128 Minn. 522 | Minn. | 1915
On May 31, 1912, plaintiff delivered to defendant, at Webster, South Dakota, seven boxes of merchandise to be shipped to plaintiff at Eoscoe in the same state. One box was missing when plaintiff called for the goods at Eoscoe in September, 1912, and this fact was noted on a written statement given plaintiff at the time by
The action was brought in December, 1913, to recover the value of the goods contained in the lost box. There was a verdict ■for plaintiff and defendant appealed from an order denying its motion for judgment non obstante or for a new trial.
There was no dispute that the box of merchandise was lost while in defendant’s charge and no doubt of its liability to plaintiff, except for the defense that a claim for the loss was not made to the carrier in the manner or within the time specified in the bill =of lading. The condition in that regard was as follows:
“Claims for loss, damage or delay must be made in writing to -the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier .shall not be liable.”
Technically plaintiff did not comply with this condition of his 'bill of lading, in that the claim was not made in writing to the .agent at Eoscoe or the agent at Webster. But a claim was made verbally to the agent at Eoscoe, who acknowledged the loss and ¿asked for time to look it up. A claim was made in writing to the
The point is made that a waiver was not pleaded. This is true,, as the answer alleged the breach of the condition in the bill of lading.- and the reply was a general denial. But this issue was, we think,, litigated by consent. The evidence to show a waiver was not objected to upon the specific ground that a waiver was not pleaded.
We find no reversible error in the rulings on the admission of evidence or in the charge.
Order affirmed.