112 N.Y.S. 660 | N.Y. App. Div. | 1908
On the 12th day of September, 1903, the plaintiff in this action delivered to the Old Dominion Steamship Company in the city of New York a certain package consigned to himself at St. Louis, which package is alleged to have contained a second-hand desk, and accepted from the receiving clerk "of the Old Dominion line a bill of lading describing the package as a second-hand desk. The bill of
It has been aptly said, by our highest court, that.“good faith is written into every contract.” The plaintiff in this action by delivering his second-hand desk to the Old Dominion line, and accepting the freight rate for second-hand furniture, would not be in a good position to claim damages for anything more, and in this action he does not claim any damages to the second-hand desk. What he now claims, and what he brings his action for, is to recover the value of three Persian shawls, valued at §600, one Persian rug, valued at $300, and a diamond ring valued at $300, which he claims constituted a part of the parcel. To permit the plaintiff to recover this value would result in a fraud upon the defendant, one of the connecting carriers, and the one having control of the goods at the time it is claimed these special articles were stolen. The learned court at the trial dismissed the complaint upon defendant’s motion, and the plaintiff appeals.
The contract above set forth is a New York contract, .providing for through transportation to St. Louis; the contract of the Old Dominion line contemplates the entire transaction; it accepts the goods consigned to the shipper at St. Louis, takes the freight for the entire distance, and stipulates, for itself and connecting carriers, the conditions on which if; is to perform the service. Its contract is to carry one second-hand desk from New York to St. Louis, and to deliver the same to the plaintiff, and this service has been performed ; no claim is made that the desk was not transported according to the contract. The law is well established that carriers who are not named in a contract for the carriage of goods, and who are not formal parties to it, may, under certain circumstances, have the benefit of it. Such is the case when a contract is made by one of the several carriers upon connecting lines or routes for the carriage of property over the several routes for an agreed price by authority, express or implied, of all the carriers. So, too, in the absence of any authority in advance, dr any usage from which an authority might be inferred, a contract by one carrier for the transportation of goods over its own and connecting lines, adopted and acted upon
There was no allegation of fraud in the complaint, and it was not competent, therefore, tó show by evidence any of the alleged facts surrounding the making of this contract; the contract was in writing and could not be varied by parol. It was a contract fair in its provisions, and it would be a gross perversion of justice to permit' the plaintiff to recover for the value of the property which he claims was contained in this package, and which would, unquestionably, have demanded a much higher rate of freight.
This result is not in conflict with Babcock v. L. S. & M. S. Railway Co. (49 N. Y. 491) and Robinson v. N. Y. & Texas Steamship Co. (63 App. Div. 211), for in each of these cases it appears clearly that there is no contract for exemptions extending beyond the service to be performed by the initial carrier; while in the casé at bar the contract in terms provides for the liability of all carriers performing services under the contract. In the Robinson Case ■ {supra) the court say, in speaking of the contract, that “ no language is found therein which stipulates for any exemptions in favor of the
The judgment appealed from should be affirmed, with costs.
Jenks, Hooker and Gaynor, JJ., concurred; Rich, J., concurred in result.
Judgment affirmed, with costs.