#### William M. Goodrich *et al.*plaintiffs and respondents, *vs.*James M. Thompson *et al.*defendants and appellants.

1. The finding of a referee, upon conflicting evidence, on a question of fact, is conclusive, and cannot be disturbed.

2. Where, in consequence of the extent and nature of a business, a large number of clerks are employed therein, and from necessity the duties assigned to a particular clerk, to be discharged by him, devolves upon another-, any act done by the latter, if within the general scope of his employment as a clerk, will be the act of the principal.

3. Where parties who, dealing with an express company, have a right, from the general mode of conducting the company’s business, to rely upon the authority of one of its clerks to make a general contract to forward goods, they have a right also to infer that such authority includes a power to contract to forward in a particular way.

4. Parties, who undertake, for a compensation, to forward goods, by a carrier, other than themselves, are only forwarders, and not carriers, of such goods, and assume only the. responsibility of a bailee for hire.

5. If, however, they agree to forward goods by a particular steamer, and not only fail to do so, but instead thereof send them by a different steamer, which is lost on her passage, with the goods on board, they are liable to the owners for the loss of such goods.

6. Where the evidence of the contents and value of cases containing goods while being transported, though slight, has satisfied a referee, the court will hold it to be sufficient.

7. The receipt, by shippers of goods, of the amount of insurance upon an open policy, on a part of the goods, for part of the loss, does not prejudice their claims against the forwarders, for the residue'.

8. Nor will the receipt of such insurance money be deemed a satisfaction by the shippers of a shipment of the goods by a different steamer from that agreed upon.

*769. Although goods included in a forwarding contract are held by the shippers on consignment, to be sold on commission, the forwarders are liable for a. breach of the contract in respect to such goods, to the shippers.

(Before Mokell, Gakyik and Jokes, JJ.)

Heard February 9, 1866;

decided March 12,1866.

This action was brought to recover the value of goods delivered by the plaintiffs- to the defendants, to be forwarded from this city to the city of New Orleans.

The action was tried by a referee, who found as facts : that the defendants were proprietors of “ Hamden’s Express,” and engaged in carrying goods for hire. That the plaintiffs, on the first day of December, 1855, at the city of New York, delivered to the defendants three boxes of merchandize, to be forwarded, to the city of New Orleans. That such merchandize all belonged to the plaintiffs, except one package containing two rich card cases belonging to Maguire & G-uedin, placed in one of the boxes, and which was sent to the plaintiffs on consignment, to be sold by them on commission. That the defendants agreed to forward said three boxes to New Orleans, by a particular steamer, the “ *Ocean Bird.”*The plaintiffs were to pay freight in New Orleans. That the defendants' did not forward said boxes of goods by the “ *Ocean Bird,”*and never delivered them to the plaintiffs. That the defendants wrongfully placed said boxes of goods, without the knowledge or consent of the plaintiffs, on board of another steamer, the “ *Orescent City,”*which was lost at sea, with said goods on board, which were also lost. That there was an open policy of insurance upon one of said boxes, upon which the plaintiffs have received $1436.10, which is to be deducted from the value of all the three boxes. Upon these facts, the referee rendered judgment in favor of the plaintiffs, for the value of all the goods lost, as well those owned by them, as also such as were lost by them on consignment.

On the trial, the plaintiffs gave in evidence a receipt as follows:

“Hamden’s Express, No. 74 Broadway, rear entrance 11 New street, General Forwarding and Commission office: *77Proprietors, Thompson, Livingston *&*Co. For Boston, «****. New York, December 1, *1855.*' J ohn M. Olcott has delivered .to us three boxes mdize, marked E. G. H. New Orleans, Nos. 703, 704, and H. & G. No. 200, which we undertake to forward to New Orleans and deliver to Hyde *&*Goodrich. Per *Ocean Bird.*Dangers of navigation * * * excepted.

For the proprietors, Tillinghast.”

The plaintiffs also proved that previous to the goods being sent to the defendant, they agreed by *parol*to forward the goods by the steamer “ Ocean Bird.” Conger, one of the plaintiffs’ witnesses, and their clerk, testified that under instructions from the plaintiffs, he *“*told Mr. Stuart (defendants’ shipping clerk) to ship the goods by the *Ocean Bird,*and he remarked that the *Ocean Bird*lay some distance up town, and went within fifty miles of New Orleans, and that he would rather send by the *Crescent City.*I told him that it was Olcott’s wish that he should send them by the *Ocean Bird,*and he said he would send them by the *Ocean Bird.”*This, however, was contradicted by Stuart.

