46 Misc. 441 | N.Y. App. Term. | 1905
The plaintiff recovered a judgment for $125 and costs for the failure of the defendant, as president of a joint-stock association express company, to deliver a box of goods sent from Philadelphia, Penn., to New York city.
Two questions are presented for decision. First, was there error in excluding evidence as to the address upon the box; and second, was there error in refusing to limit the amount of the recovery to fifty dollars. ■
The receipt given by the express company to the person who shipped the goods states, among other things, that they were marked “ Heyman 108 E. 11th St. New York.” No attempt was ever made to deliver them at No. 108, but an attempt was made to deliver them at No. 118. Failing to find the addressee at the latter place, the company’s agents carried the box back to the company warehouse where it was consumed a few days afterward in a conflagration originating from unknown causes which destroyed the warehouse. The company attempted to prove at the trial that the box was, in fact, addressed to 118, not 108, as stated in the receipt, but the evidence was excluded apparently on the theory that the paper constituted a contract between the parties, the terms of which could not be waived or contradicted by parol.
While the shipping receipt was a contract in some of its portions, it was in the part in question simply a receipt, in
The distinction between the features of such a paper, which are contractual in character on the one hand, and those which are merely portions of a receipt on the other, is well stated in Goodrich v. Norris, 10 Fed. Cas. No. 5545, pp. 609, 611, as follows: “ The contract is for the transportation of the goods, for their delivery, for the stipulated freight, etc. But the statements that the goods embraced within this contract have been received on board the vessel, and that they are of such and such description in point of quantity, quality, condition, marks and numbers, etc., are in the nature of a receipt, not an agreement.”
The justice of the view that evidence is admissible of the actual address on the box, becomes more apparent if the situation is considered as reversed. If the address on the package had been correctly printed by the shipper and a mistake made in the receipt by the carrier, it would be manifestly unjust to allow the carrier to escape liability for nondelivery by showing that the consignee could not be found at the address appearing in the receipt and by objecting to any evidence to show that the address on the package was correct, the receipt notwithstanding.
Our conclusion on this point is that, however cogent as evidence the receipt may be as to the actual address which the box bore, it is, nevertheless, not conclusive, and other evidence should have been admitted.
• For this reason a new trial must be hadbut, as the question of limiting the defendant’s liability to fifty dollars, a's provided in the contract, will probably arise again on such new trial, it will be better to pass upon it now.
In support of the judgment it is argued that, while the
If, therefore, this action had been brought in the State of Pennsylvania, the limitation in question would have been
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Scott and McCall, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant, to abide event.