This is an action of trover, to recover the value of a box of dry goods, alleged to have been delivered to the defendant as master of a canal boat, to be transported from the city of Albany, to Charlestown, in Montgomery county.
Two questions arise :
1. Has the plaintiff proved a delivery to the defendant ?
2. If he has, is there sufficient evidence of a conversion ?
It appeared that before any goods were put on board, the plaintiff requested the defendant to receive a quantity of merchandize ; that he consented, and on the 20th of November, 1824, gave a receipt for 30s. in full, for transporting the plaintiff’s goods, described as four boxes of dry goods, and other articles. The bill of lading, dated November 24th, in the hand writing of the plaintiff, and subscribed by the defendant, states four boxes of dry goods. On the evening of the 20/A of November, the plaintiff came on boa^d ; the defendant enquired what dry goods he had, and he replied four boxes. He then made out the bill of lading, and delivered it to the defendant. It also appeared that no more than four boxes of dry goods were actually received on board ; and after being so received, on the evening of the 20/A of November, the plaintiff came and enquired for his goods. He was informed of their reception, went into the room where they were, and returned, saying it was all right. The defendant delivered the four *758boxes according to his contract. On the part of the plaintiff, it appeared that five boxes of dry goods had been deposited on the dock, near the defendant’s boat, in the evening of the 20th of November. A man in the boat said the defendant was not on board, and the boxes were left lying on the dock. A person from the boat came, and assisted in unloading two of the four boxes brought by one of the cartmen. It also appeared, that it was customary for masters of canal boats to receive, on the dock, goods they were to transport. That the fifth box was brought in the evening, and placed on the dock where a boat lay. That some person on board, said it was the defendant’s boat; and that more goods of the plaintiff were coming on board.
Admitting that, according to the usual custom and understanding of parties, a delivery on the dock, near a boat, is a good delivery so as to charge the carrier, it must always be accompanied with express notice ; otherwise he is not answerable. Has .that been done in the present case ? So far from it, it appears to me that, in every stage of this transaction, the defendant was informed there were four boxes only. So the plaintiff declared to the defendant; such is the language of the receipt for the freight; and so is the invoice. From all this, the defendant was warranted in taking on board four boxes of dry goods ; and ought not to be chargeable for not taking on board the fifth box, although it might have been left on the dock. From the evidence, I think the defendant might well presume a fifth box was not intended for his boat. But Whether it was or not, there was a failure on the part of the plaintiff to give the defendant information. The plaintiff was probably ignorant that there were more than four boxes. That is his misfortune ; not a ground to charge the defendant, who appears to have acted with good faith ; and could not know, from the instructions he had received, that any more than four boxes belonged to the plaintiff. The defendant not having received the fifth box on board, it may, by mistake, have been put on board another boat; or perhaps stolen; hut there is no presumption that the defendant ever con*759verted it. All the facts in the case negative that presumption. I am therefore of opinion, on the first point, that the plaintiff has not proved sufficient to make out a delivery of the goods ; and that on this ground the verdict is against evidence.
As to the second question, if it be conceded, that the delivery, such as it was, made the defendant answerable, it is necessary to prove a conversion. The plaintiff might have brought a special action on the case, against the carrier; and have avoided this question. He has brought trover, which will also lie ; but then he is bound to shew that the defendant converted the goods. A demand and refusal, is prima facie evidence of a conversion ; but the defendant may give evidence to negative the presumption. (Lockwood v. Bull, 1 Cowen, 330.) I think it is plain the defendant never had actual possession of the goods. His witnesses swear that all the goods on board were delivered ; and it is fairly to be inferred, he had no knowledge of any more than four boxes. There is nothing on which to found a presumption that he clandestinely secreted, or in any way disposed of the fifth box. On the contrary, if lost to the plaintiff, it was without the defendant’s knowledge or interference. On these facts, it ought to have been submitted to the jury, whether they were satisfied that the defendant had converted to his own use, the goods in question. The verdict must be set aside ; and a new trial granted, with costs to abide the event.
New trial granted.