9 Daly 188 | New York Court of Common Pleas | 1880
Where there is a total default on the part of the carrier, to deliver the goods, and upon demand, he neither delivers them, nor accounts for his failure to do so, an action will lie for a conversion, if brought within six years from the time of the demand, which was the case here (Platt v. Hibbard, 7 Cow. 500 ; Anon., Salk. 655 ; Claflin v. Meyer, 75 N. Y. 263; Boughton v. Flint, 74 N. Y. 481, 482; Roberts v. Berdell, 52 N. Y. 644).
The defendants agreed, not only to carry the respective parcels delivered to them by the plaintiff, for that purpose, but also, to collect for the plaintiff, from the consignees of the packages, upon the delivery of them, the sums indorsed upon, the bills of lading; each of the bills of lading having on it the letters O. O. D., which are equivalent to the words “ collect on delivery,” and as familiarly understood between the parties to such agreements, mean that the carrier will collect on the delivery of the package, from the consignee, for the consignor, the sum specified in the bill of lading.
The agreement, in this case, however, was not merely for the carriage and delivery of the packages; but also to collect, for the plaintiff, the price of the goods, before their delivery; which might involve a delay that would not arise in an ordinary agreement for carriage, where the article can be delivered to the consignee, at once and unconditionally, upon its reaching its place of destination ; and this being the case, the defendants had-a further stipulation in the bill of lading, which, I think, qualifies, in such a case, the preceding condition that the claim of loss must be presented within thirty days from the date of the bill of lading, and that, in no event, if this is not done, will the defendant be liable for loss or damage. The further and last stipulation, in the bill of lading, is in these words: “ If any sum of money, besides the charge for transportation, is to be collected from the consignee on delivery of the above described property, and the same is not paid within thirty days from the date of the bill of lading, the shipper agrees that this company may return said property to him, at the expiration of that time, subject to the conditions of this receipt; and that he will pay the charges for transportation, both ways; and that the liability of this company, for such property, while in its possession, for the pivrpose of making such collection, shall be that of warehousemen only.” This provision recognizes that it may not be in the power of the company to collect the price of the goods, when they offer upon their arrival to deliver them to the consignee, and contemplates' that they may be kept by the defendants for the purpose of collecting the price, until the expiration of thirty
The averment, in the complaint, is that the defendants have failed to comply with the terms of the contract; that they has not paid to the plaintiff the amounts that they agreed to collect, nor returned the goods. That a demand of the value of the goods, or the return of them to the plaintiff, was made, and that the defendants refused and still refuse to comply with
When the shipment was made, the plaintiff was-in partnership with another person. The partnership has been dissolved, and the claim was assigned to the plaintiff by his partner for the nominal consideration of $1. Oral proof was given of the assignment, and was admissible, as the plaintiff showed satisfactorily, that the instrument of assignment had been lost or mislaid, and that he had been unable to find it, after a reasonable search.
The judgment should be affirmed.
J. F. Daly, and Van Hoesen, JJ., concurred.
Judgment affirmed.