
    LIENAN against DINSMORE.
    
      New York Common Pleas;
    
    
      General Term, January, 1871.
    Evidence to Charge Collecting Agent.—Burden of Proof.—Express Company’s Receipt.
    To sustain a recovery for more than nominal damages, in favor of the owner of commercial paper, against a collecting agent, for failure to give due notice of non-payment, there must be evidence that if due notice had been given, the plaintiff might have collected the amount, or some part of it.
    
      Appeal from a judgment.
    This action was brought by Michael Lienan and others, against William Dinsmore, President of the Adams Express Company.
    It appears that the plaintiffs sold goods to one David Wolff, of Memphis, Tennessee, amounting to one-thousand and thirty-seven dollars and fifty-six cents.
    On December 26, 1866, the former drew a draft on the latter for that sum, payable at sight to the order of the Adams Express Company, and on the same day delivered the draft to said company for collection.
    The route of the defendants only extended to Bowling Green, Kentucky ; they, at that place, delivered the draft to the Southern Express Company for collection.
    The receipt given by the defendants to the plaintiffs when the former received the draft, contained several stipulations or conditions, one of which reads as follows:
    “And if the said paper or proceeds is entrusted or •delivered to any other express company or agent (which -said Adams Express Company are hereby authorized to •do), such company or person so selected shall be regarded exclusively as the agent of the depositor, and as such alone liable ; and the Adams Express Company shall not be in any event responsible for the negligence or non-performance of any such company or person.”
    On February 27, 1867, the' plaintiff wrote to the defendants to the effect that they had not received the proceeds of said draft, and that if they had suffered any loss by reason of the negligence of the defendants or their agents, they would hold them responsible.
    On March 9, 1867, the original draft was returned to the plaintiffs by the defendants, with a note written by the agent of the Southern Express Company, which read as follows :
    
      “ D. Wolff has been sick for sometime. Draft presented a number of times ; promised to pay 1 soon? On last presentation Mr. W. was found to have failed in business, and says it is impossible for him to pay.
    “M. L. Doherty, Agent.”
    On the trial of this cause a clerk of the plaintiffs testified that between the time when he left the draft with the defendants and the time when the same was returned to the the plaintiffs, he called a number of times at the office of the defendants and inquired about the draft or the money, but was always informed that they had not heard from it, and that they would write to their agents in Memphis.
    This was contradicted by the evidence of a clerk in defendants’ employ.
    The court instructed the jury that if they believed the testimony of plaintiffs’ clerk, the plaintiffs would be entitled to recover the full amount of the draft. .
    To this charge defendants’ counsel excepted, as also to the refusal of the court to charge that upon the evidence the plaintiffs were entitled to recover only nominal damages.
    The jury thereupon found a verdict for the plaintiffs for the full amount of the draft with interest from its date.
    The defendants appealed.
    
      Blatchford, Seward & Da Costa, for defendants, appellants.
    
      T. S. Alexander and R. P. Lee, for plaintiffs, respondents.
   Loew, J.

An express company may be deemed a common carrier, and, like the latter, may restrict or limit their liability by express contract; but it may well be doubted whether they can do so by a mere printed notice or condition on the receipt, which the party sending goods by or otherwise employing them may or may not have seen (Dorr v. New Jersey Steam Navigation Co., 11 N. Y., 485 ; Bissell v. New York Central R. R. Co., 25 N. Y., 442 ; Belger v. Dinsmore,34 How. Pr., 421). Assuming, but without deciding, that the defendants in this action could not thus limit their responsibility, or if they could, that the plaintiffs are correct in their views, and that the defendants, by their subsequent acts, must be deemed to have waived the condition in the receipt which they claim exempts them from all liability for the negligence of the Southern Express Company, to which they transferred the draft, and that- they are estopped from saying that they passed the same over to said company, still I do not see how this judgment ■ can be sustained.

It was admitted by the plaintiffs in their complaint, and also by a certain stipulation signed by their attorney and read on the trial, that, within a few days after the delivery of the draft to the defendants, and as soon as the same could be transmitted to Memphis—to wit, on or about December" 31, 1866—and repeatedly thereafter, the agent of the Southern Express Company presented said draft for payment to the drawee, that payment thereof was repeatedly demanded, and that the said drawee neglected and refused to pay, although he repeatedly promised to do so.

