
    Coffin & White vs. The New-York Central Railroad Company.
    A contract for the shipment of goods upon the defendant’s railroad was made by the plaintiffs, orally, with the agent of the defendant, at Clyde, H. Y., on the 24th of January, 1865, and the goods were delivered to, and received by the defendant’s agent, on that day, and the freight to Albany or Hew York then paid. The goods were forwarded east, on the same day, but did not arrive in Albany until the 27th day of February, thereafter. It appeared / that from the 24th day'of January to February 10th or 15th, freight cars were running over the defendants road with ordinary regularity, and that the usual time required by the defendant, to transport freight from Clyde to Albany, over its road, was forty-eight hours, and to Hew York city about three days. Held that the evidence fully warranted the finding of the referee that the failure of the defendant to deliver the freight within a reasonable time after its receipt, was the result of the negligence of the defendant and its agents.
    On the third day after the shipment of such goods, as one of the shippers was about starting for Albany, to look after the same, he received from the defendant’s agent, at Clyde, shipping bills of the property. Meld that the receipt of the bills of lading by him, at that time and under the circumstances, could not be considered as implying any change or modification of the contract for transportation, originally made, three days previously; unless it distinctly appeared that the contents of such bills were fully known, and were assented to by the shippers.
    And, the referee having expressly found that neither of tire plaintiffs knew or were informed of the printed part of said bills, at the time of their receipt, it was further held that the defendant must be deemed to have received the property for transportation subject to its common law liability as a common carrier; and was liable for negligence, for its failure to deliver the property within a reasonable time after its receipt; notwithstanding a provision in the printed part of the bills of lading that the defendant would not be responsible fcr damages occasioned by delays from storms, or by the decay or injury to fruit, &c.; or liable for the non-delivery of the property in any certain time.
    APPEAL from a judgment entered upon the report of a referee.
    The action was brought to recover the damages sustained by the plaintiffs in consequence of the carelessness, negligence and delay of the defendant in transporting a quantity of butter and dried fruit from Clyde, Y. Y., to Albany or the city of Yew York, as the plaintiffs should elect. The plaintiffs alleged, in their complaint, that by reason of such delay, the property was injured and greatly lessened and depreciated in value, and the plaintiffs were subjected to great expense in looking after the property while delayed, and in refitting and packing the same for market, on its arrival; and that since its shipment the general market value of said produce had become greatly lessened, in consequence of a decline in the market price at Albany and Yew York.
    The answer was a general denial. The action was referred to a referee, who found the following facts : First. That in January, 1865, and for some years previous thereto, the defendant was a corporation duly organized under the laws of the State of Yew York, by the name of the Yew York Central Railroad Company, engaged in the business of transporting passengers and freight from Buffalo, in said State, to the city of New York, passing through the village of Clyde, Wayne county, and at that place having a passenger depot and freight house for the accommodation of people desiring to take passage on said railroad, and to receive freight to be transported over said road.
    
      Second. That on the 24th day of January, 1865, the plaintiffs, William H. Coffin and Charles A. White, were engaged in buying butter and produce at said village of Clyde, for the markets at Albany and New York cities, and on said day said plaintiffs contracted with the defendant, by and with William Waters, the defendant’ s agent at Clyde station, to ship over the said road two hundred and fifteen barrels of dried apples and forty packages of butter for market sale, in the cities of Albany and New York, at and for price then and there agreed upon for such transportation, which said price was on that day paid by the plaintiffs to the defendant; and, in consideration of the payment of said price, the defendant agreed to transport fifty of said barrels of said dried apples to Albany, and the .balance, one hundred and sixty-five barrels, and the forty packages of butter, to the city of New York; that, in pursuance of such contract, said defendant received said apples and butter at their freight house in Clyde, and shipped them on board their cars on the said 24th day of January, 1865, and forwarded them east the same day.
    
