The question to be determined in this case is, whether the defendant sustained the relation of common carrier, or warehouseman, in reference to the property which was delivered by the plaintiff, and which is the subject matter of this controversy.
I think it is quite clear that the defendant received the barrels as freight, to be transported on the railroad of the company, and. was liable as a common carrier, for the loss occasioned by the fife which consumed them.
The evidence establishes that the barrels were delivered at one of the freight houses of the defendant, at the usual place for transacting such business, and received by persons in the employ of the railroad company. The defendant’s agent was present when a portion of the property was delivered, and, according to the testimony of one of the witnesses, directed where it should be put.
I think there can be no doubt that the barrels were placed by the defendant’s employees in the freight house, for the con*154venience of the company, with a view and for the purpose of facilitating their transportation to the place of destination for which they were designed, and to which they were directed. These were not placed there to remain for any period of time, but to be forwarded at the earliest practicable period. Under such circumstances, it is manifest that the defendant received the property for the purpose of transportation, and not as a warehouseman, and that the company is liable as a common carrier. (Angell on Carriers, §§ 131,144. Story on Bailm. 536. Edw. on Bailm. 446, 449. Redf, on Rail. 246, 248. Blossom v. Griffin, 13 N. Y. Rep. 569. Ladue v. Griffith, 25 id. 364.)
Several objections are urged to the alleged delivery of the property, but I am of the opinion that they are not valid, and can not be upheld.
It appears to me that there is sufficient evidence to warrant the conclusion that the parties who received the property were authorized to do so ; that the delivery was brought home to the knowledge of the defendant; that notice was given to those who acted for the defendant, and the property was accepted for carriage.
The delivery was complete, so far as the plaintiff was concerned, as he had nothing more to do. The taking of a receipt for the property was not essential to complete the delivery. It was for the plaintiff’s benefit, and the defendant can not complain because he thus failed to protect himself by a written acknowledgmet of the delivery, instead of relying upon verbal proof of that fact, should it be required.
ífor do I think that any thing remained to be done by the consignor, or his agent, after the delivery of the property to the railroad company, before they were ready to transport it.
The counting, checking and entering the property upon the books of the company for shipment, were matters connected with the course of business of the defendant, which were for . the protection and the benefit of the railroad company, and which could not in any way affect the delivery. Suppose *155these had all been entirely neglected, and the goods had been shipped before they were consumed, and had been lost or destroyed; would the defendant have been exonerated ? Certainly not; for the very apparent reason that these were acts of the defendant, and the plaintiff could not be made to suffer by their omission.
[Albany General Term, March 5, 1866.The property having been-- received into the possession of the defendant, in accordance with the usual course of business, the delivery was perfect and complete, and the defendant is liable as a common carrier, for its loss.
There was no error in the findings of the court, or in the refusals to find as requested. The latter were based upon the questions already discussed, and it is therefore not essential to examine them at length.
The judgment must be affirmed, with costs.
Miller, Ingalls and Hogehom, Justices,]