#### The S. D. Seavey Company, Respondent, vs. The Union Transit Company, Appellant.

*March*20

*April 6, 1900.*

*Carriers: Breach of contract: Delivery to another carrier: Liability for loss.*

A railway company received goods consigned to plaintiff at West Superior-, upon a bill of lading providing for their transportation over the comirany’s road, in care of a certain steamship company at Buffalo, from which point to West Superior the latter operated a regular line of boats. At Buffalo the railway company delivered the goods to a different steamship company, the defendant, which ran a line of boats to West Superior and Duluth, and which con-' tracted to transport the goods to West Superior on a specified vessel. Defendant had no notice or knowledge of the original transportation contract. Por its own convenience defendant transferred the goods at Duluth to a railway company to be carried to West Superior, and while in possession of such railway, company the goods were damaged. *Held:*

(1) Except as it constituted the first carrier a forwarding agent, the original bill of lading has no force as between plaintiff and defendant, and its provisions as to the duties and responsibilities of an intermediate and forwarding carrier are irrelevant.

(2) The delivery to another carrier at Duluth was a breach of defendant’s contract and rendered it liable as an insurer for any injury or loss that would not have occurred had it performed its duty. . ■

Appeal from a judgment of the superior court of Douglas county: Charles Smith, Judge.

*Affirmed.*

The Delaware, Lackawanna & Western Railroad received certain goods consigned to the plaintiff, resident at West Superior, upon a bill of lading providing for their transportation over that company’s road, in care of the Northern Steamship Company, for delivery to the plaintiff at West Superior, to which point it operated a regular line of freight boats. That contract contained printed provisions exempting the railroad company from liability beyond its line *395and. constituting it merely a forwarding agent. At Buffalo the merchandise was delivered by the railway company to the defendant, the *Union Transit Oonvpa/ny,*which ran a line of steamboats from Buffalo to West Superior and Duluth. The manifest was in the folio-wing words: “ Lake Manifest No. 3,058-187, Made at Buffalo, N. Y., Nov. 7,1897. Freight forwarded by the Delaware, Lackawanna & Western Bail-road, via the *Union Trcmsit*Go., to West Superior, on steamer Portage, trip No. 13.” No notice or knowledge of the original transportation contract was given to the defendant. Eor reasons of its own convenience, the steamer Portage did not go to West Superior on that trip, but direct to Duluth, where it transferred these goods to the Omaha Eailroad for transportation to the plaintiff, to whom they were delivered by the railroad company, damaged while in its possession by freezing and loss $156.25. Upon trial of the case by the court without a jury, the foregoing facts, together with others, were found, and judgment was rendered in favor of the plaintiff and against the defendant for said amount, with interest and costs, from which this appeal is taken.

Por the appellant there was a brief by *H. H. Grace*and *Searle <&*Sjpencer, and oral argument by *Mr. Grace.*

*H. V. Gard,*for the respondent.

Dodge, J.

Much argument was indulged in as to the duties and responsibilities of an intermediate and forwarding carrier under the terms of the transportation contract entered into with the Delaware, Lackawanna & Western Eail-road, which is quite irrelevant to the present situation. That contract can have no force here, save as it constitutes the railroad company a forwarding agent for the owner of the goods. The contract made by it in that capacity with the defendant was an entire one, for transportation to West Superior on a specified vessel. It did not contemplate that the defendant *396was to carry to some other point and then forward by a different carrier to the plaintiff. The contract was broken, and defendant’s duty as a carrier was disregarded. Ro excuse for failure to deliver via the vessel Portage at West Superior is offered, except that, owing to the small amount of freight for that point and the lateness of the season, the defendant preferred to proceed direct to Duluth and transmit the goods by car to West Superior. This goes only to the convenience of the defendant, which cannot excuse its breach of duty by such considerations. Under its contract it had no right to adopt any method other than that specified for transportation and delivery of the goods, and, when it did so, it became liable as an iusurer for any injury that might result by reason of its unauthorized act. *Johnson v. N.*Y. *C. R. Co.*33 N. Y 610, 612; *Goodrich v.*Thompson, 41 N. Y. 324, 334; *Wilts v.*Morrell, 66 Barb. 511. The injury to and loss of plaintiff’s property would not have occurred had defendant performed its duty as expressed in its contract, and it cannot escape liability therefor. The judgment is right.

*By the*Court.— Judgment affirmed.