      Third. That on" the same day, and after said produce and butter were shipped, and had been taken from said Clyde station by a regular freight train of the defendant, the plaintiff White was advised by the defendant’s agent, said William Waters, to wait until the third day, before he started for New York to receive the goods, as that would be about the time said goods would arrive in New York; that the goods, when shipped, were marked and consigned to said Charles A. White; that on the third day after said goods were skipped, the plaintiff White went to Albany on a passenger train, run by the defendant on the said road, and that on the said third day the defendant made out and delivered to said White, who then received the same, two bills of lading, or shipping bills, so-called, copies of which were annexed to, and made a part of the report. That neither of the plaintiffs knew or were informed of the printed parts of said bills, (a)
    
    
      Fourth. That on the 23d day of January, 1865, the defendant informed the plaintiff White that there were two cars at the Clyde depot, in which the plaintiffs could ship their said stuff, and, in consequence thereof, on the next day said White and William Waters, the defendant’s freight agent at Clyde, shipped and sent forward the apples and butter.
    
      Fifth. White reached Albany in the usual time from Clyde, and repeatedly inquired at the defendant’s freight house in Albany, for two successive days after his arrival, for his apples and butter; but they did not in that period arrive at Albany at all. That White then went on to Yew York to receive and take charge of that part of said property consigned to him at Yew York, and for ten days waited its arrival there, each day inquiring of the defendant at its freight house for his goods, and that during said ten days his goods did not arrive at all, and that White was thus delayed the two days at Albany and ten days in New York solely by the non-arrival of his goods, and necessarily incurred, by reason of such detention, an expense of $60, including personal expenses for board and telegraphing to learn the whereabouts of his produce.
    
      (a) Endorsed upon each of these bills of lading were several “ conditions and rules, forming part of the within contract.” Among these were the following: “ 6. The corporation will not be responsible for damage occasioned by delays from storms, accidents, or unavoidable causes; or by the decay or injury to fruit, fish, dressed hogs, dressed poultry, or other perishable property, or from injury to property produced by frost, heat, or the elements; and the corporation will not be liable for the non-delivery of such property in any certain time, nor in time for any particular market. The charges on perishable property must always be prepaid.
    7. The corporation will not undertake or agree to carry property by any particular train, nor in time for any particular market, nor are they to be responsible for loss or damage arising from any delay or stoppage, however occasioned; but they will forward the same with as reasonable despatch as the general business of the corporation will permit.”
    
      
      Sixth. That the usual time required by the defendant to transport freight from Clyde to Albany over them road was and is forty-eight hours, and from Clyde to New York city about three days. That the plaintiffs’ apples and butter did not arrive at Albany until the 27th day of February, being thirty days after shipment. That from the 24th day of January to February 10th or 15th, freight cars were running over them said road with ordinary regularity, and during the time the plaintiff White was detained in Albany and New York, freight cars of the. defendant, loaded, were constantly arriving from the west in-Albany and New York.
    
      Seventh. That the plaintiffs so shipped 3,504 pounds of butter and 38,700 pounds of dried apples, and that on the 26th and 27th days of January, 1865, this butter-was worth, in the market in Albany, fifty-five to fifty-eight cents per pound, and on the 27th day of February it was worth twenty-three cents per pound, the depreciation in the market, value of the butter being in all $1,191.36. That the dried apples so shipped, amounting to 38,700 pounds, were worth in market at Albany, from the 26th and 27th of January till about the 15th February, fifteen and a half cents per pound. That before and on the 27th of February their market value at Albany had declined and was only eight cents per pound, their total depreciation in value in said time amounting to $2,902.50.
    
      Eighth. That at the time of said shipment, and ever since, the defendant had a well equipped railroad, capable of transporting all freight offered, and well and carefully run in every respect, as a rule.
    