There was evidence given, that the words *uper Ocean Bird,”*in the receipt, were not written by Tillinghast,- who signed the receipt, nor by any person acting on behalf of the defendants, but by Cook, the clerk of Olcott; the testimony on this subject being that Olcott was supplied by the defendants with blank receipts, and that Cook filled up the one in question, writing in the words *“ per Ocean Bird,”*gave it to the carman with the goods, and it was brought back signed by Tillinghast.

There was also evidence given on both sides involving the question of Tillinghast’s authority to make a contract binding the defendants to forward by any particular vessel. It being claimed by the defendants that only Stuart, the shipping clerk, could make such contracts.

The defendants appealed from the judgment entered on the report of the referee.

*John BJ. Burrill,*for the appellants, (defendants.)

I. The evidence warrants the conclusion that the words *78“ per *Ocean .Bird”*were not in the receipt given by the defendants to forward the property at the time it was signed, or, if they were, that they were not seen by Tillinghast, and that he did not know the fact.

II. The words “per *Ocean Bird”*formed no substantial part of the contract, and did not restrict the defendants to that mode of conveyance.

1. They indicated a mere preference to send by that vessel, if she was to sail, and do not act as a prohibition to send by any other.

2. The object of the parties being to forward the goods, if several usual means of conveyance were equally good, the particular means selected was secondary.

3. Where parties- intended to make a restrictive contract, a form of receipt specially prepared for such purpose was used.

4. From the nature of the defendants’ occupation, there was no implied contract to send by any particular vessel. If the plaintiffs desired to restrict the defendants in regard to the mode of conveyance, it was their duty to have the receipt drawn so as to express such restriction clearly and unmistakably.

*5.*The receÍ23t was so drawn as to mislead the defendants and their agents, and conceal from them the fact that the woi'ds “ *Ocean*Bird” were upon it, (if, in fact, they were.) This is apparent from an inspection of the paper.

6. Tillinghast did not exchange a word with the cartman, clerk, or any of the parties in regard to the goods, nor was his attention called to the words “Ocean Bird.” The fair inference is, that if the words were there, he signed in ignorance of the fact.

III. The receipt in' question was not authorized by the defendants, and is not obligatory on them.

1. The fact that it purported to have been executed by an agent, cast upon the plaintiffs the onus of showing not only that he was an agent, but that he was authorized to do the . particular act in question. *(Dows*v. *Perrin,*16 *N. Y. Rep.**79330. *Nixon*v. *Palmer, 8 id.*398. *New Haven Cases,*17 *id.*592.)

2. It is not pretended that Tillinghast had any express authority to make such a contract, or to sign such a receipt.

3. The act in question was not within the scope of the apparent authority of Tillinghast. *(See generally*17 *N. Y. Rep.*592; 1 *Pars, on Cont.*39.)

*(a.)*The general employment of Tillinghast as a clerk by the defendants, or his authority to give receipts for property sent to the defendants’ office, did not. authorize him to give the receipt or make the contract in question. Nor did they confer any authority to make any contracts in regard to such property, other than such as the law would necessarily imply, or as the ordinary and usual course of the defendants’ business would warrant.

*(b.)*The defendants being mere forwarders, whose business it was to take charge of and safely transport property, had in the ordinary and usual course of their business the right to select their own modes of conveyance. And in the absence of any special agreement or restriction, the only contract which the la'w would imply from the delivery of goods to the defendant would be one to transport, by some, safe and proper mode, and not by any particular vessel.

(c.) Not only the nature of the defendant’s ' occupation showed, but the fact was proved, that contracting to send by a particular vessel was not an ordinary transaction, or a part of their ordinary business.

4. The plaintiffs were chargeable with knowledge of the restricted powers of Tillinghast. (10 *Com. Bench Rep.*665. *Hubbersty*v. *Ward,*8 *Ex.*330. *S. C.*18 *Eng. Law and Eg.*551. *Colman*v. *Riches,*29 *id.*323. *New Haven Cases,*17 *N. Y. Rep.*592. *Dows*v. *Perrin,*16 *id.*330. 7 *B. & C.,*278. *6 M. G.& Scott,*766.)

*(a.)*The frequency of their dealings showed a general familiarity with their business and mode of conducting it.

(6.) The receipts given in cases of special contracts were prepared with a blank for the name of the vessel.

