64 N.Y.S. 798 | N.Y. App. Div. | 1900
A construction of the evidence most favorable to the plaintiff, to-which he is entitled upon this motion, tends to establish the following facts:
About seven o’clock on the morning of April 5, 1898, the plaintiff, through his duly authorized agent, a Mr. Burris, who had full power and authority to act in the premises, took twenty-seven horses from his stable in East Buffalo to where his car was standing upon a siding of the New York Central railroad, for the purpose of loading the same. The agent of the defendant met the plaintiff’s agent in defendant’s office, which was in the vicinity of where the car was standing, and before any of the horses were loaded he prepared a live stock agreement or shipping contract, so called, upon the regular blanks of the defendant, furnished for that purpose, signed the same and presented it to plaintiff’s agent, who signed plaintiff’s name to it by himself as agent, which he had authority to do. After signing it plaintiff’s agent directed Mr. Todd to deliver the same to the plaintiff. Mr. Todd also made out a shipping bill or bill of lading of the horses, marked thereon the freight, $175, paid, and thereupon the horses were loaded into plaintiff’s car by his employees under the direction of his agent, Mr. Burris. The car was then attached to the express train of the New York Central and Hudson River Railroad Company leaving East Buffalo at eight-five a. m., and was started on its journey to Bridgeport.
The plaintiff’s agent did not read the live stock agreement or shipping contract signed Toy him, and testified that he did not know its contents, although he testified that he had frequently shipped horses by the defendant and had previously signed and received similar contracts.
The carload of horses reached the city of New York on schedule time, shortly before nine o’clock p. m. of the same day, but on account of some delay, for which the plaintiff was in no manner responsible, the carload of horses remained upon the tracks of the New York Central railroad in the city of New York until about three o’clock in the morning, and did not reach Bridgeport until about six o’clock on the morning of April sixth, when they were unloaded by the plaintiff’s employees and taken to a stable procured for that purpose. The horses were found to,have been seriously injured upon the journey, and there is evidence tending to show that such injury was due to the fact that the car was left standing in the city of New York for such length of time, and because it did not reach its destination until six o’clock a. m. on the morning of April sixth instead of at ten o’clock on the evening of April fifth, as it was agreed that it would by the terms of the oral agreement made between the parties.
There is no evidence which would justify a finding that the delay in the arrival of the horses at their destination was caused by any willful or gross neglect on the part of the defendant, but it resulted because the character of the car; its size, couplings, etc., were such that the New Haven Railroad Company, over which railroad it was to go from New York to Bridgeport, refused to attach it to its express train leaving New York on the evening of the day such car arrived, and for that reason it remained upon the New York Central tracks in the city of New York until the departure of a freight train for Bridgeport over the New Haven railroad.
The shipping contract, so called, signed by the parties to this action through their respective agents, provides, among other things,
The only question presented by this appeal is whether or not the rights of the parties to this action are to be determined from the alleged oral agreement, or from the written contract afterwards executed by the parties through their duly authorized agents, and before the horses were loaded for shipment. If by the former, then clearly the plaintiff’s right to recover depends upon the existence of certain facts deducible from the evidence, and which it was the province of the jury to determine. If by the latter it is equally clear that the plaintiff failed to establish a cause of action, and that the learned trial justice properly directed a verdict for the defendant.
It must be assumed that Hr. Todd, as between the defendant and the plaintiff, had full power and authority to make the oral agreement in question, notwithstanding the limitations upon his authority imposed by his principal, because such limitations were not brought to the knowledge of the plaintiff, and his apparent authority under
It must also be assumed that Mr. Burris was the agent of and had full authority to act for and to bind the plaintiff in all things relating to the shipment of the carload of horses in question. The plaintiff testified : “Q. Mr. Waldron, is that the paper delivered to you (shipping contract) with respect to the shipment of this car of horses? A. Yes, sir. Q. This is signed ‘P. G. Waldron, shipper, George Burris.’ That was your agent, your man, was it not ? A. Yes, sir. Q. He attended to the shipment ? A. Yes, sir.”
In the case of Root v. New York & New England R. R. Co. (76 Hun, 23) the rule is stated in the head note as follows: “ An agent to ship has power to contract as to the terms and conditions of shipment, and it is an error requiring the reversal of a judgment in favor of the plaintiff, in an action brought to recover the value of a horse shipped for transportation, and fatally injured through the carrier’s negligence, to submit to tile jury the question whether plaintiff’s shipping agent had authority to bind his principal by a contract, and to refuse to charge that such agent possessed such authority.”
In Jennings v. Grand Trunk Railway Co. (127 N. Y. 438), at page 447 the court says: “ Ordinarily a person authorized to deliver and delivering the property of another to a common carrier for shipment, may by the latter be treated as having authority to stipulate for and accept the terms of affreightment, and as against the carrier the owner is bound by them.” (Nelson v. Hudson River R. R. Co., 48 N. Y. 498 ; Shelton v. Merchants' Dispatch Trans. Co., 59 id. 258.)
