'Magnin v. Dinsmore.

examination of the cases in that State, that they go much farther than ours in shielding married women from liability, and their statute varies materially from our acts of 1848, 1849, 1860 and 1862. By section three of the act of 1860, chap. 90, as amended by the act of 1862, chap. 172, a married woman may enter into any contract having reference to her real estate, and by section 7 of the act of 1860, she may sue and be sued in all matters having relation to her separate property. The test of her liability is not, whether her separate estate is actually benefited or not, but whether the contract has reference to it, or has relation to it. If the contract here had been that the plaintiff should pay the interest on the mortgage, could it be questioned that it was a contract having reference or relation to the real estate? The relation is as clear as if it were a contract to build or repair a house on her land. It cannot make much, difference that the money was intrusted to the defendant for the same purpose. The question whether it was borrowed and lent for that purpose, was one of fact which the jury have determined in the plaintiff's favor.

None of the other questions raised by the appellant require further comment than is contained in the opinion at General Term. The judgment should be affirmed.

All concur.

Judgment affirmed.

MAGNIN V. DINSMORE.

(70 N. Y. 410.)

Common carrier — conversion — evidence.

Mere non-delivery by a common carrier will not constitute a conversion, nor will a refusal to deliver, on demand, if the goods have been lost through negligence, or have been stolen; there must be proof of a wrongful disposition or wrongful withholding.

In an action against a common carrier to recover the value of goods intrusted to him at New York for delivery at Memphis, and not delivered, evidence that the box originally containing the goods was found empty in the water, in New York harbor a year afterward, is not sufficient to show a conversion, nor to deprive the carrier of the benefit of a limitation of his liability in the contract of carriage.*

* See Wescott v. Fargo, 61 N. Y. 542; 19 Am. Rep. 300.

A

Magnin v. Dinsmore.

CTION against Adams Express Company to recover the value of watches, etc., delivered to them at New York for carriage to Memphis. The shipping receipt contained a clause limiting the carrier's liability to $50 unless the shipper stated the value. The value was not stated or required to be stated. The goods were worth more than that amount. The evidence showed that there was no delivery to the consignee, but that the box which had contained the goods was found about a year afterward, empty, in the water at Gowanus, Long Island. The judge charged that the plaintiffs were not entitled to recover more than $50 and interest, and they had judgment for that amount, and appealed.

The burden of proving exception laid down, and 2 Greenl. on Ev., § 219;

C. Cainbridge Smith, for appellants. that the cause of loss was within the without negligence, was on defendant. Simmons v. Law, 3 Keyes, 217; 4 Abb. Ct. App. Dec. 241, 245; Guillaume v. H. P. Co., 42 N. Y. 212; Steinweg v. Erie R. Co., 43 id. 123; Hooper v. Wells F. Co., 27 Cal. 11; Story on Bailm., $557; Burnell v. N. Y. C. R. R. Co., 45 N. Y. 184; Bush v. Miller, 13 Barb. 481; Blood v. Smith, 8 Wend. 268, 271; Platt v. Hibbard, 7 Cow. 497, note a; Beardslee v. Richardson, 11 Wend. 25; Curtis v. R. & S. R. Co., 18 N. Y. 534, 543; Clark v. Spence, 10 Watts, 335; Beckman v. Shouse, 5 Rawle, 179; Verner v. Sweitzer, 32 Penn. St. 208; Runyan v. Caldwell, 7 Humph. 134. The former action of trover would lie against defendant. Cass v. N. Y. & N. H. R. Co., 1 E. D. S. 522; Stephenson v. Hart, 4 Bing. 476; Hawkins v. Hoffman, 6 Hill, 586; McEntee v. N. J. St. Co., 45 N. Y. 34; Baily v. H. R. R. Co., 49 id. 70; Story on Bailm., § 457; Platt v. Hibbard, Cow. 500, note a. This was a case of non-performance by the carrier. Steat v. Fagg, 5 B. & Ald. 342; Batson v. Donavan, 4 id. 21. A carrier is liable for a misdelivery if he carry the goods beyond the point where they were to be delivered and they are lost. Ellis v. Turner, 8 T. R. 531; Beck v. Evans, 16 East, 244; Birkett V. Willan, 2 B. & Ald. 356; 5 id. 53; Stephenson v. Hart, 4 Bing. 476; Duff v. Budd, 2 B. & B. 177; 7 E. C. L. R. 399.

Charles M. Da Costa, for respondent.

ALLEN, J. This case has been before this court on three distinct appeals prior to the present, and is reported in 53 N. Y. 652; 56 id. 168, and 62 id. 35; 20 Am. Rep. 442.

Magnin v. Dinsmore.

[After giving a history of the former appeals, and reiterating the doctrine in this case, 62 N. Y. 35; 20 Am. Rep. 442, that mere silence on the part of the plaintiff as to the value of the goods, although there was no inquiry by defendant, relieved the defendant from liability beyond fifty dollars.]

There was no evidence of a conversion of the goods by the defendants. This court held that the non-delivery of the goods, with the other proof in the case, was evidence of negligence to be submitted to the jury, and that the onus was upon the defendants to show that they were lost without the negligence of the carrier or their servants. But an action for a conversion could not be sustained upon such evidence alone. A conversion implies a wrongful act, a mis-delivery, a wrongful disposition, or withholding of the property. A mere non-delivery will not constitute a conversion, nor will a refusal to deliver, on demand, if the goods have been lost through negligence, or have been stolen. Angell on Carriers, §§ 431-433; Scovill v. Griffith, 2 Kern. 509; Anon., 4 Esp. 157; Ross v. Johnson, 5 Burr. 2825.

