Vann, J.
This action was brought to recover the value of certain property destroyed while in transit from Chicago to Eew York under contracts made by Frederick H. Cullom, the plaintiff’s agent and assignor, with the Wabash Western Eailway Company, the defendant’s predecessor.
The complaint sets forth four causes of action, but the third
and fourth are not now important, since the plaintiff submitted to a voluntary nonsuit as to them. The other two were to recover the value of (1) certain samples belonging to the plaintiff, and (2) of Cullom’s personal effects.
The defendant was organized after May 1st, 1889, by the consolidation of several railroad corporations, including the Wabash Western Eailway Company, and by virtue of the consolidation the defendant assumed all the debts and obligations of the constituent corporations. Prior to April 27th, 1889, the Wabash Western was a common carrier operating a line of railroad between Chicago and Detroit and doing business as such by its own and connecting lines for the carriage of passengers and their baggage. It sold through tickets to New York, and sleeping cars always went through to New York over the Grand Trunk and West Shore, its connecting lines, and sometimes, hut not generally, baggage cars also went through without change.
Prior to said consolidation, and' on the 7th of April, 1889, Mr. Cullom, who was a commercial traveler in the employ of the plaintiff, went to the office of the Wabash Western Eailway Company in Chicago and purchased from it a round trip excursion ticket to New York and return and paid therefor the sum of $25.00, which was a special and reduced
rate.
The ticket purported to have been issued by the Wabash, St. Louis & Pacific Eailway, a predecessor of the Wabash Western. It was an old form at one time used by the former company, which once operated the line between Chicago and Detroit. At its head it contained the words,
“
Special Excursion Ticket. Tourist Contract. Good for one first-class passage to New York, N. Y., and return. .Subject to following contract. In consideration of the reduced rate at which- this ticket is sold the bearer or holder of the same agrees to and with the several companies over whose lines this ticket entitles him to be carried, as follows, to wit:
J?irst.
That in selling this ticket the Wabash, St. Louis & Pacific Eailway Company acts as agent and is not responsible beyond its own linq.” The rest of the purported contract is not now important. Six
«coupons were annexed, one of which contained the words at the head thereof, “ Grand Trunk Eailway. Detroit to Suspension Bridge on conditions named in contract,” and another, “West Shore E. E. (N. Y. G. & H. E. E. E. Co. Lessee), Suspension Bridge to New York on conditions named in contract.”
The provisions of the ticket were not brought to the attention of Mr. Cullom by the person selling it, nor did he read them until after the accident which resulted in the destruction of the property in question. Nothing appears to have been said by Cullom or the ticket agent, except by the former, that he wanted a ticket to New York, and by the latter, that the price was $25.00. Sometime after buying the ticket Mr. Cullom proceeded to the baggage room of the Wabash Western Eailway'Company and delivered four trunks, containing the articles for the value of which recovery is ■sought, to the baggage agent in charge. The trunks were of the. kind in ordinary use by commercial travelers to carry ■samples. He handed the ticket to the agent who asked him “ where to,” and was told New York. The agent then weighed the trunks and said they weighed light, when Cullom replied “ yes, they contain samples of underwear.” The agent, as Cullom1 testified, “ checked free up to 150 lbs., and the trunks weighed much more than that, and he told me that I would have to pay $16.00, and five or ten cents to have the trunks checked ” from Chicago to New York. Mr. Cullom paid the amount asked, and received from the agent three brass checks and one cardboard check, which was as follows :
“ The Wab. West’h E’y Co
Foreign Excess Baggage
Duplicate Check
Date, 4-27,1889,
From Chicago to New York.
Eoute, G. T. W. S.
No. of Tickets, 1.
Excess Wt. 570, amt. $16.00
2802
On reverse side:
To Baggage Agents.
This is a duplicate check, and also a receipt for excess, charges paid for baggage bearing numbers of checks as shown on face of strap check of corresponding number.
Beceiving agent will forward this duplicate and receipt to-general baggage agent or auditor of his company to be held as a check against the company issuing same.
