#### LESTER v. DELAWARE, L. & W. R. CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Carriers—Delivery op Goods to Wrong Person—Waiver op Claim.

Where a carrier delivers goods to the wrong person, the fact that the owner receives payment from such person 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.

*9082. Same—Laches.

A carrier delivered goods to the consignee four days after notice by the-real owner to the carrier’s agent where the goods were not to do so except on his written order. In reply to such notice, and three days after-wards, the agent advised the owner that he could not hold the goods if demanded on bill of lading, and to send’ his orders through the shipping office. On the next day the owner wrote such agent that he wanted the-goods reshipped to him, and he would advance freight. *Held,*that the owner was guilty of no laches that would prevent him recovering from the-carrier for the conversion of the goods, there appearing to be no delay by such owner affecting the ground on which the carrier acted.

3. Same—Demand.

Where a carrier delivers goods to the person to whom they are consigned, after notice by the real owner not to do so except on his written order, no further demand is necessary to entitle such owner to maintain an action against the carrier for their conversion.

Í. Same—When Maintained.

In an action against a carrier for the conversion of goods by delivering-them to the person to whom they were consigned, and who had been plaintiff’s agent, after termination of the agency and notice by plaintiff not to do i so, it is no defense that such person had a lien on the goods for freight paid, where it appears that he at the time owed plaintiff a larger sum.

Appeal from circuit court, Oswego county.

Action by David P. Lester against the Delaware, Lackawanna & Western Railroad Company for the conversion of goods. From a judgment entered on a decision of the court rendered after trial before the court without a jury in favor of plaintiff, defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.

W. & N. E. Kernan, for- appellant.

D. P. Lester, for respondent.

MERWIN, J.

In this case, upon a former appeal (73 Hun, 398, 26 N. Y. Supp. 206), a judgment in favor of the plaintiff was reversed mainly on the ground that the plaintiff had not shown the termination of the contract between himself and his agent, O’Donnell, and therefore- had not shown himself entitled to the possession of the goods which were delivered by the defendant to O’Donnell, and for the conversion of which this action was brought on the theory of a wrongful delivery by the defendant to O’Donnell. Upon the trial now under review there is evidence tending to show that, prior to the claim by plaintiff to defendant that he owned the goods, and was entitled to the possession thereof, the contract between the plaintiff and O’Donnell was terminated; and the trial court so found. The evidence upon this subject was not given upon the first trial, and the appellant claims that it is not sufficient to sustain the finding. An explanation was given by the plaintiff for its absence upon the first trial. Whether the explanation was satisfactory, and whether the evidence as given was reliable, were matters; for the trial court to consider. We are of the opinion that its conclusion upon the subject should not be disturbed. It is suggested that at the time the plaintiff claimed to terminate the contract O’Donnell had a lien on the goods for freight previously paid. It, *909however, appears that O’Donnell at that time owed the plaintiff a mnch larger amount for prior sales, and no tender on the part of plaintiff was necessary.

The plaintiff, after the commencement of this suit against the defendant, received from O’Donnell payment for a portion of the goods claimed to have been converted by defendant; the plaintiff, .as he testifies, stating at the time that a suit was pending against the defendant, and he would take the money, and apply it on his claim. The appellant claims that in taking this payment the plaintiff recognized the right of O’Donnell to receive the goods from the ■defendant, and so waived his claim against the defendant for the balance. Clearly, according to the plaintiff’s evidence, there was no intent to waive his claim for the balance against the defendant. It should not be said as matter of law that there was any waiver, or any ratification of O’Donnell’s authority to receive the goods. The defendant, by the reduction of the amount of the damages, gets all the benefit it is entitled to from the payment. We are referred to the case of Green v. Clark, 5 Denio, 497, 503, but the views of Chief Justice Beardsley, as there stated, did not meet with the approval of a majority of the court.

It is further claimed that the plaintiff was guilty of laches, and that no proper demand was made. The plaintiff, on the 6th January, 1890, sent a telegram to the freight agent of the defendant at Norwich, where the goods were, stating that the goods belonged to him, and forbidding delivery only on his written order. In reply to this the agent at Norwich sent a telegram to the freight agent of ■the defendant at Oswego, telling him to advise the plaintiff “that we cannot hold freight for Williams & O’Donnell if demanded on B. L. Tell him to send his orders thro’ shipping office.” This message was delivered to the plaintiff, as he testifies, on the evening of January 10th. On the 11th the plaintiff wrote a letter to the Norwich agent, saying that: “I desire the goods reshipped to Oswego .at once, and, if desired, I will advance the freight. Please advise me if the request will be complied with. Should you entertain any doubt as to my right to the possession of the goods, I will furnish you with evidence showing same.” This was received by the agent ■on the 11th, but was not answered. On the 10th he delivered the goods to Williams & O’Donnell, they presenting the bill of lading and paying the freight. At or before the delivery the agent told Williams & O’Donnell that he had received a telegram from Mr. Lester to hold the goods, and they replied that “they had had some ■difficulty with him, and that accounted for that; but they would pay for the goods, or the matter would be all straightened out; ‘pay for the goods,’ they said.” The agent at Norwich seems to have •acted on the theory that the bill of lading was conclusive as to the right of Williams & O’Donnell to receive the goods, although he then had notice of the claim of plaintiff. It is not now claimed by the defendant that this position is tenable. Nor is it apparent that there was any delay or laches on the part of plaintiff that could affect the ground or reason on which defendant acted. It is con*910ceded that plaintiff was the owner of the goods, and he was entitled to the possession if the contract bétween him and O’Donnell was terminated. The plaintiff in that case had the right to treat the delivery as wrongful, and, if so, it amounted to a conversion (McEntee v. Steamboat Co., 45 N. Y. 37, 38), and no further demand was necessary (Delameter v. Miller, 1 Cow. 75; Boyce v. Brockway, 31 N. Y. 493; Campbell v. Parker, 9 Bosw. 326). As the case now stands, we find no good ground for reversing the judgment.

Judgment affirmed, with costs. All concur.