable.

We, nevertheless, are of opinion that the previous negligence and temporary loss of the trunk, and the trust devolved upon .them by the plaintiff’s agent at their instance, and his leaving for Buffalo in reliance upon their assurance, constituted ample consideration for their undertaking to “ get the trunk,” and to convey and deliver it at Buffalo. And, moreover, that, whether in the performance of this undertaking, they be regarded as common carriers, or merely as private carriers for hire, proof that the trunk was broken open and robbed of the property in question before its delivery, was sufficient to cast upon them the burden of proving that this happened without fault or negligence on their part. Ho such proof was offered.

Hor was it necessary for the plaintiff to aver in his complaint that the trunk was lost without his fault. It was enough that the plaintiff stated the delivery to the defendants, and that the loss occurred through their negligence, and so are the precedents. If the plaintiff’s own negligence caused or contributed to the loss, that was matter of defence.

The mere fact, that the delivery of the trunk to the defendants was by Davis, the plaintiff’s agent, and that the undertaking was in form made to him, does not of itself create any obstacle to the plaintiff’s recovery, if, under the circumstances, the defendants would have been liable to Davis himself, had he been the owner of the property lost. This subject was considered in Needles v. Howard, (1 E. D. Smith, 57,) and Grant v. Newton, (Ib. 97,) and in the cases there referred to.

But a more serious question remains to be considered. Davis, the plaintiff’s agent, was a traveller. He was about leaving Brooklyn for Buffalo, intending to leave Hew York by the Hew York & Erie Railroad. He employed the defendants to take a box to the freight depot, and to take the trunk to the passenger depot, to go with him to Buffalo by the railroad. The trunk was a o traveller’s trunk, within the ordinary meaning of that word. The trunk contained Davis’s wearing apparel, and also a box of jewelry belonging to the plaintiff, which latter box is the property for the loss of which the action is brought. The defendants are an express company, employed in carrying and delivering goods and baggage in the Cities of Hew York and Brooklyn. Although the finding of the jury is not in those precise words, yet, when examined in connection with the proofs, it may be reasonably taken to import that it is the uniform usage of city express companies to charge for the transportation of articles with reference to their value, though this was not communicated by the defendants to Davis, nor was it proved that, he had actual knowledge of it. The jewelry constituted no part of a traveller’s equipments or baggage, but was merchandise. The defendants had no knowledge that the trunk contained jewelry, nor that Davis had jewelry in his trunk on former occasions when they had carried his trunk for him.

The proof was uncontradicted, that the defendants would have charged a higher price for the carriage, had they been aware that the trunk contained jewelry; and, what is, perhaps, even more important, it shows that their course of business and uniform practice was, to adopt- special precautions for their own protection, when they knew that they were carrying articles of especial value, such as jewelry, &c. And, to this end, they require a receipt therefor on delivery at the place of destination, and do not carry such articles except under circumstances in which this is practicable. While as to travellers’ trunks to be delivered at railroad depots, although they cannot get receipts for them, they deem this extraordinary precaution not important. Indeed, there is evidence that, in view of the impracticability of obtaining receipts at the passenger depot, the defendants would not have carried the trunk, had they been apprised that it contained jewelry.

It is not denied, nor, we believe, doubted, that, under these circumstances, the defendants became liable for the safe carriage and delivery of the trunk, as an ordinary traveller’s trunk, and for its contents, to the extent that they consisted of the traveller’s clothing, and such articles as are usually or properly comprised in the term baggage. But it is claimed by the defendants that' that is the limit of their liability, and that, as here, the trunk, and all of its contents which belonged to Davis, was delivered,, they have done all that they undertook to do, and all which it became their duty to do. That, not having been informed that the trunk contained jewelry or merchandise of any description, they have never undertaken to carry jewelry or merchandise, and the law cast upon them no duty to see to its safety or delivery: or, at all events, having used all the care and diligence necessary to secure, and having in fact secured the safe delivery of the traveller’s trunk, with all that properly constituted baggage contained therein, they have fully discharged their duty. That they cannot be ignorantly or involuntarily brought under responsibility for valuable merchandise delivered to them under the guise of a traveller’s baggage. .

