Johnson v. New York Central & Hudson River Railroad

Headnote

Johnson v. N. Y. C. & H. R. R. R. Co., 164 App. Div. 906 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in "the third judicial department, entered-July 10, 1914, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

The plaintiff sought to recover the balance unpaid upon a carload of slate consigned by him from Bangor, Penn., about November 2, 1904, to one W. W. Wimett- at Oneida, N. Y., and alleged to have been wrongfully delivered by defendant ■ to one George W. Hawthorne, without the knowledge or consent of plaintiff or Wimett, the consignee, after deducting the sum of eighty-five dollars collected from said Hawthorne. It is alleged that shipment was made to Wimett upon the reliance of statements by Hawthorne that he was authorized to order, slate for Wimett; but that Wimett did not. authorize Hawthorne to order slate for him or in his behalf, or know that any order had been given or that any slate had been received by the defendant consigned to him mitil long after the same had been delivered to Hawthorne by the defendant and used in whole or in part by him, and that the whole transaction was without the knowledge or consent of Wimett. The defendant admitted that it received the shipment in question, and alleged that it promptly delivered the same to the consignee, and denied the other allegations of the complaint. It then sets up three separate defenses: (1) That plaintiff having collected eighty-five dollars from Hawthorne in part payment was estopped from alleging a wrongful delivery to Hawthorne; (2) that plaintiff having collected eighty-five dollars from George W. Hawthorne in part payment for said slate ratified the delivery to him, and (3) that plaintiff had full knowledge of the delivery of the carload of slate to Hawthorne on or about November 7, 1904, but made no protest and did not present a claim on account thereof until March, 1901, and is estopped from asserting it- was wrongfully delivered to Hawthorne.