27 N.Y.S. 611 | N.Y. Sup. Ct. | 1894
This is an action to recover the value of a horse shipped for transportation by the defendant, and fatally injured, it is claimed, through defendant’s negligence. The defendant put in evidence a printed form of contract, signed, not by the plaintiff, but by one Cornue, the shipper, by which it was contended that the defendant was released from liability except for gross negligence, and that the amount of recovery for the value of the horse was limited to $ 100. We think that the motion for a non-suit was properly denied. The evidence was sufficient to justify the submission of defendant’s negligence, and the plaintiff’s freedom from fault, to the jury; and there was also sufficient evidence as to the circumstances attending the execution of a contract to submit to the jury the question whether it bound the plaintiff. But the court also submitted to the jury the authority of Cornue to bind the plaintiff by his contract of shipment, and refused to charge that he possessed such authority. This was erroneous. An agent to ship has power to contract as to the terms and conditions of shipment. Shelton v. Despatch, etc., Co., 59 N. Y. 258; Nelson v. Railroad Co., 48 N. Y. 498. For this error the judgment must be reversed.
Judgment and order denying new trial reversed, and new trial ordered; costs to abide the event.