That carriers of passengers are not liable for the loss of money or merchandize contained in the travelling-trunks of such passengers, delivered to them as ordinary baggage, is well settled; and yet, in respect to such baggage, they are regarded as common carriers, and subject to the responsibilities of carriers of goods, even to the extent of insuring the safe carriage and delivery. (Orange County Bank v. Brown, 9 Wend. 85,118; Pardee v. Drew, 25 Wend. 460; Hawkins v. Hoffman, 6 Hill, 588 ; Grant v. Newton, 1 E. D. Smith, 98, and cases cited; The Great Northern Rail-way Co. v. Shepherd, 14 Eng. L. and Eq. 367.)

And again, if the owner be guilty of any fraud or imposition, as, by concealing the value or nature of the goods and either does or says any thing which tends to mislead the carrier in respect thereto, put him off his guard by creating the impression that the goods are of less value than in truth they are, or otherwise preventing him from exercising proper precautions, in view of the importance of the hazard, the carrier will not be responsible.

The cases above cited, from our own reports, in relation to carriers of passengers, proceed upon these grounds; and Mr. Angel, in commenting thereon, says of the first named, that it “Is in accordance with the incontrovertible principle, that no person has a right, by practising concealment or fraud, to impose a duty upon another which he would not, if acting advisedly, have undertaken(it may be added) nor to disarm him of that vigilance which the nature and extent of the danger reasonably demands, or deprive him of the increased compensation justly due for the more arduous and responsible service.

These principles are plainly applicable to all carriers of goods, and are only just, as a protection, while the law is strict, if not harsh, in holding them to rigid accountability, when the duty to carry safely is fairly devolved upon them.

Whether the principle of those discussions is applicable to carriers who are employed to carry and deliver the travelling-trunk of a traveller, though not carriers of passengers themselves, is the immediate question before us.

It is, no doubt, true, as a general rule, in relation to the employment of carriers of goods, that the employer is not bound to disclose the contents of packages delivered for carriage, unless inquiry is made by the carrier. The rule is, in substance, so stated in Story on Bailments, § 567; in Kent, 3d vol. p. 603; and in Angel on Carriers, § 264; and numerous cases are cited in each in support of this rule.

And it is equally true, jhat the carrier, if he does inquire, has a right to a true answer, so that he may fully understand the extent of responsibility which he incurs by accepting the goods, may charge for the carriage a sum proportioned to the risk, and may adopt precautions, to secure the safety of the goods, which correspond with the magnitude of the hazard. (See same authorities above referred to.) And if the employer deceives the carrier, as to such contents, he will not be entitled to hold him in case of accidental loss, to any greater liability than would rest upon him if the goods were in truth as represented. (Tyly v. Morrill, Carth. 485.) And it may be doubtful, whether, in such case, the carrier is liable at all.

It was said, in Riley v. Horne, (5 Bing. 217,) that if the carrier, without inquiry, does take charge of the goods, he waives his right to know their contents and value. But this must be understood with the qualification, that nothing is said or done by the party from whom the goods are received, calculated to deceive the carrier in respect to such value and contents.

As, for example, in Gibbons v. Paynton, (4 Burr. 2298,) where gold was concealed in an old nail-bag. In Riley v. Horne, supra.; and in Batson v. Donovan, (4 Barn. & Ald. 21,) the question was concerning the effect of a notice by the carrier, that he would not be liable unless the value was disclosed. Still, the Judges all recognize the principle of Gibbons and Paynton, that when the conduct of the owner is such as tends to deceive the carrier in regard to the nature and value of the property, he will not be liable.

These principles seem to us to sustain the ground taken by the defendants, in relation to the box of jewelry now in question. It was merchandize—it was of peculiar value—it did not belong to the traveller, but to a third person. The defendants were practically and effectually notified that the trunk which they undertook to carry was a traveller’s trunk. They had a right to assume that it contained the articles usually carried by travellers on their journey. In short, it was held out to them as baggage; and we can see no reason for not extending to them the same protection which is afforded to carriers of baggage, who carry the person of the owner also. The authorities which have been referred to, and numerous others which are therein mentioned, warrant no distinction between carriers of passengers and carriers of goods, where the carrier is deceived, as to the nature or value of the property entrusted to him; and that deception may as easily be effected by imposing upon the carrier valuable merchandize, under the guise of the owner’s travelling-baggage, as by a direct verbal misrepresentation.

