28 Misc. 165 | N.Y. App. Term. | 1899
The plaintiff in this action ordered some paper boxes of the firm of Geo. Kemmet & Co., to be shipped from Jersey City to Spring Valley, H. J., the place of business of plaintiff. The goods were loaded" into a car belonging to the defendant, taken over its road, and upon their arrival at Spring Valley, the freight was paid by the plaintiff. Upon opening the car, it was found that it was wet, water was dripping into the car from the roof, and the boxes were damaged to such an extent as to be practically worthless.
■ The value of the goods was conceded to be the amount for which the plaintiff recovered a judgment in this action. The question raised by the appellant, that the damage to the goods occurred after they were delivered to the plaintiff, was a question of fact, upon which there was a conflict of evidence, and there "appears no good reason for disturbing the verdict of the jury upon that question.
“ Claims for loss or damage must be made in writing to the agent at the point of delivery promptly after arrival of the property, and if delayed for more than thirty days after delivery, or after the time for the delivery thereof, no carrier _ hereunder shall be liable in any event.” Eo claim in writing and signed by the plaintiff was made to the defendant within thirty days after the property in question was delivered to the consignee, and upon this fact the defendant bases its principal claim of error in the rendition of the judgment against it.
It appears from the testimony that at or about the time the car was opened at the point of delivery, the plaintiff, upon ascertaining the condition of the boxes, went to Smith, the agent of the defendant at Spring Valley, and informed him of the condition of the goods and asked what he (plaintiff) should do about it. Smith said he would report the fact to the company. A few days later, the plaintiff again called upon Smith, and asked Smith what had been done in the matter and whether he (plaintiff) should notify the company. Smith then showed the plaintiff a copy of a letter sent by him to the company as follows, “ consignee on opening car claims car had leaked and badly damaged the boxes.” This was in May, 1898.' Eo attention seems to have been paid by the company to this notification. Subsequently and in September or October, 1898, the plaintiff received the receipt heretofore mentioned from Kemmet & Co. and his attorney thereupon wrote to the defendant and received the following reply:
“ Erie Railroad Company, Freight Claim Department, 26 Oortlandt St., Eew York, Nov. 3, 1898.
“Mr. Herman Joseph, No. 287 Broadway, Gity:
“ Dear Sib.—Your letter of the 24th Octo. addressed to Manager, Erie R. R. Co., Duane st., Eew York, relative to a claim which has been placed in your hands for collection by Mr. Chas. Falkenberg to the amount of $213.68 has been referred to me. I have examined our records and fail to find any claim oh our books to cover the matter. Therefore, I am quite surprised that the matter should be presented to me in the manner in which it*167 has been. If a claim has been presented to the company, I would be very glad if you would advise me on what date and to whom it was presented. In case a regular claim has not been presented, I would request that Mr. Falkenberg send me the original bill of lading, paid freight bill, and his bill for damages, showing how the amount is arrived at. Immediately upon its receipt, the matter will be given preferred attention and a speedy investigation made, and if found that we are responsible for the claim a prompt adjustment, will be made. This we cannot determine,- however, without the necessary documents to enable us to make investigation.
“ Tours truly,
“ H. 0. Barlow,
“ Freight Claim Agent, a e p.”
The action hereinbefore referred to of defendant’s station agent at Spring Valley, together with the foregoing letter which it was admitted upon the trial was signed by a representative of the company, sufficiently constitute a waiver of the requirement that claims for loss or damages must be made in writing * * - and if delayed for more than thirty days,” etc.
The clause referred to is analogous to .the provisions and limitations contained in the policies of many insurance companies r&quiring that proofs of loss be presented within a limited number of days, and in those cases it has frequently been held that the company may or may not take advantage of the breach and claim a forfeiture, -and that the intention to waive such requirement may be shown by express language to that effect, or by acts from which an intention to- waive may be inferred, or from which a waiver may follow as a legal result. American Corrugated Iron Co. v. Eisner, 39 N. Y. Supr. Ct. (7 J. & S.) 200; Goodwin v. Mass. Mut. Life Ins. Co., 73 N. Y. 480; Titus v. Glens Falls Ins. Co., 81 N. Y. 419; Sergent v. London, L. & G. Ins. Co., 155 N. Y. 349; Jennings v. Grand Trunk R. Co., 5 N. Y. Supp. 140.
In the case at bar, it does not appear, that prior to- the time of the trial the defendant ever based its refusal to pay this claim upon the ground that plaintiff had not presented the same in writing. On the contrary, the letter of the defendant of Eovember 3, 1898, refers to the fact, that so far as the defendant has knowledge, no claim of any kind was ever presented to the company, and asserts its entire willingness to make prompt adjustment
The judgment should, therefore, be affirmed.
MacLean and Leventbitt, JJ., concur.
• Judgment affirmed, with costs to respondent.