*80(c.) They were invariably signed by Stuart.

*(d.)*It was not pretended that Tillinghast had ever before given such a receipt.

IV. The plaintiffs ratified and confirmed the shipment by the Cresent City, by demanding and collecting the amount of the insurance upon the property.

1. The liability of the defendants was placed by the referee upon the only ground tenable, to wit, that the shipment by the Crescent City was a conversion of the property.

2. Such conversion was made, if at all, *eo instanti*it was placed on board the Crescent City.

3. The collection of payment from the underwriters was made on the ground that the merchandise was their property at the time of the loss, and that it had been shipped on board the Crescent City for them and on their account.

4. If, as claimed, the policy was an open policy, the name of the vessel must have been indorsed on the policy to have made it applicable. There were two parcels insured—one by an open policy, and the other by an ordinary policy. The latter policy clearly could not have been effected without disclosing the name of the vessel.

V. Even if the merchandise had been delivered to the defendants with direction to send it per *Ocean*Bird, they were absolved from that duty by the fact, that the *Ocean Bird*did not sail, and discharged their whole duty by shipping on board the *Orescent Gity,*which was a regular steamer, and in every respect a fit and proper vessel. And such shipment was not, under the circumstances, a conversion, and in holding the contrary the referee erred.

YI. There was a substantial, variance between the case made by the complaint and that held by the referee to be established. The complaint alleged that the *Ocean Bird*made the voyage, and arrived at New Orleans, and charged a failure to deliver, but the fact being proved that the *Ocean Bird*never made the voyage, the referee held the defendants Rabie for a conversion.

*81. VII. The evidence did not warrant a judgment against the defendant for the amount allowed by the referee.

1. There was no competent evidence in regard to value of box 701, and the amount allowed, $369 and the interest, should be deducted.

2. There was no competent evidence in regard to the value of box 200, and the amount allowed for this, $708.21, should be deducted.

3. There was no competent evidence in regard to the value of any part of contents of box 703, excepting the items of Magnin and Gruedin, Barritte, and two diamonds, amounting to $2466.44. The residue of box 703, being $867.34, should be deducted.

VIII. The referee erred in allowing to the plaintiffs the value of the goods belonging to Magnin *&*Gnedin, as the evidence showed that the plaintiffs had no interest in the goods, and were not entitled to recover for them.

IX. The exceptions taken by the defendants to the decision of the referee in respect to testimony, are well taken. ■

X. If the judgment is not reversed, there should be deducted from the report the items already stated as objectionable ; and ' interest on these sums from the 1st of -December, 1855.

*Charles Tracy,*for the respondents, (plaintiffs.)

I. The evidence conclusively established, that the defend- ■ ants undertook to carry the property by the *Ocean Bird,*and wrongfully placed the same in the *Crescent City,*which was lost. The plaintiffs’ agent, (Olcott,) who with the owners of a part of the property, (Magnin *&*Guedin,) intended and determined to have the goods go by the *Ocean Bird,*and not to have them go by the *Crescent City,*made this intention and determination known to the defendants, who verbally agreed to send the goods by the former vessel. A written contract to carry the goods, specifying the *Ocean Bird,*furnished by the plaintiffs’ agent, was signed by the defendants on the delivery of the goods, and the plaintiffs’ agent had- no notice of the shipment by the *Cresent City,*until after the loss happened.

*82II. The defendants are bound by the act of their agent who signed the contract.

1. He received the goods at the defendants’ office, signed the contract there, at the place used for that purpose; they received the property on such delivery and contract, and thus adopted his act. *(Story on Agency,*§§ 55, 56. *Angelí on*Carriers, §§ 135, 137, 465. *Dows*v. *Greene,*16 *Barb,*72, 76, 77.)

2. The plaintiffs had a right to act upon the indications of authority of the defendants’ clerk, given by his position and the place he occupied in the office of the defendants, (16 *Barb.*72, *supra. Bank of Lake Erie*v. *Norton,*1 *Hill,*501. *Perhins*v. *Washington Insurance Company,*4 *Cowen,*645. *Lightbody*v. *North Am. Ins. Company,*23 *Wend.*18, *Johnson*v. *Jones,*4 *Barb.*369.)

