McCready v. Wright

5 Duer 571

• Court: The Superior Court of New York City
• Decided: May 15, 1856
• Status: Published

Opinion

By the Court. Slosson, J.

The only question of consequence is whether the order on the storekeeper for delivery of the corn, having been handed by the plaintiffs to Conklin the lighter-man, instead of defendants, and the plaintiffs having employed him to carry away the grain, instead of leaving that to be done by the defendants, relieves the defendants from the measurement made in the store by direction of the board of measurers. The custom proved is for the purchaser to employ the measurer. That custom, carried out in this instance, would have resulted in the employment of a measurer by the board of measurers in exactly the way in which the measurer was in fact employed. The fact that the order was handed to the president of the board by Conklin, instead of by defendants themselves, is of no practical importance. Then was Conklin the plaintiffs’ agent, and not the agent of defendants, to carry the grain from the Atlantic Docks to Williamsburgh.

The grain was delivered to him at the docks, and defendants paid his lighterage. We think that they adopted his acts, and recognized and ratified his agency.

The measuring off the grain, and leaving it in the store house, was a delivery to the purchaser, according to the custom. All the corn that was left on the floor was delivered on board the lighter.

The difference between the parties arises from a difference between the measurement at the store and that made on the arrival of the grain at Williamsburgh. The question which was correct was left to the jury,- and they have found for the plaintiffs for the whole amount.

We think the question was properly put to the jury, and with proper instructions.

Order denying new trial affirmed, with costs.

Judgment for plaintiffs.