
    Robert K. M. Easter, Appellant, v. The New York & Boston Despatch Express Company, Respondent.
    (Supreme Court, Appellate Term,
    December, 1911.)
    Appeal — Review — General principles —Adhering to theory of cause — Questions not raised below.
    Carriers — Carriage of goods—Actions against carriers: Title to maintain action against carriers; Action by consignor.
    Evidence — Presumptions — Receipt of letters and telegrams —Authority of writer.
    Principal and agent — Unauthorized and tortious acts of agents (including apparent authority)—In general.
    Saving questions for "review — Presentation and-reservation of questions in general — Necessity.
    Where the plaintiff on the trial of an action against a carrier for goods lost proves that he entrusted the goods to defendant and that they were never delivered, and no motion to dismiss the . complaint is made, evidence that the goods did not belong to plaintiff but to a stranger to the action is inadmissible where the issue of plaintiff’s ownership was not raised by the pleadings.
    Where it appears that the goods were delivered to plaintiff by a manufacturer on memorandum with' the privilege of showing them to a proposed purchaser and (the right to return them if not sold, the fact that after the loss of the goodsi by an express company the manufacturer sent a bill for them to plaintiff and treated the transaction as a sale transferred the title to plaintiff and entitled him to recover damages against the carrier for their nondelivery.
    The point that plaintiff had not filed his claim within the time provided by the contract of shipment could not be raised by defendant for the first time on appeal from a judgment in its favor.
    In the absence of proof ,as> to the authority of the person who wrote and signed Certain letters purporting to have been received from the defendant in answer to letters written by plaintiff to it to bind the defendant in the matter in controversy, the exclusion of the letters was not error as their mere receipt was not enough to make them admissible in evidence.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Yew York, borough of Manhattan, first district, dismissing the complaint upon the merits, after a trial held before the court without a jury.
    
      H. A. Andrews, for appellant.
    Edward Y. Conwell, for respondent.
   Gtegerich, J.

The plaintiff alleges in his complaint -that the defendant became indebted to him by reason of the loss of certain silks intrusted to' it- for carriage; that he has demanded payment for the said silks and presented á bill for the same amounting to $129.68; that the defendant promised and agreed with plaintiff to pay the sum of $129.68- in settlement of said claim; that no part of said sum has been paid, although repeatedly demanded.

At the trial the plaintiff w.as unable to prove any express promise, but he did show that he intrusted certain goods to the defendant for carriage and that these goods were never delivered. The defendant made no motion to dismiss the complaint and thereby conceded that the plaintiff had made out a prima facie case. It thereafter introduced certain evidence that the goods did not belong to the plaintiff but to a manufacturing company, .a stranger to this action. The - trial justice gave judgment for the defendant. The sole issue apparently litigated upon this trial was whether.or not the plaintiff was the owner of the goods. That issue was not raised by the pleadings. Apparently the parties proceeded as if the action was brought, not upon an express promise, but to recover damages for failure to deliver. I fail to see how, under the theory upon which the case was tried, defendant was entitled to judgment.

The defendant showed that the goods had been intrusted-to the plaintiff simply upon a memorandum, with the privilege to him of showing them to a proposed customer; and, if they were not purchased by that customer, then they were to be returned by the plaintiff to such manufacturing company. Although, probably, the plaintiff did not through this transaction obtain title to the goods, the fact that the manufacturing company, after the failure of the plaintiff to return the goods, sent him a bill for the same, treating the transaction-as a sale .as it had a fight to do, should, I think, be deemed to have the effect of transferring the title to the plaintiff.

The defendánt also urges that the judgment was correct because it appears that, the goods were shipped under a written contract which provided that the -express company “ shall not be liable for loss, damage or detention of said property unless the non-delivery shall be presented to it in writing at its office within ninety days from this date, with this contract or a copy thereof annexed.” The defendant pleaded no such condition and pointed out no such defect in the proof at the trial. It is, therefore, precluded from raising such a point upon appeal.

The plaintiff also urges that errors were committed by the trial court in excluding certain letters purporting to have been received from the defendant company in answer to letters written by the plaintiff to that company. On behalf of the plaintiff numerous cases are cited to support the proposition that the arrival of a letter by mail, purporting to be from the addressee of a prior letter duly addressed and mailed, is sufficient evidence of the genuineness of the reply to go to the jury; but in this case there was not only a question of the genuineness of the letters purporting to have come from the defendant company, but there was also a question o.f the authority of the person who wrote and signed them to bind the company in the matter. Of this authority no evidence was given, ae was pointed out by the court upon the ■trial. The mere receipt of the letter was not enough without proof that the person whose name was signed to the letter had authority to act for the defendant corporation in the matter. Wickham v. Lehigh Valley R. Co., 85 App. Div. 182.

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

• Lehman and Pendleton, . J J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event. ■  