The verdict cannot, we think, be sustained. A new trial must be ordered; costs to abide the event.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Bernard L. Simpson, Plaintiff and Respondent, v. William Gerard & John S. Betts, Defendants and Appellants.
    1. Where goods—in bond in the IT. S. warehouse, the duty being unpaid—were sold by the defendants, as auctioneers, and, on receiving full payment therefor, they gave to the purchaser an order on the owners, requiring them to deliver the goods; and the purchaser received the order, and then agrees with the owners, that, instead of receiving the goods here, the owners paying the duties, they shall pay to him, and he will receive from them, the amount of the unpaid duties in other merchandize, and that the goods be shipped in bond to New Orleans; and, thereupon, such owners cause the proper entries of the goods to be made at the custom-house, for withdrawal and transportation, and give bond that the goods shall not be landed without the payment of the duties: the purchaser cannot afterwards revoke his instructions, and require the auctioneers to deliver the goods here.
    2. The rule is the same, although the defendants, at the time of the sale, did not disclose the names of their principals.
    3. Nor does it affect the liability of the defendants, that the return duties have not been actually paid by such principals; nor that the goods had not been actually shipped (in pursuance of the entries for transportation, and the giving of the bond,) until after the purchaser declared his desire to revoke his instructions and receive the goods here.
    4. When the purchaser of goods, so sold, accepts an order therefor upon a third person, and makes a new and substituted arrangement, different from, and in lieu of, the original contract, and such third person enters upon the performance of such new contract, the auctioneers are discharged.
    (Before Bosworth, Woodruff and Pierrepont, J. J.)
    Heard, Feb. 11th;
    decided, March 13th, 1858.
    This action comes before the Court, on appeal from a judgment for the plaintiff, on the report of a referee.
    The complaint of the plaintiff alleged, that, on the 18th of October, 1853, the defendants, acting as auctioneers, sold, at auction, to the plaintiff, as the highest bidder, two half-pipes of brandy, (of a particular brand, etc., specified,) for the sum or price of $333.50, which was paid by the plaintiff to the defendants; that he frequently thereafter demanded the brandy, and the defendants have neglected and' refused, and do neglect and refuse, to deliver; that the brandy is of the value of $483.50. The plaintiff “ demands judgment of delivery of said property, putting him in possession thereof, and damages for the detention thereof, in the sum of $100, or for the value thereof, to wit: $483.50, with interest from, the day of payment thereof, 13th October, 1853, and for costs.”
    The answer of the defendants states, that they sold the brandy in their capacity of auctioneers;. that it belonged to Theodore T. Edgerton & Co., doing business in this city; that, at the sale, the brandy was represented to be, and the plaintiff knew that the same was, in fact, stored in the United States bonded warehouse; that, after the said sale, the defendants made, and'delivered to the plaintiff, an order on Edgerton & Co., their principals, for the brandy; which order the plaintiff accepted and, afterwards, presented to Edgerton & Co., and directed them to ship the brandy, still remaining in bond, to New Orleans, agreeing with them to receive and accept from them, in place of the payment of the duties by them at this port, the amount necessarily required by him to pay the duties at New Orleans, being the sum of $48, which the said Edgerton & Co. have ever been, and still are ready to pay; and that, in accordance with the said directions, and in pursuance thereof, the said brandy was shipped to New Orleans, on account of, and to the order of, the plaintiff, and the bills of lading have ever since been, and now are, ready to be delivered to the plaintiff.
    • The defendants further deny, that the value of the brandy exceeds $333.50.
    On the trial, it was proved that the plaintiff purchased the brandy from the defendants, at auction, on the 13th October, 1853.
    That the brandy belonged to Theodore T. Edgerton & Co., though the name of the owner was not known to have been announced at the sale.
    That “ the goods were sold in bond, entitled to debenture, the purchaser having the privilege of having the goods transferred to him in bond and the duties deducted from his bill, or the owner paying the duty, and the purchaser taking them out of bond.”
    That, on the 18th of October, the plaintiff paid to the defendants, the auctioneers, the full price of the goods, without any abatement for the duties, viz.: $333.50; and the defendants gave to him an order on the owners, Theodore T. Edgerton & Co., for 4he brandy.
    The plaintiff took the order to Edgerton & Co. Some difficulty appeared to have arisen in relation to procuring the goods from the warehouse, and one of the firm stated to him that, by a rule of the custom-house, the goods would have to remain a year longer in bond; but proposed that they would give him the same style of brandies here, or would ship the- identical brandies to New Orleans in bond, and deduct the duties from his bill. To this latter suggestion, the plaintiff consented. He agreed to take the amount of the duties from Edgerton & Co. in claret wines; and directed Edgerton & Co. to ship the, brandies to New Orleans, and to have the proper transportation papers made out, and he would call again. Edgerton & Co. thereupon caused the proper transportation entries to be made at the custom-house, and the goods passed for transportation; the directions for the shipment were given, and the bond, that the goods should not be landed without the payment of duties, was executed.
    The plaintiff called after this was done,: and went, with the clerk of Edgerton & Co., to the custom-house, and ascertained the amount of the duties to which he was entitled.
    The transportation entries, or entries for shipment, in pursuance of the plaintiff’s instructions, were made on the 21st of October.
    On the 23d of October, the plaintiff appears to have changed his purpose; and, on or about that day, he called on the defendants, and said that the duties were not so much as he expected, and he wanted the brandies here. The defendants told him they had nothing further to do with it. At that time, he appears to have left at defendants’ office, the order he had taken from them on Edgerton & Co. At about that day, the plaintiff’s agent called on the defendants, and made inquiries on the subject, and was referred to Edgerton & Co., one of the defendants stating to him, that Edgerton & Co. were bound to deliver the brandies here if required, or, if exported, to pay the drawback. The agent went to Edgerton & Go., and stated to them, that the plaintiff wished the brandy delivered here; and was told that they had commenced passing the brandy at the custom-house for New Orleans, and showed him the papers.
    There was some difference in the testimony, upon the question whether, at that time, the custom-hotise entries were fully completed ; but the clerk of Edgerton & Co. testifies that this conversation was had by the agent with him, and that he then had the

