Sec. 679. (§ 350.) Same subject-Doctrine of the cases stated. It will thus be seen that no possible circumstances of fraud, imposition or mistake, causing the delivery to the wrong person, which have not been induced by the conduct of the owner of the goods, or in which he has not participated, will, at least according to the American cases upon the subject, excuse the carrier from liability for the value of the goods if they are thereby lost, and that when the owner of the goods has been made the dupe of an artifice which has induced him to pursue a course in reference to them which has led to the delivery by the carrier to an improper person who was not really entitled to them, the carrier will nevertheless be responsible for the loss thereby occasioned, where he has been guilty of negligence, but in some jurisdictions not where, in good faith, he has delivered to the person to whom the owner actually directed the goods, although the owner may have been misled.

Sec. 680. When delivery at wrong place is deemed a conversion.-Delivery of the goods at the wrong place and failure to notify the shipper of the wrong delivery will sometimes be deemed a conversion of the goods. Thus where specific directions were written in the shipping receipt to ship to Gates City, Va., and the carrier afterwards without the shipper's knowledge billed the goods to Preston, Va., where they were allowed to lie and become valueless, the carrier was held liable. for a conversion. In order that the shipper may be charged with notice that shipment has been made to the wrong place, Cleveland, etc. R. Co. v. Sargent, (Dissenting opinion by McLean, 19 Ohio St. 438.

J.)

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The fact that the owner ceives payment from the person to whom the wrongful delivery is made for a portion of the goods does not constitute a waiver of his claim against the carrier for the balance if he does not intend such waiver. Lester v. Railroad Co., '92 Hun, 342, 36 N. Y. Supp.

In Hayman v. Railway Co., 86 N. Y. Supp. 728, 43 Misc. 74, a consignee, being notified of the delivery of goods by the carrier at a wrong place, notified the carrier to forward them to another place and received them there. It was held that such acceptance operated as a waiver of the carrier's liability for the misdelivery. 907.

actual notice, or facts from which such notice could reasonably be inferred, must be shown.45

Sec. 681. (§ 351.) Delivery by carrier holding as warehouseman subject to less stringent rules.—But an important distinction is here to be noticed between the circumstances which will support an action against the carrier when, holding the goods in that relation, he makes a wrong delivery of them, and when, having become a mere warehouseman or bailee of the goods, he delivers them to a person not entitled to them, being induced to do so by fraud or imposition or the fault of the sender or consignee. In the former case, as we have seen, such a delivery is per se and under all circumstances a conversion of the goods, and he becomes at once liable for their value in an action of trover. But when the carrier has made such reasonable efforts to find the consignee as the law requires of him, and has failed to do so, or if he has tendered the goods to the consignee and he has refused them, or if from any other cause his relation to the goods as carrier has ceased, and he has become responsible for their safety merely in the character of warehouseman or ordinary bailee, this rigid rule of law becomes inapplicable. Such are the cases of Stephenson v. Hart, 46 and Duff v. Budd,47 which are sometimes cited to show that, as a rule of law, the carrier who has made a delivery of the goods to a person not entitled to them and not authorized to receive them is, under any circumstances, guilty of a conversion of them, and liable for their value to the true owner. In the former of these cases the plaintiff was imposed upon by a swindler, and consigned a box by his direction to J. West,

45. Railway Co. v. Potts & Co., 33 Ind. App. 564, 71 N. E. Rep. 685.

46. 4 Bing. 476

47. 3 Brod. & Bing. 177.

In Oderkirk v. Fargo, 61 Hun, 418, 16 N. Y. Supp. 220; s. c. 58 Hun, 347, 11 N. Y. Supp. 871, the agent of an express company agreed to allow the consignee, before he had paid the charges, to

take part of the goods and leave the balance to be called for at a future day. He negligently later delivered the balance to some unknown persons who called for them without authority from the consignee. The carrier was held liable for negligence, although it was merely acting as a warehouseman.

Great Winchester street, London. The carrier found that no such person resided there, and so took away the box to be kept for the consignor; but about a week or ten days afterwards, he received a letter signed J. West, informing him that the box had been addressed to him by mistake to Great Winchester street, and requesting that it be forwarded to him at another place. The box was sent accordingly and was received by the swindler, who soon afterwards disappeared. The goods having been obtained from the plaintiff by fraud, and having been delivered to a person not entitled to them, it was held that the action of trover would lie, and that it was a question for the jury whether the defendant had been guilty of such negligence as to entitle the plaintiff to a recovery, Burrough, J., saying: "I am of opinion that the verdict is right, that there is no ground for a new trial, and that the action is maintainable on the second count of this declaration. At the outset, no doubt, the contract was between the carrier and the consignee; but when it was discovered that no such person as the consignee was to be found in Great Winchester street, that contract was at an end, and the goods remaining in the hands of the carrier as the goods of the consignor, a new implied contract arose between the carrier and the consignor, to take care of the goods for the use of the consignor. It is clear that the property in them never passed out of the plaintiff, the consignor. The whole transaction was a gross fraud; the goods procured by a bill with a false drawer and false acceptor, and no such person as the consignee ever heard of at the place to which he had addressed the goods. That circumstance ought to have awakened the suspicions of the defendants, and they were guilty of gross negligence in parting with them without further inquiry. In the result, they have the goods of the plaintiff in their possession, and they are liable to him if they deliver them wrongfully." Gaselee, J., however, was of opinion that the defendants were not liable to an action of trover, as having been guilty of a wrongful conversion of the goods. "For delivery to a wrong person," said he, "a carrier is no doubt responsible in trover; but from all

