This is an action by the plaintiff as consignor of certain packages of bags, against the defendant as a common carrier. The complaint alleged *604that the defendant received the property from the plaintiff, and agreed to transport it from Syracuse to Oswego, and there deliver it to S. H. Wilson & Go., to whom the same was addressed; and avers that the defendant did transport the same to Oswego and there deliver it to some person other than S. H. Wilson & Co., whereby the same was lost to the plaintiff. The "facts are, that the plaintiff, a dealer in bags, at Syracuse, was induced by a letter signed S. H. Wilson & Co., dated at Oswego, ordering the bags, and requesting the hill to be sent by mail, promising to remit a check for the amount, to send the property, addressed to S. H. Wilson & Co., Oswego, by the defendant’s road, without any other address or direction, to the defendant or otherwise, and without having any knowledge who had ordered the goods, or that there was any such firm as S. H. Wilson & Co. at Oswego or elsewhere, or making any inquiries for the purpose of ascertaining such fact. The defendant transported the bags to Oswego. On their arrival at that place, a person, whom the referee finds was the person who ordered the bags, or his authorized agent, applied for the bags as in behalf of S. H. Wilson & Co., paid the freight on the same, received them, and gave a receipt therefor in the name of S. H. Wilson & Co. The letter to the plaintiff, signed S. H. Wilson & Co., was a fraudulent contrivance to get the bags from the plaintiff, without paying for them. There was no such firm as S. H. Wilson & Co. at Oswego, or, so far as can be discovered, elsewhere. And the party to whom the bags were delivered is unknown. The referee finds that it was the usual custom of the defendant' not to deliver goods to a stranger without his being identified, or his satisfying the defendant by papers or otherwise, that he was entitled to receive the ' same. The plaintiff drew on S. H. Wilson & Co., at Oswego, for the price of the bags, but no such firm being found, they instituted inquiries for the property, and applied to the defendant at Oswego on the subject. This *605was about a month after the delivery of the bags to the unknown person, and was the first notice gly'en to the defendant, that there was anything in th^ transaction out of the usual course of business. On tb/ése facts, the referee held that the defendant was not liable to the plaintiff for the value of the bags, and in conclusion we think the referee was correct. The* contrary would impose a most unreasonable harden and responsibility upon the carrier, and shift from the vendor, to the carrier, the duty of that^rigilance and care, in reference to the parties to whom tiie vendor proposes to commit his property, which by, as the owner, is expected to take upon himself.
The carrier is responsible for the delivery of the property to the party entitled to receive it, according to the addle: ss, and delivers it at the peril of being held liable for the property in case of any mistake on this subject. Even if he deliver it on a forged order, or to the wrong person, induced by any sort of imposition upon him, he is not excused. It is for his own security, therefore, that the carrier requires to be satisfied of the identity or authority of the persons applying for the property, as no amount of care on this subject will excuse him from liability if he makes a mistake, and delivers to the wrong person.
Absolute personal identification of every individual consignee, by proof that he is the party named in the address, is not always practicable, and is sometimes impossible, from the fact that goods are often addressed by initials, or by arbitrary marks. Other means are resorted to, often, for the purpose of ascertaining whether the party applying is the party who it was intended should receive the property, such as acquaintance with the contents of the package, &c. These are precautions which the carrier takes on his own behalf, and if he makes a correct delivery he is not liable though he has taken none of these precautions; whereas, if he delivers to the wrong party, he is liable, whatever precautions he may have taken. In the case of *606Sweet v. Barney, (23 N. Y. 335,) it was held, in accordance with previously settled rule, that the consignee is the presumptive owner of the thing consigned, and where the carrier is not advised that any different relation exists, he is so to threat the consignee, and in the absence of any notice to the contrary, a delivery which discharges the carrier as between hiffi'Afid the consignee, is good against the consignor. Here the goods were delivered to the party who had assumed to purchase them in the name of S. H. Wilson & Co., or to some person authorized by that party, and therefore to the person or persons io whom it was intended by the consignor they should be delivered.
The claim is not that the goods were not delivered to the very party to whom they were intended to be delivered, but that such party had assumed a fictitious name, or had falsely pretended to be doing business as a copartnérship, and to be doing business at Oswego. These things should have been ascertained by the plaintiff before he' parted with his property. Hot to ascertain them was his negligence, and not that of the railroad company.
Even if the defendant had known, what it did not know, that the party applying for the property did not reside in Oswego, and did not belong to any firm doing business under the name of S. H. Wilson & Go., as the plaintiff had a perfect right to consign the property in that manner, and the consignee to have it so consigned, and to receive it under that name, it is not easy to see how the defendant could refuse to deliver the property, after being satisfied that the party applying for the goods was the real party intended; unless it had also had notice that the plaintiff has been acting under mistake or imposition as to these facts. It is not an unusual occurrence that goods are intentionally forwarded to, and received by parties, without address, except arbitrary marks, or even by fictitious names. Again; how could the defendant have resisted an action to recover the property, or its value, after *607a tender of the freight ? The plaintiff could undoubtedly avoid the contract of sale on the ground of fraud; but this the plaintiff alone could elect to do. The defendant could not do it for him.
If the defendant had been apprised of the facts, it would probably have assumed the responsibility of detaining the property upon the assumption that the plaintiff would, when apprised of the facts, repudiate the sale. But there could be no absolute and legal certainty of this. And until the plaintiff should repudiate the sale, there could be no strictly legal right on the part of the defendant to withhold the property from the actual consignee, any more than though it had been obtained by any other fraud.
