I think the court erred in nonsuiting the plaintiff. He had, as a common-carrier, transported a cargo of wheat from Fort Plain to the city of New York. The wheat was consigned to the Security Insurance Company. Part of the cargo was delivered to the consigned, and the plaintiff, being unable to obtain his freight and advances on the wheat, deposited the same in the defendant’s warehouses, and took a receipt therefor from defendant, in his own name. This act was done with the distinct understanding between the plaintiff and one Buckout, who acted for the insurance company, that it was done to save plaintiff’s lien upon the property. The defendant, without plaintiff’s knowledge or consent, delivered the property to Hoyt & Co., who were brokers for the insurance company. The plaintiff only seeks to recover the value of his special interest in the property, being the amount of such freight and advance charges. I see no defense to his claim. He was in possession of the property, with a lien upon it, and having a right to retain the property therefor, as against the owner. By the delivery to the defendant, as warehouseman, and by the receipt he took, the plaintiff was still, in law, in the possession of the property ; and the defendant, by delivery thereof to Hoyt, was guilty of a conversion, and must answer to plaintiff for his interest in the property.
The judgment should be reversed and a new trial granted, costs to abide the event. ,
Present—Barnard, P. 3"., Tappen and Talcott, 3J. -
Judgment reversed and new trial granted, costs to abide the event.