Hirschberg v. Dinsmore

67 How. Pr. 103

Opinion

J. F. Daly, J.

— There was some discussion on the appeal as to whether this action was for breach of contract of the carrier or for conversion, and whether if for conversion the carrier could avail itself of the condition in the contract, providing that the claim for loss must be made within thirty days. The demand, as stated in the return, was for “ damages for non-delivery of goods.”

In Maginn agt. Dinsmore (70 N. Y., 410-17) it was said that a mere non-delivery will not constitute a conversion; and it would seem that the plaintiffs’ action is, therefore, stated on the contract. But it is of no consequence what the form of action is since in Smith agt. Dinsmore (9 Daly, 188) we held that in an action for conversion the thirty days’ clause in the shipping receipt (which clause was identical with the one now before us) was available to the carrier, that the presentation of claim for loss within the time specified was a condition precedent to recovery, and that unless complied with, the action against the "Carrier could not be sustained. That case was decided upon another point, but the views expressed in the opinion on the point directly involved in the present case are in conformity with the authorities (U. S. Express Co. agt. Caldwell, 21 Wall., 264; Weir agt. Adams Express Co., 5 Phila., 355; Southern Express Co., agt. Hunnicutt, 54 Miss., 566; Lewis agt. Great West. Ry. Co., 5 Hurl. & N., 867). The judgment should be affirmed, with costs.