113 N.Y.S. 805 | N.Y. App. Term. | 1908
Plaintiffs-appellants desired to ship three carloads of apples which had arrived at Hoboken via the line of the defendant railroad company and were destined for export on a vessel of the other defendant. ¡Notices of the arrival of the apples were sent to the plaintiff White, who, in accordance with instructions stamped on the notices, procured through a ship broker permits for loading them on the vessel. These permits, together with a check for the freight, the bills of lading and the notices of arrival, he sent with a letter to the defendant railroad company before two o’clock in the afternoon of March 1,190J. It appears that the identical permits were lost, but one like them, as issued by the steamship company, was admitted in evidence and is as follows:
*270 “ Hew York, 2/28, 1907.
“Per Steamer, Kaiser Wilhelm der Grosse.
“ Engaged from W. H. White & Co.
“ Delivery March 4th.
“ Goods, 6 Cars Er. Apples.
“ Destination — Hamburg.
“ Hobth German Lloyd S.S. Comhany.
“ Oelrichs & Cti., Gen’l Agents, 11 Broadway, H. Y.
“ Receiving Clerk. Hew Yobic 2/28, 1907.
“ Horth German Lloyd Piers, Hoboken.
“ Receive for shipment per German Steamship, Kaiser Wilhelm der Grosse, on JMarch 4th, the following goods for account of M. W. H. White & Co 1 car Fr. Apples.
for Hamburg,
“ Every package must be plainly Port of Destination.
marked with port of via. B. haven
destination. Oelrichs & Co.
“ Hotioe.— Ship’s receipt must be surrendered and bills of lading procured at the Company’s office, 5 Broadway, H. Y., one or two days before sailing of the steamer. Custom House Clearance for all goods required with bill of lading.
“Attention of shipper is called to the following clause in the Bill of Lading:
“Also, that merchandise on wharf or lighter awaiting shipment or delivery be at the risk of the shipper or the holder of the Bill of Lading for loss or damage not happening through the fault or negligence of the owner, master, agent or manager of the steamer or lighter, any local customs or privileges to the contrary notwithstanding.”
Plaintiff White testified without contradiction that on the permits sent by him to the defendant railroad company after the date “ March 4th ” he added the abbreviations “ A. M.” The letter accompanying those permits and addressed to the railroad company stated: “ Permits for the steamer Kaiser Wilhelm der Grosse which can be taken alongside to-morrow afternoon or early Monday morning.”
The cause of action against the steamship company is for breach of contract. The relation of shipper and carrier had not yet been established between the plaintiffs and that defendant as to the two car-loads of apples in question. Upon the undisputed facts in the case, it is perfectly clear that plaintiffs’ contention can be sustained on no other theory. If they had based their suit upon the mere failure of the steamer to receive their goods, relying upon the law governing common carriers and defining their obligations toward the public, the case of Fowler v. Liverpool & Great Western S. S. Co., 87 N. Y. 190, would be sufficiently decisive to defeat their claim. To succeed at all against the steamship company, they must show a binding contract between themselves and that company obligating the latter to enter into the relationship of shipper and carrier by receiving the apples when they were tendered at three o’clock on March fourth. Was there such a contract?
Plaintiffs insist that there was. I am of opinion that there was not. The permits, on which plaintiffs rely, were mere instrumentalities of convenience, employed by the steamship company to facilitate the classification, distribution and loading of the cargo. They obligated the plaintiffs
The plaintiff thereupon brought suit for specific performance and obtained judgment which was reversed by the Court of Appeal, James, L. J., observing: “There was no consideration for the promise, to whatever extent it may be considered binding, to keep the property unsold until nine o’clock on Friday morning; but apparently Dickinson was of opinion, and probably Dodds was of the same o-pin
In the case before us the defendant steamship company waited until one o’clock on the last day for loading freight and then accepted other -freight in place of that of the plaintiffs, which had failed to arrive up to that time. It was under no more obligation to reserve the space until the apples arrived than was Dodds to hold his property for Dickinson. See also Ganss v. Guffy, etc., 125 App. Div. 760. That it did accept one of the three car-loads of apples at three o’clock was a favor to the plaintiffs, which may not serve as ground for punishing it for not extending additional courtesies.
As to the defendant railroad company, in whose behalf no brief was filed, I am of opinion that the dismissal of the complaint as to it was error. After the notices of arrival reached the plaintiff White, he gave clear and explicit instructions to deliver the apples to the steamer Monday forenoon, March fourth. These instructions should have been followed, and, if followed, the apples would clearly have reached the steamer in time to be taken aboard. It had no right to substitute its own judgment that delivery at any time during March fourth would do in place of those explicit directions. Mr. White’s letter, accompanying the permits sent on March first before two o’clock, clearly designated “ to-morrow (Saturday) afternoon or early Monday morning ” as the time when the apples should be alongside the steamer in order to be loaded. Moreover, he wrote the abbreviations “A. M.” after the words “March 4” on the permits as an extra precaution against a too late delivery. The railroad company had no right to take the language of the steamship company which appeared on the permits for their guidance, and disregard the written directions of the plaintiffs, which appeared thereon and in the letter which accompanied them. It was to their shippers, the plaintiffs, to whom it should look for instructions concerning their
The order dismissing the complaint as to the defendant railroad company should be reversed, with costs to the appellants to abide the event, and the order setting aside the verdict for the defendant steamship company and the judgment entered thereon should be affirmed, with costs to the respond-' ent steamship company.
Giegerich and Hendrick, JJ., concur.
Order dismissing complaint as to defendant railroad company reversed, with costs to appellants to abide event, and order setting aside verdict for defendant steamship company and judgment entered thereon affirmed, with costs to respondent steamship company.