Opinion
Argued September 29, 1873
Decided January term, 1874
George G. French for the appellant. A. Perry for the respondents.
That the consignee, who receives the cargo consigned under such a bill of lading as the one in question, is liable to the carrier for the freight is not questioned. ( Merian v. Funck, 4 Denio, 110; Hinsdell v. Weed, 5 id., 172; Davis v. Pattison, 24 N Y, 317; Morse v. Pesant, 2 Keyes, 16; Merrick v. Gordon, 20 N.Y., 93.) It matters not under such a bill of lading, whether the consignee be the owner or not; the law implies a promise on his part to pay the freight. But in this case, the fact that the defendant was merely the agent of the Milwaukee bank was not disclosed upon the shipping bill, and was unknown to the plaintiffs. It was found by the General Term, that "neither the master, nor owners of the schooner, had any knowledge or notice of the manner in which the wheat was purchased, or of the drawing, or the non-payment of the draft, or of the instructions given by the Milwaukee National Bank to the defendant." The defendant cannot therefore claim exemption from liability to the plaintiffs on the ground that it was merely the agent of another party. The form of the bill of lading addressed "Account T.L. Baker, to the City Bank, Oswego, N.Y.," is such as to show that the defendant was the consignee. It has been so held in a number of similiar cases. ( Dows v. Greene, 16 Barb., 77; S.C., 32 id:, 490; Gilson v. Madden, 1 Lans., 172; Hinsdell v. Weed, 5 Denio, 172; Canfield v. The Northern Railroad Co., 18 Barb., 586; Dart v. Ensign, 47 N.Y., 619.)
It, therefore, only remains to be examined, whether anything was done at the time of the delivery of the wheat, or subsequently thereto, by which the defendant was discharged from a liability, which would otherwise rest upon it. The bill of lading provided that the cargo was to be delivered as "addressed on the margin, or to his, or their assignees or consignees upon paying the freight," etc. If the defendant, having no interest as owner in the wheat, had simply assigned the bill of lading, and directed a delivery to the assignee, of given an order for its delivery to the owner without accepting or receiving the wheat, it would not have been liable for the freight. ( Merian v. Funck, 4 Denio, 110; Dart v. Ensign, 47 N.Y., 619; Chitty on Carriers, 209.) But this the defendant did not do. It accepted the wheat, by directing it to be delivered to the elevator, subject to its order. The wheat after such delivery, remained under its control, and it had all the possession it could take, or be expected to have. The defendant was not, therefore, discharged from its liability to pay the freight by the order for a delivery to the elevator.
At the time the order was given, the cashier of defendant also said to the master of the vessel that "they (meaning the proprietors of the elevator), will pay your freight." This was an assurance that they would pay the freight, which the defendant had by its acceptance of the wheat, become liable to pay. The master was not bound to look to them for the payment of his freight. He was not directed to collect his freight before he made delivery, or to insist upon payment as a condition of delivery. He had the right to make delivery and then immediately call upon the bank for his freight, and was not bound to make any efforts to collect it elsewhere. The proprietors of the elevator paid a portion of the freight and gave their checks on a New York bank for the balance. There was no agreement that these checks should be taken as payment, and they did not, therefore, for an instant, operate as payment. The master could, therefore, immediately have tendered them back, and demanded payment of the balance of the freight. They could not operate as payment, unless paid, and there is no claim that after the master received the checks, there was a want of due diligence in presenting them for payment, or in giving notice of non-payment, and there is no claim that after the receipt of the checks there was any laches on the part of the plaintiffs, which caused any damage to the drawers thereof or to the defendant. Hence, I am unable to see how the taking of the checks deprived the plaintiffs of any rights which they had against the defendant. The bank had made the proprietors of the elevator their agents, to receive and hold the wheat for them, and also to pay the freight, and the loss following from the conduct of such agents should fall upon it rather than upon the plaintiffs.
The judgment should therefore be affirmed, with costs.
All concur.
Judgment affirmed.