Beceiving agents will certify to the total weight of the baggage as covered by the check numbers shown on the face of strap check of corresponding number.
SAH. A. OYEBHOLT,
G-eril Bag. Agt.,
The Wabash Western By. Oo.
Gross weight................................. lbs.
Signed..........................”
Cullom saw his trunks put on the Wabash Western train and took his place in the sleeper which was to go through to-New York without change. The next morning, between Dundas and Hammond, Ontario, on the line of the Grand Trunk railway, an accident occurred and the most of the property contained in the trunks was destroyed by fire. The property destroyed, so far as it belonged to the plaintiff, was worth about $350.00, and about $300.00 so far as it belonged to Cullom, who assigned his claim to the plaintiff before . "s action was commenced. He was a commercial traveler, familiar with the course of business and general practice of railroads with reference to selling tickets and checking baggage over their own and connecting lines. The defendant’s predecessor carried this baggage safely to the terminus of its road at Detroit and delivered it to the Grand Trunk, the connecting carrier, whereupon it was transferred into the baggage car of that company and carried in its train until the accident happened. The sleeping car, which Cullom entered at Chicago, was attached to the Grand Trunk train at Detroit. It also-appeared, as was stated by the referee, “that a very large pro
portion of the entire business of wholesale and commission merchants in this country is conducted by commercial travelers ; that such travelers generally carry samples belonging to their employers in trunks, the size, color, appearance and general character of which is generally such as to distinguish them from the trunks of ordinary passengers containing personal baggage; that it is a universal custom of the railway companies of the country to check and carry in baggage cars such samples and effects on the same train with commercial travelers, in the same manner as the trunks of ordinary passengers, containing personal effects, are carried, and to charge and receive payment for the weight of said trunks'in excess of 150 pounds, in the same manner as the excess weight of ordinary baggage is charged for; that the railroad corporations generally throughout the country, including the defendant, have knowledge of such custom, and that such sample trunks are habitually so checked, carried and paid for.”
The plaintiff claims that the contract made by his agent with the Wabash Western Eailway Company was for through transportation of the passenger and his baggage by that company from Chicago to ¡New York and return, while the defendant claims that the contract of said company, as principal, was for transportation from Chicago to ¡Detroit, and that the remainder of the contract was made by it as agent of the various connecting lines for transportation over their respective routes. This fundamental question was decided by the learned referee as a question of law, so far as it related to the cause of action relating to the samples owned by the plaintiff, and as a question of fact so far as it related to the personal effects of Cullom, the plaintiff’s assignor, for he granted a nonsuit as to the former and dismissed the complaint upon the merits as to the latter.
It is clear that the plaintiff’s agent made two contracts, one for the transportation of himself and not to exceed 150 pounds of baggage, and the other for the transportation of merchandise.
(Millard
v.
Missouri, Kansas & Texas R. R. Co.,
86 N. Y. 441.) This case leaves no room for discussion as“to the
independent character of these contracts, for upon a state of facts analogous to those before us it was held that an action brought to recover for the loss of baggage was not a bar to an action brought to recover for the loss of merchandise, because the two actions were based upon separate contracts.
We will first endeavor to ascertain what the contract was in relation to the samples. The contract made by the purchase of the ticket bears but slightly upon the contract made several hours later for the transportation of the baggage, as the function of the ticket, so far as the checking of the trunks was concerned, was exhausted by checking Mr. Cullom’s personal effects.
A man with the words
“
Baggage Agent ” on his cap was behind the counter of the Wabash Western Bailway Company, in the baggageroom of its passenger depot at Chicago, engaged in checking baggage, when Mr. Cnllom, after waiting for his turn, presented his ticket and the four trunks. The railroad company by placing that man as baggage agent in its baggageroom and furnishing him with checks, held out to the public that he had general authority to check the ordinary baggage of passengers. By furnishing him with blank cardboard checks for
“
excess baggage,” stamped “ From Chicago to Hew York,” and signed by its “ general baggage agent,” it further held out to the public that he had authority to contract for the transportation of extra baggage from Chicago to Hew York, and, necessarily, to decide what kind of goods should be included under the head of extra baggage, at least to the extent of including the samples of commercial travelers, owned by their employers, in view of the universal custom proved in that regard.
