By the Court, C. L. Allen, J.
It is objected that the authority of the plaintiff’s attorney to appear in the court below was not sufficiently proved. The testimony was, that letters were directed by the witness to the plaintiff at Fairfax, Vermont, in relation to the subject matter of the suit, and that several answers were received, purporting to be signed by the plaintiff, all in the same hand-writing, and dated at that place, and received by the witness in due course of mail; which letters contained a general authority to the witness to take such steps, legal or otherwise, as in his (the witness’) opinion might be deemed advisable for the purpose of recovering the carpet or the value of it. An authority to appear may be by parol, or in writing, and the attorney himself may prove his authority. (1 Cowen, 112.) If the authority is in writing, evidence of the hand-writing must be produced. This may be established, however, presumptively; as, where letters are directed to a particular person on business, _ and answers are received in due course of mail, a fair inference arises, that the answers were written by the person from whom they purport to come. (Cunningham v. The Hudson River Bank, 21 Wend. 557. Ovenston v. Wilson, 2 Car. & Kirwan, 1.) It is said the letters should have been produced and [488]*488proved in the usual way; but the evidence of their contents was received without objection, and it is too late to raise it here. Besides, the letters were made a part of the case, by stipulation, before the county court. They show, as the attorney testified, a general authority to collect the demand—which implied an authority to sue if necessary, and appear. (McMinn v. Richtmyer, 3 Hill, 236.) The authority to appear was sufficiently proved.
It is again objected, that the verdict and judgment are general, and apply as well to one count as another, though there is no pretense of any evidence to sustain the 2d and 3d counts. The answer to this objection is, that the action was commenced before the code, when case and trover might be joined. Besides, no objection of this kind was made before the justice; and the misjoinder of counts, in the justice’s court, was cured by verdict. Much greater latitude was allowed in pleadings before justices, than in courts of record, especially in cases where the objection Was not taken at the proper time. (Whitney v. Crim, 1 Hill, 61.)
The important question in this case is, whether the defendant is liable in his character of warehouseman and forwarding merchant. “ Forwarding merchants,” says Justice Story in his treatise on bailments, § 444, “ are a class of persons well known in this country, and usually combine in their business the double character of warehousemen and agents, for a compensation to ship and forward goods to their destination. This class of persons is especially employed upon our canals and railroads, and in our coasting navigation by steam vessels and other packets. Their liability is like that of warehousemen and common agents, and is governed by the general rule, and of course they are responsible for ordinary care, skill and diligence. A person who receives goods in his own store, standing upon his own wharf, for the purpose of forwarding them, is deemed but a mere warehouseman, responsible for ordinary diligence only.’
The responsibility of the wharfinger or forwarding merchant begins when he receives the property into his custody, and ends probably when he delivers to the captain or agent of the boat, by which it is to be forwarded. During that time, he is bound [489]*489to exercise “ all that care and diligence on his part that a prudent or careful man would exercise in relation to his own property.” In all such cases the defendant is liable only for ordinary neglect. The plaintiff cannot recover upon mere proof of the loss of the article intrusted to the bailee. He must give some evidence of a want of care in the bailee or his servants.
