Majority
p. 316PASTORE v. AMERICAN EXPRESS CO (Supreme Court, Appellate Term, First Department. December 6, 1912.) Argued November term, 1912, before LEHMAN, PAGE, and HOTCHKISS, JJ.
Headnote
Carriers (§ 158*)—Action for Nondelivery—Damages.In an action against an express company for damages for nondelivery, the shipper, upon whose valuation of the goods at a certain amount the contract was based, could not show or recover a greater amount.
TEd. Note.—For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-703%, 708-710, 718, 718% ; Dec. Dig. § 158.*]
Appeal from Municipal Court, Borough of the Bronx, Second District.
Action by Enrico Pastore against the American Express Company. From a judgment of the Municipal Court of the City of New York, Borough of the Bronx, Second District, entered in favor of the plaintiff, defendant appeals. Modified and affirmed.
Carter, Ledyard & Milburn, of New York City (Walter H. Merritt, of New York City, of counsel), for appellant.
Fiorello H. La Guardia, of New York City, for respondent.
The plaintiff sues for the nondelivery of certain goods which defendant accepted in Italy and agreed to transport to America under a written contract. This contract declares the value of the goods to be 145 lire. This valuation is an integral part of the contract, and the contract is based upon this representation. The plaintiff, having obtained a contract based upon this representation, should not in a suit for damage be permitted to show greater value.
Judgment should, therefore, be modified by fixing the damages at $28, and, as modified, affirmed without costs of appeal to either party. All concur.