It appears from the case that the package of goods sent by express was made up under the eye of the partner Bishop, and Bishop also directed Folsom to do up the bundle and send it by express to the house of Wilson Co., Reading, Pa., and that the bundle was done up and sealed up in the presence of Bishop. It appears, also, that at that time the account was stated, and the balance to be paid agreed upon. Bishop, on behalf of his firm, had accepted the settlement, and had agreed that the cash should be paid on delivery of the goods. Under this agreement Elliott was not obliged to deliver the goods without payment. If he had carried the goods himself to Wilson Co. he might have held them until he was paid, and he might equally well hold them by the express company. The charge for repairing eye-glasses, having been included in this settlement, could not be brought forward in the other suit. The goods having been sent by the order of Bishop, i. e., of Wilson Co., it would seem to be a matter of course that they should pay the expressage; and Elliott, having been obliged to pay it by reason of their refusal, had a right to recover it in his suit.
The fact of the settlement having been found in the case, the evidence of a demand to account, either in writing or verbal, was of no consequence. *Page 320
SMITH, J. When Bishop, one of the firm of Wilson Co., received from Elliott, March 21, 1874, the goods for which they seek to recover, Elliott could then no longer be regarded as their factor or agent, if he was such before. The goods were left with Elliott for the sole purpose of being forwarded to the plaintiffs at Reading; and this he undertook to do according to the directions of Bishop, although they declined to receive them; — the goods, nevertheless, remained the property of the plaintiffs, subject to the attachment afterwards made by Elliott. They would probably be entitled to recover for the item of repairs, $1.50, if the same had not been adjusted by being credited with the assent of Bishop on the bill for the other goods returned the same day.
As to the goods which are the subject-matter of the suit of Elliott v. Wilson Co., Elliott never sustained the relation of factor to them. Bishop agreed to receive them back, and did receive them back on the same day, and the amount to be paid therefor was ascertained and agreed upon. Both lots of goods were sealed up in his presence, and by his directions forwarded to Reading, with the further agreement that the amount which had been found due would then be paid. Wilson Co. attempt to excuse themselves for not receiving the goods, upon the ground that they were not permitted by the express carrier to examine the contents of the bundle before being required to pay for the same. Ordinarily, a consignee will be entitled to a reasonable opportunity to examine the packages brought to him to ascertain whether the goods answer the description of those ordered by him. Lyons v. Hill, 46 N.H. 49. But there was no occasion in this case for that, because, the goods having been put up and sealed in the presence of Bishop, and forwarded to his firm by his directions, they had through him knowledge of the contents of the package.
Exceptions overruled.