The question is on whom the onus lies, in this case, or whether the plaintiff having shown the delivery of the carpet to the clerk of the defendant, with a total failure on his part to account for it, is entitled to recover without giving further proof of negligence, in the first instance. In Platt v. Hibbard, (7 Cowen, 497,) Chancellor Walworth in charging laid down the rule, that where property intrusted to a storing and forwarding merchant in the ordinary course of business, was lost, injured or destroyed, the weight of proof was with the bailee to show a want of fault or negligence on his part, or to show that the injury did not happen in consequence of his neglect to use all that care and diligence on his part that a prudent and careful man would exercise in relation to his own property. In a note to that case, it is remarked that the charge, perhaps, carried the doctrine too far, and that it was inconsistent with legal principles to presume that the defendant acts contrary to the trust reposed in him. It is there remarked, that the distinction would seem to be, that when there is a total default to deliver the goods bailed, on demand, the onus of accounting for the default lies with the bailee, otherwise he shall be deemed to have converted the goods to his own use, and trover will lie; citing 2 Salk. 655; but when the defendant has shown a loss, or where the goods are injured, the law will not intend negligence, and the onus is then shifted upon the plaintiff. In Schmidt v. Blood, (9 Wend. 268,) the same distinction seems to be taken and approved of. Sutherland, J. remarks, “ that if goods be bailed to be kept for hire, if the compensation be for house room and not a reward for care and diligence, the bailee is only bound to take the same care of the goods as of his own, and if they be stolen or embezzled by his servant without gross negligence on his part, he is not liable, and the onus of showing negligence seems to be upon the plain[490]*490tiff. “ unless there is a total default in delivering or accounting for the goods citing the note in 7 Cowen and cases there cited, with approbation. In the case of Foote v. Storrs, (2 Barb. S. C. Rep. 326,) Willard, J. in delivering the opinion of the court, cites with approbation Schmidt v. Blood, and though the charge in the case of Platt v. Hibbard is not approved of, yet the distinction as laid down in the note to the latter case and approved of in the former is not overruled; nor does it seem to have been the intention of the court. In that case the question did not arise. The defendant deposited the lumber on the wharf, and carried it away in his own boats and by his own servants and boatmen; and whether it had all been taken away, or a part of it was lost or stolen through the negligence of the plaintiff, were questions of fact for the referee and on which he passed. (And see Story on Bail. § 444 to 454 inclusive ; Gilbert v. Dole, 5 Ad. & Ellis, 540.)
Now what are the facts in this case, and which were found by the jury against the defendant 1 In the fall of 1846, the roll of carpeting in question, consisting of 100 yards, was delivered by the plaintiff’s agent to the defendant’s clerk, and received by him at his store in Port Jackson, on the canal, to be forwarded as directed, in the usual course of business,
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By the Court, C. L. Allen, J.
It is objected that the authority of the plaintiff’s attorney to appear in the court below was not sufficiently proved. The testimony was, that letters were directed by the witness to the plaintiff at Fairfax, Vermont, in relation to the subject matter of the suit, and that several answers were received, purporting to be signed by the plaintiff, all in the same hand-writing, and dated at that place, and received by the witness in due course of mail; which letters contained a general authority to the witness to take such steps, legal or otherwise, as in his (the witness’) opinion might be deemed advisable for the purpose of recovering the carpet or the value of it. An authority to appear may be by parol, or in writing, and the attorney himself may prove his authority. (1 Cowen, 112.) If the authority is in writing, evidence of the hand-writing must be produced. This may be established, however, presumptively; as, where letters are directed to a particular person on business, _ and answers are received in due course of mail, a fair inference arises, that the answers were written by the person from whom they purport to come. (Cunningham v. The Hudson River Bank, 21 Wend. 557. Ovenston v. Wilson, 2 Car. & Kirwan, 1.) It is said the letters should have been produced and [488]*488proved in the usual way; but the evidence of their contents was received without objection, and it is too late to raise it here. Besides, the letters were made a part of the case, by stipulation, before the county court. They show, as the attorney testified, a general authority to collect the demand—which implied an authority to sue if necessary, and appear. (McMinn v. Richtmyer, 3 Hill, 236.) The authority to appear was sufficiently proved.
It is again objected, that the verdict and judgment are general, and apply as well to one count as another, though there is no pretense of any evidence to sustain the 2d and 3d counts. The answer to this objection is, that the action was commenced before the code, when case and trover might be joined. Besides, no objection of this kind was made before the justice; and the misjoinder of counts, in the justice’s court, was cured by verdict. Much greater latitude was allowed in pleadings before justices, than in courts of record, especially in cases where the objection Was not taken at the proper time. (Whitney v. Crim, 1 Hill, 61.)