that appears in this case, it may be collected that the person who received the box was the person calling himself West and the person to whom it was intended the box should be delivered."

Sec. 682. (§ 352.) Same subject.-In Duff v. Budd the plaintiffs had received an order from a person unknown to them to furnish goods for Mr. J. Parker, of High street, Oxford. The plaintiffs, never having dealt with Parker, made inquiry about him, and finding that Mr. Parker, of High street, Oxford, was a tradesman of great respectability, forwarded the goods by the defendant's wagon, directing the parcel to "Mr. James Parker, High street, Oxford." The carrier's porter knew Mr. William Parker, of High street, Oxford, to whom he had before delivered goods, and on the morning after their arrival informed him of the fact. He said he expected no such parcel, and knew nothing about it. Shortly afterwards, a person to whom the carrier's porter had before delivered goods under the name of Parker, called at the carrier's office, and, seeing the parcel, said that it was his; and he was allowed to take it away without any evidence that he was the person for whom it was intended. The man having turned out to be an impostor, and the goods having been lost to the plaintiffs, they sued the carrier in case; and the jury having found a verdict for them, the court refused to disturb it, the case having been properly left to the jury upon the facts, and they having found that it was a case of negligence.1

1. In Bush v. Railroad Co., 3 shipped the goods by defendant's Mo. App. 62, it appeared that road, addressed to "Henry Hund, plaintiffs, who were wholesale St. Charles, Missouri," and at the dealers in St. Louis, received a same time sent by mail to the letter from St. Charles, Mo., same address a duplicate copy of signed "Henry Hund," and order- the bill of lading and a bill of ing certain wine and whisky. the goods. The bill of lading conThey did not know any such per- tained a condition that if the son, but, on consulting Brad- goods were not removed in twentystreet's report, they found that four hours defendant should there was at St. Charles a saloon- thereafter be liable only as a keeper in good credit named warehouseman. There were at Henry Hund, and they thereupon this time in St. Charles two per

Sec. 683. (§ 353.) Same subject. This subject was discussed in the case of Heugh v. The Railway Company.2 In this case the goods had likewise been procured from the plaintiffs by a fraudulent letter written in the name of a company which had ceased to do business, by a person who had formerly been in its employment. The goods were sent according to instructions, directed to a particular number and street. The carrier tendered the goods there, but they were refused, and thereupon, according to the course of his business, he sent an advice note to the company at the place designated for the delivery of the goods. Several days afterwards the person who had forged the order for the goods appeared at the carrier's office with another forged order, signed with the company's name, directing the delivery of the goods to him. This order was obeyed, and the goods delivered accordingly. It was held that, when the carrier had tendered the goods at the appointed sons each calling himself Henry the bill of lading and surrendered Hund, one the reputable saloon- it to defendant's agent, who there keeper referred to and a stranger upon took his receipt for the goods who had been there less than two and delivered them to him. He weeks, but had rented a store in soon after disappeared, proving to that name and made some ar- be a swindler. rangements for fitting it up. The goods in question, with others addressed in the same way, arrived in St. Charles in due time, and defendant's agent notified the well known saloon-keeper, who fused to receive the goods, saying he had not ordered them. After remaining at the depot twentyfour hours, the goods were sent, according to custom, to the warehouse. About four days later the stranger appeared and claimed the goods. Defendant's agent at first refused to deliver to him, saying they did not know him, though he had heard that such a man had recently arrived in St. Charles, and was about to open a store there. The stranger insisted that the goods were his and produced

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In an action to charge defendant with the value of the goods, it was held that there was no misdelivery; that the goods were (1) delivered to the person to whom they were directed, and (2) that defendant as a warehouseman had been guilty of no negligence.

See also, Wilson v. Express Co., 27 Mo. App. 360; s. c. 43 Mo. App. 659; Oskamp v. Express Co., 61 Ohio St. 341, 56 N. E. Rep. 13; Railroad Co. v. Fort Wayne Electric Co., 108 Ky. 113, 55 S. W. Rep. 918; Pacific Express Co. v. Critzer (Tex. Civ. App.) 42 S. W. Rep. 1017; Express Co. V. Hertzberg, 17 Tex. Civ. App. 100, 42 S. W. Rep. 795.

2. L. R. 5 Exch. 50.