Van Winkle v. Adams Express Co. — 26 N.Y. Super. Ct. 59

Majority

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Abraham J. Van Winkle, plaintiff and appellant, vs. The Adams Express Company, defendant and respondent.

Headnote

1. A common carrier who has contracted to carry goods to a specified point is not justified iri storing the goods at an intermediate point, because he considers the further carriage thereof would be unsafe.

2. If he has any doubts about the safety of any portion of the route, he should inform the consignor thereof, and notify him that unless the goods are called for at an intermediate point, he will store them there.

3. A person holding himself out to the world as a carrier to a certain place; whose custom it is to carry goods to that place; who tells a consignor and his agent that he carries to that point, and charges freight thus far, is liable for any neglect to carry the goods the whole distance; unless he expressly limits his liability to an intermediate point, at the time.

4. Where a package sent by express was marked “ 0. O. D. $292Held that this was ample notice to the express company of the value of the package, to enable the owner to recover beyond the extent of $50, as limited in its receipt.

(Before Moncrief, Garvin and McCunn, JJ.)

Heard December 12, 1864;

decided December 31, 1864.

Appeal from a judgment entered upon the report of a referee. The action was brought against the defendants, as common carriers, to recover the damages sustained by the plaintiff, by reason of the defendants’ failure to perform their agreement to transport and deliver a box of maps directed to Messrs. Dunn

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& Ritchie, at Shreveport, Louisiana, which the plaintiff had entrusted to them for that purpose.

The answer admits that the defendants agreed to take the maps to New Orleans, hut denies the agreement to transport them to Shreveport; that the maps are now at New Orleans, well and properly stored, and that there is due on said maps, to them, $75 for freight, storage, &c.

The action was referred to a referee. On the trial before him, it was proved that plaintiffs had been in the habit of sending packages by the defendants ever since the company was formed, some seven or eight years. The defendants had frequently carried goods to the place of destination, and collected bills when requested so to do, and their business was the usual business of express companies. The defendants having carried packages for the plaintiff ever since the company was formed, and collected bills on C. O. D. packages and returned the money t.o plaintiff, the plaintiff, on the first or second of March, 1859, requested Mr. Naughton, their agent, to go to the office of defendants and find out whether they carried goods to Shreveport, Louisiana, and the price for sending 100 maps and 200 manuals: Mr. Naughton called at defendants’ office, and inquired of the clerk in the office, if the company earned goods to Shreveport; the clerk said they did. Naughton then asked him what the freight would be on a box the same size as a box he had in the basement, containing-maps. The clerk said it would cost $20 from New York to New Orleans, and $1 per hundred from New Orleans to Shreveport; Naughton asked the clerk how soon he could send it. The clerk told him he would have to get it there on the Friday following to go by that steamer. Naughton told the clerk he would send the box to the company on Friday afternoon. On the Friday following, Naughton, in pursuance of the above agreement, delivered the box to the express company, and took a receipt for a O. O. D. package from the company. Before Naughton delivered the box he reported to the plaintiff what had occurred. Naughton stated at the interview with the defendants, the contents of the box; the company made no demand for freight, but said if the box was

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sent them by the fourth, they would take it. The defendants charged on the way bill, for the whole route from New Orleans to Shreveport, the sum of $31.35; they agreed to take the box to New Orleans for'$20, and $1 per hundred from New Orleans to Shreveport. The other material facts appear in the opinion of the court.

The referee reported in favor of the defendants, and for the dismissal of the complaint; and judgment being entered accordingly, the plaintiff'appealed.

B. C. Thayer, for the appellant.

S. P. Nash, for the respondent.

This is an action to recover damages against the defendants as common carriers. The complaint alleges that by reason of the neglect or refusal on the part of defendants to deliver a box of maps to Dunn & Ritchie, Shreveport, Louisiana, he, the plaintiff, has sustained damages. The defendants answer, that they agreed to take the goods to New Orleans, and no further, and that they performed their contract accordingly. ■

The case is rendered somewhat difficult from the unskillful manner in which the referee proceeded, and from his confused and mixed form of findings of law and of fact. The vital questions, however, in the case, and those upon which the controversy must turn in the end, are as follows : • Was there a contract on the part of the defendants with the plaintiff to carry the goods to Shreveport, and if there was not, was it the general custom on the part of defendants to receive goods thus marked under such circumstances, and forward the same to their places of destination ?

