OPINION ON PETITION TO REHEAR.
TuRNEY, Ch. J.This casé was decided at a former day of the term, and is again before us on a very earnest and respectful petition to rehear.
The facts are set forth in the former opinion.
The authorities cited do not, in our opinion, when taken connectedly, support the petition. We had examined the case of Weyand § Atchison v. Railway Co., as reported in Lawyer’s Reports, An*130notated, Vol. I., 650. It is to that case Mr. Eree-man has added his^ notes in 9 American Rep.
In that case the Court said: “ This case does not fall within the rule, that where one of two innocent parties must suffer, the loss must fall upon him who put it in the power of another to perpetrate the wrong,” and adds: “ The possession of the bill of lading without indorsement or' other evidence of assignment, did not vest , Evans with auy apparent right to the property. The loss re-suited from the negligence of the defendant in not insisting upon proper evidence of an assignment before it surrendered the goods.”
In Price v. Oswego and Syracuse Railroad Co., 50 N. Y., 213, and 10 Am. R., 475, it was held u where goods which have been fraudulently ordered by an individual in the name of a fictitious firm, and have been shipped in compliance with the order, directed to such firm, are delivered by the carrier to a stranger without requiring evidence of his identity, the carrier is liable to the consignee for their value,” the Court saying: “ In the present case the goods were consigned to S. H. Wilson & Co., Oswego.”
This plainly indicated some person, or rather persons, known by and doing business under that name. But as there was no such firm, and, so far as the findings or case show, never had been, delivery could not be made to the consignees. Then, as already seen, it became the duty of the carrier to warehouse the goods for the owner.
*131Instead of this, the defendant delivered them to a stranger withont making any «inquiry as to who or what he was.”
The Court cites Stephenson v. Hart, 4 Bing., 476, in which “ it was expressly. held that the carrier had no right to make delivery to the writer of the fictitious order,” and adds: “ But it is said that the plaintiff intended the goods should he delivered to the writer of the order. Rot at all. He did not consign them to the writer of any order, but to Wilson & Go. This is the only evidence of his intention as to the person to whom the delivery should he made. It is further said that it was the plaintiff’s negligence in forwarding the goods without ascertaining that there was in fact such a firm. I am unable to see what the defendant had to do with this. Its duty was to deliver to the firm, and, if that could not be found, to warehouse and keep for the owner.”
That case is at one with the present. It is sound in principle, and in consonance with right.
The petition is dismissed.