The facts here appearing are readily distinguishable from the case relied upon by the appellant, in which it was held that an action in conversion may be maintained by a common carrier against the party to whom it delivered goods by mistake. Hudson Biver E. E. Go. v. Lounsberry, 26 Barb. 597.
In such a case the carrier is involuntarily deprived of the goods in which it has a qualified title.
In the case at bar the cement intrusted for delivery to the plaintiff by the consignor was delivered to the rightful party, and the only mistake made by the plaintiff was to deliver it without the presentation of a. bill of lading.
It appears, however, that previous similar shipments of cement had been made the defendant by the same consignor and deliveries made by plaintiff without requiring production of the bill of lading.
It also appears that the defendant had purchased a lot of cement, of which the shipment in question was a part, of the firm of Varney & Go., who in turn had purchased it from the United Building Material Company, the plaintiff’s consignor, under an agreement to make direct shipments to defendant.
Previous shipments had been made as follows:
*170The United Building Material Company would ship the goods to' defendant who invariably forwarded the cash, after receipt of the material, to Varney & Co., for the value of the shipment. Varney & Co. had a credit with the United Building Material Company.
In this instance the latter company, seemingly doubting the solvency of Varney & Co., did not send on its bill of lading in advance of payment as on previous occasions, but expected the plaintiff to collect upon delivery. But this fact was not communicated to defendant, who paid the plaintiff the freight charge of sixty dollars as demanded, and upon receipt of the merchandise promptly paid its value, as was its practice and agreement, to Vamey & Co., from whom it was purchased.
The mistake of the plaintiff in delivering the goods without presentation of the bill of lading, if construed as a conversion on the part of the defendant, would result in a double payment for the goods by the latter. In other words the defendant, one of two innocent parties, would suffer from the mistake of the other innocent party, a consequence at variance with the settled law to the contrary.
There was no conversion under such a state of facts; and the doctrine of subrogation to the rights of the consignor would have no application here, because the consignor would have no right of recovery against the defendant.
Another obstacle to plaintiff’s case is that there is no proof of the return to defendant of the sixty dollars for freight charges paid or an offer to return.
I concur in an affirmance of the judgment.
Judgment affirmed, with costs.