As to the question of contract between the parties, it appears in evidence that on the 2d March the defendants’ agents told Naughton, the plaintiff’s clerk, that they carried goods to Shreveport; that they then' computed the freight for him, and in that computation the clerk included the entire distance from

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Hew York to Shreveport; that next Friday he and the cartman brought the goods : that the defendants received the same and gave the following receipt:

“ Adams Express Company. Great Eastern, Western, and Northern Express Forwarders. New York, March 4th, 1859. Eeceived of John G. Wells, Esq. one box maps, marked S. D. Wood, care of Messrs. Dunn & Bitchie, Shreveport, Louisiana, C. O. D. $292. To be forwarded to-- only. It is further agreed, and is part of the consideration of this contract, that the Adams Express Company are not to be responsible, except as forwarders, for any loss or damage arising from the dangers of railroad, steam or river navigation, leakage, fire, or from any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of ourselves, our agents, or servants, and we in no event to be liable beyond our route as herein receipted; valued under fifty dollars, unless otherwise. herein stated. All articles of glass will be taken at shipper’s risk only, the company refusing to be responsible for any injury by breakage or otherwise. Freight-. For the company. Westcott.”

And in that receipt they did not limit their liability by inserting in the usual blank printed in the receipt, left for that purpose, the words “ Hew Orleans.”

Another portion of the evidence is, that they had frequently sent packages of a similar kind, and that a similar receipt had been taken, and that Adams & Co. had been in the habit of receiving and forwarding similar goods to Shreveport, and charging freight throughout, all of which testimony is uncontradicted, and to my mind there never was a clearer proposition, under such circumstances, than that this evidence amounted in law to a contract, on the part of the defendants, to carry the goods to Shreveport.

As an elementary principle, when the terms of a contract are doubtful, the parties have a right to look into the facts and circumstances connected with the entire transactions transpiring immediately before the execution of the instrument, so as

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to inform the mind of the court what was in truth intended by the parties. (2 Ellis and Blackburn, 517.)

It is contended on the part of the defendants’ counsel, and I believe the referee so found as a fact, that owing to the unsafe manner of transportation from New Orleans to Shreveport, they (the defendants) were justified in storing the goods in New Orleans; in other words, that they had a right, under such circumstances, to put an end to the contract the moment the goods arrived at New Orleans. I can find no good reason to justify the company in pursuing such a course.

The defendants’ witness, Mr. McKeever, testifies that the reason why the box was not forwarded by the Shreveport boat was, that they did not consider the boats responsible, and they were fearful the money for the maps would not be paid, therefore no effort, he says, was made to send the goods to Shreveport. But is it not fair to expect that, knowing all about the means of conveyance from New Orleans to Shreveport, and about the want of responsibility of the river boats, if they intended to limit their liability to New Orleans, they should have said so ? Was it not to be expected that they should have at least disclosed their doubts about the boats at the time they received the goods, and was it right that they should,'without fully informing the plaintiff of all these facts, charge freight to Shreveport ? On the contrary, were they not bound to inform the plaintiff of the danger contingent on the trip from New Orleans to Shreveport, the uncertainty of the boats, and the fact that unless the goods were called for at New Orleans they would store them there ?

The witness, McKeever, testified that the usual course for the company to pursue was, to send the goods by boats from New Orleans to Shreveport, directed to White, Smith & Baldwin, of the latter place, their agents. This being so, by virtue of their own testimony, the case is at once carried beyond the current of the rule laid down by the chancellor in the case of /St. John v. Van Banff or d. The case under consideration is different from that.

There the defendants informed the community how far they

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carried, and the extent and limit of their route; that their custom was to place the goods, at the end of their route, in a position to reach their destination hy the ordinary means of conveyance, thereby limiting their liability. Here the defendants, by their own testimony, show that their custom was to carry to Shreveport,, and in fact so told the plaintiff and his agent, and so held themselves out to the world.

After a careful examination of this case, I am of opinion that the defendants did agree to carry the goods to Shreveport, and that the referee, in his refusal so to find as a matter of fact, and to find, as a conclusion of law, that there was a contract, committed an error, and the judgment should be reversed.

A question has arisen, as to whether the defendants were sufficiently informed of the value of the goods, so as to enable the plaintiff to have a recovery beyond the extent of $50, as limited in their receipt. I am clearly of opinion that they had ample notice of the goods being of the value of $292, and that the referee should have found that fact, and that he committed an error in not doing so.

The judgment should be reversed, and a new trial ordered, . with costs to abide the event. The order of reference is discharged.'