Brunner v. Platt

Appellate Terms of the Supreme Court of New York

Brunner v. Platt

50 Misc. 571, 99 N.Y.S. 526

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1906

StatusPublished

This text of 50 Misc. 571 (Brunner v. Platt) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brunner v. Platt, 50 Misc. 571, 99 N.Y.S. 526 (N.Y. Ct. App. 1906).

Pincite

Opinion

Davis, J.

Action brought to recover the value of a suit case and contents lost in transit by the United States Express Company. ' The plaintiff recovered $150, the stipulated value of the goods lost, together with costs, notwithstanding a provision in the express company’s receipt limiting its liability to'fifty dollars. This receipt was given to plaintiff’s servant at the time of the delivery of the suit case to the company’s agent. The question to be determined on this appeal .is whether the facts in this case show that the receipt given to the plaintiff’s servant constituted a valid contract of shipment between the plaintiff and the express company. This involves the question of whether the [572]*572servant who accepted the receipt must he deemed, under the special circumstances of this case, to have been clothed with authority from the plaintiff to make the contract ox shipment set forth in the receipt. On December 21, 1905, the plaintiff called at the company’s office and left an order for the company to call at his home for a suit case. He also stated that it was to be taken to Lakewood, H. J. The defendant’s agent told plaintiff that their wagon would be there at ten o’clock next morning. The plaintiff is in the commission business and makes many shipments by express and by freight. Prom the above facts it is fair to assume that .plaintiff had a fair amount of information as to the course of business in making shipments by express, including knowledge of the custom of the express companies to carry goods at reduced rates under a limited liability contract such as the one in evidence. The expressman called December 22, 1905, and received the suit case from plaintiff’s servant together with the charges. In return he gave her a receipt limiting its liability to fifty dollars. The servant took no particular notice of the receipt. It came into possession of the plaintiff the same day. The plaintiff had told his servant that the express company would call for the grip that day and he directed her to give it to the expressman, pay the charges and get a receipt. The servant had sent these bags by express on other occasions for the plaintiff who traveled “ considerably.” I think the evidence in this case shows that the plaintiff’s servant was given full authority to represent him in shipping this suit case and to assent to the terms and conditions contained in this particular receipt. Whether or not the servant read the receipt is immaterial. Having authority to assent to its terms, her acceptance of the receipt must be deemed to be an assent, in the absence of fraud or deceit upon the part of the defendant company. Kirkland v. Dismore, 62 N. Y. 171, 179. The case at bar is analogous to the case of Belger v. Dinsmore (51 N. Y. 166), in which the property was delivered to the express company by the plaintiff’s wife who also took the receipt from the company. We think that plaintiff’s contention that the contract of shipment was made on De[573]*573cember 21, 1905, when he called and left the order at the company’s office, is without merit.

We, therefore, conclude that the receipt in question is a valid contract between the express company and the plaintiff and that plaintiff’s recovery should have been limited to fifty dollars.

Gildersleeve and Clinch, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Davis, J.

Action brought to recover the value of a suit case and contents lost in transit by the United States Express Company. ' The plaintiff recovered $150, the stipulated value of the goods lost, together with costs, notwithstanding a provision in the express company’s receipt limiting its liability to'fifty dollars. This receipt was given to plaintiff’s servant at the time of the delivery of the suit case to the company’s agent. The question to be determined on this appeal .is whether the facts in this case show that the receipt given to the plaintiff’s servant constituted a valid contract of shipment between the plaintiff and the express company. This involves the question of whether the [572]*572servant who accepted the receipt must he deemed, under the special circumstances of this case, to have been clothed with authority from the plaintiff to make the contract ox shipment set forth in the receipt. On December 21, 1905, the plaintiff called at the company’s office and left an order for the company to call at his home for a suit case. He also stated that it was to be taken to Lakewood, H. J. The defendant’s agent told plaintiff that their wagon would be there at ten o’clock next morning. The plaintiff is in the commission business and makes many shipments by express and by freight. Prom the above facts it is fair to assume that .plaintiff had a fair amount of information as to the course of business in making shipments by express, including knowledge of the custom of the express companies to carry goods at reduced rates under a limited liability contract such as the one in evidence. The expressman called December 22, 1905, and received the suit case from plaintiff’s servant together with the charges. In return he gave her a receipt limiting its liability to fifty dollars. The servant took no particular notice of the receipt. It came into possession of the plaintiff the same day. The plaintiff had told his servant that the express company would call for the grip that day and he directed her to give it to the expressman, pay the charges and get a receipt. The servant had sent these bags by express on other occasions for the plaintiff who traveled “ considerably.” I think the evidence in this case shows that the plaintiff’s servant was given full authority to represent him in shipping this suit case and to assent to the terms and conditions contained in this particular receipt. Whether or not the servant read the receipt is immaterial. Having authority to assent to its terms, her acceptance of the receipt must be deemed to be an assent, in the absence of fraud or deceit upon the part of the defendant company. Kirkland v. Dismore, 62 N. Y. 171, 179. The case at bar is analogous to the case of Belger v. Dinsmore (51 N. Y. 166), in which the property was delivered to the express company by the plaintiff’s wife who also took the receipt from the company. We think that plaintiff’s contention that the contract of shipment was made on De[573]*573cember 21, 1905, when he called and left the order at the company’s office, is without merit.

We, therefore, conclude that the receipt in question is a valid contract between the express company and the plaintiff and that plaintiff’s recovery should have been limited to fifty dollars.

Gildersleeve and Clinch, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Bluebook (online)

50 Misc. 571, 99 N.Y.S. 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brunner-v-platt-nyappterm-1906.

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