138 N.Y.S. 203 | N.Y. App. Div. | 1912
This is an appeal by defendant from a judgment entered upon a verdict in an action to recover damages for non-delivery of 300 tubs of butter.
On October 23, 1907, the firm of Emerson, Marlow & Co. of Chicago drew drafts upon plaintiffs in New York for $10,200 and attached to them two bills of lading purporting to have been issued by defendant for 300 tubs of butter each.
Only one carload of 300 tubs was delivered, and this action is for the value of the other 300 tubs.
The principal question in the case is whether the bill of lading was issued by defendant or by any one having authority to bind it. In form the bill was that of defendant. It was signed “The Wabash Railroad Company, per JJ. G. Northrop—: O. Agent,” only the italicized words being in writing. Northrop was the general agent in Chicago of the American Refrigerator Transit Company, a concern owning refrigerating cars, which were transported over the lines of a number of railroad companies, including that of the defendant. The refrig
There was absolutely no evidence that he was in defendant’s employ, and while it appeared that he had signed other bills of lading in the same way upon which deliveries were made, there was no evidence that defendant or any óf its responsible.
The plaintiffs were also permitted to introduce, by way of proving an admission of Northrop’s agency, a letter written by themselves, after their claim for damages had arisen, to the general freight and passenger agent of defendant, in which they twice referred to “your Mr. Northrop.” The recipient of the letter acknowledged it in a purely formal letter making'no reference to the characterization of Northrop as “your Mr. Northrop.” In his charge the trial justice particularly called the attention of the jury to this letter and the reference in it to Northrop, and said: “ The plaintiffs say they never received any reply to the letter, and notwithstanding there seems to have been some direct notice given that the plaintiffs claim that this bill of lading was signed by Northrop, there has been no repudiation of that, so far as I have been able to discover, written by the Wabash Railroad Company to the firm of Droste & Snyder. It is needless for me.to go into all the details and all the circumstances from which you might infer agency.” The introduction of the letter and the comments of the j ustice thereon were duly excepted to. It is easy to see how prejudicial they must have been to the defendant, for the jury were charged in effect that they might infer an admission of Northrop’s agency from the failure of defendant to repudiate it on receipt of plaintiff’s letter.' This is not the law. “ ‘ While a party may be called upon in many cases to speak where a charge is made against him, and in failing to do so may be considered as acquiescing in its cor
, The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., McLaughlin and Clarice, JJ., concurred; Laughlin, J.> dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.