      Ninth. That during the winter of 1864 and 1865, and from about the 10th day of January up to and until the spring of 1865, heavy snow storms prevailed along the line of the defendant’s road, and severe and unusually cold weather, whereby the operation of said road was rendered more difficult than was ordinarily the case in the winter season, and at times during said period wholly obstructing for several hours in succession the passage of trains over said road, and that on all such occasions the defendant used extraordinary diligence, and made every reasonable effort to keep the track clear of snow, and available for the passage of trains. But that from January 24th up to February 16th, freight trains were daily passing over said road from the west to Albany and to New York.
    
      Tenth. That it did not appear that the two cars in which the plaintiffs’ goods were shipped were in fact delayed at all by -storms or severe cold weather, nor at what point or points on the road between Clyde and Albany they were detained from the 26th or 27th of ■ January, when in an ordinary transit they should have reached Albany the 27th of February, the day they did in fact reach there.
    As conclusions of law, the referee found that the defendant, for a valuable consideration paid by the plaintiffs, shipped said dried apples’ and butter, and agreed to and with the plaintiffs to transport them to Albany in a reasonable time, and in the usual time required for that trip, for freight trains, but that they failed so to do ; and that such failure was negligent; and that by such negligence the plaintiffs were compelled to sell their said dried apples and butter at a greatly reduced price; and that by such negligence the plaintiffs suffered a loss in the market value of said property to the amount of $4,093.86, and necessarily incurred additional expenses in looking after their goods to the amount of $60; and that the plaintiffs were entitled to recover of and have judgment against the defendant for the said sums, in all amounting to the sum of $4,153.86.
    And he directed judgment accordingly, against the defendant, and in favor of the plaintiffs.
    From the judgment so entered, the defendant appealed.
    
      Sedgwicks, Kennedy & Tracy, for the appellant.
    I. The contract between the parties is contained in the receipts delivered to the plaintiffs, which were accepted by them and never repudiated or returned, or in any way disclaimed. (Dorr v. N. J. Steam Nav. Co., 1 Kern. 485. Wells v. N. Y. Central R. R. Co., 24 N. Y. 182. Bissell v. The Same, 25 id. 442. French v. Buffalo, N. Y. and Erie R. R. Co., 4 Keyes, 108.)
    II. By these contracts the liability of the defendant for delays from storms, accidents or unavoidable causes, is expressly guarded against and limited.
    III. Independent, however, of any express contract, the liability of a carrier for delay or a late delivery of property depends upon the question, whether under the circumstances he has exercised reasonable diligence. Accident or misfortune will excuse the carrier, unless he is bound by express contract tp deliver within a fixed and limited time. (Wibert v. N. Y. and E. R. R. Co., 2 Kern. 245. Parsons v. Hardy, 14 Wend. 215. Conger v. Hudson R. R. Co., 6 Duer, 374. 19 Barb. 40.)
    
