to be disposed of according to the directions of another; and could it be contended that, if the latter went an hour afterwards and said, "I have altered my mind; give me back my goods," the former would have a right to reply, "No; you have entered into a contract with me to place them on board a ship, and they shall go?" A carrier is employed as bailee of a person's goods for the purpose of obeying his directions respecting them, and the owner is entitled to receive them back at any period of the journey when they can be got at. To say that a carrier is only bound to deliver goods according to the owner's first directions is a proposition wholly unsupported either by law or common sense. I can well understand the case of goods being placed in such a position that they cannot easily be got at, though it is usually otherwise. But suppose a traveler by railway did not wish to proceed on his journey, and left the carriage and asked for his luggage, which he would clearly have a right to do, if Mr. Gray's argument is correct, the company might say, "No; we have contracted to carry it to the end of the journey, and we will take it on."

* *

*

It is clear, therefore, that the contract with a carrier is to deliver the goods according to the directions of the owner. Rule discharged.21

LONDON & N. W. RY. CO. v. BARTLETT.

(Court of Exchequer, Michaelmas Term, 1861. 7 Hurl. & Nor. 400.) Case stated on appeal. The case was substantially as follows: The plaintiff, a farmer, orally sold by sample wheat above £10 in value to Badger, a miller near Birmingham, and shipped it by defendant railway company to be delivered to Badger at his mill, paying a freight which included the charge for carrying by van, as the railway. made a practice of doing, from the Birmingham station to the mill, a distance of about two miles. As Badger had little warehouse room at the mill, he requested the defendant not to send him wheat from the station without his order. Consequently, when the wheat reached Birmingham, defendant kept it at the station and notified Badger that it was there at his risk. Badger examined the wheat, but gave no order. Some weeks afterward, defendant, learning that Badger had refused to accept the wheat under his contract of purchase, notified the plaintiff

21 The Martha, (D. C.) 35 Fed. 313 (1888), was a suit in admiralty in which damages were claimed for deterioration and loss by leakage of glycerine in barrels. Benedict, J., said: "The fact being found that the vessel, in October, put into Halifax, a port of distress, in need of repairs, that were not to be completed until the following February; that the consignee of the merchandise offered to take it in Halifax, and pay all the freight provided for in the bill of lading, together with all the expenses incident thereto, and to sign an average bond; and that the shipowner, without a reasonable excuse refused to make such delivery, but, on the contrary, held the goods in the ship until her arrival at the port of New York-the liability of the ship for all damages caused to the libelant by reason of the detention seems clear."

that the wheat was held to await plaintiff's orders, and that if it was not removed storage would be charged. In the meantime the wheat had deteriorated. The trial judge charged that defendant was liable in damages for the deterioration, and plaintiff had a verdict accordingly.

POLLOCK, C. B.22 The subject has been ably discussed; but it seems to me that the judgment of the court below was wrong, being founded on a notion that the carrier was bound to deliver the wheat at the mill, notwithstanding the distinct and positive order of the consignee not to deliver it there. It is clear that a consignee may receive the goods at any stage of the journey; and, though the consignor directs the carrier to deliver them at a particular place, there is no contract by the carrier to deliver at that place and not elsewhere. The contract is to deliver there unless the consignee shall require the goods to be delivered at another place. Here the wheat was delivered at the place where the consignee desired it to be delivered, and therefore the carrier is not liable.

BRAMWELL, B. I am of the same opinion. I cannot think that the contract between the parties is not only an affirmative contract to deliver at the mill, but also a negative contract not to deliver elsewhere. It would probably create a smile anywhere but in a court of law, if it were said that a carrier could not deliver to the consignee at any place except that specified by the consignor. The goods are intended to reach the consignee, and provided he receives them it is immaterial at what place they are delivered. The contract is to deliver the goods to the consignee at the place named by the consignor unless the consignee directs them to be delivered at a different place. That being so, all difficulty arising from the statute of frauds is at an end. If, indeed, it could be shown that the consignor would be prejudiced by a delivery at any other place than that named, there might be some reason for implying a contract to deliver at that precise place and no other. But still I should think that immaterial, for how can a carrier's liability be affected by the consideration whether or no there was a written contract between the consignor and consignee? It seems to me that in no point of view is it material to inquire whether the consignor can maintain an action against the consignee. But I cannot help thinking that the consignor is not worse off than he would have been if the contract had been strictly performed; because, whatever right of rejection the consignee had, or within whatever time he was bound to reject, he has neither more nor less than he would have had if the wheat had been delivered at his mill. For these reasons I think that the appeal should be allowed.

