Gott v. Dinsmore, 111 Mass. 45

Gott v. Dinsmore

111 Mass. 45 | Mass. | 1872

Colt, J.

1. There is evidence in the case to go to the jury, which would warrant a finding that the defendants, with others *51not named, were partners, doing business at the time of the alleged bailment, as common carriers between Boston, New York and Savannah, under the name of the Adams Express Company, a joint stock association formed under the laws of New York. The statutes of that state, it is true, provide, in relation to actions against such companies, that suits shall be prosecuted, in the first instance, against the officers of the association only. N. Y. Sts. 1849, c. 258, §§ 4, 5 ; 1853, c. 153. But the common law liability of the individual members or stockholders, as partners, after a judgment had against the company, which remains unsatisfied, is not removed; the statutes themselves expressly declaring that nothing therein contained shall be construed as conferring the rights or privileges of corporations, except as specified. By a familiar rule, the laws of another state, which have reference solely to the mode of pursuing a remedy, are not binding here, and the personal liability of the individual partners may be enforced according to the laws of this Commonwealth. Allen v. Sewall, 2 Wend. 327. Bailey v. Bancker, 3 Hill (N. Y.) 188. Taft v. Ward, 106 Mass. 518. No objection by way of plea in abatement is raised in the answer, on account of the non-joinder of the other members of the company.

2. There was evidence that the defendants failed to deliver a portion of the plaintiff’s property in Boston according to their contract of bailment. The declarations, having a tendency to prove this, of the defendants’ general agents in Boston and New York, and of their freight clerk, to whom the agent in New York had referred the plaintiff for information upon the subject, were made in the course of their duty, and come within that class held admissible in Morse v. Connecticut River Railroad Co. 6 Gray, 450.

3. Upon the question of the degree of negligence with which the defendants are chargeable, depending on whether the bailment was gratuitous or not, we think there was evidence tending to show a consideration for the defendants’ undertaking, arising out of the plaintiff’s contract of employment, the usages of the business, and the circumstances connected with the delivery of the property in question, proper to be submitted to the jury.

*524. For the reasons above given, the plaintiff is entitled to maintain his action; and as judgment according to the terms of the report must be rendered in his favor, it is not necessary to consider whether, assuming the bailment to have been gratuitous, there was evidence of negligence such as would have charged the defendants in that relation.

The only question left is whether the damages to be assessed are limited to the fifty dollars named in the shipping receipt, or are to the full value of the property lost.

The receipt produced by the plaintiff was not taken by him at the time of the delivery of the baggage in question, but was sent from Savannah upon application made some months afterwards, and after the loss of the goods was ascertained. It contained a stipulation stated to be in part consideration of the contract, and declaring in substance that in no event should the holder of the receipt, in case of loss, demand beyond the sum of fifty dollars, at which the article forwarded was to be considered as valued, unless the value was otherwise expressed, or it was specially insured by the company. If this paper had been delivered to the plaintiff, as the contract of the defendants, at the time the goods were delivered, the acceptance of it without notice of dissent would have been evidence of an express contract, which it might be contended was sufficient to limit his claim to the sum named. As it is, the terms of the original contract of bailment are not affected by the receipt. Nor does the knowledge of this regulation which the plaintiff had previously acquired in the defendants’ employment subject him to the limitation named. It is settled that mere notices, brought home to the owner of the goods, by which the carrier seeks to avoid or limit his common law liability, but which are not expressly assented to, cannot be availed of to defeat a claim for loss. A common carrier cannot so escape those liabilities which the policy of the law imposes, and without express assent or agreement waiving his rights, the employer may insist on the performance of the duty required. There must be some ground shown for the inference, that the owner intended, without any consideration, to give up the right to have his property transported at the risk of the carrier; and as no such ground is shown *53here, damages for the plaintiff’s loss must be assessed at the full value of the goods. Grace v. Adams, 100 Mass. 505. Judson v. Western Railroad Co. 6 Allen, 486.

Judgment for the plaintiff; case to stand for the assessment of damages.