Opinion
May, 1917.
Carter, Ledyard Milburn (Milton C. Lightner, of counsel), for appellant.
John A. Dutton, for respondent.
Upon the stipulated facts, it appears that one Joseph McElroy, whose name appears in the receipt as the shipper, was the agent of plaintiff, who requested the defendant express company to call at the hotel in Penn Yan for a suit case which he had left there and to transport it to a certain address in the city of New York. McElroy left the case with one Bowne, the clerk of the hotel, directing him to give it to the expressman. No terms of shipment were agreed upon or discussed with the express company by either McElroy or Bowne, the latter only receiving the usual receipt for transporting and by which the liability of the carrier was limited to fifty dollars. It appears that on delivery of the suit case at its place of destination, it was found to have been broken open and certain articles missing therefrom. The trial court gave judgment for plaintiff for $335, the value of the lost articles, and the sole point presented for determination herein is whether the money liability of the defendant can be extended beyond the amount fixed by the receipt in question. The crucial point involved is as to the authority of Bowne, under the circumstances presented, to enter into the contract of shipment made. In other words, was he the agent of plaintiff in so doing? We think he was within Knapp v. Wells Fargo Co. 134 A.D. 712, and Addoms v. Weir, 56 Misc. 487. In the Knapp case, plaintiff, a guest at a hotel, went to the office of defendant and left an order for it to call for her suit case at the hotel. This was done, and the hotel clerk given a receipt therefor, containing a limitation of liability to fifty dollars. The plaintiff was held bound by the contract. In the Addoms case, a guest at a hotel gave to a bell-boy a package to be handed to the Adams Express Company, and the court there held that "the agent to whom the owner entrusts goods for delivery must be regarded as having authority to stipulate for the ordinary terms of transportation." Citing cases.
The instant case is very much in point of fact like the authorities cited, and is distinguishable from Waldron v. Fargo, 170 N.Y. 130, and Hailparn v. Joy S.S. Co., 50 Misc. Rep. 566, relied upon by respondent, in that no contract of transportation was made by McElroy with the express company, he simply directing that it go to the hotel and get the suit case from the hotel clerk Under the circumstances, Bowne, the hotel clerk, was constituted the agent of McElroy for all purposes necessary to the shipment and authorized to make the contract in question.
Respondent, however, claims that if it be held that the receipt constituted a contract between the parties the express company is nevertheless liable on the theory of conversion. There is an allegation of wrongful withholding in the complaint, but the language used is in connection with the ordinary breach of contract in carrier cases. The learned trial court, however, held that the proof made out a case of conversion and an abandonment of the contract of shipment. We think the conclusion reached was erroneous.
The record fails to show any proof of conversion other than a demand and refusal to deliver the property in question, and that in itself, under the authorities, is insufficient to constitute a conversion abrogating the contract of shipment. There must be proof of "an actual conversion," not one implied from a failure to deliver. Wamsley v. Atlas Steamship Co., 168 N.Y. 533; D'Utassy v. Barrett, 171 A.D. 172; Magnim v. Dinsmore, 70 N.Y. 410. While concededly there was a loss of articles in transit from plaintiff's suit case, how, where or when it occurred we are not told. To sustain a conversion, we are not permitted to indulge in the presumption that the company itself stole the goods, the only theory upon which plaintiff would be able to recover in a conversion action.
It follows that the judgment appealed from must be modified by reducing the same to the sum of fifty dollars, and appropriate costs in the court below, and, as so modified, affirmed, without costs in this court.
GUY and COHALAN, JJ., concur.
Judgment modified, and, as so modified, affirmed, without costs.