      shipping papers;, and the clerk from the custom-house testified that the entry for shipment was made on the 21st.
    The brandy was, in accordance with the entry and bond, shipped to Hew Orleans, consigned to the plaintiff, or his order, by the officer of the customs, whose duty it is to ship goods withdrawn-for shipment under bond.
    The bill of lading appears to have been signed October 29th, and was executed in three parts, one of which was forwarded by mail to the address of the plaintiff at Hew Orleans.
    The above statement of facts is in substantial accordance with the report of the referee, and corresponds with the view taken of the evidence by the General Term.
    The referee held, as matter of law, that the plaintiff was entitled to recover, notwithstanding his dealing with Edgerton & Co., and reported in favor of the plaintiff, that he recover $333.50, with interest from October 13th, 1853.
    The defendants appealed.

      James W. Gerard, for the defendants (appellants).
    I. The new agreement made by the plaintiff with Edgerton & Co., the owners, by which the plaintiff agreed that the two half . pipes of brandy purchased, should be shipped by Edgerton & Co. to Hew Orleans for him, (the plaintiff,) and the actual shipment thereof released the defendants from any obligation to deliver to him the brandy in Hew York, if they were ever liable as auctioneers to deliver the same to him; and their obligation, if they were ever under any, thus released or waived, could not be restored by the plaintiff, after the bond actually given, giving notice that he wanted the brandy here.
    IT, The defendants, acting only as agents for Edgerton & Co., and that fact being known to the plaintiff at the time he paid his bill, and at the time he received an order from the auctioneers on the owners, is equivalent .to a notice given by the auctioneers at the time of the sale, that they were only acting as agents.
    ITT. An auctioneer, who is known to be only acting as an agent in the sale of goods for others, is not liable for any claim made by the purchaser, if, on demand, he gives the names of the principals.