III. The defendants are liable for the loss of the goods.

1. As express men, they were common carriers. *Russell*v. *Livingston,*19 *Barb.*346. *Place v. Union Express Company,*2 *Hilton,*19. *Mer. Mut. Ins. Co.*v. *Chase,*1 *E. D. Smith,*115. *Moore*v. *Evans,*14 *Barb.*524. *Teall*v. *Sears,*9 *id.*317. *Sweet*v. *Barney,*23 *N. Y. Rep.*335.) Their undertaking was to carry," not simply to send forward by others. The term “ forward ” means carry. ( *Wilcox*v. *Parmelee,*3 *Sandf.*610. *Mer. Mut. Ins. Co.*v. *Chase,*1 *E. D. Smith,*115. *Dillon*v. *N. Y. Erie R. R. Co.,*1 Hilton, 231, *Place*v. *Union Express Co.,*2 *id.*19.)

2. Having undertaken to carry goods in one mode, and attempted to do so by another one, they are liable for their loss. *(Angell on Carriers,*§§ 162, 176, 177, 178, 213. *Hand*v. *Baynes,*4 *Wheaton,*204, 205, 212.)

IV. The plaintiffs can recover such loss, either as for a breach of contract, or as for negligence, or as for a conversion. In fact, the defendants both violated their contract and committed a tortious conversion of the goods. The complaint suffices for the remedy in either case. *(Scott*v. *Pilkington,*15 *Abbott,*280.)

*83Y. The parcel of goods from Magnin and Gruedin were properly included with the plaintiff’s goods, and can be recovered for in this action.

1. The plaintiffs took this parcel of goods to sell for a profit. They had possession, a right of possession, and an interest to make a profit. They also had the duty of sending them to New Orleans for sale. "They were under the obligation of . trustees, to preserve and safely convey the goods, and they had an interest in such preservation and conveyance in order to sell them for their own profit. Hence the contract with the defendants was properly made by the .plaintiffs in their own name.

2. The contract being in the name of the plaintiffs, they are the proper persons to enforce it. *(Code,*§ 113. *Considerant*v. *Brisbane, 22 N. Y. Rep.*389. *Morgan*v. *Reid,*7 *Abbott,*215.)

YI. The receipt by the plaintiffs of insurance moneys in diminution of the loss, was no prejudice to their claim for the balance of the loss. The insurers contracted by an open policy for goods of the plaintiffs'coming from Europe by way óf New York to New Orleans, and the *Orescent City*being on a voyage within the risks of the policy, the parcel from the Custom House, (case No. 200,) was covered by the insurance. The company paid that loss without prosecution, and the amount claimed of the defendants was reduced by that sum.

Y1I. The contents and value of the property were fully shown.

By the Court,

Monell, J.

The two principal questions in this case are—first, whether the defendants contracted to forward the goods by the *Ocean Bird ;*and, second, whether the amount of the judgment is correct. Independently of the written receipt, whereby the defendants agreed to forward by the *Ocean Bird,*there was evidence that the defendants agreed by *parol,*through Stuart, whom it was conceived had authority for the purpose," to forward the goods by that vessel. The referee has found generally, that the defendants agreed to so forward them, and we cannot say whether he relied upon the parol contract, or has found the fact, upon the evidence that *84Tillinghast had authority to bind his principals by the written contract. But.assuming, as was claimed on. the argument, and as the referee seems to have intimated in his opinion attached to the case, that the'contract was made out, if it all, hy the written receipt *only,*yet the evidence of Tillinghast’s authority to make the contract, and to bind the defendants, was conflicting, and the finding of the referee on that subject cannot be disturbed by this court. It is conclusive. *(Woodruff*v. *McGrath,*82 *N. Y. Rep.*255.)

The defendants proved by Stuart, that he alone was authorized to insert the name of any particular steamer in a receipt for goods to be forwarded, and that Tillinghast had no authority to sign the receipt given to the plaintiffs in this case. Evidence was also given tending to show that Olcott (the plaintiffs’ shipping agent) had frequent dealings with the defendants, and was familiar with their mode of doing business ; shipped goods by them as often as once or twice a week ; and several receipts for goods shipped by Olcott, signed by Stuart, were proved. Some of these receipts differed in form, from the one signed by Tillinghast, and were proved to be in the form usually given by the defendants.

