The court of appeals, (33 N. Y. Rep., 610,) having held, when this case was before it, that on the evidence then presented that there was a breach of duty by the defendant, which implies that there were instructions given which it was the duty of the defendant tó obéy, and that it had disobeyed them; the same conclusion must now be drawn from the evidence, unless the evidence given by the witness Priest, has so changed the facts as fo take' the case out of the legal rules applied to it by the court of appeals.
Mr. Priest is a gentleman of intelligence- and integrity, and states the facts as he now remembers them. But this was but one transaction out of thousands'in which he has been engaged during the last thirteen years,- and it is not surprising .that he should not be able to recall all that transpired when the bargain was made for the carriage of the tow in question. But the surprise is, that he should be *136able to remember as much in relation to it as he does. In regard to many of the circumstances attending the transaction, his recollection corresponds with that of Johnson. It is only when they differ that it becomes important to determine which of the two is the most likely.(being equally credible,) to remember them accurately.
Mr. Johnson seems to have been and to be a business man, and must have been in the last thirteen years, engaged in a multitude of transactions, some of which have made a very strong impression on his memory, and others perhaps, none whatever. When the transactions in which a person has been engaged are llot only numerous, but of a uniform character, the probability of their being remembered would, be very slight, unless attended by something peculiar to some one or more of them." When the transactions are numerous but not of a uniform character, the chances of their being remembered are very largely increased.
It is the mingling together of so many circumstances nearly identical and yet distinct that confuses the memory, and produces doubt and uncertainity, or renders impossible the separation of any one transaction from the mass with which the witness has been connected.
Johnson, no doubt has been concerned in the shipping of large quantities of property, since the fall of 1854, but it is more than probable that he has not been concerned in one, where Priest has been concerned in one hundred. The shipments by Johnson, were of property in which he or his firm were personally interested. Priest had no personal interest further than to see that he performed his duty; the loss fell on Johnson or his firm—none fell upon Priest. Johnson’s memory was directed to the bargain, and instructions to defendant’s agent very soon afterwards. Priest does not seem to have had his attention called to it, until about the time of the trial of this case. Johnson swears positively to what occurred at the time of the bargain for the carriage of the tow.
*137Priest says, he has no definite recollection of what occurred at the time of the bargain. He relies in part upon the course of business, upon the entry on his books and the way bill. I cannot give equal weight to the evidence of these men, much less can I reject the evidence of Johnson, and adopt that of Priest. I think, Johnson is most likely to remember what occurred, and although interested, I cannot disbelieve him in the absence of any evidence affecting his character for truth, and adopt that of a witness unquestionably truthful, but who does not profess to remember, and who from the very nature of the case, cannot be expected to remember, accurately or fully, the circumstances connected with the bargain for the shipment of the property.
I am constrained to find therefore, that Johnson instructed the agent of the defendant, to send the tow by the People’s Line, and by no other.
This being the instruction, the court of appeals holds that the defendant was bound by it, and it was a breach of duty not to obey it.
The defendant’s counsel suggests that the property being consigned to Ludlow, in New York, is evidence of the ownership by Ludlow, and that he only could give instructions as to the manner of conveying it to New York, and therefore when it was refused by the People’s Line, the defendant stood in relation to the property without instructions, and was authorized to deliver it to any safe and responsible line to be carried to New York.
In this, I think he is mistaken; prima facie the consignee is owner, but the real ownership may be shown, and when shown the instructions of such owner must be obeyed, unless the carrier while ignorant of the true owner, has received instructions from, or has in some way become responsible to the apparent owner, for or in reference to the property, in which event the real owner cannot assert his rights to the prejudice of the carrier.
But the contract made with the carrier, or instructions *138given by the consignor to him, bind not only the carrier but the consignee, and the latter, although the real owner takes the goods cum mere owner. The consignor is for the purpose of the arrangement to carry, the agent of the consignee, and his acts bind the consignor, as the acts of any other agent bind his principal when acting within the scope of his authority. It was therefore, immaterial whether the consignor or consignee owned the goods—there is no evidence that new instructions were either, given by or asked from either.
No new instructions were needed—a contingency had arisen not contemplated by the_ parties, but one for which the instructions provided, which were to send by the People’s Line only. The property could not be sent by that line," it was therfore a,t the terminus of the defendant’s line,not without instructions as to the disposition to be made of it, but with positive instructions that it was not to be sent by any mode of conveyance whatever. It was the duty of the defendant to store it and notify either the consignor or consignee.
But it is unnecessary to discuss the legal questions, they have been disposed of by the court of last resort, and nothing I can say, can give it any more force than it has now.
There must be judgment for the plaintiff.