White v. Weir
33 A.D. 145
| N.Y. App. Div. | 1898
Rumsey, J.:

On the 3d day of July, 1894, the plaintiffs-at Newport, Rhode Island, delivered to the New York and Boston Despatch Express Company, two packages marked “ White, Howard & Co., 19 East 34th St., New York,” ¡and received from the despatch company a bill of lading. The despatch company delivered the goods at Newport' to the' Adams Express Company, by whom they were transported to the city of New York and delivered to the plaintiffs at the place of destination" marked upon the packages. While the packages were in the possession of the Adams Express Company, they were damaged to the extent of $100, and for this injury to the packages the plaintiff brought this action.

The defendant admits that the goods were damaged while in its possession, but it claims that it is not to be liable in a greater' amount than fifty dollars, because it claims it is protected from any larger liability by the terms of the bill of lading, which was delivered to the plaintiffs by the despatch company at the time of the receipt of the goods at Newport. Its claim was sustained by the court below, and the single question is whether that court was correct in holding that the defendant is entitled to the exemption from liability which was given by the bill of lading given- to and received •by the plaintiffs when the goods were delivered to the New York and Boston Despatch Express Company. That bill of lading provided that in no event should the holder of it demand beyond the *147sum of fifty dollars for any injury to the goods unless the value of .the goods was otherwise therein expressed. Ho valu.e was given. The bill of lading provided, further, that the" stipulations and conditions contained in it should extend to and inure to the benefit of each company to' whom the despatch company might intrust or deliver the p'ackages for transportation, and should define and limit the liability therefor of such other company. It cannot be disputed that if the bill of lading, executed when the packages were delivered to the despatch company, was a through contract, the defendant having received the property to enable it to complete the transportation, is entitled to the benefits of all the exemptions contained in it. (Woodruff v. Havemeyer, 106 N. Y. 129.) The only question, therefore, is whether this contract can be construed as a through contract. The fact that the goods were addressed to "White, Howard & Co., 19 East Thirty-fourth street, Hew York, is not of itself sufficient to permit it to be thus construed (Babcock v. Lake Shore & M. S. R. R. Co., 49 N. Y. 491), but all the provisions of the bill of lading must be taken together. It is to be noticed that the goods were addressed to Hew York; that the despatch company agreed to forward them to their agency most convenient to the destination and there deliver them to other parties "to complete the transportation. It is to be clearly inferred from this that it was not within the contemplation of the parties that the contract was entirely performed by the delivery of the goods at the agency of the despatch company, but that there was some further transportation to be had before the whole contract was completed. It is clear from the bill of lading taken together that the despatch company was not to perform all the contract, but that some other person, to be selected by the despatch company, was to complete that part of it which the despatch company was not in a situation to do, and it is expressly provided that the despatch company might intrust the package to any other express company. Hothing was paid to the despatch company at the time of the receipt of the package, nor was anything to be paid to it when it was delivered to the next carrier, but the. whole charge for transportation was to be collected from the consignee upon the delivery of the property. It is claimed from all these provisions that the contract was not to be completed until the property was delivered at Hew York, and, therefore, it was a *148through contract, and that being so the case is clearly within the case of Whitworth v. The Erie Ry. Co. (87 N. Y. 413), and within, the rule laid down in that case the judgment must be affirmed, with costs.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.