who refused them, saying he had ordered no cigars. Afterwards on the arrival of the packages in question, defendant took them to the store at 16 Congress street, and delivered them to the person in possession, who receipted for them in the name of "A. Swannick." The swindler's real name was assumed, in the case, not to be A. Swannick. An action being brought to charge defendant with the loss of the goods, Morton, C. J., after passing the question whether, under the circumstances, the property in the goods passed to the swindler so that a bona fide purchaser could hold them as against the plaintiff, said: "The contract of the carrier is not that he will ascertain who is the owner of the goods and deliver them to him, but that he will deliver the goods according to the directions. If a man sells goods to A., and by mistake directs them to B., the carrier's duty is performed if he delivers them to B., although the unexpressed intention of the forwarder was that they should be delivered to A. "If, at the time of this transaction, the man who was in correspondence with the plaintiff had been the only man in Saratoga Springs known as, or who called himself, A. Swannick, it cannot be doubted that it would have been the defendant's duty to deliver the goods to him according to the direction, although he was an imposter, who by fraud induced the plaintiff to send the goods to him.23 The fact that there were two 23. Citing Dunbar v. Railroad Co., 110 Mass. 26. In this case the swindler had bought the goods in person, under an assumed and fictitious name, and had directed them to be sent to the address of the assumed name. When the goods arrived at destination, no person of that name being known to the agent of the road, they were warehoused, and so remained for some two weeks, when the real party came for them, professing to act as the agent of the person to whose address they had been sent. They were delivered to him, and he signed a receipt in his true name, being known to the agent. It was held that, under these circumstances, the carrier was not liable as for a misdelivery, the very person having obtained the goods who had fraudulently purchased them and for whom they were intended. The seller and consignor of the goods had sold them to the fraudulent buyer in person. Не therefore knew to whom he was selling them, though he did not know him by his correct name; and the very person to whom he sold them had received them from bearing the name made it the duty of the defendant to ascertain which of the two was the one to whom the plaintiff sent the goods.24 "The plaintiff contends that he intended to send the goods to Arthur Swannick. It is equally true that he intended to send them to the person with whom he was in correspondence. We think the more correct statement is that he intended to send them to the man who ordered and agreed to pay for them, supposing erroneously that he was Arthur Swannick. It seems to us that the defendant, in answer to the plaintiff's claim, may well say, we have delivered the goods intrusted to us according to your directions, to the man to whom you sent them, and who, as we are induced to believe by your acts in dealing with him, was the man to whom you intended to send them; we are guilty of no fault or negligence.'25 The cases of Winslow v. the carrier. Another distinguish ing feature in this case was, that at the time of the delivery, the carrier was holding the goods, not as carrier but as warehouseman, and was responsible only as an ordinary bailee. This distinction was not adverted to in the opinion of the court, the decision being put squarely upon the ground that the goods had been delivered to the person to whom they had been sold and for whom they were intended. But, as we shall hereafter see, it is one of great importance in determining the question of the liability of the carrier for a wrong delivery. 24. The court here proceed to say: "Suppose, upon the arrival of the goods in Saratoga Springs the impostor had appeared and claimed them; to the demand of the defendant upon him to show that he was the man to whom they were sent, he replies, "True, there is another A. Swannick here, but he has nothing to do with this matter; I am the one who ordered and purchased the goods; here is the bill of the goods, and here is the letter notifying me of their consignment to me, addressed to me at my P. O. box 1595.' The defendant would be justified in delivering the goods to him, whether he was the owner or not, because he had ascertained that he was the person to whom the plaintiff had sent them. It is true the defendant did not make these inquiries in detail; but if, by a rapid judgment, often necessary in carrying on a large business, he became correctly satisfied that the man to whom he made the delivery was the man to whom the plaintiff sent the goods, his rights and liabilities are the same as if he had pursued the inquiry more minutely." 25. The court refer to the case of McKean v. McIvor, L. R. 6 Exch. 36. The facts were the same as those in the New York and Vermont cases, except that the goods Railroad, American Express Co. v. Fletcher and Price v. Railway, cited in the foregoing sections, say the court, "differ widely in their facts from the case at bar and are distinguishable from it." The application of the rule in the case of Samuel v. Cheney has, however, been qualified even by those courts which recognize that case as enunciating a correct principle of law, and it has been held that, "if there be negligence in the delivery, resulting in the goods being turned over to one who represents a person well known at the place of delivery, the carrier will be liable. ''26 were addressed to the fictitious firm at a given number upon a certain street, to which a notice of the arrival of the goods was sent by the carrier, addressed to the firm, which coming to the hands of the swindler, he indorsed the name of the fictitious firm upon it and thus obtained the goods. The carrier was exonerated from liability. the jury, under proper instructions from the court, found in favor of the plaintiff, and the appellate court refused to disturb their verdict. See, also, the case of The Norwalk Bank v. The Adams Express Company, 4 Blatchford, 455. 