
    Michael E. Howatt, Respondent, v. William M. Barrett, as President of the Adams Express Company, Appellant.
    First Department,
    May 29, 1913.
    Carrier — failure of connecting carrier to deliver goods — change of destination by consignor — agreement of carrier to notify connecting carrier — failure to prove value of goods.
    Where a consignor having shipped goods by an express company to a destination and to a consignee on the line of another express company, requests the initial carrier to change the destination, and to deliver to another consignee at a time when the goods are in the hands of the connecting carrier, the initial carrier by changing the destination and name of the consignee on. the bill of lading does not make a new contract of carriage but merely undertakes to request the final carrier to comply with the wishes of the consignor. Hence, where the final carrier did not comply with the request, but returned the goods to the consignor, who refused them, on the grounds that he should not pay the express charges, and that the market price of the goods had changed, he cannot recover damages for the failure to deliver upon the theory that there was a new contract.
    Moreover, the consignor cannot - recover without proving the value of the goods.
    
      Qucere, as to whether the so-called" Carmack Amendment making a carrier engaged, in interstate commerce hable for the loss or damage of goods while in the hands of a connecting carrier applies where ihe goods are not actually lost or damaged, there being only a failure to deliver.
    
      .Appeal by the defendant,'William M. Barrett, as president, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of November, 1912, reversing a judgment of the Municipal Court of the city of New York in fávor of the defendant dismissing the complaint, and granting judgment in favor of the plaintiff.
    
      Edward V. Conwell, for the appellant.
    
      George A. Ferris [Jacob Ansbacher with him on the brief], for the respondent.
   Laughlin, J.:

This is an action by the consignor of goods against the express company for .breach of contract in failing to deliver the same to the consignee.

The goods were delivered to the express company in the city of New York on the 19th day of March, 1910, marked “ C. O. D. $44.50,” and addressed “ J. T. Saidy, 421 Thompson Ave., Excélsior Springs, Mo’,” and the company issued to the plaintiff á non-negotiable bill of lading therefor without requiring prepayment of the express charges. The point of destination w;as not on defendant’s line but on that of the Wells Fargo Express Company. It was provided in the bill of lading that if the C. Ó. D. package was not paid for within thirty days the carrier was at liberty' to return it and the shipper would pay the transportation charges both ways. The plaintiff had shipped other goods by the express company and the company customarily collected its charges from the consignee. Six days after the goods were delivered to the defendant for shipment, and when in due course they should have arrived at their destination, plaintiff called at its office with the bill of lading and requested oné of its clerks “in charge of the correspondence department ” to have the package “ forwarded to M. A. Saidy, Denver, Colorado [which was on the line Of the Wells Fargo Co. but not on that of the defendant], and to deliver the package less the O. O. D.,” and the clerk thereupon indorsed on.the bill of lading “ Del to M. A. Saidy Denver Col. without 0. .0. D.,” and the date, March 25, 1910.

The action, as shown -by the complaint ind by a statement of counsel for plaintiff on the trial, is brought upon the theory that this transaction six days after the making of the original contract constituted a new contract which obligated the defendant to deliver the goods to the new consignee at the changed destination, and the breach of contract is predicated solely on its failure to do so. It is quite evident from the fact that the plaintiff called upon the clerk in the correspondence department and requested to have the goods forwarded to another consignee and at a different destination, that he -understood that the defendant merely undertook to communicate, his request to the express company at the original destination, and that it was not within its power to make a new contract for the further transportation of the goods if they had been delivered, or even if the goods had not been delivered, between points wholly on the Wells Fargo Company line, neither of which was on defendant’s line, and this plainly appears from the fact that he called at the defendant’s office from time to time thereafter for the purpose, manifestly, of ascertaining what information defendant had received and was told that the defendant had written but had not received any reply and that “it would have to take its usual course,” but that “ it will be carried as directed.” There is no evidence as to whether the delivery of the goods was tendered at the original- destination; but, inasmuch as the action is not predicated on the original contract, that question is immaterial, and it would seem that plaintiff, in view of the request made with respect to change of destination and consignee, is in no position to complain of failure to deliver according to the original contract.

The plaintiff showed that the goods were not received at the new destination, and a witness who was an employee of the Wells Fargo Company was asked by the court why the goods were not delivered at the new destination and thereupon counsel for defendant volunteered to explain and was permitted to state on the record without objection, in effect, that the defendant communicated with the Wells Fargo Company at the original destination requesting it to forward the goods to the changed destination and consignee as plaintiff desired and that the Wells Fargo Company either misunderstood the new directions or: Hesitated- to .act thereon, since they involved a change not only of destination but of consignee as well, and returned the goods to the shipper. The goods appear to have been returned wholly by the Wells Fargo line, for they were tendered back to the shipper by that company, and it demanded express charges to and from the original destination. Plaintiff refused to accept a return of the goods on the ground that there should be no express charges, and that owing to the fact that the market price of the goods had changed, he wóuld lose his profit thereon.

