Stack sued the appellant for the non-delivery of two bonds. The defendant answered by the general *28denial, with an agreement between the parties that all legal defenses could be given in evidence under it. Trial by the court; finding for the plaintiff; motion for a new trial overruled, and judgment. Motions were made and overruled to strike out portions of the depositions taken on the part of the plaintiff.
We have examined the record, and think that the action of the court, in overruling the motions to suppress, worked no harm to the defendant. The portions of the depositions objected to consist, in the main, in convei’sations of the plaintiff' and his wife with Eveleth, a witrxess who assisted in sending the bonds from Chicago. These conversations do not tend to establish or contradict any material fact in dispute, in axxy manner affecting the merits of the case.
The evidence, which is made a part of the x’ecord, tends to show that the plaintiff' enlisted as a soldier in the army of the United States, in Lockport, Niagara county, New York, in September, 1864, and received, as a bounty from that county, two hundx’ed dollars ixx cash and the bonds described in the complaint, which bonds were immediately sent by express to the plaintiff’s wife, Hannah Stack, at Chicago, Illinois. In July, 1865, the plaintiff was mustered out of the service, near Albany, New York, and arrived home in Chicago on the 16th of that month. A few days before the plaintiff' got home, his wife appeared at the. px-ovost marshal’s office ixx Chicago, and after a conference with Captain James, the provost marshal, she was referred by him to the witness Eveleth, then a clerk in the office, with a request that he attend to her business. She then exhibited to Eveleth a paper purporting to be a telegram from her husband, James Stack, fx'orn number 64, Montgomery street, Albany, New York, directing her to send those bonds to Albany, Neto York, 64 Montgomery street. She handed Eveleth two bonds, answering the description of those in the complaint referred to, who, thereupon, inclosed them property and directed the package “To James Stack, 64 Montgomery street, Albany, Nao York.” He also indorsed on the back of the package *29the amount inclosed, and the words “From Mrs. Hannah Stack, Chicago, Illinois.” He, at the same time, wrote a letter, in the name of Hannah Stack, to be sent by mail, informing James Stack of the transmission of the bonds by express, and addressed the letter to “ James Stack, 64 Montgomery street, Albany, New York.” On the 11th of July, John Staving, then receiving clerk of the United States Express Company at Chicago, received the package and gave a receipt therefor, in which that company undertook to forward the package to the nearest point reached by it, and that the company should only be liable as forwarders. The United States Express Company canied the package to Buffalo, New York, (the end of the line,) and there delivered it to the appellant. The package reached Albany, New York, on the 14th of July, 1865, and was there delivered, by the duly authorized agent of the defendant, on the 15th, (the next day,) to a man representing himself to be James Stack, under these circumstances: On the day of its arrival, the delivery agent of the company called with it at 64 Montgomery street, which was a hotel, or boarding house, kept by Lillis, and there found, on inquiry, that Stack was not then in, whereupon the package was returned to the defendant’s office. On the morning of the 15th of July, a man called at the office, representing himself to be James Stack, and showed the agent a letter purporting to come from Hannah Stack, from Chicago, informing him (Stack) that the bonds had been sent by express. He was informed by the agent that he must get some one to identify him — that the letter was not enough. The man left the office, and shortly after returned with Lillis. The agent was unacquainted with the latter, and required some one known to him (the agent) to be brought to vouch for Lillis. Slevin was then brought in, who was known to the agent to be a reliable man. Slevin did not know Stack, and so informed the agent, but did know Lillis, and represented him to the agent as all right and reliable. The agent then asked Lillis whether the man with him was James Stack, and Lillis replied that *30he was, and was staying at his (Lillis’) house. Lillis was asked no other question and gave no other information. The man calling himself Stack was asked by the agent, in the presence of Lillis, whafe the package contained, and the man replied that it contained a bond for $500, and one for $300, Niagara county war bonds, and was from his wife, Hannah Stack, from Chicago. The agent thereupon delivered the package to the supposed Stack. The person to whom the package was delivered was not the real James Stack, but a swindling pretender, who had doubtless sent the false dispatch to Stack’s wife. The appellee did not send the dispatch which his wife got, nor had he any knowledge of its being sent. Lillis had no other knowledge or information about the pretender than this: About a week or ten days befoi’e the package was delivered, a man came to his house and said his name was James Stack, and that he was a soldier, stopping at the barracks, then located between Troy and Albany, and asked permission of Lillis for a room to write a letter to his wife, which was given. After the letter was written, he asked Lillis for his address, which was given thus: “ James Lillis, 64 Montgomery street, Albany, New York.” Stack said he would have a letter addressed to him at Lillis’ house, and requested that if it came it should be kept. After that he called occasionally at Lillis’ house and took meals, up to the time the package came; and, in the meantime, a letter came to Lillis’ house for him, and he stated to 'Lillis that the letter came from his wife, and informed him of the sending of a package by express. The agent of the express company, at the time he delivered the package, was not aware of the nature or extent of Lillis’ knowledge and acquaintance with the pretender, nor did he ask any question or make any effort to acquire such information.
It is claimed, that admitting the liability assumed by the appellant to be that of a common carrier, yet that such liability terminated when the package was taken to 64 Montgomery street, and thereafter the appellant was only bound *31to ordinary diligence in keeping the package for the owner. It is also urged that the contract entered into between the plaintiff and the United States Express Company is to govern in fixing the liability of the appellant.
J. M. La Rue, for appellant. J. A. Stein, for appellee;It is not necessary, for the determination of this case, that we should pass upon either of these propositions. For in any event the liability of the company could not be less than that of a warehouseman.
In Devereux et al. v. Barclay et al., 2 Bar. & Ald. 702, it was held that trover will -lie for the mis-delivery of goods by a warehouseman, although such mis-delivery has occurred by mistake only. Nor will a delivery on a forged order protect the warehouseman. Lubbock v. Inglis, 1 Starkie 104, (2 En. Com. L. 215.)
The court below found, under the facts, that there was a want of ordinary diligence on .the part of the company in the delivery of the package. We think the evidence justifies this conclusion. But we are not inclined to apply this rule to the delivery of goods entrusted to warehousemen and others in like condition. There must be a delivery to the right person. It is always in' the power of the person having the goods in charge to identify the owner. If he suffer himself to be imposed on, it is bin own fault.
The judgment is affirmed, with costs,!\and three per cent, damages. ^