There are two issues presented :—
1st. Did the plaintiff deliver these trunks to the defendant on freight %
2d. Did the defendant so receive them 1
The plaintiff must affirmatively establish these issues, to entitle him to a verdict.
The boat Hendrick Hudson had the double character of a passenger-boat, to carry passengers with their baggage, and of a freight-boat, to carry goods and chattels for compensation.
The defendant was required to have agents in attendance at the boat to receive baggage, and take care of it as baggage; and to receive freight, and to take care of it as freight.
Persons sending articles to a boat of this double character, are required and have a right to designate what packages they ship as freight, and which packages they take with them as baggage.
The owner of such boat is not at his peril bound, or permitted, to open trunks and packages, to ascertain what contain *492merchandize and what wearing apparel, and to take care of them, and charge for them accordingly; though he may, should he discover that he has, either by mistake, or by fraudulent misrepresentations, or by fraudulent suppression of the truth, received as baggage what in truth was freight, correct the error, and charge for freight.
In this case, the plaintiff’s traveling agent and witness, Mr. Faulkner, testified:—
“In December, 1850, I was at Stanwix Hall, in Albany, and sent some trunks on board the-'steamboat Hendrick Hudson. I sent them by a porter from the hotel about 3 P. M. They were large dry-goods trunks, iron bound, with a strap or two, about 36 or 38 inches long, and 18 inches high—square top. There were three trunks, containing ribbons, silks, and laces. I came down as a passenger on the boat that night. Those trunks were not ordinary traveling trunks. I had traveled on that line before with those trunks. Freight was always paid after the trunks had reached their destination, at Albany, or New-York. I have frequently paid freight on these trunks, and always paid at the place of destination. On the previous occasions the trunks were put in the baggage-room.”
On cross-examination, (which is the elicitor of truth,) he testified :—
“ I have gone more than once in the Hendrick Hudson before this; but can’t say whether in the same year or not. The freight was put on deck. I don’t know whether freight was put in the baggage-room. When I paid before, the charge was made for extra baggage. I saw the trunks in the baggage-room when I came on board at Albany. I think I sent my valise by the porter with the trunks. The porter brought me the card of the man that received the-tranks. I went on board, and saw that the tranks were there; and that is all I did about them.”
George WiMinks, sworn for defendant, testified:—
“I was deck-hand on the Hendrick Hudson in 1850. I recollect the trip when these trunks were brought down. I recollect the witness, Faulkner. I was on the boat when the *493trunks came. The porter from Stanwix Hall, named John, brought them, with a small valise. I took them, and gave him a ticket with my name on.1 I put them in the baggage-room, when Faulkner came on board, he had my ticket, and asked if that was my name; and I went with him, and showed him his baggage in the baggage-room.”
This is all the testimony in the case, upon the subject of the delivery and receipt of these trunks, and whether they were delivered and received as baggage, or as merchandize on freight.
I will first present Faulkner’s knowledge of such transactions, (as disclosed by his evidence,) as it had previously taken place between him and the Hendrick Hudson in relation to these very trunks.
Before this, he had been on board the Hendrick Hudson with these trunks. He knew freight went on deck, and not in the baggage-room. These trunks, before, went in the baggage-room ; and when he before paid for them to the Hendrick Hudson, he paid for them as extra baggage. This conduct of the plaintiff’s agent, .was a representation that these trunks were used by the plaintiff for baggage, and not for merchandize. And had the agent for the defendant recognized them when they last came on board, he would be legally justified in supposing that they contained wearing apparel. ,
Had these trunks never been on board the Hendrick Hudson before, yet, the transaction itself represented them to be baggage, and not freight.
Plaintiff’s agent sent them to the boat by the porter of a hotel, who carries the baggage of travelers, and not merchandize. This fact was calculated to deceive the persons of the steamboat. The porter took the card of the deck-hand, who receives baggage, and" not the receipt of the freight-master. The trunks are placed in the baggage-room. The agent of the plaintiff, when he came on board, sought for and found the deck-hand, went with him to the baggage-room, which he knew contained baggage, and1 not freight, and never undeceived the deck-hand. The evidence is conclusive, that the trunks were *494delivered and received as baggage; and there can be no doubt, had they reached New-York in safety, it would not have been known by the agents of the defendant that they contained merchandize.
The circuit judge erred in admitting evidence to show for what particular use this kind of trunk was made, and also to what use other persons applied them. That they were made for merchandize, and by other persons were used for merchandize, does not establish that the plaintiff, or his agent, did not use them for wearing apparel. Neither has the plaintiff a right to recover by showing that his agent represented an untruth, and the defendant was deceived by it.
The circuit judge also erred in charging the jury, that they might find that the defendant was “ bound to know ” that the trunks contained merchandize.
“ Bound to know,” is a conclusion of law, upon facts; not a question of fact for a jury to find.
A jury may find from the evidence that a party did know; but it is only for the law to say, that from a given state of facts, a paity is “ bound to know,” although in fact he did not know.
The decision of the special term should be reversed, and new trial ordered, with costs.