On the part of the plaintiffs, it was proved that Tillinghast had been a clerk of the defendants ten or twelve years. That he sometimes signed receipts for property left to be carried ; that he was authorized to receipt for goods going east by way of Stonington, and south by way of Savannah ; that he also signed receipts for forwarding freight, where there was no special agreement as to the manner of forwarding; that he sometimes performed other duties as he was called upon, from time to time, giving ordinary receipts in the ordinary business of the defendants. Winchester, a clerk of the defendants, testified, on his cross-examination, that his duties were the same as those of Tillinghast, and that he sometimes, at the request of parties, inserted the name of a particular steamer. He also testified that, .in Stuart’s absence, others performed his duties, and that in the absence of the clerk who was there for a particular purpose, Tillinghast, or any other clerk, per*85formed, the duty of the absent clerk. It was proved by Cook, a witness for the plaintiffs, that on occasions, Stuart being-busy, he (Cook) had been sent to Tillinghast to have receipts signed.

Without referring to any other evidence in the case, it is plain that upon the question of Tillinghast’s authority, the proof was very conflicting, and we cannot, therefore, disturb the referee’s conclusion upon it. Certainly, his finding is* not against, nor can we say it is not sufficiently supported by, the evidence.

From the general nature of the defendants’ business, requiring a large amount of clerical assistance, the duties assigned to any particular clerk must have been sometimes performed by others; and any act done under such circumstances, if within the general scope of. duty, would be the act of the principal.

The plaintiffs in this case were entitled to rely upon the authority of Tillinghast to make the contract, from the general course of conducting the defendants’ business, and from which it was fair to infer that an authority to contract to forward, included an authority to contract to forward in a particular way.

The defendants, in this action, were forwarders, and not carriers, of the goods in question. They undertook, for a compensation, to forward the goods by a carrier, other than themselves ; and they only assumed a liability attaching to warehousemen.

But they are liable in addition, for a breach of their contract.

. They engaged to forward, by a particular steamer, and having failed to do so, they are liable for any loss sustained by reason of such neglect. *(Angell on Carriers,*§§ 162, 176, 178, 213. *Hand*v. *Baynes,*4 *Whar.*204.)

The evidence of the value of the property lost was, I think, sufficient. As to case No. 703, Cook testified to a list of articles contained therein, and their values; and Magnin *&*Gruedin both testified to the value of the two card cases belonging to them. As to case 704, the books of Hyde & Goodrich *86were produced containing the invoice, and Cook testified that he made the entries from the original bills of purchase. This witness did not state that he saw the goods go into case 704; but Curry, who packed the box at Providence, and Thurber, who knew the contents, testified to the contents. Graham testified to the contents and value of case 200.

There was, at least, some evidence of the contents and value of all the' cases ; and although perhaps somewhat weak, it seems to have satisfied the referee, and we cannot say it was not sufficient.

The value of the goods of Magnin *&*Guedin was properly included in the judgment. They were taken on consignment, to be sold on commission. • The forwarding contract made with the plaintiffs included those goods, and the defendants’ liability for a breach of the contract was to the plaintiffs, and not to their consignors. *(Considerant*v. Brisbane, 2 *Bosw.*471. *Price*v. Powell, 3 *N. Y. Rep.*322.)

Some exceptions were taken to the admission and rejection of evidence which will be briefly noticed. The motion to strike out part of the evidence of Olcott was made several months after his examination in chief had been closed. Eo objection appeared to have been made at the time he was testifying, and it was a matter entirely in the discretion of the referee whether he would afterwards allow the motion. But, besides, the evidence was proper, as it was merely the instructions of Olcott to his clerk to have the goods shipped in a particular manner.

The conversation between Guedin and Goodrich was not improper. It went to establish the fact, that they intended and desired that the goods should not go by the Crescent City, and bore somewhat upon the contract to ship by the Ocean Bird. At any rate, it could not have had any influence on the mind of the referee, and the exception, for that reason, is immaterial.

The exclusion of the evidence offered to show that Stuart stated to Conger that the boxes had been sent by the Crescent City, and Conger’s reply thereto, was not erroneous. It was after the contract to ship by the *Ocean Bird*had been made, *87after the defendants had violated their contract, by sending by another vessel. Conger had no authority to bind his principals by any admissions whatever, more especially after the liability of the defendants had attached.

The receipt of the insurance money upon the open policy did not operate as a recognition of any change made by the forwarders in shipping by the Crescent City. The voyage to New Orleans was within the risk of the policy, and it appears the insurers, without controversy, paid the loss. The amount received was allowed by the referee, and deducted from the plaintiffs’ damages.

Upon the whole, I do not find any error in the trial, or in the conclusions of the referee.

The judgment should, therefore, be affirmed.