
    Louis Newstadt v. Alvin Adams and others.
    In an action against the carriers of goods by express, to recover the value of a diamond pin, received at New York, to be delivered at Philadelphia, the fact that the complaint states a delivery to the carriers at 59 Broadway, while the proof is of a delivery at an office in Canal street, is no obstacle to a recovery. The variance is immaterial. So is the omission to state, as a part of the carrier’s contract, that he was not to be liable for any loss or damage, unless proved to have occurred from his fraud, or gross negligence. In such a case, proof of the delivery and acceptance of the goods to be carried, of a demand of them at a proper time and place, and of a refusal to deliver them, without explanation, is sufficient, in the first instance, to entitle the plaintiff to recover.
    It is only when an actual loss is shown, that a plaintiff, under such a contract, is hound to prove that the fraud or gross negligence of the carrier, caused the loss. When the contract limits the liability to $150, unless the nature and value of the property are disclosed when delivered, to the carrier, the plaintiff, prima fade, cannot recover beyond that sum, though the property is clearly proved to be worth more.
    (Before Duer, Bosworth and Slosson, J.J.)
    October 1, 1855.
    This action was tried before Oh. J. Oakley, and a jury, on the 19th of March, 1856. . A verdict was taken for the plaintiff by direction of the Judge, for the sum of $175, subject to the opinion of the court, at general term, upon a case, with power to the court to reduce the verdict to $150, should it think proper.
    The defendants were partners, carrying on the express and forwarding business between New York and Philadelphia. The complaint alleges that on the 10th of December, 1854, a box was delivered to the agent of the defendants, at their office, No. 59 Broadway, in New York, to be delivered to the plaintiff in Philadelphia, to whom it was directed. A receipt was given, signed by one Griffin, the agent. The box contained a diamond ring of the value of $175. The box was a small flat one, about two and a half inches long, made of paper, and had paper around it. It was delivered at what was alleged to be an office of the defendants, in Canal street. A receipt was given at the time, which is in the following form:
    
      ADAMS AND CO.’S
    GREAT EASTERN, WESTERN, AND SOUTHERN PACKAGE EXPRESS.
    £ nti g3 O Pi PQ Oí ¡a £ d O § cS
    New York, October 16th, 1854.
    
      Received of Emilia Newstadt, in apparent good order, to be transported by our Express Lines, the undersigned articles, marked as per margin, which we promise to deliver in like order, subject to the agreement now made, and hereafter expressed, to Louis Newstadt, at Philadelphia, Pa. It is agreed, and is part of the consideration of this contract, that we are not to be responsible for any loss or damage arising from the dangers of Railroad, Steam, or River navigation, leakage, fire, or from any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of ourselves, our agents, or servants, and we are in no event to be hable beyond our route, as herein receipted. Valued under $150, unless herein otherwise stated.
    Freight to
    MARKS.
    Louis Newstadt, Philadelphia, Pa. To be called for.
    PACKAGES.
    Little box, to be left at Adams’ Express, for the proprietor.
    Griffin.
    Griffin, who signed the receipt, was an agent of the defendants. They had an office in Canal street, where articles were received, and from which they were taken to the office 59 Broadway. This was for the accommodation of up-town people, and packages were received there when the goods were of small value. The agent’s orders were, not to take articles at that office of over the value of $150, nor any money. He was authorized to sign receipts of the character of that produced, for packages of small value to go to the lower office. Nothing was paid to Griffin the agent, at the time, for carrying and delivering the package, or agreed to be paid. Nothing was said at the time of the value of the box. The agent states he would not have taken it if apprised of its value. He supposed from its appearance it was not valuable, and did not make any inquiry as to it. It was the custom to receive packages at the office in Canal street, and send them by the drivers to that in Broadway.
    
      The defendants, when the plaintiff’s testimony was closed, moved for the dismissal of the complaint on the ground that no delivery of the box, as alleged in the complaint, had been proved; and that there was no proof of compensation or hire for carrying the box, paid or agreed to be paid by the plaintiff to defendants, that the complaint did not allege the defendants to be common carriers, and that no negligence had been shown on the part of the defendants.
    The Chief Justice refused the motion, and the defendants’ counsel excepted.
    The defendants offering no evidence, a verdict was directed, as before stated.
    The other facts sufficiently appear in the opinion of the court.
    
      L. S. Ashley, for plaintiff.
    
      J. G. Vose, for defendants.
   By the Court. Bosworth, J.

The complaint states, and the answer does not deny, and therefore admits, that the defendants were partners, and as such, were “ carrying on the express and forwarding business between the cities of New York and Philadelphia.” They were common carriers.

When they took goods in the ordinary course of their business, to be carried from one of those cities to the other, in the absence of any special contract, the implication of law would be, that the defendants were to be paid the usual and customary compensation.

If the defendants received the goods and undertook to carry them, although they were paid nothing, nor promised any thing for doing it, they, would be bound to use, at the least, as much care and skill as they stipulated for in the written contract.

The fact that they were delivered to the defendants at Canal street, instead of Broadway, is a variance which the court is required by section 169 of the Code to disregard.

The objection that the legal effect of the contract proved, varied from that described in the complaint, does not apppear to have been taken at the trial. Neither was the objection taken that the complaint did not allege any fraud or gross negligence of the defendants. It is too late to take such objections now. (Barnes v. Perine, 2 Kernan, 24,25.)

