145 N.Y.S. 1054 | N.Y. App. Div. | 1914
The plaintiff sues for damages for the breach by defendant of its contract of baihnent evidenced by two bills of lading issued by said defendant. The exceptions are to the exclusion of evidence offered by defendant, and in stating the facts upon which the question of defendant’s liability turns, it will be assumed that the evidence offered and excluded would have established the facts to prove which it was so offered.
Plaintiff is a corporation doing business in the city of New York engaged in the business of forwarding goods to England for delivery there to consignees designated by the consignors of the goods. So far as regards the transaction out of which this action arose plaintiff thus shipped no goods of its own but only goods intrusted to it by others for shipment and delivery. The Universal Shipping and Forwarding Company, Limited (hereafter for brevity called the Universal Company), was a corporation apparently doing a similar business in, London. For some time prior to December 19, 1911, plaintiff and the Universal Company had had a working agreement as-to shipments' to and fro. On said December 19, 1911, the Universal Company notified plaintiff of its intention to cancel the contract and appoint another American agent, agreeing, however, that goods in transit should fall under the existing contract; and offering to act for plaintiff, if desired, until further arrangements could be made. Up to this time plaintiff had shipped frequently by defendant’s stes mers, invariably taking bills of lading in favor of the Universal Company. These it sent to the Universal Company, and also sent what were termed way bills showing the marks on the several packages shipped, the value of each, the name of the person from whom each had been received for shipment, and the name of the ultimate consignee to whom each package was to be clelivered. It was the duty of the Universal Company to receive the goods from the steamer, and to deliver the several packages to the consignees named in the way bills. On December 22, 1911, plaintiff delivered to defendant 194 packages for shipment to London,
In the case at bar the plaintiff was itself a bailee, as between it and those who had confided the property to it for transmission abroad. It had no other title to or interest in the goods except as bailee, for it is conceded that it had no lien upon any part of the goods for advances or charges. To each shipper it had issued what it denominated a “through bill of lading” by which it undertook that the goods should be “delivered to the good Steamship Minnewaska or other steamer bound for London * * * to be delivered * * * at the Port of London unto Universal Shipping and Forwarding Co., Ltd.-, and to be by them forwarded thence * * * to Consignees’ Warehouse, thence to be delivered unto ” the ultimate consignee named in the bill of lading. The defendant offered to prove, but was not permitted to do so, that each of the 194 packages covered by the two bills of lading sued upon was in fact received by the Universal Company, and by it delivered to the ultimate consignee named in the through bill of lading ' issued,for such package, being the same person named in the way bill heretofore referred to as the person to whom such package was to be delivered. The exceptions to the exclusion of this testimony raise the question of law presented by this appeal. When the plaintiff attached the bills of lading to its draft upon the Universal Company for a sum of money for which it had no claim against the goods represented by the bills, and thereby subjected the goods to a lien for the amount of the draft, it came perilously near committing the crime of larceny. (Penal Law, § 1290; Matter of McFarland, 59 Hun, 304.) At
Much stress is laid in the respondent’s brief upon the fact that the defendant is protected by an indemnity furnished by the Universal Company. That fact is wholly immaterial. The burden rests upon defendant to show that the goods ultimately reached those who were entitled to receive them. The fact that it is indemnified against the outcome of this action does not lessen or increase that burden in any way or affect the question of its liability.
The record of a judgment in the High Court of Justice seems to have been properly excluded, as no proof of the essential jurisdictional facts was offered.
Finally the plaintiff showed no damage. It is conceded that it had no claim against the goods, and it had, therefore, no right to make their delivery dependent upon the payment of a draft for some claim having no relation to the shipment.
The exceptions must, therefore, be sustained, the verdict set aside and a new trial granted, with costs to the defendant to abide the event.
Ingraham, P. J., Laughlin, Clarke and Hotchkiss, JJ., concurred.
Exceptions sustained, verdict set aside and motion for new trial granted, with costs to defendant to abide event. Order to be settled on notice.