It thus appears to be conceded by the plaintiffs themselves, that the defendants did all that could possibly be asked or required of them in regard to transmitting the draft to Memphis, and. presenting the same to and demanding payment thereof from the drawee.

Now the evidence on the part of the plaintiffs shows that they never requested the defendants to return the draft-, nor did they surrender the receipt and pay the charges, all of which was necessary, according to the terms of one of the clauses in the receipt, before the defendants could be required to return the draft; and it may, therefore, be questionable whether they were boundto do so or not (Newstadt v. Adams, 5 Duer, 43 ; Manhattan Oil Co. v. Camden R. R., 5 Add. Pr. N. S., 289 ; Bostwick v. Baltimore & Ohio R. R. Co., 55 Bard., 137).

However .that may be, for, as already intimated, there are also authorities to the contrary, it is quite clear that the defendants should at least have given due notice to the plaintiffs of the non-payment of the draft; and, not having done so, they must be held liable to the plaintiffs for all the damages sustained by them by reas’on of their negligence.

But it seems to me that before the plaintiffs can recover more than mere nominal damages, they must show that they could, in all probability, have collected the amount of the draft, or some part thereof, from the drawee, if they had received the notice of non-payment which the defendants’ duty in the premises required them to give (Allen v. Suydam, 20 Wend., 321, 327-331).

The defendants having used due diligence in endeavoring to obtain payment of the draft, and having failed, the plaintiffs must show that they could have done bettér, and that there was at least a reasonable probability that they could have collected the amount of the draft, if they had been properly notified that the same was not paid, before they are entitled to recover the full amount thereof.

But having done that, I think they would be prima facie entitled to a verdict or judgment for that amount, and the onus would then be upon the defendants to prove that the real loss or damage sustained by the plaintiffs in consequence of the negligence imputed to them was not the whole amount of the draft.

There is not a particle of evidence in the case to show that payment of this draft, or any part thereof, could have been obtained, either by legal proceedings or otherwise, between the time when it was first presented to the drawee for payment and the time when the plaintiffs were notified of its non-payment.

From the facts and circumstances of the case, the probabilities seem to me to be all the other way.

In my opinion the jury should have been charged, as the chancellor thought they should have been instructed in Allen v. Suydam (supra), viz:

That upon the evidence, the plaintiffs were only entitled to nominal damages ; or at least they should have been told to find only such damages as they should, from the evidence, believe it probable that the plaintiffs might have sustained by reason of the delay of the defendants in notifying them of the non-payment of the draft.

The judgment should be reversed, and a new trial ordered, costs to abide the event.

Robinson, J.

I am of the opinion :

1. That the obligation of the American Express Company in reference to the collection of the draft drawn by plaintiff, on D. Wolff, of Memphis, was not that of common carriers of goods, but simply as bailees for hire.

2. That the receipt they gave the plaintiffs on delivery of the draft for that purpose, and which was accepted as expressive of their obligation, embodied the contract they made in respect thereto, and that none of the decisions of the courts, made in jealousy of the attempt of common carriers, in such receipts, to repudiate or restrict their common law liabilities, are applicable thereto.

3. That by entrusting the draft to the Southern Express Company, which transacted such business south of Bowling Grreen, Kentucky, either as another express company or as agent they, within the terms of their contract, divested themselves from responsibility for any acts of omission by that company.

' 4. But, if otherwise, that there was no proof of any such change in the pecuniary condition of D. Wolff, in the interval between the presentation of the draft and the notice to the plaintiff of its non-payment, so that in consequence of his intermediate failure or from any other circumstance connected with their relations as creditors and debtors, they had sustained any such pecuniary damage, resulting from such want of notice of non-payment, as the loss of the entire amount of the draft, and as the certain or probable consequence of the mere omission to advise them of its non-payment on presentation. It was not shown that their chance of collecting their debt from Wolff had been materiaRy impaired by any such delay, or in fact, that they, beyond mere nominal damages, had suffered from the delay in notifying them of the non-payment of the draft on presentation.

No protest was required or necessary, and the mere neglect of the agent to give notice to his principal of the non-payment of a sight draft made by him, upon his debtor, does not, in its legal consequence, necessarily present any case of actual loss or damage.

I concur in the conclusion arrived at by Judge Loew, that the judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment reversed. 
      
       Present, Robinson, Loew and Larremore, JJ.
     