delivered the opinion of the Court:
It was held in Illinois Central Railroad Co. v. Parks, 54 Ill. 294, that an action of trover lies against a carrier who, by mistake, delivers goods to a wrong person, and the same rule applies to warehousemen. “Warehousemen,” says Story, in his work on Bailments, § 450, “ are not only responsible for losses which arise by their negligence, but also for losses occasioned by the innocent mistake of themselves, and of their servants, in making a delivery of the goods to a person not entitled to them. For it is apart of their duty to retain goods until they are demanded by the true owner; and if, by mistake, they deliver the goods to a wrong person, they will be responsible for the loss, as upon a wrongful conversion.”
Whether, therefore, the defendant’s duty as carrier had ended and its duty as warehousman had been commenced, before the delivery of the trees to Fisher, is an unimportant inquiry, under the evidence, since it is not denied that at that time it was holding them in the one capacity or the other. Yet, inasmuch as we think it clear, under the rule recognized by previous decisions of this court, many of which will be found referred to in Merchants’ Dispatch Transportation Co. v. Hallock, 64 Ill. 284, where the question is discussed at some length, that it was then holding them as warehouseman, the case will be considered in that view.
The boxes containing the trees were plainly directed to Herndon & Yanduzen, and there is no pretense of authority in defendant’s agent to deliver them to Fisher. It is true, the trees had been ordered by Fisher, and they were shipped to be delivered to him, but the delivery was not to be made until after he paid for them. We do not consider it important what steps were taken to notify Fisher of the arrival of the trees, or whether plaintiff had taken due care to have an agent at the defendant’s depot at Paris, to receive them and pay for the freight upon their arrival, because these questions in no manner affect the defendant’s duty or the measure of its liability. It was optional with it to refuse to receive the trees to carry, until its charges were paid, or to carry them trusting to the lien, and the mode of its enforcement, provided by law. It adopted the latter course, and, in doing so, is bound to the same measure of duty in carrying, storing and holding for the consignee, that it would have been had its charges- been paid in advance-shaving the right, however, to enforce payment of its charges from the property in the mode provided by law. Without undertaking the gratuitous task of discussing what would have been the most effective and appropriate remedy for the defendant to have pursued to collect its charges, under the circumstances, it is sufficient to say, neither by the common law nor by statute was it authorized to place the trees in Fisher’s hands with directions to him to sell enough of them to pay these charges. It was its plain duty to store the trees, when they were not called for on their arrival, in its warehouse, and there to keep them until called for by the consignees or some one authorized by them to receive them, or until they were taken and sold, in conformity with law, in satisfaction of defendant’s claim for charges.
That Fisher’s possession was not for the defendant, we think, is clear. The trees were not delivered to him by defendant’s agent to keep as a bailee or custodian for defendant, because he was directed to sell enough of them to pay the freight due for their carriage, and he did pay and the agent received from him such freight. When he wrote to the plaintiffs, acknowledging the receipt of the trees, it was not as custodian or bailee for defendant, but as purchaser. When defendant’s agent requested attorney Dole to see him, it was not as custodian or bailee, but as one under some obligation to pay for the trees. The letter of defendant’s agent to the plaintiffs, informing them that he held the trees then, could not have been true. Fisher held them. Whether he was able to get them back from Fisher, is a very different question, and one not important to the merits of the case. As warehouseman or carrier, the defendant does not answer the demands of the law, when it has improperly disposed of the property in its custody, by simply placing itself in a condition to repossess it. There is nothing to show that plaintiffs acquiesced in the delivery to Fisher. They had, it is true, written to the express agent, at Paris, making him their agent for the delivery of the trees, upon the payment of the purchase money by Fisher. It does not, however, appear that any one ever received this letter—certainly no one acted on it, and there is no claim made that the delivery was by the authority thus attempted to be conferred. When the plaintiffs learned that Fisher had the trees, they notified the agent that the delivery was contrary to instructions, and that they should hold the defendant responsible for their value; and the mere act of Dole in calling on Fisher to see if he would pay, done, as it was, at the instance of the defendant’s agent, we can not regard as in anywise compromising the plaintiffs.
It may be the plaintiffs were negligent, as is contended by counsel for the defendant, in not calling for the trees within a reasonable time, either by themselves or their agents. But how is such negligence connected with the negligence of the defendant? The defendant’s duty, as we have before attempted to show, was plain, whether plaintiffs did or did not call for the trees. The most that defendant could be justified in doing, in the event of the plaintiffs’ negligence in this respect, was to take the steps pointed out by the law for the enforcement of its rights.
Negligence of the plaintiffs, which will prohibit a recovery for an injury sustained by reason of defendant’s negligence, must be such as contributes to the injury complained of; that is, it “ must be such, that by the usual course of events, it would result, unless independent, disturbing moral agencies intervene, in the particular injury.” Wharton on Negligence, § 324. Whatever negligence plaintiffs may have been guilty of, therefore, in not calling for the trees within a reasonable time, is an element that can have no proper influence in the present ease, for no one pretends that its necessary tendency was to induce the defendant’s agent to take the law into his own hands, and dispose of the trees to suit his pleasure.
The ruling of the circuit court, in the giving and refusing of instructions, was in harmony with the views we have expressed, and the evidence, in our opinion, sustains the verdict.
The judgment is affirmed.
Judgment affirmed.