      J. D. Husbands, for the respondents.
    I. The contract as proved was not governed or affected by the printed conditions contained in the receipts.
    1. It was completed (as to its terms) by the verbal bargain and the acceptance and shipment of the freight.
    2. The receipts were not signed by the plaintiffs, nor were the contents stated to them. They did not know what the receipts contained, and they were not received until three days after the goods were shipped, as White was leaving for Albany. They were intended as memoranda or orders to enable White to identify and claim and receive the property, and were not designed as the written evidence of the contract. 3. The question of estoppel is not in the case. These receipts were handed to White at the depot by the company’s agent. They were not delivered to the company by White after being signed by him, as in the cases where the shipper is held estopped. They were not even signed by White. 4. Whether, under the circumstances of this case, White had notice of, and assented to the printed terms, was at most a question of fact. That he had no knowledge or information of the contents of the printed parts of the receipts is proved affirmatively, and there is no evidence in opposition, save the bare delivery of the receipts; and the time of the delivery and absence of all notice of the contents, indicate clearly that the purpose was neither to give notice nor to exhibit the terms of the agreement. (Prentice v. Decker, 49 Barb. 21, 23, 24, 31.) In Brown v. Eastern R. R. Co., (11 Cush. 100,) it is said:
    ‘ ‘ It was a question of fact whether she knew the limitation before she started on her journey.” (See opinion of Leonard, J., in Limburger v. Westcott, 49 Barb. 290 ; 1 Lans. 207, 209; Sunderland v. Westcott, 40 How. Pr. 470 ; Blossom v. Dodd, 43 N. Y. 267; 34 How. Pr. 121.) As to construction of agreement, see Guillaume v. H. and A. Packet Co., (42 N. Y. 212.)
    II. The delay was negligent. 1. The referee has so found, and this should be final so far as to preclude investigation upon the conflicting evidence. 2. The time of the delay alone raises the inference of negligence, but added to this is proof that the company had engines and cars sufficient to convey its freight; that the weather was fair, and no storms obstructed the running of the trains at this time; that the company’s trains were running regularly; that the roadway was in such condition that there was plenty of time to have conveyed this freight to Albany by the 37th of January; that other freight shipped one or two days after this from the same point, of the same class, to the same place, was carried through in the usual time, as well as many other shipments, all through February; that the company’s agent at Clyde was kept advised daily of the condition of the road by the superintendent, and that he directed this shipment at this time, and indicated the time when they would arrive, as well as the absence of all account of the whereabouts of these cars for over a month. These facts establish neglect of the most gross character. (Bouv. Inst. § 2345. Bac. Abr. Carriers. 3 Edm. Stat. 612, 634, §36. Blackstock v. N. Y. and Erie R. R. Co., 20 N. Y. 50. Van Buskirk v. Roberts, 31 id. 669. Howe v. Oswego and Syracuse R. R. Co., 56 Barb. 124. Michaels v. N. Y. Central R. R. Co., 30 N. Y. 564. Scovill v. Griffith, 2 Kern. 515.)
    III. The rule of damages adopted by the referee is correct in principle, and is supported by authority. 1. The expenses necessarily incurred by White were occasioned by the express direction of the company’s agent, to be in blew York and Albany to receive his goods at the time when he did in fact reach there. White had the right to expect the goods at that time, and the company knew that he would journey there to receive them. Failing after all this to receive the goods, because of inexcusable delay in transporting them, he asked to have the company reimburse him the money they had thus occasioned him to lose. (Briggs v. N. Y. Central R. R. Co., 28 Barb. 521, 525, 526. Howe v. Oswego and Syracuse R. R. Co., 56 id. 12.) 3. The diminution in value of the produce by a decline in the market price, intermediate the time when it should have arrived and when it did arrive, was a loss to the plaintiffs resulting directly from the omission to deliver in time for the market centemplated by the parties, and is a proper element of damages, (a.) The goods were agreed to be delivered promptly. It was well known by the defendant that they were intended for sale in the market. They were from an interior to a market town, in quantities to indicate that they were for sale at the then prevailing market rates. Instructions were given by the agent to White, based upon this very knowledge. The market price was subject to fluctuations. (5.) It is not claimed that the defendant knew that the market price would decline, but it knew that the market was subject to changes, and delay in transportation increases the probability of loss, while prompt delivery would be likely to insure the existing rates, (c.) The defendant did negligently delay the transportation of the goods, and the price having declined they were diminished in value to that extent below what they would have been worth, if the defendant had not by neglect prevented the plaintiffs from selling at the contemplated market price, (d.) And this prevention or deprivation of a right in violation of their contract to deliver promptly, occasioned the plaintiffs this loss. (e.) The omission to deliver promptly may not have changed the market or affected it in any manner, but it accounts for the plaintiffs’ loss, and is the direct and immediate injury they have suffered by the defendant’s neglect, and it was known and contemplated at the time the contract of transportation was made. The carrier is either liable for this loss, or the people at both ends of the line, and all along it, are at its mercy, and the transportation companies may control the market price, by neglect to transport at a given time, and yet be substantially exempt from liability. Such cannot'be the rule. (Griffen v. Colver, 16 N. Y. 491. Scovill v. Griffith, 2 Kern. 517, 518. Shearman & Redf. on Negligence, 646. Medbury v. N. Y. and 
      
