311 Mass. 553 | Mass. | 1942
The plaintiff appealed from the final decision of the Appellate Division of the Municipal Court of the
The judge found that the parties entered into an agreement, evidently in the city of New York, by the terms of which the plaintiff was to ship to the defendant on “consignment” a rug of an agreed value of $1,800, subject to the following terms and conditions: that from the time of delivery of the rug at New York until it was returned to the “Consignor” (plaintiff), at his place of business in New York in as good condition as when consigned, the “Consignee” (defendant) was an absolute insurer of the rug to the plaintiff for and against any and all risks, losses, damages and expenses whatever, and liable to the plaintiff for the value agreed upon; that title to the rug, and, upon its sale, title to the proceeds of the sale, were to remain in the plaintiff; and that the defendant might return and the plaintiff might require the, return of the rug at any time before its sale. The plaintiff delivered the rug to a carrier for the purpose of its delivery to the defendant under a straight bill of lading, freight charges collect, and made a declaration to the carrier of the value of the rug, expressly limiting it to $125. The rug was lost or stolen on the day it was delivered to the carrier and while in its custody.
At the request of the plaintiff, the judge ruled that the transaction of “consignment” was not a contract to sell or a contract of sale within the statute of frauds. He also gave certain requests of the plaintiff that dealt with the rights, duties and obligations of a bailor and a bailee, and also found and ruled that the transaction of “consignment” was a bailment, “subject, in part, to the terms and conditions hereinbefore set forth.” Apparently the “terms and conditions” referred to are those already recited as to the obligation of the defendant from the time of delivery of the rug in New York, the status of title and the respective rights of the parties as to the return of the rug. But the ruling was also that the “bailment” was subject to these terms and conditions “in part.” In this connection the judge also ruled that the defendant was entitled to reasonable notice of the time and place when and where his lia
In any event, the plaintiff cannot complain of the rulings that were given at his request, Noble v. American Express Co. 234 Mass. 536, 539, see Horton v. North Attleborough, 302 Mass. 137, 141, and we proceed to consider the case on the issue that has been argued by the plaintiff, that is, whether the plaintiff is barred from recovery because a limited valuation of the rug was declared to the carrier.
In substance, it is the plaintiff’s contention that it was for the defendant to arrange for the contract of carriage himself or to instruct that the full agreed value of the rug be declared; that the transaction was not one of sale and that the assumption of risks of transit by the defendant was pursuant to his contract with the plaintiff.
It is apparent that the agreement was made in New
Although the plaintiff has not argued the specific rulings by which he claimed to be aggrieved and which were the basis of the report, we have examined them. Two of them were denials of requests based in part upon specifications of facts recited therein that were not found, that is, that the rug was delivered to the carrier “pursuant to the defendant’s request.” One was the. denial of a request premised upon the fact that the carrier was designated by the defendant. The judge stated that he was unable to find that this was the fact. One was the denial of a request to the effect that there was no evidence that would warrant a finding that the plaintiff “validly limited the liability of the carrier.” ' This was rightly denied. The other rulings, which appear to have been voluntarily made, by which the plaintiff claimed to be aggrieved, were as to the implied duty of the plaintiff to give the defendant notice of the time and
Order dismissing report affirmed.