Statement of case.

of destination without delay. Diligent search and inquiry were made for the consignees, but they could not be found or heard from.

The contents of the package was the back pay of the said John and William White, as soldiers in the army of the United States, and their discharge papers from the service, and a letter from the plaintiff.

The Whites had employed the plaintiff as their agent to collect for them the back pay in question from the United States government.

The enclosure in the package was the proceeds of a check received by plaintiff from the government agent at Springfield, Ill., for such back pay.

The plaintiff demanded the package in question from James C. Fargo, the treasurer of the defendant, at the city of New York, who refused to deliver the same to him.

Hooper C. Van Vorst for the appellant. The consignee is the presumptive owner. (Angell on Carriers, § 497; Everett v. Saltus, 15 Wend., 475; Fitzhugh v. Wyman, 5 Seld., 562; Street v. Barney, 23 N. Y. R., 335; Platt v. Wells, 2 Robertson R., 101.) When goods are delivered to a carrier on behalf of consignee, and placed at his disposal, the property is vested in him, and he alone can maintain action against the carrier. (Angell on Car., § 497; Arbuckle v. Thompson, 37 Penn., 170.) The only exception is the trader's right of stoppage in transitu. (Dutton v. Solomonson, 3 B. & P., 584; Dawes v Peck, 8 Dunn & East., 330; Madison v. Whetersell, 11 Ind. R., 55.) Where consignee cannot be found, it is the carrier's duty to take care of the property for the owner. (Ostrander v. Brown, 15 John., 39; Fisk v. Newton, 1 Denio, 45; Stone v. Waitt, 31 Maine, 409; Redfield on the Law of Railways [subject Common Carriers], vol. 2, p. 76, § 16; Williams v. Holland, 22 Howard's Practice Reports, 137; Hudson v. Baxendale, 2 Hurl. & Norman, Exchequer R., 575; Weed v. Barney, 45 N. Y. R., 348; Hamilton v. Nickerson, 11 Allen R., 308.) In order to sus

Statement of case.

tain action, it must appear that the goods belonged to the plaintiff at the time of the injury. (Law v. Hatcher, 4 Black R., 364.), The plaintiff's consignment to the Whites put it out of his power to act further in the premises. (Dows v. Green, 16 Barb., 72; Smith Mercantile Law, 3d ed., 366; Freeman v. Buck, 1 Nev. & Man., 420.)

Isaac Edwards for the respondent. The delivery of the U. S. Express to defendant created a contract between plaintiff and defendant. (Van Santvoord v. St. John, 6 Hill, 157, 160.) Defendant could look to plaintiff on the contract for freight. (Redfield on Carriers, § 333; Dows v. Cobb, 12 Barb., 310, 316; Witbeck v. Holland, 45 N. Y., 13.) Plaintiff did not follow instructions; the funds sent were his, therefore. (Hayes v. Stone, 7 Hill, 128; S. C., 3 Denio, 575; Wilson v. Wilson, 26 Penn. St., 394; Story on Agency, § 192.) He was debtor to his clients for the amount. (Chapman v. White, 2 Selden, 412, 417; Marsh v. Oneida Bank, 32 Barb., 298; Dunlap's Paley on Agency, 90, and notes, and 363.) Both plaintiff and the Whites could maintain action, and a recovery by one would bar action by the other. (Smith v. James, 7 Cow., 328; Greene v. Clark, 12 N. Y., 343.) Trover can be maintained by one having no beneficial interest in the property. (Kellogg v. Sewell, 1 Lansing, 397; Moran v. Portland, 35 Maine, 55; Armory v. Delamarie, 1 Str., 515; Freeman v. Birch, 1 N. & M., 420; Joseph v. Knox, 3 Camp., 320.) A delivery to a carrier not chosen by the purchaser is not a delivery, and the consignor has a right of action. (Rogers v. Phillips, 40 N. Y., 519; 2 Greenl. Ev., § 212.) Where there is no such person as consignee, the carrier holds as bailee of the consignor. (Chitty on Car., 89; 45 N. Y., 184.) It was plaintiff's duty to receive package and send it to his clients. (Bates v. Stanton, 1 Duer, 79; Bank of R. v. Jones, 4 N. Y., 497.) It is not carrier's duty to litigate the title. (Bliven v. H. R. R. Co., 35 Barb., 188.) Where law allows agent to contract in his own name, he can bring action. (Considerant v. Brisbane, 22 N. Y., 389.) A

Opinion of the Court, per PECKHAM, J.

right of action on a contract cannot be denied to the contracting party. Angell on Carriers, §§ 500, 503; Dows v. Cobb, 12 Barb., 310, 316; Sargent v. Morris, 3 Barn. & Ald., 277, 280; Minturn v. Main, 7 N. Y., 220, 224; Stillwell v. Staples, 19 id., 401; 32 id., 440; Fitzhugh v. Wiman, 9 id., 559; Horton v. Morgan, 19 id., 170; Grinnell v. Schmidt, 2 Sandf., 706, 710; Freeman v. Fulton Fire Ins. Co., 14 Abb. Pr., 398; Story on Agency, §§ 161, 162, 393.) Plaintiff can maintain action under section 113 of the Code. (Considerant v. Brisbane, 22 N. Y., 389; Grinnell v. Schmidt, 2 Sandf., 706; Roland v. Phalen, 1 Bosw., 43; Padden v. Williams, 1 Robt., 340; Bogart v. O'Regan, 1 E. D. Smith, 590; Story on Agency, §§ 161, 162, 393.)

