Thomas N. Gibbs et al., Respondents, v. John Van Buren, Jr., Appellant

Thomas N. Gibbs et al., Respondents, v. John Van Buren, Jr., Appellant. (Argued September 20, 1871; decided January term, 1872.) Action to recover the value of a quantity of wheat, which defendant, as common carrier, had contracted to transport for plaintiff from Oswego to Albany, to deliver to consignees, who had an office upon the pier within the city of Albany. Upon the arrival of the boat at Albany, the master reported to the consignees, who directed him to proceed with his boat and cargo across the channel of the Hudson river to a railroad elevator at East Albany, within the port of Albany. The master complied with the directions, and, while waiting to discharge his cargo, a fire, originating in the elevator, nearly destroyed the cargo. The consignors, by direction of the defendant, sold the damaged cargo, and paid over the avails to plaintiffs’ agent. Defendant claimed that the master, in crossing the river, was not acting under his employment or authority, and that his liability as common carrier had ceased when the fire occurred. Held, that the fact that defendant continued his control of the property after the fire, with other facts, afforded a legitimate inference that the parties, in contracting, had reference to the port and not alone to the city of Albany; also, that there was not sufficient delivery before the fire to discharge the carrier, and that defendant was liable. O. jV.. Kennedy for the appellant. AXberims Perry for the respondents. [MAJORITY] Gray, 0., reads for affirmance. All concur, except Lott, Ch. C., dissenting. Judgment affirmed, with costs.