      IV. On the facts found by the referee, he should have ordered payment for the defendants.

      J. S. Slauson, for the plaintiff, (respondent,) among other points not material to the question as considered by the Court, argued the following:—
    I. The conversation between plaintiff and Edgerton & Co. was but initiatory to a contract, as there was no agreement as to the amount or price of claret wine to be taken in place of duties; and even if there had been a part delivery, no title would have passed, as there was yet something to be done between the parties in ascertaining the quantity or price. The conversation between plaintiff and Edgerton & Co., did not amount to a waiver, as Edgerton & Co. were third parties, and no consideration was paid by, or received from, Gerard & Betts, and the order on T. T. Edgerton & Co. was but an offer of substantive performance, which was not accepted by plaintiff. (Rapey v. Mackey, 6 Cow. 250 ; 2d Kent’s Com. 496 ; McDonald v. Hewitt, 15 Johns. 349 ; Fitch v. Beach, 15 Wend. 221; Ward v. Shaw, 7 Wend. 404; Andrew v. Dietrich, 14 Wend. 31; Outwater v. Dodge, 7 Cow. 85; Olyphant v. Baker, 5 Denio, 379.)
    II. The referee did find that the acts and transactions of the plaintiff did not amount to a waiver of his claim on Gerard & Betts; and Gerard & Betts all the while admitted that plaintiff was entitled to the brandy here.
    III. To make a delivery effective, it must be made actually, or virtually, in accordance with the terms of the contract, but the shipment and forwarding bill of lading were not in accordance with, or performance of, the contract of Gerard & Betts with the plaintiff.
   By the Court. Woodruff, J.

The plaintiff, if not informed by the nature of the defendants’ business, was notified, when he paid for the goods, that they were acting, in making the sale, as the agents for Edgerton & Co. He received from the defendants an order addressed to that firm for the brandy sold. On the negotiation which ensued, and in view'of the alleged difficulty , in delivering, in Hew York, the particular brandy sold, he consented to receive from Edgerton & Co., and they agreed to pay to him the amount of the duties, and that the brandy be shipped under bond to New Orleans, where he might pay the duties, and receive the goods, or he might export them without such payment, as he should prefer: and by his direction, they (Edgerton ' & Co.) undertook to ship the brandy to him, at New Orleans, in bond, and subject to debenture, or to exoneration from duties, if not landed there; and this was done. If the agents were, in the first instance, liable, personally, upon the contract of sale, this treating with Edgerton and Co., the actual principals, with knowledge of the agency, and the entry, by Edgerton & Co., upon the substituted performance directed by the plaintiff, discharged the defendants from any further responsibility.

. The same result follows, if the agency of the defendants be laid out of view; for, although the defendants were, in such case, bound to deliver the brandy according to the terms of sale, still, if the plaintiff accepted an order on Edgerton & Co. for the brandy—entered upon the negotiation with them, and agreed to accept the duties, and receive the brandy in New Orleans, and directed the same to be shipped, and the brandy was shipped, in conformity with his directions, the defendants were discharged. From the time of the acceptance of their order upon Edgerton & Co., requiring á delivery of the goods according to the terms of sale, the defendants’ relation to the transaction so far partook of the nature of a suretyship-for such delivery, that a dealing by the purchaser with the persons on whom the order was drawn, and the making of a new contract with them, terminated all liability on the part of the defendants. In this aspect of the case, the defendants became liable to Edgerton & Co., who acted upon the defendants’ order, and satisfied it by brandy, delivered according to the plaintiff’s express direction.

The countermand given by the plaintiff of his directions to ship the brandy, came too late to affect the defendants, or re-instate the plaintiff in his original claim to enforce the contract of sale against them. The order was given to the plaintiff the 18th of October. Prior to the 21st, he had presented it, and made the arrangement referred to ; and in pursuance of that arrangement, Edgerton & Co., on the 21st, entered the goods for withdrawal from store and exportation, and gave the bond required by law, that they should not be landed without the payment of duties, upon which a permit was issued for the shipment of the goods, under the direction of the custom-house officer whose duty it was to ship the goods. This was sufficient to conclude the plaintiff. Edgerton "& Co. had then changed their relation to the property, and entered into new obligations at the custom-house—• the plaintiff’s directions were no longer revocable: his change of purpose. was not announced until after all this had been done.

