136 N.Y.S. 489 | N.Y. App. Div. | 1912
Lead Opinion
This is an appeal from a determination of the Appellate Term affirming a judgment of the City Court entered upon a verdict for plaintiff for $870, in an action to recover the value of certain furs undertaken to be forwarded by the defendant and not delivered, and an order denying a motion for a ne.w trial.
The plaintiff’s wife and daughter were in Italy in 1908, and sent for their furs, consisting, of two sealskin coats, two muffs and three stoles. They stored .these furs in a storage warehouse in Milan in June, 1909, and received a warehouse receipt therefor, written in Italian, and thereafter returned to this country.
In December, 1909, the plaintiff went to the office of the defendant in the city of New York, and saw Mr. Kammerer, the clerk in charge. Over defendant’s objection that the tes
Under cross-examination he testified: “I knew that when I had dealings with the Morris European & American Express that they were forwarders; that they sent goods to Europe and back. I never paid anything to the company on this transaction; I paid the defendant company for every transaction except this last one, they never asked me to pay. The warehouse receipt I have testified about, was in Italian. * * * There was a statement on that receipt of what the value of this fur was,. I think, in francs or lire. A lire is about 19 cents. Q. How many lire did this warehouse receipt state the value of those things to be ? A. I don’t remember the amount of lire, but I figured it about $1,500. Q. If you don’t remem-, ber the amount of lire, how did you figure out the amount of dollars ? A. My wife figured it out and wrote me when she put the furs there; it was written there and I figured it out; we figured about 20 cents to a lira and it was what would make $1,500; about five times 1,500, about 7,500 lire. Q. You stated you got a receipt when you went down there and had this talk with Mr. Kammerer ? A. Yes, sir. Q. I show you a paper, and ask you if that is the receipt that you got * * * ? A. Yes, sir.” Defendant’s counsel then offered it in evidence and it was received as Exhibit A. '“To the court: I gave him the warehouse receipt and he gave me this.”
This receipt was dated December 17, 1909. There is printed at the top conspicuously: “ The company’s charge is based upon the value of the property, which must be declared by the shipper.” Then in larger letters: “ 17on-negotiable bill of lading.” The blank is filled in to read “Received from S. L. Cohen, 60
When the goods reached this country it was found that only two of the pieces were contained in the package, the daughter’s coat and an ermine muff. The mother’s coat and another muff and the three stoles were not delivered. Testimony was given as to value by Mr. and Mrs. Cohen and by Kaufman, their furrier, and his testimony put the present value at $870, the amount the jury found.
Kammerer was called to the stand for the defendant and testified that the nature of the business of the defendant was that of custom house brokers and forwarding agents. “I remember the time when Mr. Cohen called upon me in connection with some furs that he said were on storage in Italy. He said that some members of his family had left some furs on storage in Milan and asked if we could arrange to have them brought over here. I told" him we could. I asked him' if he had a warehouse receipt for them. He said he did. I told him if he would leave that warehouse receipt with us we would send over there and have the furs brought over or sent over. The next step, if I recall it • correctly, Mr. Cohen brought a warehouse receipt to our office. I took that receipt and sent it to a forwarding agent at Genoa, Italy, with whom we do
The defendant made an offer of judgment of fifty dollars with interest from the 17th of December, 1909, which was refused, and it made the appropriate motions and took the appropriate exceptions to save the point that its liability was limited by the contract, evidenced by its receipt, to fifty dollars. The court charged as follows: “ A limited liability is under the law of this State allowed to be contracted for by parties even as against the negligence of a party who contracts, but there must be found to be a contract for the limited liability, that is, it is not inferable from a mere tender of a paper. It is not inferable from the mere sending of a check such as is used frequently in the transfer of baggage. It is inferable where the surroundings of the transaction indicate no other contract between them, not where it is a mere token or receipt of a. certain article or of certain goods, or, in this instance, of the warehouse receipt, unless it be proved by the defendant that that was the contract. Unless you find against the plaintiff that there was a special contract with reference to the delivery of these goods, then the express receipt containing a limited liability clause would not be binding so as to limit the liability to $50, but if you find that the proof sustains the claim that the defendant makes that at the time of this delivery there was no conversation with reference to the contract other than a delivery of this receipt, then you may infer that was the contract between them. If you find that the plaintiff has sustained his claim that he' had an oral contract with this defendant’s manager with reference to the insurance method of delivery and the amount of value, then the express receipt would not be effective to limit liability, and in that instance, provided you find both of those issues of fact between plaintiff and the defendant in plaintiff’s favor, and in finding you must find that he has the preponderance of the evidence upon- those
