¶1—The gravamen of the action is the loss of the property through the negligence of the defendant.
¶2The agent of the plaintiff’s assignor had the right to demand and receive it, when he applied for it at Sandy Hook; the property was not then in transitu, but had reached its destination, as the contract was to convey it to Harper’s Ferry, or to the defendant’s agency nearest or most convenient to it. Such was Sandy Hook, and the goods could not at that time be taken farther by the defendant.
¶3The agent of the plaintiff’s assignor was authorized by the defendant’s agent at Harper’s Ferry to apply for the goods at Sandy Hook.
¶4The refusal to deliver them was wrongful, and its re-*64suit was their loss. The wrong would not have been committed but for the negligence of defendant in not sending a proper way-bill.
¶5The box of candies was delivered, by mistake of defendant’s agent, to the wrong persons, and lost to plaintiff’s assignor.
¶6There can be no doubt of this being attributable to defendant’ s negligence.
¶7It was not claimed on the trial that the case proved varied from that pleaded ; nor was any of the evidence objected to on the ground that it did not correspond with the allegations of the complaint.
¶8If that objection had then been taken, the referee might have permitted an amendment of the complaint, and if the defendant alleged surprise, might have imposed terms to prevent it. It was late for the defendant to be surprised after report.
¶9The order granting a new trial should be reversed, and the judgment entered on report of referee affirmed.
¶10Judgment accordingly.