If it were conceded, that, as the party then actually entitled to the control of the brandy, he might even then have required Edgerton & Co. to give him an order for the goods, or such control thereof as would have enabled him to enter the goods again, for consumption or warehousing, at this port; that was a matter with which the defendants had nothing to do; it was to be done between him and Edgerton & Co.

Besides, he was not shown to have made any such request.

The brandy accordingly was shipped, in conformity with his instructions, and made, by the bill of lading, deliverable to him at New Orleans, as directed.

No further responsibility rested upon the defendants, and the referee should have so found.

Upon these facts there is no conflict of evidence.

The judgment should be reversed, and a new trial ordered— costs to abide the event.

Ordered accordingly.


author: By the Court. Bosworth, J.

text:
    Woodruff, Plaintiff and Respondent, v. Wicker, Defendant and Appellant.
    1. When the holder of a bill of exchange, which has been accepted for the accommodation of the drawer, and has been entrusted to such holder to be negotiated by him for the benefit of such drawer, endorses and delivers it as security for his own performance of a contract which he employs his immediate endorsee to make, and such endorsee transfers it to a third person, the latter cannot recover against such prior holder and endorser without proof that the immediate endorsee of the latter has some unsatisfied claim which it was endorsed to secure, or that the plaintiff took it in good faith, before maturity, for value paid.
    2. When, on the trial of such an action, it appears that the plaintiff’s immediate endorser (if himself the plaintiff) could not recover, because nothing is due to him, or because he has no demand against the defendant—enough is shown to establish that the transfer to the plaintiff will operate as a fraud upon the defendant, as between him and his immediate endorsee, if the plaintiff is permitted to recover.
    3. An endorsee, who is obliged to prove that a note or bill was endorsed to him, bona fide, and for value, before its maturity, in order to maintain his action, must prove, more than that the note or bill was seen “ in a batch of other notes in a place where the plaintiff usually kept his securities,” and the belief of the person seeing it there, that the plaintiff had advanced on the credit of that and other collaterals more than the amount of such bill.
    (Before Bosworth and Woodruff, J.J.)
    Heard, Dec. 18th, 1857 ;
    decided, March 20th, 1858.
    This action comes before the Court on an appeal by the defendant, Wicker, from a judgment entered on the verdict of a jury in favor of the plaintiff. It was tried in June, 1857, before Mr. Justice Woodruff and a jury. Jacob D. Woodruff is the plaintiff, and James C. Wicker and William P. Sackett are the defendants. The defendant Wicker alone answered the complaint. Fo questions arose upon the pleadings.
    The action is brought against Wicker, as second endorser of a bill of exchange for $300, dated May 30, 1856, drawn by one McMakin on P. S. Devlin, payable 3 months after its date, to the order of the drawer, and endorsed by him and by the defendants, Sackett and Wicker.
    It was accepted by Devlin for the accommodation of the drawer, and the latter placed it in the hands of the defendant Sackett, that he might raise money upon it for the drawer.
    Sackett had, previously thereto, instructed one Bartlett to make a contract to sell for him 55 shares of Erie Railroad stock, at 55£, at a short date; Bartlett made such a contract; Sackett, at the time, owned no Erie stock; but the case does not show, expressly, that Bartlett knew that fact. Wicker and Sackett were jointly interested in the profits anticipated from this contract. A bond, called a “ Coal-carrying Bond,” belonging to Wicker, was placed by Sackett in the hands of Bartlett, to indemnify him against loss, on his contract to sell the 55 shares of Erie.
    Wicker, wishing his bond, and to induce Bartlett to give it up to him, endorsed the bill in question, as did Sackett also, and it was then delivered to Bartlett, as a substitute for, and in consideration of, his surrendering the coal bond to Wicker, which he did do.
    Bartlett, by order of Sackett, purchased 55 shares of Erie, to replace the shares he had contracted to sell; but whether before or after the delivery of the bill in question to him, does not appear. ISTor does it appear how much he contracted to pay for it, nor whether he, in fact, paid any thing for it; nor what was done with the stock so bought, nor whether he actually lost any thing by the transaction, or had'incurred any liability by reason thereof.
    When the defendant had proved these facts, and had rested his case, “the plaintiff called one Frangen, as a witness, who, being sworn, testified:—I am the clerk and bookkeeper of Bartlett; I know Dr. Woodruff, the plaintiff; I know that the plaintiff received this note or draft from Bartlett, as collateral security, and made advances upon it before it became due, probably to Bartlett; I could not say the amount he advanced upon that, but more than the amount of the draft, on that and other collaterals.
    “ Cross-examined.—I did not see the money paid or advanced; I have no means of knowing that the plaintiff made advances upon, or held the draft as collateral security, excepting from seeing it in a batch of other notes, in a place in Bartlett’s office where the plaintiff usually kept his securities; I don’t know when I saw it there; I was in the habit of keeping the collaterals for Dr. Wood-ruff at that time; I had the care of looking them over, and seeing when they became due; he made advances on that and other col-laterals ; I did not see plaintiff pay any money on this note, by check, or otherwise; I do not recollect of any entry on Bartlett’s books, showing that he had received advances on this note or draft; I don’t know the amount paid or, advanced by plaintiff on the draft, or whether the amount lent was repaid to him.
    “ Re-direct.—I believe plaintiff did make advances on this; he did; he made advances on this and other collaterals.