(Isaacson
v.
N.
Y.
C. & H. R. R. R. Co.,
94 N. Y. 278 ;
Sloman
v.
Great Western Ry. Co.,
67 N. Y. 208 ;
Perley
v.
N. Y. C. & H. R. R. R. Co.,
65 N. Y. 374 ;
Stoneman
v.
Erie Ry. Co.,
52 N. Y. 429 ;
Millard
v.
Missouri, K. & T. R. R. Co.,
20 Hun, 191 ; affirmed, 86 N. Y. 441 ;
Wheeler
v.
Oceanic S. P. Co.,
125 N. Y. 155 ;
Strouss
v.
Wabash, St. L. & Pacific Ry. Co.,
17 Fed. Rep. 209 ; Fetters Carriers of Passengers, §§ 605, 606.)
In the
Isaacson
case it was held to be within the apparent scope of a baggagemaster’s employment, when asked by a passenger whether the company checked baggage over a route indicated by its passage ticket, to answer the question and to bind the company by checking the baggage over connecting roads; and that, although in fact he had no authority to check it by the route specified, the company was holden, in the absence of negligence on the part of the passenger in not discovering the want of authority. The court said: “ Parties may deal with the agents of corporations upon the presumption that they possess the powers usually assigned to the office they hold, and the principal is bound as to third persons acting in good faith, by the act of an agent within his apparent authority, although in the particular instance it was unauthorized. In considering the inference to be drawn as to the authority of the baggagemaster in this case from his official designation, and from the fact that he was acting as the agent of the defendant in receiving baggage of passengers, the jury was entitled to take notice of the usual methods of railroad transportation. The contract to carry the baggage of passengers as incident to the contract to carry the person, does not become defined as to the particular baggage, its amount, or other incidents, until the baggage is delivered to the baggage-master. So also in respect to checking baggage, the arrangement, from the nature of the business, must, in large places at least, be made with the baggagemaster. It would be impracticable in the city of Hew York, for example, to arrange the details for the carrying of baggage, with the ticket agent. Such details are left, as they necessarily must be, to be subsequently arranged between the passenger and baggagemaster at the very time of delivering the baggage. The passenger can ordinarily deal with no one else in respect to them. He may not know, or if he knows, he would not ordinarily be able to find the superior agents of the corporation. The passenger has, we think, the right to assume that the baggage-master possesses the requisite ^authority to make all ordinary and usual arrangements with passengers in respect to the
transportation of baggage. If a question arises as to checking baggage beyond the line of the road receiving it, the practice of the company is presumably known to the baggagemaster, and he is practically the cnly person to whom the inquiry can be addressed. It would produce great inconvenience if it should be held that the baggagemaster did not represent the company in respect to the ordinary incidents of baggage transportation. * * * It is, we think, within the apparent scope of a baggagemaster’s employment, when asked by a passenger whether the company checks baggage over a route indicated by his passage tickets, to answer the, question and to bind the company by checking it over connecting roads.”
In the
Sloman
case a commercial traveler had two large trunks containing samples, differing in appearance from ordinary traveling trunks, and a valise for his personal baggage. He had the trunks checked from Flint, Michigan, to Rochester, N. Y. In conversing with the baggagemaster, he spoke about his customers, which fact, together with the appearance of the trunks, warranted the jury, as the court held, in con-eluding “that the baggagemaster understood that the agent was traveling for the purpose of selling goods, and that these trunks contained his wares.” He paid for and received a receipt ticket for extra baggage. It was held that where a railroad company receives trunks of a passenger with notice that they contain property other than his baggage, and charges and receives extra compensation for their transportation, an agreement to carry the property as freight may be inferred therefrom, and that proof of these facts will sustain a recovery for loss of the property; that in such case, where the property is not that of a passenger, but it is in his hands as agent only, and he makes the contract and pays the compensation for its carriage on account of and in the conduct of the business of his principal, an action is properly brought in the name of the latter to recover for the loss.
