Cohen v. Morris European & American Express Co.

132 N.Y.S. 347

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 28, 1911
• Status: Published

Opinion

GUY, J.

The complaint alleges that the plaintiff and defendant entered into an agreement whereby the defendant agreed to deliver to the plaintiff seven pieces of fur apparel stored with file Pozzi, Milan, Italy, to be brought to New York, and that he agreed to pay the defendant its fair and reasonable charges therefor. The plaintiff called at the defendant’s place of business, and gave directions concerning the proposed shipment, and delivered to the defendant a storage receipt, and defendant gave a receipt in return, which recited that the defendant had—

“Received from S. I. Cohen, 60 West 10th Street storage receipt for seven pieces of fur apparel stored with Hie Pozzi, Milan, Italy, to be brought to New York.”

The receipt given by defendant to plaintiff contained a clause providing that the carrier should not be liable in any event for a sum exceeding $50 unless a greater value is declared.

[1, 2] The plaintiff-respondent contends that the defendant’s receipt was merely a receipt for the storage receipt and not for the goods, and therefore it carried the goods without any agreement having been made as to the extent of its liability. This is not the fair or natural construction to be placed upon the agreement. It was never intended that the defendant should transport the storage receipt. The evident intent, as appears by the receipt given by defendant, was that the defendant should get the goods upon the presentation of the storage warehouse receipt at Milan, and then transport them to New York. The clause in the receipt providing that the defendant should not be liable in excess of $50 unless a greater valuation were declared by the shipper is part of the contract between plaintiff and defendant, but it is inoperative because of the fact that the storage warehouse-receipt delivered by plaintiff to defendant at the time of the making of the contract between plaintiff and defendant, and referred to in said contract, declares the value of the furs to be 7,500 lire, or about $1,500, an amount in excess of the amount of the judgment herein. It is not necessary that the declaration of value should be in any particular form. An oral declaration would be sufficient. All that is required is that the shipper should apprise the carrier of the valuation in excess of $50 placed by the shipper on the goods, so that the carrier may, if it desires, charge a higher rate for the transportation thereof. An increased valuation having been declared by the shipper to an-amount in excess of the amount of plaintiff’s recovery, and plaintiff' having established the receipt of the goods by defendant and the failure of defendant to perform its contract, the judgment should be affirmed, with costs of appeal to the respondent.

Judgment and order affirmed, with costs to respondent. All concur.