Sherman v. Way.

it appeared that one Marsden owned ten acres of land, on which he had cut a quantity of trees; that he sold the trees so cut to the plaintiff, who cut the most of them into sawlogs, and took from the premises all the logs so purchased by him, except about 6000 feet which he had cut into logs, and about 2000 feet which lay on the ground in the tree. Of the 8000 feet so remaining on the ground, about 3000 feet were piled on a log-way by the plaintiff, and the residue were lying on the ground where they were cut.

The bargain between the plaintiff and Marsden was made in the winter of 1863-4, and the plaintiff paid Marsden for the logs, at the time of the purchase. The plaintiff agreed to get the logs off when Marsden wanted to burn, to put in a crop, and Marsden, before he sold the place, told the plaintiff that he wanted to clear up there, and wanted him to get the logs off, but there was no agreement that if the plaintiff did not get the logs off, he should forfeit them.

After the sale of the timber to the plaintiff, and in the fall of 1864, while the 8000 feet remained on the premises, the defendant bought the land, having been informed that the logs and felled timber belonged to the plaintiff, and before he took possession, in that same fall, the plaintiff cut the 2000 feet which had remained in the tree into logs. The defendant, when the plaintiff went to remove the logs forbade him doing so, and threatened to sue him if he did, and afterwards sold 3000 feet of them to one Burgess, who took and used them. At other times the defendant requested the plaintiff to take the logs away. There was no proof that the defendant actually appropriated any of the plaintiff's logs to his own use, except the 3000 feet sold to Burgess, but the residue, so far as the proof showed, were lying on the land of the defendant.

The justice gave judgment for the plaintiff, for the value of the whole 8000 feet. The county court reversed the judgment, but upon what grounds does not appear; and the question now is, was the plaintiff entititled to recover

Sherman v. Way.

anything, and if so, whether the whole amount, or only for the 3000 feet which were sold by the defendant.

There is nothing in the case showing that the plaintiff ever lost the title to the logs which he acquired by the purchase, and he was therefore at least entitled to recover for the 3000 feet, which were found to be worth about $800.

I also think he was entitled to recover for the whole of the logs. He went to take them away, and was forbidden to do so by the defendant, and afterwards the defendant sold part of them. I think after that, it was too late to claim that the had not converted the whole of them.

Within the principle decided in Farrar v. Chauffetete, (5 Denio, 527,) the refusal of the defendant to permit the plaintiff to take off the logs, and threatening to sue him if he did, constituted a conversion; especially when followed by a sale of part of them to Burgess. And although he afterwards proposed to and asked the plaintiff to take the residue away, he could not thereby change the legal rights of the plaintiff which had accrued.

The judgment of the county court should be reversed, and the judgment of the justice affirmed.

BACON and MULLIN, JJ., concurred.

MORGAN, J., dissented, but wrote no opinion.

Judgment accordingly.

[ONONDAGA GENERAL TERM, October 1, 1867. Morgan, Bacon, Foster and

Mullin, Justices.]

HOLDRIDGE v8. THE UTICA AND BLACK RIVER RAILROAD COMPANY.

Where a passenger upon the defendant's railroad, having his valise checked from Boonville to Utica, on the arrival of the cars at the latter place left the valise in the open depot, after seeing it placed where baggage was usually kept during the day, in the charge of an employee of the company, without giving any directions or making any arrangement respecting it, and did not present his check, or call for his valise, until nearly twenty-four hours afterwards; Held that he was guilty of negligence; and that the defendant was not liable for the loss of the valise, during the interval, by theft.

A

PPEAL from a judgment of the county court of Oneida, affirming a judgment rendered for the plaintiff in a justice's court.