In the
Strouss
case the court said : “ The company is liable as a common carrier to the owners of extra baggage, where it is shown that the baggagemaster accepted it with the knowl
edge, and with the understanding and arrangement between the passenger an'd himself, as the agent of the company, that extra payment should be made for the transportation thereof. If he took, under such an arrangement as that, the three trunks, and gave his checks for them, it made such a contract between the railroad company and the plaintiffs in this suit, for the breach of which an action might lie in favor of the plaintiffs for injuries sustained to the goods. If the baggage-master had knowledge of the character of these trunks, that they contained merchandise, and contained other matters than the personal baggage of the plaintiffs, or this member of the firm of the plaintiffs, then if he charged for the extra baggage and accepted it as such, it makes the company liable as common carriers to deliver the trunks at the place designated by the checks or contract for carriage between the plaintiffs and the railroad company, and it would be responsible for any injury which would occur to this baggage in its transportation and before its delivery at the place where it was to be delivered. The railroad company, having placed the baggage-master in its baggageroom, holds out to the public that he has authority to make arrangements as to what sort of baggage shall be carried by the railroad company, and having given him the direction and the control and the management of these articles of freight, he, in the eye of the law — so far as the outside public is concerned — would be authorized and have authority to make such contract as is claimed by the plaintiffs in this suit that this baggagemaster did make, and to bind the company in that respect. So that, although these trunks were not filled with the ordinary baggage of the passenger, if he accepted them as merchandise and took extra pay for them, and gave a check indicating their receipt on behalf of the railroad company, it would be such a contract as would authorize plaintiffs to bring suit in case it was broken.”
The baggage agent in question, therefore, stood as to Mr. Cullom in the place of the railroad company. The number and appearance of the trunks was some evidence that they contained merchandise, and the agent was expressly told that
they contained samples. In view of the custom proved, that commercial travelers generally carry samples belonging to-their employers in their trunks, this warranted the inference that the baggage agent knew the exact facts. On being-informed that Cullom wished to have them checked to Hew York, he required the payment down of $16.00 for transporting them as extra baggage to that place, and delivered a check stamped with the name of the company he represented, and with the words “ From Chicago to Hew York.” As was said by this court in the
Sloman
case : “ If the trunks and this compensation were received with notice that the trunks contained property other than the baggage of the passenger, then there is evidence of an agreement aside from the contract to transport the passenger and for a separate consideration, to carry such j>roperty as freight, and this will sustain the-recovery.” The referee was, therefore, authorized to find, as a fact, that the company agreed, aside from the contract to transport the passenger, for a new and independent consideration, to transport the trunks containing merchandise to the city of Hew York, and, as a conclusion of law, that the plaintiff as undisclosed principal could enforce the agreement. Hence the nonsuit was reversible error as to the first cause of action.
We now come to the second cause of action relating to the-personal baggage of the passenger. The referee did not non-suit as to this, but retained the case, and, after considering the evidence, found as a fact that the defendant’s predecessor “ did not on or about the 27th day of April, 1889, agree to carry said Cullom from Chicago, Ill., to New York city.” If this finding rests on a conflict of evidence or upon uncontradicted evidence permitting diverse inferences, it is beyond our-power of review and is conclusive upon the question now under consideration. (
White
v.
Benjamin,
150 N. Y. 258.)
The company had the power to contract for through transportation, for it has long been settled that an owner of one of several lines for the transportation of passengers, running in connection over different portions of a route of travel, may
contract as principal for the conveyance of a passenger over the whole route and that such contract may be established by the circumstances, notwithstanding the passenger received tickets for the different lines signed by their separate agents.