The reversal at the Appellate Term (Y8 Mise. Eep. 156) was based on the amendment to the Interstate Commerce Act, known as the Carmack Amendment to the Hepburn Bill (34 U. S. Stat. at Large, 593, 595, § Y, amdg. 24 id. 386, § 20), which, with respect to interstate commerce, renders the iuiti'al carrier liable “to the lawful holder” of the receipt or bill of lading “ for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company, to which such property may be delivered, or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby interposed.” (See, also, §4 IT. S. Stat. at Large, 838, Ees. No. 4Y.)

There is no evidence that the goods were damaged ; and the contrary affirmatively appears. The only theory upon which it is claimed that" they were lost, to bring the case within the statute quoted, is that the Wells Fargo Company by not delivering them according to the new contract and by asserting a lien thereon for express charges when it had not performed either contract was guilty of conversion. It appears, however, that the plaintiff did not refuse to accept a. return of the goods on the ground that delivery to either consignee had not been tendered; and, while he objected to the express charges, " he did not place his refusal to accept the goods on that ground alone, but interposed an insurmountable objection, namely, in effect, that by accepting a return of the goods he would lose his profit thereon.

The learned counsel for the appellant contends that this statutory liability, so far as it relates to a loss of goods, contemplates an actual loss and he cites Greenwald v. Weir (130 App. Div. 696; affd., sub nom. Greenwald v. Barrett, 199 N. Y. 170) as authority therefor; but counsel for the respondent contends that the statute extends to any loss or damage whether arising from a conversion of the goods or delay in transit, or a failure to follow shipping instructions by which additional expense is caused, and he cites in support of that contention De Winter & Co. v. Texas Central R. R. Co. (150 App. Div. 612); Lord & Bushnell Co. v. Texas & N. O. R. Co. (155 Mo. App. 175; 134 S. W. Rep. 111); Baltimore, C. & A. Railway Co. v. Sperber & Co. (117 Md. 595; 84 Atl. Rep. 72), and Missouri, K. & T. Railway Co. v. Carpenter (52 Tex. Civ. App. 585; 114 S. W. Rep. 900). In the view we take of the evidence, however, no opinion need be expressed on that point, for the decision of the appeal does not depend on the construction of the Interstate Commerce Act.

The Wells Fargo Company received the communication from the defendant with respect to forwarding the goods to Colorado before it complied with the original contract, but, as has been seen, the action is not predicated upon the failure to deliver according to the original contract, and it is manifest that the plaintiff could not justly complain of such failure. If, on a tender of the return of the goods, plaintiff had declined to pay the express charges on the theory that his last instructions had not been carried out, it may well be that the Wells Fargo Company would have recognized that it was not entitled to a lien for such charges and would have delivered the goods; but however that may be, his right to recover in this action depends upon whether the defendant made a new and valid contract with him for the delivery of the goods at the new destination and to the substituted consignee, and whether he has shown any damages for its failure to so deliver.

We think that there was no new contract and that the defendant merely undertook to request the final carrier to change the destination of the goods and the name of the consignee, and that it is not liable for not succeeding in so doing. (Sheehy v. Wabash R. R. Co., 169 Mich. 604.) Moreover, the plaintiff failed to prove the value of the goods, which consisted of laces.. The only evidence which he offered on that subject was excluded under objection, and there is nothing in the record bearing upon the value of the goods, excepting a statement by the attorney for the plaintiff on the trial that his client claimed to be entitled to recover forty-four dollars and fifty dents, the face value ” of the goods; together with interest thereon; but there was no admission that such was the value of the goods, and these 'figures were evidently taken from the original directions on the bill of lading with respect to the amount to be collected on the package. One of the grounds of motion, on which the complaint was dismissed in the Municipal Court was that no legal damages had been shown, and that the measure of damages Was the difference, between the value of the goods at the timé when they should have been delivered and at the time return thereof was tendered, neither of which was shown. That motion sufficiently presented thé point that plaintiff had failed to show either the value of the goods or recoverable damages.

It follows, therefore, that the determination of the Appellate Term should be reversed, with costs, and the judgment of .the Municipal Court affirmed, with costs.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss,JJ., concurred.

Determination reversed, with costs, and judgment of Municipal Court affirmed, with costs.  