Belzer v. Daub Storage Warehouse & Van Co.

130 N.Y.S. 153 | N.Y. App. Term. | 1911

GUY, J.

Plaintiff appeals from a judgment entered upon the verdict of a jury in favor of the defendant. The action was brought to recover the value of certain household furniture delivered to defendant as a common carrier and warehouseman. The defendant admits the receipt of most of the goods in question, and the evidence clearly establishes a failure to return all the goods delivered to defendant.

[1] No receipt was given to plaintiff for the goods at the time of their delivery, but some four or five weeks after the delivery of the goods to the defendant a receipt was sent to plaintiff which contained a clause limiting defendant’s liability to $50 for each piece or package unless the value thereof is made known at the time of storage. The contention of the defendant that this constituted a contract between plaintiff and defendant as of the time of the delivery of the goods is not tenable, and the court erred in charging the jury to that effect. See Guillaume v. General Transportation Co., 100 N. Y. 491, 3 N. E. 489.

[2] The court further erred in charging the jury:

“If there is a reasonable doubt in the mind of the jury whom to believe, they will find a judgment for the defendant.”

The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.