(Quimby
v. Vanderbilt, 17 N. Y. 306 ;
Hart
v.
Rensselaer & Saratoga R. R. Co.,
8 N. Y. 37 ;
Williams
v.
Vanderbilt,
28 N. Y. 217, 221 ;
Buffett
v.
Troy &Boston R. R. Co.,
40 N. Y. 168, 172
; Condict
v.
Grand Trunk Ry. Co.,
54 N. Y. 500, 502.) While the company had the power to contract for through transportation, the question remains whether it did so contract. The facts bearing upon this question are few and simple. Mr. Cullom asked the company’s ticket agent for a ticket to Eew York, paid him the sum demanded and nothing farther was said or done except the delivery of the ticket. The company was not a common carrier of passengers between Chicago and Eew York and did not hold itself out as such. Its line did not extend east of Detroit. Mr. Cullom testified that he knew the Wabash railroad did not extend to Eew York and was not a common carrier to that point, but that its eastern terminus was at Detroit; that he knew the ticket he intended to purchase was a ticket of the West Shore Company for the portion of the route between Suspension Bridge and Eew York city, and that for the portion of the journey from Detroit to Suspension Bridge he would have to use some line between the terminus of the Wabash and the. beginning of the West Shore ; that the ticket he was to purchase was a coupon ticket with one coupon for each railroad over which he was to travel. He further testified : “ I knew that besides the coupons for the different portions of the journey, there was a printed contract at the head of the ticket, but did not read it until after the accident. I saw it was there and did not pay any attention to what it read. I have been accustomed during the years in which I have journeyed about the country to make long continuous journeys over connecting railroads, and when I left Eew York for Beoria my journey took me over connecting roads and I purchased one coupon ticket as I was accustomed to do when I make journeys of
long distances with the coupon of each road for the portion of the line over that road. I know it is the custom in the course of business of railroads generally in the country to sell tickets over their own and connecting lines with the coupon of each road for the portion of the line over that particular road, and the ticket I bought was of the same general character and had coupons.”
The ticket delivered to Mr. Cullom was an old form, at one time used by the Wabash, St. Louis & Pacific Eailway Company, still such tickets were used occasionally by the Wabash Western, which succeeded to the ownership of the line from Chicago to Detroit. While we regard the ticket as a voucher and not a contract with the Wabash Western, because its name does not appear therein, still, it was a coupon ticket with the names of the connecting lines printed upon the face of the coupons. Mr. Oullpm knew what a coupon ticket meant, and he intended to purchase a ticket that would take him over the West Shore and another connecting line. This warranted the inference of notice to him of what was stated at the head of the ticket, to wit, that the company “selling this ticket” acted “as agent,” and that it did not intend to become “ responsible beyond its own line.” This is true, even if the name of the company was not correctly given. While not controlling, it was a circumstance of importance to be considered in connection with the other important fact that Cullom paid through fare to New York, and received a through ticket to that place. Upon all the evidence we think it became a question of fact whether the contract was for through transportation or not, and that the referee was not bound, as matter of law, to find in accordance with the plaintiffs theory.
(Milnor
v.
N. Y. & N. H. R. R. Co., 53
N. Y. 363 ;
Kessler
v.
N. Y. C. & H. R. R. R. Co.,
61 N. Y. 538 ;
Auerbach
v.
N. Y. C. & H. R. R. R. Co.,
89 N. Y. 281 ;
Isaacson
v.
N. Y. C. & H. R. R. R. Co.,
94 N. Y. 283
; Root
v.
Great Western R. R. Co.,
45 N. Y. 524 ; Thomas on Negligence, 194 ; Hutchinson on Carriers [2d ed.], 822.)
The plaintiff having failed to establish such a contract as
would enable him to recover upon the second cause of action, it follows that the complaint was properly dismissed as to that count of the complaint.
The judgment below should, therefore, be reversed and a new trial granted as to the first cause of action set forth in the complaint, and in all other respects affirmed, without .costs in this court to either party.