
    Abraham S. Rosenthal and Samson Fried, Respondents, v. Levi C. Weir, as President of The Adams Express Company, Appellant.
    
      Stoppage of goods in transitu—presumption of negligence — liability of the common carrier — not limited by the shipping receipt.
    
    A common carrier engaged in transporting, on its own lines and those of connecting carriers, merchandise shipped by a vendor to a vendee, which undertakes at the request of the vendor to stop the goods in transitu, is bound to exercise reasonable care in the performance of that duty, and if it neglects to do so it ■ is liable to the vendor for the damages sustained by its failure to do so.
    The fact that the carrier did not stop the goods in transitu raises a prima, facie presumption of negligence on its part.
    The carrier’s liability for the failure to stop the goods in transitu is not limited by the provisions ox the shipping receipt, as such a receipt is only intended to govern the carrier’s liability in matters incidental to the original shipment and has no relation to the new and independent duty of returning the goods.
    Appeal by the defendant, Levi C. Weir, as president of the Adams Express Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day.of February, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of February, 1900, denying the defendant’s motion' for a new trial made upon the minutes.
    The action was brought to recover damages for defendant’s failure to stop in transit a shipment of merchandise and prevent delivery thereof to the consignee.
    The complaint states two causes of action: First, that the plaintiffs delivered to the defendant in the city of New York on March 31, 1897, certain goods valued at $579.23 for shipment to I. Goldsmith & Go., of Balias, Texas, and thereafter,, on April 2, 1897, discovered that the consignees were insolvent, and, while the merchandise was still in the possession of the defendant, directed it to stop the goods and return them to the plaintiffs, which direction was not obeyed; and, second, that the defendant, on April 2, 1897, while the shipment was still in its possession and control, agreed with the plaintiffs, for a valuable consideration, to return .the goods to the plaintiffs, and Undertook to do so, but did not .comply with . • its agreement.
    The answer admitted that the goods were shipped, but alleged that they were received upon a special contract ■of. bill pf lading, and that no other agreement was made. Attached to the answer was. a copy of the contract referred to, and it provided among other things that the express company were forwarders only, not liable for any loss or damage except that proved to have occurred from its fraud or gross negligence, and in no event should the shipper demand a greater sum than fifty dollars, unless otherwise expressed of specially insured.
    The original receipt was; introduced in evidence by the defendant, which contains the conditions of the contract attached to the answer-and upon which áre the words" Value asked and not given,” and also the memorandum " ordered returned by telegraph Apl. 2nd/97.” There was also offered in evidence the stipulation of the parties: “ That on said day, March 31st, 1897, said Adams, Express Company did not have a through line from the city of New York to Dallas, Texas. That said Adams Express Company carried the merchandise described in the complaint to Kansas City, Missouri, and there, on April 2nd, 1897, delivered the same to the American Express Company to complete the transportation to Dallas, Texas. That, thereafter, said American Express Company delivered said packages to said 1. Goldsmith & Company. It is admitted that on April 2nd, 1897, said I. Goldsmith & Company were insolvent and unable to discharge their indebtedness in full, and thereafter and prior to June 10th, 1897 (when payment for 'the goods was due), publicly declared their insolvency by the execution and delivery of a general assignment for the benefit of creditors, containing preferences.”
    It was testified for the plaintiffs that their representative called at the express company’s office, Canal and Mercer streets, at about nine o’clock on April 2, 1897, and informed the young man there, who was an assistant and the only person present, that the plaintiffs, wished to have the goods stopped; and he went into an inside office and on coming .out said : “ It is plenty of time; we can stop the goods,” and asked if the plaintiffs would pay for a telegram to be sent, and upon being told that they would, made out a telegram, which was at once sent and paid for by the plaintiffs, and which read :
    “New York, N. Y., 2 Api., A. D. 1897.
    “ To Agent Pac. Ex.,
    
      “ Dallas, Texas:
    