To purchase personal property with a preconceived design not to pay for. it, is held to be a fraud for which the vendor may avoid the sale. Yet it is presumed no one would think of holding a railroad company who should deliver to a country merchant property consigned to him from Yew York, liable to the vendors for the property, no matter what notice, or reason to believe, that the consignee had purchased the property when in failing circumstances, or with a preconceived design not to pay for it, the agents of the railroad company may have had.
The counsel for the plaintiff refers us to three English cases, decided many years ago, and in regard to carriers, the extent of whose business would bear little comparison with that of a railroad company of the present day; which cases, he claims,tsettle the right of the plaintiff to recover in this case. They are as follows: Duff v. Budd, (3 Brod. & Bing. 177;) Birkett v. Willan, (2 B. & A. 356,) and Stephenson v. Hart, (4 Bing. 476.) . There is considerable similarity between the facts in those cases and the one at bar. In the first two, however, it was not proved, or claimed, that the property h’ad been in fact delivered to the party who had ordered it. In Birkett v. Willan, the court on the trial had instructed the jury that *608where “a parcel was directed to a person, generally, in such a place as Exeter, without specifying his place of abode,, the carrier was not bound to carry that parcel to any place, but he would fully discharge his duty by delivering it at his office, to any person coming from thé person to whom it was so directed, or whom he might reasonably suppose to come from that person; and left it to the jury to say whether, under the circumstances proved, the defendant had reasonable ground for thinlcing that the man to whom he did deliver the parcel, came from the person to whom it was directed.” And a new trial was ordered, on the authority of Bodenham v. Bennett, (4 Price, 31,) which holds that the carrier is not excused for misdelivery by the fact that he had reason to suppose the delivery to be correct. In Duff v. Budd, the plaintiffs had received an order for goods from Oxford, signed by J. Parker. They made inquiries, and ascertained that Mr. Parker, of High street, Oxford, was a respectable tradesman there, and forwarded the parcel by a carrier, directed to “ Mr. J. Parker, High street, Oxford.” The Mr. Parker who dealt in High street, Oxford, was William Parker, and he, on being applied to by the defendant’s servants, knew nothing about the parcel. The servants of the defendant afterwards delivered it to a person who saw it in the office, addressed as aforesaid, and claimed that it was intended for him. There was no evidence, however, that he was the party who had ordered it, nor was it so claimed, and the decision was put principally on the ground that as the parcel was specially directed to High street, Oxford, the defendant, who had delivered it elsewhere, was liable. Of course, if it had appeared that the party to whom the parcel had been delivered was the J. Parker to whom it was directed, a different question would have been presented.
Stephenson v. Hart more nearly resembles the present case, in its features. There a person calling himself West *609had, by means of a fictitious bill, with forged indorsements, purchased goods of the plaintiffs, and directed them to be sent to a certain number, Great Winchester street, London. The carrier took the box to the number indicated, and no such person could be heard of at that place. Afterwards the carrier received a letter from St. Albans, signed with the name to which the box was addressed, requesting that it might be sent to a certain inn at St. Albans, which was accordingly done. In this case, from the facts, there was little doubt but that the same party who received the goods at St. Albans was the party who had purchased the goods and passed the forged bill; and on motion for a new trial, it was, among other things, claimed that this was a material fact, and should have been left to the jury. The decision of the case was placed upon the ground that the box, instead of being delivered at its address in London, had been sent to St. Albans, contrary, as the jury found, (that question having been left to them,) to the usual course of business of the defendants.
In regard to the claim that the box was delivered to the person for whom it was intended, Park, J., who delivered the principal opinion, holds the following language: “ The argument which has been raised for the defendants, by the assertion that the box has been delivered to the right person, is answered by saying that a felon cannot be the right person. And as to the defendants’ liability to an action at the suit of West, till it was ascertained that the bill he had given would not be honored, such an action might have been well defended by showing that the box was tendered at Great Winchester street, and that no such person was known there.” This is not very satisfactory reasoning. The remark that a felon cannot be the right person, is more rhetorical than correct. True, a felon ought not, as a question of right, as between him and his victim, to receive the property, and in that sense is not the right person; but, nevertheless, he may be the only *610person who, as between him and the carrier, is entitled to receive the goods, as the learned judge seems to concede would have been the case had he appeared to receive the , box when tendered at Great Winchester street. ¡Neither is the answer to the fact that the carrier would have been 'liable to an action at the suit of the consignee, quite satisfactory. Of course, if nothing else had transpired except the abortive attempt to deliver at Great Winchester street, that attempt would have been a good answer to an action. But if the learned judge meant to say that the failure of the attempt to deliver at Great Winchester street would have authorized the carrier to retain the property against any subsequent demand of the consignee, the proposition is not maintainable.
[Fourth Department, General Term, at Rochester, January 2, 1871.Clearly, however, the case of Stephenson v. Hart does not establish the right of the plaintiff to recover in the case at bai’, because it concedes that if the consignee was at the place of the address on the arrival of the property, and there_ received it, the carrier would not have been liable.
That was this case. The goods were directed, generally, to Oswego. The place of delivery was, on demand, at the depot of th'e defendant. They were there demanded and received by the party who had purchased them, and to whom they were in fact directed, though probably under a fictitious name. " In these days of extensive traffic, carriers could not abide the consequences of a rule which should impose upon them, not only the responsibility of delivering the goods to the actual consignee, but that of determining whether the circumstances are not such as lead to a well grounded suspicion that some fraud has, by the use of fictitious names, or otherwise, been perpetrated upon the consignor.
The judgment must be affirmed.
Mullin, P. J., and Johnson and Talcott, Justices.]