It will thus be seen that the learned court left the issue to the jury as to whether a special oral contract had been made and instructed them that if they found it had plaintiff was entitled to the full value. The defendant’s counsel: “I request your Honor to charge that all previous parol negotiations between the parties in this case were merged in the receipt, or contract, marked Defendant’s Exhibit A. The court: I refuse except as indicated. [Exception.] I request your Honor to charge the jury that the acceptance of this receipt or contract, marked Defendant’s Exhibit A, by the plaintiff, made it binding upon him, and constitutes the only evidence of a contract between the parties. The court: Refused. The jury may find otherwise from the facts. [Exception.] I also except to your Honor’s leaving to the. jury the question whether or not the contract marked Defendant’s Exhibit A was entered into between the parties. The court: I leave them to find whether that was a contract, or whether it was a mere receipt or token, as indicated by the circumstances of the transaction, as they find them from the oral proof. Defendant’s counsel: I except to your Honor’s ruling, and I except to your Honor’s leaving the question of the contract to the jury. I request your Honor to charge the jury that the plaintiff cannot recover in this case in any event more than the sum of $50 with interest. [Refused. Exception.] ”
Upon appeal to the Appellate Term the court said: “The plaintiff respondent contends that the defendant’s receipt was. merely a receipt for the storage receipt and hot for the goods,
It will be noticed that the learned Appellate Term did not proceed upon the theory of the plaintiff that there was an entire oral contract, irrespective of the receipt, and that that was a mere token, but upon the proposition that the receipt was the contract between the parties, but that the limitation therein contained was avoided by reason of the fact that the plaintiff had declared the value of the articles to be shipped thereunder; but the court failed to give any effect to the provision of "the contract which required not only a declaration of value but that “the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the company shall not be liable in
In Long v. New York Central R. R. Co. (50 N. Y. 76), Allen, J., said: “ The property was delivered to and the receipt or contract accepted by the party representing the plaintiff. * * * The verbal contract was merged in the written agreement and the latter must he taken as the evidence, and the sole evidence, of the final and deliberate agreement of the parties. * * * All prior negotiations and agreements were superseded by the formal written agreement; and by it, and it alone, in the absence of mistake or fraud, the duties and liabilities of the parties must be regulated. * * * ”
In White v. Ashton (51 N. Y. 280), of the bill of lading, the court, Hunt, 0., said: “ Such was the written contract, and it was not competent to vary it by parol evidence of a different understanding. Its legal effect is as unassailable by parol as are its express terms. The various offers made by the plaintiff to prove ' that the defendants agreed by parol, before the bill of lading was signed, that they would transport the barley by the inside or canal route ’ were properly excluded. The admission of the evidence would have been in violation of the plainest rules of law. ”
In Hinckley v. New York Central & H. R. R. R. Co. (56 N. Y. 429) plaintiff’s evidence tended to show that he gave oral directions to have the goods forwarded by railroad. The goods arrived safely at Buffalo and were forwarded by steamboat and were destroyed by the burning of the boat. A receipt was offered in evidence by defendant’s counsel, who thereupon moved to strike out plaintiff’s evidence as to directions. This was denied by the court. Folder, J., speaking of the receipt,