Judgment of nonsuit.23

22 The statement of facts has been rewritten.

23 Channell and Wilde, BB., delivered concurring opinions.

See, also, Sweet v. Barney, 23 N. Y. 335 (1861). In Cork Distilleries Co. v. Gt. So., etc., Co., L. R. 7 H. L. 269 (1874), whisky shipped to vendees at a bonded

SECTION 2.-TO WHOM DELIVERY SHOULD BE MADE

BAILEY v. HUDSON R. R. CO.

(Court of Appeals of New York, 1872. 49 N. Y. 70.)

Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiffs entered upon a verdict.

Action for the conversion of eleven cases of dry goods. On the 13th October, 1866, plaintiffs received in New York, from Alden, Frink & Western, of Cohoes, an invoice of three cases of goods, consigned to plaintiffs on account of consignors by the defendant's road. Plaintiffs advanced thereon three-fourths of their value, and at the same time loaned Alden, Frink & Western $3,974.13, for which that firm gave their check payable a few days ahead. The check not being paid, it was agreed that Alden, Frink & Western should ship to plaintiffs, to pay the debt, eight more cases of goods. Invoices were sent to plaintiffs, stating the goods were consigned to plaintiffs on account of the consignors.

On the 16th and 17th of October, all the eleven cases were consigned to plaintiffs, and delivered to defendant's agent at Troy, to be by defendant transported to plaintiffs, the defendant at the time giving its receipt, promising and agreeing therein to transport and deliver the goods to plaintiffs, at New York. Instead of delivering the goods to plaintiffs, defendant, without requiring the surrender of its receipts, allowed Mr. Frink, unbeknown to his firm, to change their destination, and, in pursuance of his order, the goods were delivered to Albert Jewett & Co., of New York City, by whom they were sold, and the proceeds paid over to Frink.

The firm of Alden, Frink & Western were at this time insolvent. Plaintiff demanded the goods of defendant's agent in New York. The

warehouse was at their request delivered to them elsewhere, in consequence of which the shipper was compelled to pay the excise. The carrier, who had no notice of the circumstances, was held not liable to the shipper.

A settlement with the consignee for goods lost generally discharges the carrier from liability to the consignor. Scammon v. Wells Fargo & Co., 84 Cal. 311, 24 Pac. 284 (1890).

*

In Dobbin v. Mich. Cent. R. Co., 56 Mich. 522, 23 N. W. 204 (1885) the consignee wrote to the carrier: "I have no claim on them brick. You can let Mr. Doyle have them." This was considered to justify a direction to the jury that the carrier was not liable to the shipper for delivery to Doyle. Compare Southern Express Co. v. Dickson, 94 U. S. 549, 24 L. Ed. 285 (1876), in which tobacco known to belong to the shipper was on the order of the consignee delivered to a third person at the place of shipment, and the carrier was held liable.

court, under exceptions of defendant, ordered a verdict for the plaintiffs for the value of the goods.

*

CHURCH, C. J.24 * * It is clear that the consignors delivered the goods to the carrier for the plaintiffs in compliance with their contract to do so. The parol contract was thereby executed, and the title vested in the plaintiffs. The plaintiffs occupied the legal position of vendees after having paid the purchase-money and received the delivery of the goods. But it is unnecessary, in order to uphold this judgment, to maintain that the plaintiffs occupied strictly the relation of vendees. The legal rights of a vendee attach when goods are shipped to a commission merchant, who has made advances upon them in pursuance of an agreement between the parties.