PECKHAM, J. To sustain an action against a common carrier for failing to deliver goods, the plaintiff must be the owner, or have some special interest in them. (Krulder v. Ellison, 47 N. Y., 36; Green v. Clarke, 12 N. Y., 343.) Prima facie, the consignee is the owner.

If this had been a sale of goods by the consignor, ordered by the consignee, without stating in what way or manner to send them, but only where, the consignor would have had sufficient title to maintain the action-because the title in such case, as a general rule, would not pass by the mere delivery to the carrier. In this case, however, the plaintiff never owned the money ordered to be sent to the consignee, and had no special interest in it. He was a mere agent. Hence if he simply fulfilled the orders of the owners and sent the money to the consignee by a suitable and proper conveyance, his duties and liabilities were discharged. He then had no further right or interest in the matter.

The action was brought and tried upon the assumption that the plaintiff properly collected and sent the money due from the government to the Whites. There was no allegation or suggestion that he had not sent the money he received by the usual and proper mode, that he had not fulfilled the directions of the Whites, that he was not authorized by them to

[April,

Statement of case.

do precisely what he did the referee has substantially so found as matter of fact, and there is no exception to any of his findings of fact. It is too late here for the plaintiff to attempt to vary these findings of fact to sustain his judg

ment.

It is the right and interest of the defendant to see that the package is delivered to none but the true owner. wrongful recovery against this defendant will afford it no A defense as against the true owners or their representatives.

This is not a case of a fictitious consignee. The Whites were alive and in the civil war. This was their pay, and if they have died since this proceeding, that gives no right to this plaintiff to sue upon these facts. It follows that the referee erred in finding for the plaintiff, and the judgment of the General Term affirming that judgment must be set aside and a new trial granted, costs to abide event.

All concur, except ALLEN, J., not sitting, and RAPALLO, J. not voting.

Judgment reversed.

FRANCIS KOWING, Appellant, v. WASHINGTON MANLY et al.,

Respondents.

Where a bailor instructs the bailee not to deliver his property to any person except upon his written order, a delivery to the wife of the bailor without such order is not equivalent to a delivery to the husband, and does not discharge the bailee from liability.

At common law the husband could assert a right to all personal property rightfully acquired by the wife, and to all of which she possessed herself by his authority, or with his co-operation, but she had no power to thrust such possession upon him by her own wrong without his sanction, or to make him responsible for it against his will and without his knowledge. A delivery of property to her without his assent would neither create a direct liability on his part to the party delivering, nor would it discharge the latter from a previously existing liability to the husband. The liability of the husband to be sued jointly with his wife for personal property taken and wrongfully converted by her prior to or during

Statement of case.

coverture did not rest upon the ground that he, in contemplation of law, was guilty of the taking or conversion, but resulted from the incapacity of the wife to be sued without her husband. A married woman alone might be guilty of a conversion. Although where a wife has obtained possession of the husband's property from his bailee by a fraud, the bailee could maintain an action against both husband and wife for the wrong, that is not a defence to, and will not bar a recovery by him against the bailee. A liability of a plaintiff jointly with another cannot be set up as a bar to a claim due him individually, nor can a conditional or defeasible liability bar one which is absolute and unconditional. (The authorities as to the extent and nature of the husband's liability at common law for the acts of the wife collated and discussed.)

For the purpose of proving the genuineness of a signature against a party to be charged thereby, it is not competent to prove that the signature is not in a simulated handwriting.

(Argued February 20, 1872; decided April 16, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial district in favor of defendants. The action was brought to recover the value of nine U. S. 7.30 bonds of $1,000 each. Defendants, as brokers, had purchased the bonds for plaintiff and they were left with them. Plaintiff gave defendants written instructions not to deliver the bonds to any person except upon his written order. The bonds were subsequently delivered by defendants to wife of plaintiff upon the presentation of an order therefor purporting to be signed by plaintiff, which order defendants supposed to be genuine. The jury were directed to find a general verdict, and in addition, to answer the following questions. They found as follows:

Q. 1. Is the signature to the order for the delivery of the bonds, dated January 6, 1866, the genuine signature of the plaintiff? A. No.

Q. 2. Did the plaintiff deliver the bonds in controversy to the wife of the plaintiff? A. Yes.

Q. 3. Did the plaintiff's wife fraudulently obtain a delivery of the bonds to her? A. Yes.

They further found a verdict for the plaintiff against the defendants for the sum of $10,641.60.