      “ Re-Cross Examination.—I have no other means of knowing that he did make advances, except as I have stated.
    “ The plaintiff here rested his case.”
    The defendants thereupon moved for a nonsuit, on the ground:

      1st. That it appeared that the plaintiff was not the lawful owner or holder of the draft.
    2d. That the draft never had valid or legal inception.
    3d. That the proof failed to show that the plaintiff held the note for value, or received it before it became due.
    4th. That the whole transaction was illegal and void, being in contravention of the statute against stock-jobbing.
    The Court denied the motion for a nonsuit, to which decision the counsel for the defendant duly excepted.
    The defendaiits’ counsel then asked the Court to charge the jury, that if Bartlett had no title to the note or draft in question, no other party could derive a valid title thereto through him. Which proposition the Court refused to charge. To which the defendants’ counsel duly excepted. The case was thereupon submitted to the jury, under the charge of the Court, and the jury rendered a verdict in favor of the plaintiff, for the amount of said draft and interest, as claimed in plaintiff’s complaint, namely, for the sum of $315.63.
    Judgment haying been entered on the verdict, Wicker appealed from it to the General Term.

      JR. W. Van Pelt, for the appellant.
    . Wbi. A. Coursen, for the respondent.
   By the Court. Bosworth, J.

Even if it be assumed that the transaction between Bartlett and Sackett & Wicker was legal, so that the endorsement was a valid contract, and security in the hands of Bartlett, to the extent of any claim of the latter growing out of the transactions in relation to his contracts to buy and sell Erie stock, it does not appear that he has any such claim against either Wicker or Sackett.

Certainly, nothing is shown which would entitle Bartlett, if plaintiff, to a verdict for the amount of the note: as it does not appear that he has sustained actual loss on his contract to purchase, or on his contract to sell Erie stock, or that there is any actual liability resting upon him, by reason of either of said contracts.

. On such evidence, the defendant would be entitled to a verdict, if Bartlett were the plaintiff in this action. As the transfer of the bill by Bartlett to the plaintiff, under such circumstances, would operate as a fraud upon the defendant, if the plaintiff is permitted to collect it, the latter, in order to recover, must show that he took it in the usual course of business, before maturity, and paid value for it.

The testimony of Frungen, when carefully examined, amounts to only this: From seeing this bill “ in a batch of other notes, in a place in Bartlett’s office where the plaintiff usually kept his securities,” he believed, and had no doubt, and therefore stated as his conclusion from such premises, that the plaintiff had advanced, on this and other collaterals, more than the amount of the bill in question.

He states expressly, that he had no other means of knowledge than those already stated, and that he did not see any money paid or advanced on the bill in question, and that he does not know when he saw it in the place where the plaintiff usually kept his securities.

We think, that on such evidence the defendant was entitled to a nonsuit, on the ground that the plaintiff had failed to prove that he paid value for the bill; and that for the refusal of the Court to grant such motion, the judgment should be reversed, and a new trial granted, with costs to abide the event. (Clark v. Dearborn, 6 Duer, 309, 312.)

Ordered accordingly.