#### The Central Railroad of New Jersey, Plaintiff, *v.*Frank Williams, Defendant.

(Municipal Court of the City of New York, First District, Borough of Manhattan,

June, 1919.)

*Carrier*— *action to recover freight, demurrage and other charges governed by bill of lading*— *judgment for plaintiff.*

This action was brought to recover the freight, demurrage and storage charges in connection with the shipment of a carload of hay delivered in Ohio by the Interstate Hay Company to the plaintiff’s con-

*731necting carrier, and consigned to the order of the Interstate Hay Company at Elizabeth, N. J.

The bill of lading for the shipment was the uniform form order bill of lading adopted by the Interstate Commerce Commission, and among its conditions, it is provided that *“*the surrender of the original order bill of lading properly indorsed shall be required before the delivery of the property. Inspection of property covered by the bill of lading will not be permitted unless provided by law, or unless permission is endorsed on the original bill of lading, or given in writing by the shipper.”

The shipment arrived at Elizabeth on May 13, 1913, and notice of its arrival was mailed to the Interstate Hay Company at Goshen. That company refused or neglected to accept it," but the original bill of lading had been indorsed by it.

The defendant had no dealings with any of the parties mentioned in the bill of lading, but received it on July 15, 1913, from one Duker of Goshen, Ind., who was the original shipper, and who had sold the hay to the Interstate Hay Company, and the defendant did not know of the shipment until he received the bill of lading from Duker.

On July 17, 1913, the defendant wrote the plaintiff that he held the bill of lading, inquired where the car was, what the amount of freight and demurrage charges were, and whether plaintiff knew anything of the quality of the hay, and that as soon as he received a reply, he would advise what disposition he would make of it. After learning from the plaintiff’s freight agent the amount claimed for charges, and telling the freight agent that he had received a bill of lading for the goods from a new shipper turned over to him to be held on commission, he indorsed the bill of lading, which had been indorsed in blank by the consignee, and sent it to the plaintiff with a letter in which he requested the plaintiff to forward the carload without *732delay direct to Mm to the Brooklyn Eastern District Terminal.

The plaintiff complied with these instructions, and reconsigned the carload to the defendant, transported it to Brooklyn, and the load arrived at the terminal on July 25, 1913, where it was placed in its agent’s warehouse, and defendant was notified thereof on the same day, and requested to notify plaintiff what disposition should he made of it.

On August seventh, the plaintiff again requested instructions as to its disposition, to which defendant replied that the bill of lading be returned to Mm, but gave no instructions. On August sixteenth, plaintiff requested defendant to promptly unload the car otherwise it would unload it, and place it in storage at owner’s risk and expense. To this last letter, defendant replied that he was not handling the shipment; that the owner of the goods was Duker and requested plaintiff to communicate with Duker.

Thereafter the plaintiff, claiming also to be acting under instructions from or at the request of the Interstate Hay Company, made up a reconsigned bill of lading, and forwarded it to Duker, with a letter stating that the shipment had originated in Ohio, was consigned to Elizabeth, and was reconsigned from there by the defendant to himself in Brooklyn, after presenting the original bill of lading, and that after the car arrived in Brooklyn, the defendant would have nothing further to do with the shipment; that it was still there on storage and requesting Duker to give instructions as to its disposition.

Receiving no reply from Duker, the plaintiff also at the request of the Interstate Hay Company on October third, called upon one Kiel in Ohio, also an indorser on the bill of lading for disposition of the goods. Kiel replied, to sell the hay to the best advantage, and after deducting all charges, send him the balance. On December second, the plaintiff wrote Kiel

*733that as he was not able to surrender the original bill of lading, covering the reconsignment from Elizabeth to Brooklyn, in lieu thereof, he would have to sign a bond of indemnity which the plaintiff stated it required, before they would sell the hay for Kiel’s account.

All negotiations between the plaintiff and the various shippers and indorsers of the bill of lading, having failed to bring payment of its charges, the hay remained in plaintiff’s possession until the expiration of a year, when it was sold pursuant to the laws of the state of New York applicable to the sale of unclaimed and refused goods in the hands of a common carrier, notice thereof having been given to the defendant.

The amount of the freight storage and demurrage charges, after applying the amount realized on the sale, is not disputed.

De Forest Brothers, for plaintiff.

Shaw, Fisk & Shaw, for defendant.

Marks, J.

The relation of the parties to this action must be governed by the bill of lading, which is the contract binding upon the defendant, when received and indorsed by him, and acted upon by the plaintiff, with the written instructions of the defendant given with reference to the disposition of the goods when notified of their arrival. After the plaintiff had complied with the defendant’s request, and forwarded the hay to him to the Brooklyn Eastern District Terminal, with his indorsement of the bill of lading, the plaintiff had the right to treat him as accepting the shipment and liable for the freight. The attempted repudiation by defendant, and notice by letter, after his request to send the hay to Brooklyn had been complied with, that he was not handling the shipment, cannot *734affect the right of the plaintiff to insist upon the payment of the charges, after it had lost its right to enforcé its lien on, and to retain the goods for its lien, and does not affect plaintiff’s rights to insist that the defendant by writing to the plaintiff that he was the holder of the bill of lading, and by indorsing and surrendering the same, and directing the shipment to be forwarded *to Mm*at Brooklyn, assumed the position of consignee or owner of the shipment, and to look to him for payment. In my opinion, the defendant is estopped from denying that he is the owner or consignee and liable as such. The plaintiff’s attempts to have the shippers give instructions for the disposition of the hay, after defendant declined to take it does not relieve defendant. The plaintiff had no notice when the goods were shipped that the defendant was only the agent of the shipper, and it may look to the consignor or consignee for payment of its charges—to the consignor, if the consignee does not accept or to the consignee, if he accepts the goods, and assumes control or ownership, and takes them from the carrier upon an implied promise to pay the freight.

Section 8 of the bill of lading provides, *“*the owner or consignee shall pay the freight and all other lawful charges accruing on said property, and if required shall pay the same before delivery.”

Payment of the freight charges was thus made by the bill of lading a condition of the delivery to the consignee, and delivering it to the place requested by him without exacting payment of those charges is only extending credit to him which he must make good. When he directed the delivery, he accepted it, and the law implied a promise on his part to pay the charges, such being the terms on which the hay was to be delivered. In giving directions where to send the hay to him, and when it was received at the place directed, the defendant made himself a party to the contract between the consignor and the plaintiff, or entered into *735an original contract to pay, which took the place of the right of the plaintiff to retain the hay until the charges were paid. *Pennsylvania R. R. Co.*v. *Titus,*216 N. Y. 17.

In permitting the plaintiff to deal with him, as his acts and letters show, the plaintiff had the right as a matter of law, to regard and deal with the consignee as the owner of the hay, and the defendant in per-, ¡mitting the plaintiff to so deal with him, agreed, through implication, that he would pay the plaintiff’s lawful charges for transporting and delivering the hay to him. *Pennsylvania R. R. Co.*v. *Titus,*216 N. Y. 21.

See also my opinion in case of *Central of Georgia Railway Co.*v. *Lovell,*intended to be filed with this case.

Judgment for plaintiff for $576.48.