Finn v. Clark

Dewey, J.

The defendant accepted and paid a draft drawn by the plaintiff on him for the sum of $789.82. For this payment the defendant alleges he has received no consideration, and that this amount is justly due to him from the plaintiff; and he has filed this claim in set-off to the demand of the plaintiff. If he establishes his claim, such indebtedness may properly be made a subject of set-off under Gen. Sts. c. 130, § 3, as it will be a demand “ for money paid, or money had and received,” within the words of the statute.

It is conceded that this sum was paid under the supposition that the plaintiff had forwarded to the defendant a certain quantity of shingles that had been ordered by the latter. It is admitted, if all had been done by the plaintiff that was necessary to designate the person to whom and the place to which the same were ordered to be forwarded, the sale would have been complete at Olean, and he would have been discharged from further liability.

But it is said that the plaintiff failed to make a proper consignment of the shingles to the defendant, and forwarded them by a canal boat to be delivered to the Western Railroad Company at Greenbush, without naming the person to whom or the place where they were to be further conveyed by that company and that by reason of such omission the shingles remained *483 at Greenbush for many days, and while thus there on storage were casually destroyed by fire.

We can have no doubt as to the duty of the vendor thus forwarding goods to his vendee, to furnish to the earner to whom he commits the goods for transportation proper bills of lading and entries or marks indicating the person to whom and the place to which they are to be carried.

There was a failure in this bill of lading to name the consignee or his place of business or residence, or to give any indication to the Western Railroad Company who were to receive the goods, as to the place to which they were to be forwarded by them. This omission prevented the goods from being forwarded in the ordinary manner and time to the vendee, and eventually was the cause of their entire loss. Taking these facts alone, it would be quite clear that this loss should fall on the plaintiff, and that the money paid by the defendant was paid without consideration, and the defendant would be entitled to recover the same as money had and received to his use.

But it is urged that the defendant had the means of knowing of this omission of the name of the consignee and his place of residence before he accepted the draft, inasmuch as concurrently with it he received a copy of the bill of lading which the plaintiff had caused to be delivered to the master of the canal boat at Olean, and that he might have seen that there was upon it no name of a consignee, or place of his residence. To this it is answered that the defendant might reasonably assume that the proper directions as to the person to whom and the place to which the shingles were to be forwarded would be given in some form, and especially he might do so as the bill of lading was enclosed in a letter from the plaintiff, saying that the shingles were “ shipped you this day as per your order.” The order of the defendant was dated at Southampton. He also received his letters at Westfield, an adjoining town, and it was there that various previous consignments to the defendant of similar articles had been duly directed as the place of delivery.

The case of Quimby v. Carr, 7 Allen, 417 , is very strong as to the point that the defendant should not suffer by reason of his *484 not discovering an error which the plaintiff had made. The plaintiff has no right to assume that the defendant might not have failed, as well as himself, to notice this omission. To pass this property to the vendee there must not only have been a delivery of the same to the carrier, but it must be a delivery in accordance with the order of the person directing the goods to be sent to him. Downer v. Thompson, 2 Hill, (N. Y.) 137.

The omission of the plaintiff to forward the goods with proper directions as to the consignee and the place of delivery authorized the defendant to treat the alleged sale as one never perfected, and to recover back the money paid upon the draft of the plaintiff, founded upon such alleged sale and delivery of the shingles.

This right to treat the sale as a nullity was not lost by reason of the subsequent acts of the defendant in inquiring for the shingles at Westfield, writing to the agent of the Western Railroad Company at Greenbush, or by his letter of June 20th to the plaintiff. It does not appear that the defendant actually knew the reason why the shingles had not been forwarded to Southampton, until he was apprised by the letter of the agent of the Western Railroad Company of June 28th.

The delay in making a demand upon the plaintiff for reimbursement does not conclude the defendant, if his original right is clearly established.

This is a case of a loss originally occasioned by the negligence of the plaintiff; and as the plaintiff has been in no way prejudiced by the acts of the defendant subsequent to this failure of duty on his part, we see no sufficient ground to authorize a jury to find an assent on the part of the defendant to the manner in which the plaintiff had executed the order and forwarded the shingles.

Exceptions sustained.