203 N.Y. 359 | NY | 1911
The plaintiffs are dealers in produce residing at Victor, but buying and shipping from Lakeside, Yew York, where they are represented by the firm of Furber, Connell & Yorton. D. P. Eeynolds & Co. are produce dealers in Jersey City, Yew Jersey, where their place of business is in the freight yard of the Lehigh Valley railroad at Grand street. They sell and deliver produce from the railroad cars as they stand in the yard at that point.
Early in June, 1907, D. P. Eeynolds & Co. ordered a carload of potatoes from the plaintiffs at 85 cents per bushel, delivered, payable on presentation of a sight draft with bill of lading attached. When this order was received the plaintiffs had a car partly loaded with potatoes at Lakeside, and Mr. Furber, their representative, testified that he delivered to the defendant’s freight agent at that place a paper on which was written hi lead pencil the following: “L. G. Loomis & Son, Grand St., Jersey City, Y. J., by L. V. rate 15 c.” As Mr. Furber handed this paper to the freight agent he said: “Here is the instructions for this car of potatoes.”
At the same time the freight agent made out what is called a shipping order, the material part of which is as follows: “New York Central & Hudson Biver Bailroad Company, Lakeside Station, L. G. Loomis & Son, 6/12 1907. Beceive, carry and deliver the articles described
There are two routes for the shipment of freight from Lakeside to Jersey City, one by the defendant's road and that of the Lehigh Valley and the other by the defendant’s road and that of the Pennsylvania Railroad Company. At the date of the transaction in question there was “no fifteen cent rate” from Lakeside to Jersey City according to the Lehigh schedule, although there was one by the Pennsylvania route. The freight stations of the Lehigh Valley and Pennsylvania in Jersey City are about three-fourths of a mile apart, but cars can be. transported from one to the other by a somewhat circuitous route, taking about twenty-four hours. The car containing the
The car was not transported to the Grand street station until June 29th, when D. P. Reynolds & Co. refused to accept it. The potatoes in question were old potatoes for which there is no demand after new potatoes reach the market, or, as one witness stated, “the old potato business is over after the 20th.” Moreover, old potatoes loaded in a car sprout and deteriorate rapidly in warm weather. The Lehigh Valley Railroad Company sold the potatoes for less than enough to pay the transportation charges by $60.78.
This action was brought to recover damages from the defendant for its alleged negligence hi not following the shipping directions of the plaintiffs and in so diverting the car from the route specified thereby as to prevent it from arriving within a reasonable time at the Grand street station, its proper destination.
The defendant alleged in its answer, among other facts," that the bill of lading was a contract and that the potatoes were transported and delivered pursuant thereto.
Upon the trial the facts were proved substantially as' stated and the court charged the jury in substance that if' they found that directions were given to the defendant’s agent at Lakeside to ship over the Lehigh road they" should render a verdict in favor of the plaintiffs for $399.65, thé value of the potatoes at 85 cents per hundred pounds, with interest on the balance. They were further, told that if there were no specific directions given to the freight agent by Furber to ship over the Lehigh route their verdict should be for the defendant.
Counsel for the plaintiffs requested the court to charge that “If the jury find Grand Street there (in the bill of lading) means a freight station, failure on the part of the defendant to deliver or tender delivery at that point was a breach of their duty which renders them liable to the
The defendant’s counsel asked the court to charge “ That if Furber, acting for Loomis & Son, signed this shipping order, that thereupon became the direction of the railroad in regard to the shipment of this car.” The court remarked: “ That is true, but I charge you that if in addition to the memorandum made by the agent, by FitzGerald, Furber gave the specified direction to ship over the Lehigh, that it is also a part of the contract. ” Thereupon defendant’s counsel said: “ What I wish to have charged is that any directions are merged in this shipping order, if Furber signed it as agent for Loomis.” The court asked: “Any direction to ship over the Lehigh ? ” By defendant’s counsel: “Yes, sir.” The court: “I decline to charge as requested.” An exception was taken to this ruling.
The jury found a verdict for the plaintiffs in the sum of $399.65, and the judgment entered accordingly was unanimously affirmed by the Appellate Division. The defendant thereupon appealed to this court.
Both the bill of lading and the shipping .order were made out by a single operation of a typewriter, manifold paper having been placed between a blank bill and a blank order so arranged that the typewritten part was the same in each. The bill of lading does not refer to
We cannot tell from the verdict, however, whether the shipping order was or was not signed, for the court charged in substance that even if Furber signed the order, still the plaintiffs were entitled to recover if the jury found that he gave the defendant’s agent prior oral directions to ship by the Lehigh, route and that such directions, if given, were not merged in the written contract. Thus the position of the court was that whether the shipping order was signed or not, if Furber orally directed the shipment to be made by the Lehigh Valley the plaintiffs were entitled to recover. Hence, the jury may have found that Furber signed the shipping order, and also that oral instructions had previously been given to ship by the Lehigh. Thus following the charge of the court that the oral instructions were not merged in the written order, their verdict would have been logically rendered for the plaintiffs. While the parol directions, including the unsigned memorandum, were received in evidence without objection, this did not preclude the defendant from the right to ask that the jury be properly instructed as to the effect thereof, provided they found that the shipping order was in fact signed by the agent of the plaintiffs.
Thus the question presented is whether a written con-tract to transport goods from one place to another, duly
The respondents, however, insist that the writing in question does not appear on its face to be a complete contract; that the parol evidence was consistent therewith and not contradictory thereof, and hence, that the rule opens to admit such evidence in order to complete an entire contract of which the writing is only a part. (Thomas v. Scutt, 127 N. Y. 133.) It is further insisted that as certain blank spaces in the printed form were left unfilled, such as “Eoute......, Charges advanced §......,” it was competent to fill them by parol.
Whether the case should have been sent to the jury upon some other theory, such as was suggested by the counsel for the plaintiffs in his requests to charge, already quoted, is not now before us. It was not thus submitted, but on the other hand the theory adopted was such that according to the charge and the refusals to charge the verdict may have no foundation to rest upon except an error of law.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Cullen, Ch. J., Gray, Werner, Chase and Collin, JJ., concur; Haight, J., dissents.
Judgment reversed, etc.