It would have been error to charge the jury that they might find a conversion upon the evidence before them, which was merely that the goods had not been delivered to the consignee, and that the box in which they had been delivered to the carrier had been found in the water in or near New York harbor, a year or thereabouts thereafter. The last circumstance did not add to the proof of non-delivery as tending to show in what way the loss had occurred, whether the box had been stolen or had been casually, and by ordinary neglect, lost and rifled of its contents, and thrown away. Bowlin v. Nye, 10 Cush. 416. But it is urged that the defendants were guilty of a misfeasance, or of an abandonment of their character as carriers, and therefore liable within Sleat v. Fagg, 5 B. & Ald. 342. The difficulty, however, is that negligence only was proved, and that is not the misfeasance or abandonment of the character of carrier, which deprives the carrier of the benefit of the limitations of the contract. The case quoted, and all the cases recognize the distinction between mere negligence in the performance of duty from which loss ensues, and acts of misfeasance, a wrongful dealing with the property not consistent with or in the course of the performance of duty as a carrier. Sleat v. Flagg was the case of sending the property by a different conveyance and route from that

directed.

Magnin v. Dinsmore.

A different carrier was substituted from that selected by the shipper, and Chief Justice ABBOTT and his associates distinguish the case from Batson v. Donovan, 4 B. & Ald. 21, upon that ground alone, the latter case being one of loss from neglect, in which it was held that the carrier had not lost the benefit of the limitations upon his liability, etc. And see Angell on Carriers, supra. Wyld v. Pickford, 8 M. & W. 443, was a case of pleading, the defendant setting up a notice limiting his liability to defeat the action, and the fifth plea was held bad, for the reason, as stated by PARKE, B., that in the construction which the court put upon the terms of the notice on which the goods were received, the plea admitted a conversion by inadvertent delivery which the plea did not excuse, and the carrier was not, by the notice, made irresponsible for every mistake or inadvertent delivery. I do not understand Baron PARKE as questioning Batson v. Donovan. The onus was upon the plaintiff to prove the misfeasance or abandonment of the character of carriers by the defendants, if he hoped to take the case out of the effect of our former decision; and not having done so, that decision is controlling.

It would be a waste of time to go over the long list of cases cited by the counsel for the appellant, and by reviewing them show that, when rightly understood, none of them are inconsistent with the results to which we have arrived. We have examined all of them, and are content to abide by our convictions as already expressed. It would be trifling with contracts deliberately made by shippers, and the decisions of our courts, and saying in effect that they could not, by any contract, limit or restrict their common-law liability to hold that by calling ordinary neglect, from which loss ensues, a "misfeasance" or "an abandonment of the character of carriers the limitation was nullified, and the full common-law liability established. The act which will deprive the carrier of the benefit of a contract for a limited liability fairly made must be an affirmative act of wrong-doing, not merely ordinary neglect in the course of the bailment. It need not necessarily be intentional wrong-doing, but the mere omission of ordinary care in the safe-keeping and carriage of the goods is not the misfeasance intended by the authorities. The judgment must be affirmed.

All concur, except CHUкCH, C. J., and EARL, J., not voting; RAPALLO, J., absent. Judgment affirmed.

Pierce v. Keator.

PIERCE V. KEATOR.

(70 N. Y. 419.)

Easement-profit a prendre.

A railroad company received a deed of the fee of a strip of land through the grantor's farm, reserving to the grantor the privilege of mowing and cultivating the surplus part thereof not required by the railroad company; & prior mortgage on the farm being foreclosed, the referee's deed on the sale excepted and reserved the said strip "as conveyed" to the railroad company; the defendant, succeeding to the purchaser's title, entered on the strip and cut and removed the wheat growing on it. In an action of trespass by the mortgagor therefor, held, that the reservation in the deed to the railroad company was not of an easement appurtenant to the rest of the farm, but simply of a right to profits in the strip to the grantors personally, which did not pass by the deed on foreclosure, and that defendant was liable.

A

CTION of trespass for cutting wheat. The wheat had been sown by plaintiff's intestate on a strip of land which was originally part of his farm, and which had been conveyed by him in fee to the New York & Oswego Midland Railroad Company with the reservation of the privilege of mowing and cultivating the surplus ground thereof not required for railroad purposes. The farm being subsequently sold on foreclosure of a precedent mortgage, the referee deeded the entire farm, excepting and reserving the strip as conveyed" to the railroad company. The defendant, who claimed under that purchaser, entered on the strip and cut and removed the wheat. The plaintiff had judgment and defendant appealed.

Amasa J. Parker, for appellant, cited Shep. Touch. 88; Washb. on Eas. 21, 27, 28, 80; 2 Washb. R. P. (2d ed.) 25, 79, 80; Post v. Pearsall, 22 Wend. 432, 433; Lansing v. Wiswall, 5 Den. 213; Kent v. Waite, 10 Pick. 138; Voorhees v. Burchard, 55 N. Y. 98; Borst v. Empie, 5 id. 33, 38.

Horatio Ballard, for respondent.

CHURCH, C. J. It is important to determine the nature of the right reserved in the deed of Pierce and wife to the New York and