In Kirkland v. Dinsmore (62 N. Y. 171) a package had been received under a receipt which provided, among other things, that the company was not to be liable for any loss occasioned by the dangers of railroad transportation or ocean or river navigation, or by fire or steam. The package was placed in a safe with other money packages on board the steamer General Lyon, and while on the voyage she caught fire and with her cargo was destroyed. Andrews, J., said: “But the law does not forbid contracts between carriers and shippers fixing the' terms upon which goods shall be carried, and when there is a special contract it takes the place of the contract which the law in the absence of a special agreement implies, and so far as it speaks is to be resorted to to ascertain the rights and liabilities of the parties. It has been repeatedly adjudged in this State that the acceptance by the shipper, on the delivery of goods for transportation to a carrier, of- a receipt or bill of lading signed by the carrier expressing the terms and’conditions upon which they are received, and are to be carried, constitutes, in the absence of fraud or imposition, a contract controlling the rights of the parties. (Collender v. Dinsmore, 55 N. Y. 200; Magnin v. Dinsmore, 56 id. 168; Hinckley v. N. Y. C. & H. R. R. R. Co., id. 429.) * * * The' receipt was prepared by using a printed form of the company, and when completed by filling in the written portions, was signed by the defendant’s agent and delivered to the plaintiff, who accepted it without objection, and forwarded it to the consignee of the package, who retained it until after the loss. * * * It is plain that upon proof of the receipt and of the loss by fire under these circumstances, the defendant was, within the cases cited, prima facie exempt from responsibility. * * * Can it be said
In Hill v. Syracuse, Binghamton & N. Y. R. R. Co. (73 N. Y. 351) Church, Ch. J., said: “ The decision of this court in the recent case of The Germania Fire Ins. Co. v. The Memphis and Charlestown R. R. Co. (72 N. Y. 90) is decisive in this case that the receipt or bill of lading delivered to the plaintiff is to be regarded as the contract between the parties, instead of the parol agreement alleged to have been made previously, but on the same day, between the plaintiff and the person in charge representing the agent. * * * By accepting the contract without objection, the other party had a right to assume that he assented to its terms, and the fact of not reading it cannot be interposed to prevent the legal effect of the transaction.”
In Hoffman v. Metropolitan Express Co. (111 App. Div. 407) the plaintiff’s evidence tended to show an oral contract to carry the property by van without rehandling from her residence in the city of New York to a place in New Rochelle. The defendant denied the special contract and sought exemption from liability under the usual receipt or bill of lading claimed to have been delivered to the plaintiff upon the receipt of the property.
In Bates v. Weir (121 App. Div. 275) Mr. Justice Miller said: “If she repudiates a part of the transaction she must repudiate it all, in which case she canhot assert that the defendant ever became as to her a common carrier or a bailee for hire, or that it owed her any duty greater than that of a gratuitous bailee, which, as I have said, was the duty not to destroy nor injure by gross negligence or some willful act.”
In Jonasson v. Weir (130 App. Div. 528) Mr. Justice Scott
In Greenwald v. Weir (130 App. Div. 696; affd. sub nom. Greenwald v. Barrett, 199 N. Y. 170) Mr. Justice Scott said: "Furthermore, if the written receipt, which constitutes the contract of shipment, contains a clause by which the shipper expressly agrees that the value of the property is not more than a stated sum, unless a different value is stated in the receipt, and no greater value is so stated, the shipper is held to have stated and represented, as one of the terms of his contract with the carrier, that the goods are not óf a greater value fha,n the sum stated, and will be estopped from afterwards claiming; in case of loss, that the value was actually greater.”
In the same case in the Court of Appeals (199 N. Y. 170), Bartlett, J., said: "In order to regulate its charges to its customers with reference to the value of the property transported, a common carrier may demand of the shipper a declaration of such value, or may agree with him that in default of a statement the value shall be deemed a given amount. This agreement may direct and express, or it may arise indirectly out of the acceptance by the shipper of a receipt from the car
The respondent undertakes to avoid its effect by the claim that he did not offer it in evidence, but that it was put in by the defendant. There is no substance in this claim. The paper was offered by the defendant in the Long, Belger, Hoffman, Bates and Greenwald Cases {supra).
The determination of the Appellate Term affirming the judgment and order of the City Court appealed from should -be reversed and a new trial ordered, with costs and disbursements, in all courts to the appellant to abide the event.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Concurrence Opinion
I concur for the reasons stated by Mr. Justice Clarke, and also upon the ground that the defendant is sued as common carrier, and there is no evidence that defendant ever received any of the furs alleged to have been lost.
Determination reversed and new trial ordered, with costs in all courts to appellant to abide event.