26. Pacific Express Co. v. Critzer (Tex. Civ. App.), 42 S. W. Rep. 1017; Express Co. v. Hertzberg, 17 See, also, Clough v. Railroad Co., Tex. Civ. App. 100, 42 S. W. Rep. L. R. 7 Exch. 26. In the case of Wilson v. Express Co., 27 Mo. App. 360, the court say: "If two men of the same name live in the same town, and one of them orders goods from a merchant at a distance, and the carrier delivers to the man of that name who had really made the order, is such carrier to be held responsible simply because the consignor thought his order was from the other of the two men? No case has gone to this extreme. The carrier is responsible for a correct delivery, but he is not the guardian of his patrons, nor, when faultless himself, must he answer for their mistakes or mend their misfortunes." But in this case on the second trial (43 Mo. App. 659) 795. In Railroad Co. v. Fort Wayne Electric Co., 108 Ky. 113, 55 S. W. Rep. 918, the plaintiff shipped goods to A. B. Camp & Co. It appeared that another had wrongfully ordered the goods in the name of A. B. Camp & Co. When the goods arrived at destination, A. B. Camp & Co. informed the carrier that they had not ordered the goods and the carrier thereupon delivered them to the person who had wrongfully ordered them in A. B. Camp & Co.'s name. It was held that the carrier was liable to the plaintiff consignor for their value In Oskamp v. Express Co., 61 Ohio St. 341, 56 N. E. Rep. 13, one Rothschild induced the plaintiff, Sec. 673. Same subject-The contrary view. But in the case of The Express Co. v. Shearer,27 the Supreme Court of Illinois declared that the rule in Samuel v. Cheney was incorrect, and they declined to follow it. The facts in that case were as follows: W. W. Shearer & Co. of Chicago had dealings with one J. C. Stubblefield, who was engaged in buying stock in Kansas, Missouri and Texas, and who from time to time applied to Shearer & Co. for advances of money, which they sent him in the form of drafts, letters of credit, and money by express. In April, 1888, J. C. Stubblefield was at Chetopa, Kansas, and telegraphed Shearer & Co. for $700, and it was sent to him in a draft, and he was there identified at the bank, and received the money for the draft. In April, 1889, J. C. Stubblefield again arrived in Chetopa, Kansas, but did not register at his hotel, and left town on the following day. By the same train that he came on, another man came to Chetopa, calling himself J. C. Stubblefield. This second one, who may be designated as the impostor, went to another hotel than that to which the real J. C. Stubblefield went. On April 22, 1889, the impostor exchanged several telegrams with Shearer & Co. in the name of J. C. Stubblefield, including one to express him $4,000. He thereupon gave orders to the railroad company to hold eleven stock cars as if he were going to make heavy shipments of stock. On the 24th he appeared at the office of the express company and asked if there was a package for J. C. Stubblefield. The agent handed him the package on the impostor producing the telegrams received by him from Shearer & Co., identifying the amount of money in the package, and on the representation of the impostor's landlord that he had the stock cars ordered for his stock. After receiving the packby false personation, to ship a Jones, secured possession of the package of diamonds consigned to package. The express company one T. M. Jones, rated as a reputa- was held liable for its value as for able merchant in Hopkinsville, Ky. a conversion. Rothschild then presented himself at the office of the express company in Hopkinsville, Ky., and, by representing that he was T. M. 27. 160 Ill. 215, 43 N. E. Rep. 816, 37 L. R. A. 177, 52 Am. St. Rep. 324, affirming, 43 Ill. App. 641. age, the impostor left town and was not seen again in Chetopa. The imposition was discovered when the real J. C. Stubblefield returned to Chicago. Under this state of facts the express company was held liable, the Supreme Court of Illinois saying that the strict liability of the common carrier to safely deliver to the proper person should in all proper cases be rigidly enforced and in no way lessened. Sec. 674. ($349.) Same subject-Delivery on forged order or to unauthorized agent no excuse.-So it has often been held that if the carrier deliver to a wrong person, claiming the goods under a forged order, he will be liable for the value of the goods if they are thereby lost to the owner.28 Or if he deliver the goods to the wrong party by mistake;29 or to a person 28. Gosling v. Higgins, 1 Camp. 451; Lubbock v. Inglis, 1 Stark. 104; Powell v. Myers, 26 Wend. 591; Hawkins v. Hoffman, 6 Hill, 586; American Mer. Ex. Co. v. Milk, 73 Ill. 224; Southern Ex. Co. v. Van Meter, 17 Fla. 783. 29. Devereux v. Barclay, 2 B. & 'Ald. 702; Guillaume v. Packet Co., 42 N. Y. 212. In Viner v. The Steamship Company, 50 N. Y. 23, the action was brought against the defendant, as common carrier, for the conversion of a quantity of butter shipped by plaintiffs at New York to Georgetown. The defense was that the butter had been delivered to one Smith, a consignee of plaintiffs, under a letter which it was claimed gave him the apparent right to receive it. The butter was shipped without receipt or bill of lading, there being only an entry on the manifest of the vessel of eleven packages of butter, marked S. in a diamond, shipped by F. Viner & Co., the plaintiffs, "to order." The butter was delivered to Smith by the delivery clerk of the defendants, at find of good qualThis letter was of the "I Georgetown, on the faith of a let- |