The plaintiff, who resided at Boonville in Oneida county, left his home in September, 1864, for the purpose of going to Frankfort in the county of Herkimer. He took passage on the railroad train of the defendant at Boonville, for Utica, which was about thirty-five miles from Boonville, and about nine miles from Frankfort, and paid for his passage to Utica, and had his valise, which contained clothing, checked to that place. The train arrived at Utica at about half past ten o'clock in the forenoon, behind time, and after the morning train on the New York Central Railroad, which made a stop at Frankfort, had passed Utica. He remained in Utica until the next day, though there was another train from the west on the Central Railroad which would stop at Frankfort, and which passed Utica at five o'clock in the afternoon of each day. He saw his valise once or twice, in the westerly end of the depot at Utica, where baggage which arrived there on the road which was checked for Utica was usually placed, and the last time he saw it there, it was with much other baggage, at about four o'clock of the day on which it arrived. The place where the valise was deposited by the defendant was in the open depot of the New York Central Railroad, but under cover, and having the west end inclosed, and a bag

Holdridge v. Utica and Black River Railroad Company.

gage man was stationed there, whose duty it was to take charge of such baggage until delivered, and he was paid partly by the New York Central Railroad Company, and partly by the defendant. He testified that he was not absent for more than five minutes at any one time. The baggage checked on the defendant's road to Utica was usually kept at the place mentioned until night, and then, if not called for, it was put into a baggage room, for the night. The last that was seen of the plaintiff's valise, so far as appears from the testimony, was when the plaintiff last saw it; and it did not appear that any one else knew that it belonged to him, or could identify it. On the next day after its arrival, the plaintiff, at about ten o'clock in the forenoon, presented his check and demanded his valise, but it could not be found. The manner of its disappearance was unknown; though it doubtless was taken by some one, between the hour of four o'clock and the time when such baggage was locked up in the room. for the night.

There was some conflict as to some of these facts, but as the jury found for the plaintiff, we are to assume that they found the facts most favorable to him.

The jury returned a verdict for the plaintiff for $44.25 damages, and $5 costs, for which amount the justice rendered judgment in his favor. The defendant appealed to the county court, which affirmed the judgment of the justice, with costs, from which an appeal was taken to this court.

E. N. Graham, for the appllant.

E. B. Tallcott, for the respondent.

By the Court, FOSTER, J. I think the decision of the Court of Appeals in Roth v. The Buffalo and State Line Railroad Company, (34 N. Y. Rep. 548,) controls this case.

Holdridge v. The Utica and Black River Railroad Company.

There the plaintiff took passage on the defendant's railroad at Dunkirk, for Buffalo, and paid his fare and had his trunk checked to Buffalo. The train arrived at Buffalo behind time and at about 10 o'clock at night, the weather being cold, and the plaintiff, having his wife with him, did not call for his baggage, but went with her into the city, and staid all night. The next morning he presented the check for his baggage, which could not be found. No one saw the trunk after it left Dunkirk; and after the train arrived at Buffalo, part of the baggage was put into the baggage room in the New York Central Railroad depot, where the route of the defendant's railroad ended, but there was so much of it that a part had to remain in the open space of the depot, near the door of the baggage room. During the night a fire occurred, which burned. the depot, and rendered it more than probable, if the baggage of the plaintiff reached Buffalo, that it was destroyed by the fire, which was accidental, and without fault of the defendant. The justice's court gave judgment for the plaintiff, from which the defendant appealed to the Superior Court, where the judgment of the justice was reversed, and on appeal to the Court of Appeals it was held that, under the circumstances, the liability of the defendant as a common carrier was at an end, and that it was liable only as an ordinary bailee, and for losses occasioned by its own fault. It was also held that it was the duty of the plaintiff, under these circumstances, to call for his baggage that night, and that therefore the loss was attributable to his own fault.

The only circumstance which can make the case before us more favorable to the plaintiff is, that there the loss was occasioned by an accidental fire, and that here the loss was probably occasioned by theft, from which vigilance on the part of the defendant would have guarded it. It however appears that the valise was kept where such bagVOL. LVI.

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