Howatt v. Barrett

Appellate Terms of the Supreme Court of New York

Howatt v. Barrett

78 Misc. 156, 137 N.Y.S. 915

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 15, 1912

StatusPublished

This text of 78 Misc. 156 (Howatt v. Barrett) 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

Howatt v. Barrett, 78 Misc. 156, 137 N.Y.S. 915 (N.Y. Ct. App. 1912).

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Opinion

Guy, J.

Plaintiff sues to recover damages for breach of contract of carriage.

On March 19, 1910, plaintiff shipped goods valued by him at forty-four dollars and fifty cents, O. O. D. to J. T. Saidy at Excelsior Springs, Missouri, by the defendant the Adams Express Company. On March 25, 1910, he modified the shipment to read “ Deliver to M. A. Saidy, Denver, Col., without C. O. D.,” which was indorsed on the express receipt. This did not relieve the consignee from the payment of the express charges, but only from payment of the value of the goods. The goods were never delivered or tendered to the consignee, but were returned to the plaintiff conditionally on his paying express charges back and forth, which were de[158]*158manded by defendant and refused by plaintiff. The defendant company, having failed to perform its contract, was not entitled to demand payment of express charges.

The defense was that the Wells Fargo Express Company is the only express company at Excelsior Springs; that both it and the defendant were gratuitous bailees, and defendant was not liable for the connecting carrier’s error or nondelivery, if any.

Under the Carmack amendment (34 U. S. Stat. at Large, 595, § 7) a connecting carrier acts as agent for the initial carrier, which is made liable as if it itself had done the act complained of. The purpose of the Carmack amendment was to enable the shipper in case of a loss or damage to his goods to have recourse to the initial carrier, and leave the initial carrier to its recourse, for whatever damages it might have to pay to the connecting carrier doing the injury. If there is anything in the express receipt contrary to the Carmack amendment, it is invalid. DeWinter & Co. v. Texan Central R. R. Co., 150 App. Div. 612, 616, 617; Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U. S. 186, 194-197, 199-201, 203-207.

Judgment reversed, with costs, and judgment directed for the plaintiff in the sum of forty-nine dollars and ninety cents.

Seabuby and Bijub, JJ., concur.

Judgment reversed, with costs, and judgment directed for plaintiff.

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Guy, J.

Plaintiff sues to recover damages for breach of contract of carriage.

On March 19, 1910, plaintiff shipped goods valued by him at forty-four dollars and fifty cents, O. O. D. to J. T. Saidy at Excelsior Springs, Missouri, by the defendant the Adams Express Company. On March 25, 1910, he modified the shipment to read “ Deliver to M. A. Saidy, Denver, Col., without C. O. D.,” which was indorsed on the express receipt. This did not relieve the consignee from the payment of the express charges, but only from payment of the value of the goods. The goods were never delivered or tendered to the consignee, but were returned to the plaintiff conditionally on his paying express charges back and forth, which were de[158]*158manded by defendant and refused by plaintiff. The defendant company, having failed to perform its contract, was not entitled to demand payment of express charges.

The defense was that the Wells Fargo Express Company is the only express company at Excelsior Springs; that both it and the defendant were gratuitous bailees, and defendant was not liable for the connecting carrier’s error or nondelivery, if any.

Under the Carmack amendment (34 U. S. Stat. at Large, 595, § 7) a connecting carrier acts as agent for the initial carrier, which is made liable as if it itself had done the act complained of. The purpose of the Carmack amendment was to enable the shipper in case of a loss or damage to his goods to have recourse to the initial carrier, and leave the initial carrier to its recourse, for whatever damages it might have to pay to the connecting carrier doing the injury. If there is anything in the express receipt contrary to the Carmack amendment, it is invalid. DeWinter & Co. v. Texan Central R. R. Co., 150 App. Div. 612, 616, 617; Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U. S. 186, 194-197, 199-201, 203-207.

Judgment reversed, with costs, and judgment directed for the plaintiff in the sum of forty-nine dollars and ninety cents.

Seabuby and Bijub, JJ., concur.

Judgment reversed, with costs, and judgment directed for plaintiff.

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