The important question in this case is, whether the defendant is liable in his character of warehouseman and forwarding merchant. “ Forwarding merchants,” says Justice Story in his treatise on bailments, § 444, “ are a class of persons well known in this country, and usually combine in their business the double character of warehousemen and agents, for a compensation to ship and forward goods to their destination. This class of persons is especially employed upon our canals and railroads, and in our coasting navigation by steam vessels and other packets. Their liability is like that of warehousemen and common agents, and is governed by the general rule, and of course they are responsible for ordinary care, skill and diligence. A person who receives goods in his own store, standing upon his own wharf, for the purpose of forwarding them, is deemed but a mere warehouseman, responsible for ordinary diligence only.’
The responsibility of the wharfinger or forwarding merchant begins when he receives the property into his custody, and ends probably when he delivers to the captain or agent of the boat, by which it is to be forwarded. During that time, he is bound [489]*489to exercise “ all that care and diligence on his part that a prudent or careful man would exercise in relation to his own property.” In all such cases the defendant is liable only for ordinary neglect. The plaintiff cannot recover upon mere proof of the loss of the article intrusted to the bailee. He must give some evidence of a want of care in the bailee or his servants.
The question is on whom the onus lies, in this case, or whether the plaintiff having shown the delivery of the carpet to the clerk of the defendant, with a total failure on his part to account for it, is entitled to recover without giving further proof of negligence, in the first instance. In Platt v. Hibbard, (7 Cowen, 497,) Chancellor Walworth in charging laid down the rule, that where property intrusted to a storing and forwarding merchant in the ordinary course of business, was lost, injured or destroyed, the weight of proof was with the bailee to show a want of fault or negligence on his part, or to show that the injury did not happen in consequence of his neglect to use all that care and diligence on his part that a prudent and careful man would exercise in relation to his own property. In a note to that case, it is remarked that the charge, perhaps, carried the doctrine too far, and that it was inconsistent with legal principles to presume that the defendant acts contrary to the trust reposed in him. It is there remarked, that the distinction would seem to be, that when there is a total default to deliver the goods bailed, on demand, the onus of accounting for the default lies with the bailee, otherwise he shall be deemed to have converted the goods to his own use, and trover will lie; citing 2 Salk. 655; but when the defendant has shown a loss, or where the goods are injured, the law will not intend negligence, and the onus is then shifted upon the plaintiff. In Schmidt v. Blood, (9 Wend. 268,) the same distinction seems to be taken and approved of. Sutherland, J. remarks, “ that if goods be bailed to be kept for hire, if the compensation be for house room and not a reward for care and diligence, the bailee is only bound to take the same care of the goods as of his own, and if they be stolen or embezzled by his servant without gross negligence on his part, he is not liable, and the onus of showing negligence seems to be upon the plain[490]*490tiff. “ unless there is a total default in delivering or accounting for the goods citing the note in 7 Cowen and cases there cited, with approbation. In the case of Foote v. Storrs, (2 Barb. S. C. Rep. 326,) Willard, J. in delivering the opinion of the court, cites with approbation Schmidt v. Blood, and though the charge in the case of Platt v. Hibbard is not approved of, yet the distinction as laid down in the note to the latter case and approved of in the former is not overruled; nor does it seem to have been the intention of the court. In that case the question did not arise. The defendant deposited the lumber on the wharf, and carried it away in his own boats and by his own servants and boatmen; and whether it had all been taken away, or a part of it was lost or stolen through the negligence of the plaintiff, were questions of fact for the referee and on which he passed. (And see Story on Bail. § 444 to 454 inclusive ; Gilbert v. Dole, 5 Ad. & Ellis, 540.)
