
    Charles E. Miller, Appellant-Respondent, v. George Harvey, Respondent-Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Carriers — express company — loss of automobile tires in transit — Laws 1911, chap. 571, section 127(2).
    Certain automobile tires sold to defendant by plaintiff for $95.43 in cash and delivered by plaintiff to an express company properly directed to defendant were lost in transit. The liability of the carrier under the receipt issued to plaintiff was limited to fifty dollars. The plaintiff having been notified by defendant of the non-arrival of the goods sent at his request a duplicate shipment which was delivered by the express company, defendant paying the charges. In an action to recover the purchase price of the second lot of tires for which defendant refused to pay, held, that he was entitled under section 127 (2) of the Sales of Goods Act (Laws of 1911, chap. 571) to elect to treat the delivery of the first shipment to the express company as no delivery to him and that he was entitled to plead either as a defense or by way of counterclaim that he had paid for the first set of tires which he did not receive.
    That the complaint should have been dismissed upon the merits, with costs, leaving plaintiff to his remedy, if any, against the express company.
    These are cross-appeals from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered in favor of the plaintiff for fifty dollars after a trial without a jury.
    Herman Goldman (Arthur W. Weil, of counsel), for plaintiff.
    John Larkin (Alexander S. Andrews, of counsel), for defendant.
   Page, J.

On or about July 17, 1912, the plaintiff sold automobile tires to the defendant at an agreed price, of ninety-five dollars and forty-three cents, which sum the defendant paid to the plaintiff. The plaintiff on the same day delivered the said tires to the United States Express Company, properly directed to the defendant at Allenhurst, N. J. The contract of carriage made by the plaintiff with the express company provided that, unless a valuation were expressly placed upon the goods and a proportionally higher rate paid for transporting them, the liability 'of- the carrier in case of loss, damage or destruction in transit should be limited to fifty dollars. The receipt issued to the plaintiff stated “Value asked and not given.” The tires were lost in transit and never delivered to the defendant, and it is conceded that the liability of the express company for them is limited to fifty dollars.

Thereafter and on August 3, 1912, the plaintiff having been notified by the defendant of the non-arrival of the goods sent to him at his request a duplicate shipment, which was delivered by the express company, and the express charges thereon paid by the defendant. This action is brought to recover the purchase price of the second lot of tires which was duly demanded of the defendant and which he refused to pay. The defendant sets up as a defense and by way of counterclaim the fact that he paid for the first set of tires and did not receive them. The plaintiff claims that a delivery of the tires to the express company for the defendant was a sufficient delivery to the defendant.

This case is controlled by section 127, subdivision 2 of the Sales of Goods Act (Laws of 1911, chap. 571), which states: “Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard for the nature of the goods and the other circumstances of the case. If the seller omits so to do and the goods are lost or damaged in course of transit the buyer may decline to treat the delivery to the carrier as a delivery to himself or may hold the seller responsible in damages. ’ ’ I am of the opinion that when the plaintiff shipped the goods under a contract whereby the defendant could only recover half of their value if lost or destroyed in course of transit he failed to make a “reasonable contract with the carrier on behalf of the buyer,” and the defendant was accordingly within his rights in declining to treat the shipment of the goods under such a contract as a delivery to him. The plaintiff- attempted to prove that there was a general custom among merchants and shippers not to place a valuation upon merchandise sent by express. The proof of such a custom was insufficient, but had it been proved to be a- general custom it should not be adopted by the courts as a rule of law, for no custom, however general, will be so engrafted into the law unless it be reasonable and just. It is neither reasonable nor just for shippers to deliver goods to a carrier on behalf of their consignees under contracts which fail to indemnify them and destroy their right of recovery for loss of the goods so consigned.

Though the learned trial justice reached this same conclusion both upon the facts and the law he committed error in awarding judgment for the plaintiff. The defendant, as he was entitled to do under section 127, subdivision 2 of the Sales af Goods Act, supra, elected to treat the delivery of the goods by the plaintiff to the express company as no delivery to him. He had paid full price for the goods and had never received them. That being the case his damages for failure of delivery by the plaintiff were their full value. Whether his plea was a defense or a counterclaim the result should have been the same. The complaint should have been dismissed upon the merits, with costs, leaving the plaintiff to establish his claim against the express company.

The judgment appealed from should be reversed, with costs, and the complaint dismissed, with costs.

Lehman and Whitaker, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.  