33 N.Y. 610, Johnson v. New York Cent. R. Co.

Citation33 N.Y. 610
Party NameDWIGHT JOHNSON, Appellant, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Respondent.
Case DateSeptember 01, 1865
CourtNew York Court of Appeals

Page 610

33 N.Y. 610

DWIGHT JOHNSON, Appellant,

v.

THE NEW YORK CENTRAL RAILROAD COMPANY, Respondent.

New York Court of Appeal

September 1, 1865

Page 611

COUNSEL

Alexander S. Johnson, for the appellant.

Sidney T. Fairchild, for the respondent.

PORTER, J.

The defendant undertook to transport the flax to Albany, and to forward it thence to New York by the People's Line of steamboats. On the refusal of that line to receive it, the defendant's obligation as a carrier ceased; and if it incurred any further liability, it was in the character of agent for the owner of the property. In the absence of instructions as to the mode of transportation from Albany, it owed no duty to the plaintiff, beyond the delivery of the property, in the usual course of business, to safe and responsible

Page 612

carriers for transmission to its destination. ( Brown v. Dennison, 2 Wend., 593; Van Santvoord v. St. John, 6 Hill, 157.)But when the forwarding agent is instructed as to the wishes of his principal, and elects to disregard them, he is guilty of a plain breach of duty. When he sends goods in a mode prohibited by the owner, he does it at his own risk, and incurs the liability of an insurer. ( Ackley v. Kellogg, 8 Cow. 225.)

It appears in the present case, that the contract was made with the freight agent of the defendant, who suggested that it would be better to forward the hemp by tow-boat from Albany; but the plaintiff replied in substance, that it was so late in the season that he would not send it, unless it could go by the People's Line. This proof tends to show that the defendant received the property, with an express understanding that the hemp was not to be forwarded to New York unless by the People's Line. If this was so, the defendant was clearly liable. On the refusal of the steamboat proprietors to receive the property, the company should either have communicated the fact to the plaintiff, and awaited further instructions, or it should have relieved itself from liability by depositing the hemp for safe keeping in a suitable warehouse. ( Forsyth v. Walker, 9 Barr, 148; Goold v. Chapin, 20 N.Y. 259; Fisk v. Newton, 1 Denio, 451.)

There is a class of cases in which an agent is justified, by an unexpected emergency, in deviating from his instructions, where the safety of the property...

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