The objection taken was, that no negligence had been proved. Proof of a delivery and acceptance of the goods to be carried, and of a demand of the goods and non-compliance with it, without any explanation or apology, was sufficient proof of fraud or gross negligence, until some evidence of care or fidelity had been given by the defendants.

As the case presents the facts, the defendants received the goods and undertook to carry them. They stipulated that they should not be charged for any loss or damage unless caused by fraud or gross negligence, and that the plaintiff should be required to prove fraud or such negligence in order to be entitled to recover. The defendants, if made liable, agreed to pay whatever might be shown to be the value of the property; such value, at all events, to be deemed less than $150. The plaintiff has demanded the goods at the place at which the defendants have agreed to deliver them; and they have not complied with the demand, nor assigned any reason or excuse for their failure to do so.

If the contract had been set out according to its legal effect, as evidenced by the paper signed by Griffin, no other proof of fraud, or gross negligence, could well have been given, than such as was furnished in this case.

When the defendants admit, or it is proved, that they took the goods, and agreed to carry and deliver them at a place named, and they admit that they did not carry and deliver them there—• and the only question is, whether their default results from fraud or misconduct, if it appears that the plaintiff called at the proper place and demanded his goods, and the defendants refused to deliver them, without explaining or apologizing for their conduct, the plaintiff would seem to have given all the evidence of fraud or negligence that should be required in the first instance.

Frankness and good faith require that carriers, under such circumstances, should give some explanation of their conduct. It is known to themselves, and cannot be presumed to be known to the plaintiff. It is easy for them to state the cause of the loss or injury, and thus enable a plaintiff to examine into the truth of their statements.

, But when they refuse to deliver the goods, and fail to suggest any ground for such refusal, or to give any explanation of their conduct, I think a plaintiff has proved enough, unexplained, to make a prima facie case of fraud or gross negligence. (Beardslee v. Richardson, 11 Wendell, 25; Angeli & Ames on Carriers, § 38, n. 4, ed. of 1851.)

The defendants did not object that they were not required by the pleadings to come prepared to try the question whether their conduct had been fraudulent or grossly negligent; but the objection was, that no evidence of such conduct had been given.

The main question was, whether the defendants had undertaken to carry and deliver the goods, and had broken their contract.

They did agree to carry and deliver; but the evidence disclosed that this agreement was subject to the further agreement, that the plaintiff should have no claim on them for loss or damage, unless he proved that such loss or damage was caused by their fraud or gross negligence.

The plaintiff gave all the proof that this condition required. If the defendants had objected that the complaint contained no averment of fraud or gross negligence, the court might have ordered an amendment at the trial.

All that the complaint alleged was proved. The most that can be said is, that the agreement produced required the plaintiff to prove more, in order to recover, than he had averred. To this it may be answered, that such proof was given. The defendant did not object that the plaintiff could not give the proof because he had not alleged the fact, but that he had failed to give the necessary proof. If he was mistaken as to the effect of the evidence, as we think he was, the objection made is untenable. There are no variances between the pleadings and proofs, which should not, under the circumstances, be disregarded. (Code, §§ 169 and 170. 2 Kernan, 24-25.)

There is another consideration which is fatal to the defence. The complaint does not allege, nor was there any evidence tending to show, that the package was actually lost. The complaint states that the defendants received the package, and undertook to carry it and to deliver it at Philadelphia. That a delivery has been demanded there, and at the office of the defendants in New York, and that they have wholly neglected and refused, and still refuse to deliver it.

To make the qualifying clause of the contract available to the defendants, after the plaintiff had proved the case stated in the complaint, it was incumbent on the defendants to give evidence, tending to show that it was lost, or that they were not able to deliver it, in consequence of its destruction, or of its being placed beyond their control by some casualty arising “from the dangers of railroad, steam, or river navigation, leakage, fire, or some other cause.”

Then it would be the duty of the plaintiff to show that the cause of the loss, destruction, or other disability of the defendants to deliver, occurred from the “fraud or gross negligence of the defendants, their agents, or servants.”

But it cannot be pretended that the plaintiff cannot recover, for a refusal to deliver the article, if the defendants have the power to deliver it. Feither the complaint, nor the answer, alleges a loss of the package, nor any inability of the defendants to deliver it.

It was not suggested on the trial that it had been actually lost.

The concluding part of the contract is inoperative, except in case of an actual loss of the package. When the proof shows a loss of it, that answers the plaintiff’s claim, until he gives proof that the" loss resulted from fraud or gross negligence.

As'the case is presented to us, it is simply a case of a refusal to comply with" a demand, made in due form, at the proper place, to deliver the package. The refusal is not accompanied by any explanation. Fo suggestion was made that it was lost. The case, therefore, as far as the rights and liabilities of the parties to this action are concerned, is the same, as if this qualifying clause was out of the contract. There is nothing in the facts of the case on which it can operate. (Hearn v. The London and South- Western Railway Co., 29 Eng. L. and Eq. R. 494.)

There must be a judgment for the plaintiff; but, as the value of the property was not disclosed, the verdict must be reduced to $149.99.

Judgment accordingly for plaintiff, with costs.  