      Erie R. R. Co., 26 Barb. 564, 567. Leonard v. N. Y. &c. Tel. Co., 41 N. Y. 561, 568. Cutting v. Grand Trunk Railway Co., 13 Allen’s Rep. 381. 15 Pick. 301. 12 Allen, 531. 34 Verm. 565. 9 C. B., N. S., 632-646. 7 Hurls. & Norm. 79. 4 Mich. 489. Sedg. on Dam. 400, n. 2, 5th ed., and same note, pp. 401-403; also note 2, p. 67, same edition; also note 1, p. 79.)
   By the Court, E. Darwin Smith, J.

The findings of the referee upon the facts make out a clear case of negligence against the defendant, in the transportation and delivery of the property in question. The referee finds that the contract for the shipment of the goods was orally made by the plaintiffs with the agent of the defendant, at Clyde in this State, on the 24th of January, 1865, and the goods delivered to and received by the defendant’s agent on that day, and the price for their transportation to Albany and part to New York then paid; and that the said goods were forwarded east on the same day, and the same did not arrive in Albany till the 27th day of February, thereafter. That from the 24th day of January, to February 10th or 15th, freight cars were running over the defendant’s road with ordinary regularity, and that the usual time required by the defendant to transport freight from Clyde to Albany, over its road, was 48 hours, and to New York city about three days. The evidence fully warrants the finding of the referee that the failure of the defendant to deliver said freight within a reasonable time after its receipt was the result of the negligence of the defendant, and its agents. If the defendant is responsible for negligence in the transportation and delivery of said property, there is no ground for the reversal of the findings of the referee upon the facts or the law, or of the judgment rendered by him. The defendant claims exemption from liability for the loss sustained by the plaintiffs, chiefly on the ground that the contract between the parties is contained in the receipts or shipping bills given to the plaintiff, which were accepted by him, for the property, and never returned or repudiated or in any way disclaimed. These receipts or shipping bills were produced in evidence and were all printed, except the names of the parties, dates, times and description of the property shipped. It is not pretended that these bills or receipts express the actual contract made between the parties for the shipment of the property. This was orally made, on the 24th of January, when one of the plaintiffs was advised by the defendant’s agent to wait until the third day, as the referee finds; before he started for New York to receive the goods, as that would be about the time said goods would arrive in New York. The goods were consigned to Charles A. White, one of the plaintiffs, and it appears that on the third day after the shipment, and before he started for Albany, said White received these bills from the defendant’ s agent at Clyde. The receipt of these shipping bills by Mr. White, under the circumstances, just as he was starting for New York to receive and dispose of the property, as evidence that he was the owner and consignee of such property, should not be considered, I think, as implying any change or modification of the contract, for the transportation of said goods, originally made, upon their delivery three days previously, unless it distinctly appeared that the contents of such bills were fully known, and were expressly assented to by him. In this view, and inasmuch' as the referee expressly finds that neither of the plaintiffs knew or were informed of the printed parts of said bills, at the time of their receipt, it is quite clear, I think, that the defendant must be held to have received such property for transportation subject to its common law liability as a common carrier, within the cases of Brown v. Eastern R. R. Co., (11 Cush. 99 ;) Prentice v. Decker, (49 Barb. 30 ;) Limburger v. Westcott, (Id. 290;) Blossom v. Dodd, (43 N. Y. 264,). and Gage v. Jaquith, (1 Lans. 208 ;) and are clearly liable for negligence, as held by the referee, for its failure to deliver said property within a reasonable time after its receipt.

[Fourth Department, General Term, at Rochester,

September 10, 1872.

Mullin, Talcott and E. D. Smith, Justices.]

The judgment should therefore be affirmed.  