If the written contract in this case became binding upon the parties at all, it became so at the time it was executed, and their rights under it then became fixed. The fact that it was not delivered to the plaintiff personally until several hours after its execution is immaterial.
The main purpose of a written contract is to merge the oral negotiations, and to put the real agreement of the parties in such form that each may know its exact conditions, and thus to avoid misunderstanding on account of lapse of memory and opportunity to secure advantage by perjury or other dishonest methods. (2 Pars. Cont. 548.)
The wisdom of the rule above stated could not be better illustrated than by the conflicting claims of the parties to this action respecting the terms of the alleged oral agreement. The defendant’s agent positively asserts that no such conversation as is claimed by the plaintiff ever took place ; that the conversation which was had differed in no essential manner from the written agreement; .that he was expressly prohibited by the instructions of his principal from making such an agreement as the plaintiff claims was made, and that to make it would have been contrary to his universal custom and practice in the conduct of the duties of his agency. The evidence on the part of'the defendant also tends to show that, under the circumstances, it would have been most unreasonable for the defendant’s agent to have obligated it, unconditionally, to deliver the horses in question at the time named by the plaintiff. Such delivery, under the most favorable circumstances, would allow only a few minutes for the transfer of the car in New York city to a connecting railroad, and the slightest delay in making such transfer, or in transportation upon any part of either railroad, would render such delivery impossible. Notwithstanding all this, the plaintiff asserts with equal positiveness that the defendant through its agent assumed such obligation and the performance of such duty.
The case of Germania Fire Ins. Co. v. M. & C. R. R. Co. (72
“ To take a case out of this general rule, it must appear that-before the delivery of the bill of lading the goods have been shipped so that the shipper could not have reclaimed them had he objected to the contents of the bill of lading.”
In Belger v. Dinsmore (51 N. Y. 166) the head note is as follows : “ In the absence of fraud, concealment or improper practice, the legal presumption is that stipulations limiting its common-law liability, contained in a receipt given by such company for freight, were known and assented to by the party receiving it.”
In Long v. N. Y. C. R. R. Co. (50 N. Y. 76) the decision
In the case of Kirkland v. Dinsmore (62 N. Y. 171) the court says: “ It has been repeatedly ad judged in this State that the acceptance by the shipper, on the delivery of goods for transportation to a carrier, of a receipt or bill of lading signed by the carrier, expressing the terms and conditions upon which they are received and are to be carried, constitutes, in the absence of fraud or imposition, a contract controlling the rights of the parties.”
Numerous other authorities to the same effect might be cited, all fully establishing the proposition that from the shipping contract, so called, in this case, the rights of the parties must be determined. The cases cited by counsel for the plaintiff in no manner conflict with the rule above stated. Those cases are authority for the proposition, which is well settled, that where, pursuant to an oral agreement, property is shipped by a common carrier, the carrier cannot modify or change such agreement by the contents of the shipping receipt afterwards delivered, and after the property shipped is in transit and has passed out of the custody of the owner. That rule is not applicable to the facts in this case. The shipping contract was delivered to and signed by the plaintiff’s agent before any of the horses were delivered to the defendant for shipment and before they were loaded into the car, and the delivery and execution of such contract by the agent has precisely the same effect as if it had actually been delivered to and signed by the plaintiff personally.
The contract was not shown to be without- proper consideration, and, if challenged for such reason by the plaintiff, it was incumbent upon him to establish that infirmity. The rate of $175 was fixed for the transportation of the horses from East Buffalo, N. Y., to Bridgeport, Conn., There is evidence tending to show that the-
It is undoubted that a common carrier may make a contract relieving it from liability on account of its negligence, resulting in loss or injury to the goods delivered to it for transportation, when such intent is plainly and distinctly expressed, and so that it cannot be misunderstood by the shipper. (Nicholas v. N. Y. C. & H. R. R. R. Co., 89 N. Y. 370.)
In the case of Collender v. Dinsmore (55 N. Y. 200) it was held that a common carrier may exempt himself from liability for his own negligence if the contract of shipment contains apt words expressing such intent.
In the case at bar the contract expressly relieves the defendant from liability for the damages which this action is brought to recover. It was a contract in ordinary use, and one which the defendant invariably required the shipper to sign before undertaking the transportation of his goods. The plaintiff was an experienced shipper of horses, as was his agent; both had previously shipped by the defendant and had received upon such occasions contracts in all material respects like the one in question.
In this connection it may be proper to observe that, although the contract in question purports to relieve the carrier from gross negligence, that provision is unimportant in this case for the reason that the negligence of the defendant, if it be conceded that it was negligent at all, cannot be characterized as either willful or gross. The case consequently does not come within the principle asserted by this court in Grand v. Livingston (4 App. Div. 589 ; affd., 158 N. Y. 688).
The conclusion is reached that the plaintiff’s exceptions should be overruled and judgment brdered for the defendant, with costs.
All concurred.
Plaintiff’s exceptions overruled and motion for a new trial denied, with costs, and judgment ordered for the defendant, with costs.