Gillespie v. Durand

By the Court. Ingraham, First J.

Without examining the various questions relative to the admission of evidence, I think the judgment must be reversed upon the merits.

The action was to recover from the defendant moneys paid by the plaintiffs to the owners of boats containing wheat consigned to them, for demurrage of the boats while delayed in discharging their cargoes here. The wheat was from Canada, in bond, consigned to the plaintiffs; and, before arrival here, it was sold to the defendant, who was to receive it from the boats.

The sale was on the 19th of May. The boat arrived on the 20th of May, and notice was given to the defendant on that day as appears from his letter of the same date.

On the 23d of May the defendant’s workmen commenced removing the wheat.

The warehouse reentry was not made in Hew York until May 25th, nor completed until May 30th, when Dean, one of the plaintiffs, made the necessary affidavit thereto, and the authority was signed by the plaintiffs to the defendant to withdraw the wheat from the warehouse.

It does not appear distinctly w’hen the wheat was entirely discharged, but I conclude from the last claim of demurrage being for that day, that the discharging was completed on the 27th of May.

The testimony of the deputy collector shows that, until the importer makes the warehouse entry and authorizes the exporter to receive the wheat, the title is in the consignee; and, after that, the exporter’s duty is to complete the papers. This can only be shown by the written documents. Yerbal permission from an under officer or clerk, before the entries are made, cannot satisfy the law.

*538Bat even conceding that such verbal permission of a clerk might' suffice to allow a transhipment into the export vessel, after the import entry is made of the goods in New York to be warehoused, that act was not done until the 25th of May, and within two days thereafter the wheat was discharged. The plaintiffs have recovered for six days demurrage, and as the greater part of this time was prior to such entry, the judgment for the amount awarded cannot be sustained.

It may be that, for the dispatch of business, parties will venture, in violation of the law, to deliver and receive goods under bond, before permission is regularly obtained from the proper officer, but I can see no propriety in holding as a legal proposition, that parties are bound to act on such a consent or permission from a mere clerk in the employ of the government. It was the duty of the plaintiffs to make the warehouse reentry. If he intended to hold the defendant responsible for the delay, he should have made it at once; and, having neglected to do so, he cannot hold the defendant responsible for a failure to perform what would have been an illegal act, although connived at or sanctioned by a clerk in the public employ.

It is not necessary to express any opinion upon the other questions in this case.

Whether or not the defendant is liable for demurrage at all, and how far the judgment against the plaintiffs can form a rule of damages against the defendant, are questions not free from difficulty.

The judgment must be reversed.

Judgment reversed.