Action against the defendant railroad for failure to properly care for and. deliver three carloads of potatoes.
The potatoes were shipped by the plaintiff and *654received by the defendant from connecting carriers. The bills of lading show that they were consigned to the order of the plaintiff at New York city, with instructions that Parker Philips Company, the purchaser of the potatoes, be notified upon their arrival. The bills of lading also contain a stipulation for iC60th Street delivery (lighterage free)” and a provision that the merchandise was not to be delivered to any one except on the surrender of original bills of lading properly indorsed. The potatoes arrived in New York city about February 1, 1916, and the purchaser, Parker Philips Company, was notified. The bills of lading had been sent with the drafts attached to a New York bank, but the purchaser never paid the drafts nor received the bills. The purchaser instead directed the railroad to deliver the potatoes to the railroad’s Barclay street docks. On February eleventh, the railroad, without having received the bills of lading which was necessary before a delivery could be made, lightered the cars to Barclay street and unloaded them on the dock where the potatoes remained until February fourteenth. . While lying on the dock they were frozen and .the purchaser refused to accept them. They were then removed to a warehouse, and sold in March for much less than the original purchase price. The court directed a verdict against the defendant for $1,742.45, and there is no question raised as to this amount.
The railroad was not justified in unloading the potatoes on the dock where they were liable to freeze. The bills of lading required the shipper to protect them from frost, and that could easily have been done in the cars. The plaintiff personally gave no authority to unload except under the general provisions of the bills of lading, whereby the carrier has the right to store for the benefit of the shipper if there is a *655delay in accepting the goods. The carrier was not acting under those provisions because it would then be liable as a warehouseman. The railroad claims that the direction from Parker Philips Company to deliver the potatoes at Barclay street was sufficient authority under the custom in New York and the schedules filed with the interstate commerce commission. Suffice it to say that the bills of lading called for delivery at Sixtieth street and the surrender of the bills before delivery. The bills of lading are not ambiguous, and the schedules filed are not at variance with them. It is true the bills provide for free lighter-age, but that is only in case the purchaser desires to avail himself of this free lighterage after a surrender of the bills of lading.
There was some evidence, however, that the plaintiff’s broker in New York, who made the sale to Parker Philips Company, had authority to bind the plaintiff and did bind the plaintiff by consenting to or ratifying a transfer to Barclay street. The defendant offered evidence to show that before the transfer this broker knew of the transfer and consented to it, and also that afterwards he ratified it. This evidence was improperly excluded, and because of the exclusion of this evidence a new trial must be had.
Judgment reversed and a new trial ordered, with costs to appellant to abide the event.
Whitaker, J., concurs in result.