* *

It is urged by the counsel for the defendant that no bill of lading was forwarded or delivered to the plaintiffs, and that until this was done the title remained in the consignors. This is undoubtedly true in many cases; but it is mainly important in characterizing the act of the shipper, and showing with what purpose and intent the goods were delivered to the carrier. If A. has property, upon which he has received an advance from B. upon an agreement that he will ship it to B. to pay the advance or to pay any indebtedness, he may or may not comply with his contract. He may ship it to C. or he may ship it to B. upon conditions. As owner he can dispose of it as he pleases. But if he actually ships it to B. in pursuance of his contract, the title vests in B. upon the shipment. The highest evidence that he has done so is the consignment and unconditional delivery to B. of the bill of lading. *

* *

In this case there was no other bill of lading than the receipt produced in evidence, and no duplicate was taken; but the intention of Alden, Frink & Western to transfer this specific property to the plaintiffs, to be applied upon their indebtedness, conclusively appears by the undisputed evidence: (1) By the agreement the day prior to the shipment. (2) By forwarding invoices of the shipment to the plaintiffs. (3) By making the shipment unconditionally. (4) By retaining the receipt given by the defendant, and neither making nor attempting to make any use of it.

* * *

It is urged that the words "on our account," in the invoices, evinced an intention not to vest the title in the plaintiffs. They can have no such effect in this case, even if standing alone and unexplained they might have. A bill of lading for which, as between the parties, the invoices were a substitute, can always be explained by parol. It may be shown by parol to have been intended as evidence of an absolute sale, a trust, a mortgage, a pledge, a lien, or a mere agency. Grosvenor v. Phillips, 2 Hill, 151; Bank of Rochester v. Jones, 4 N. Y. 501, 55 Am. Dec. 290, and cases cited. The actual agreement and transaction will prevail, and it was proved by two of the members of the firm, and

24 Parts of the opinion are omitted.

uncontradicted, that the goods were, in fact, shipped in pursuance of the agreement.

Besides, these words are not necessarily inconsistent with the agreement. The goods were not purchased absolutely by the plaintiffs at a specified price, but were to be sold and the avails applied. The relation of the plaintiffs was more nearly that of trustee, having the title, and bound to dispose of the property and apply the proceeds in a particular manner, and the consignors were the cestuis que trust, having the legal right to enforce the terms of the agreement for their benefit. In this sense the property was shipped on their account, and the agreement is consistent with the meaning of those words.

The statute of frauds has no application. (1) There was no sale. (2) If there was, the consideration was paid. (3) The property was specified when the agreement was made as being that which had been and was then being shipped, and the plaintiffs agreed to accept that particular property, and the subsequent delivery to the carrier agreed upon was in legal effect a delivery to the plaintiffs. Cross v. O'Donnell, 44 N. Y. 661, 4 Am. Rep. 721; Stafford v. Webb, Lalor, Supp. 217. The defendant is liable for a conversion of the property. It had receipted the property and agreed to transport safely, and deliver it to the plaintiffs. Instead of complying with its contract, it delivered the property to another person by the direction of one who had no more legal authority over the property than a stranger, without the return even of its receipt. The plaintiffs had vested rights which the defendant was bound to respect, and with a knowledge of which it was legally chargeable. Willetts v. Sun Mut. Ins. Co., 45 N. Y. 49, 6 Am. Rep. 31; Hawkins v. Hoffman, 6 Hill, 586, 41 Am. Dec. 767; Holbrook v. Wight, 24 Wend. 169, 35 Am. Dec. 607; Story on Bailment, 414; Boyce v. Brockway, 31 N. Y. 490. It was its duty to deliver the property to the real owner. McEntee v. New Jersey Steamboat Co., 45 N. Y. 34, 6 Am. Rep. 28 [ante, p. 146]. Judgment affirmed, with costs.25

LOUISVILLE & N. R. CO. v. HARTWELL.

(Court of Appeals of Kentucky, 1896. 99 Ky. 436, 36 S. W. 183.)

26

PAYNTER, J.28 On the 9th of September, 1892, Hartwell delivered to the appellant for shipment to A. Pennington & Co., of St. Louis, Mo., 170 barrels of apples, for which he received from it a bill of lading. On the day following, Hartwell made a draft in favor of the First National Bank of Elizabethtown, Ky., on the consignees, A.

25 Compare Chaffe v. Miss. R. Co., 59 Miss. 182 (1881); Lewis v. Galena, etc., R. Co., 40 Ill. 281, 289 (1866).

26 Parts of the opinion have been omitted.