Now what are the facts in this case, and which were found by the jury against the defendant 1 In the fall of 1846, the roll of carpeting in question, consisting of 100 yards, was delivered by the plaintiff’s agent to the defendant’s clerk, and received by him at his store in Port Jackson, on the canal, to be forwarded as directed, in the usual course of business, the clerk taking charge of it on account of the defendant as he was in the habit of receiving other articles with the defendant’s approval, and engaging to forward it to its place of destination. The witness has never seen the carpet since.. The carpet was deposited as other goods were, and as the defendant was in the custom of receiving them, and as is quite usual with storing and forwarding merchants, the charges to follow the carpet and to be paid at the end of the route; and in which manner the defendant had been in the habit of receiving his pay for forwarding carpets from the same place. When called upon and inquired of for the property the next fall after, the defendant said he knew nothing about it, but would look and see if he could find a memorandum or receipt for it. On being called upon again, a few days after-wards, he replied that he could find no receipt, or entry of having sent the carpet; nor could he give any information about it. [491]*491He did not intimate that it was lost, or that any thing had happened to discharge his obligation as a bailee, but that he could find no receipt and give no account of it. This amounted to a denial of the bailment, and a refusal to deliver the property. At all events it was sufficient evidence of that fact to go to the jury, and they found against him. (Dunlap v. Hunting, 2 Denio, 643.) Forwarding merchants of the description of the defendant were in the habit of taking receipts for articles forwarded, containing the name of the boat, or the captain’s name, and the time of forwarding; and the evidence would seem to show that such was the defendant’s custom. His clerk testified that he was directed to take receipts when he forwarded goods, and the defendant when called on for the property said that he would look for a receipt, and afterwards remarked that.he could find none. Had he taken a receipt in this case, as prudence required him to do, or proved a delivery of the carpet to a captain, or on board of a boat, for forwarding, he could probably have given such information as would have put the plaintiff on the proper track of inquiry, and which might have relieved him from, liability. But here was a total failure to account for it, after )\ its receipt. He was bound to give some account of it before he i was entitled to cast the onus of proving further negligence on ; the plaintiff. His clerk was sworn as a witness, and testified that he did not recollect of ever receiving the carpet, but if he did, he believed it was forwarded, according to the course of business at the store. The jury found against the defendant, upon the question whether it had been forwarded, and we cannot disturb their finding on this and all the other facts above recited, which would seem to be warranted by the evidence. Here there was a totalfailure to account for the property delivered. It is said that the plaintiff'had the means.of showing by those in charge of the packet boat St. Nicholas, that they had not received the carpet, or that it had not reached its destination nor been received by the plaintiff. There would be force in this argument, if the defendant had shown a delivery of the carpet to a boat to be forwarded to Troy, where it was to be received on board the packet St. Nicholas; but he failed to show a delivery, altogether, and [492]*492the proof of negligence was the omission to forward, or to take a receipt from the person by whom it was forwarded, as was his custom in like cases. The onus being on the defendant, he could have resorted to the same testimony which he claims should have been furnished by the plaintiff. It is also said the carpet was lost by the plaintiff’s delay in prosecuting his remedy. The delay would not have prevented the defendant’s showing that he had discharged his duty by forwarding, or that the carpet had been lost or destroyed by fire or other casualty, which would have released him.
[Warren General Term,
May 3, 1852.
Willard, Hand, Cady and C. L. Allen, Justices.]
It is farther contended that the letters used as evidence by the plaintiff' show that he looked only to the Greens for payment, and not to the defendant. The letters, as before remarked, were not used as evidence at all before the justice, and were only introduced in the county court, by stipulation of the parties, confining their use to the simple point of proving authority to the plaintiff’s attorney to appear for him in the court below. They cannot be used for any other purpose here, against the express agreement and stipulation of the parties.
Again, it is argued that it was the duty of the bailee to ship the carpet, and that the law presumes, until the contrary be proved, that he performed that duty; as breach of private duty, negligence or fraud are not to be presumed, but must be proved. The neglect to take a receipt, from the person by whom forwarded, as was his custom, was evidence to repel this presumption, and was passed upon with the other facts by the jury.
The judgment must be affirmed.