      “ Hence March thirty-first two packages I. Goldsmith. & Co., return to shippers, Rosenthal & Co.
    “ j. McWilliams.”
    Further it was testified that the express company never returned the merchandise, but the consignee, for reasons unconnected with the matter of insolvency or the notice to stop, returned two pieces of silk valued at thirty-seven dollars and forty-one cents, and never-paid for any part of the goods sent. The plaintiffs’ shipping clerk testified, against defendant’s objection and exception, that no request • was made when he shipped the goods for a statement of the value thereof; that he did not read the fine print at the bottom of the receipt given and did not know its contents.
    The defendant introduced in evidence a letter sent by the plaintiffs to it on April 13, 1897, stating that the merchandise was shipped on March thirty-first and on April second.; request' was made to telegraph that the goods were not to be delivered, which telegram, signed'by J. McWilliams, was duly sent; that the consignee had returned two pieces, showing that the merchandise was delivered contrary to instructions, and that for any loss the shipper would expect to be compensated. Mr. McWilliams testified for the defendant that the young man referred to by the plaintiffs’ witness was a stenographer whose work did not extend outside such duties, and that he had not authorized the sending of the telegram to which his name was signed.
    .Upon this evidence both parties moved for the direction of a verdict, and the defendant asked the court “to instruct the jury that in no event can the plaintiffs recover damages in excess of fifty dollars.” The court declined so to instruct the jury, and directed a verdict for the full amount mentioned in the complaint, with interest thereon; and from the judgment entered upon the verdict so rendered the defendant appeals.
    
      Carl A. de Gersdorff, for the appellant.
    
      Julius J. Frank, for the respondents.
   O'Brien, J.:

Many questions sought to> be raised as to the liability of a common carrier, and as to the extent to which such liability can be limited by contract, we deem it unnecessary to discuss in view of the principles which we regard as controlling upon the facts here appearing. It is of course necessary in the -first instance to determine whether the rights of .the parties are controlled by the shipping receipt, or by a separate and distinct contract or obligation. If under the former, then seemingly there would not only be need of proof of negligence, but in the event of recovery, it is doubtful if the sum awarded could exceed the fifty dollars fixed as the limit 'of liability. We are inclined, however, to the view that the rights and liabilities do not fall under the shipping contract. What was intended by the provisions of the latter was to govern the liability of the.defendant in all matters incidental to its undertaking as a common carrier in connection with the shipment from New York to Dallas, Texas, but they had no relation to the new and independent duty of returning the goods from some point on the line back to New York.

It is not disputed that while the goods were in transit the plaintiffs’ right of stoppage existed; and, they having notified the defendant that they proposed to exercise such right, there remains to be determined what obligation devolved upon the defendant, and whether or not such obligation was discharged. It being the duty of the defendant to recognize the plaintiffs’ right of stoppage in transitu, the failure to perform that duty made the defendant liable. As said in Schouler on Personal Property (Vol. 2, § 565), “ the effect of such notice, seasonably given and sufficiently plain in expression, is to revest the seller’s possession and lien; and the carrier is bound to obey, leaving the justification of the stoppage with the seller as concerns the sale parties; since the due exercise of this right is at the seller’s and not the carrier’s peril. The carrier is not to disregard the seller’s claim, nor to undertake to solve the dispute between buyer and seller, nor to ask for evidence of the right; but to obey the seller’s order implicitly, and thereupon refuse delivery to the buyer.”

That the plaintiffs gave sufficient 'notice of their intention to exercise their right of stoppage in transitu, and in compliance with such notice defendant undertook to discharge its duty, appears from the evidence. The questions remaining are, whether it properly discharged that duty, and, if it did not, what was the measure of damage to which it subjected itself by its failure.

Upon the first, we think that there was a prima facie case of negligence made out by the plaintiffs upon the showing that they notified the defendant, and that the defendant improperly performed that duty, a fair presumption being that had the defendant sent a telegram to Kansas City where the goods were to be reshipped by the American Express Company, it would have prevented such reshipment, or defendant might have taken other means to stop the goods before they reached Dallas, Texas. Considering what was to be accomplished and the means in the. defendant’s hands for accomplishing it, it was for the defendant to rebut the inference thus created that it had neglected to use reasonable care. • In other words, we think that the plaintiffs made out a prima fa&ie case tending to show that the defendant had neglected to use reasonable care in performing the duty which it had undertaken. That the defendant was bound, after having, assumed the duty, to use such care, we think follows from the obligation imposed; for were it not for the agreement, the plaintiffs might have resorted to other means or employed other agencies to prevent the delivery of the goods to the consignee.

At the close of the testimony, neither side asked to go to the-jury on any question of fact, but both moved for the direction of a verdict, thus submitting to the trial judge the determination of the disputed questions of fact, which determination, with sufficient evidence to support it as herein appears, is conclusive upon us. The defendant did ask the court “ to instruct the jury that in no event can the plaintiffs recover damages in- excess of fifty dollars.” This-was asking the court to hold- as matter of law that the shipping contract was conclusive as to the measure of damages. We have-already intimated that the trial judge was right in refusing to concur in this view and that the rule to apply was that of compensatory damages. Hnder this rule, the measure is what the plaintiffs lost, which was the value of the goods, less the amount returned.

Two pieces of silk were returned valued at thirty-seven dollars- and forty-one cents, which sum should have been deducted from the-total value of- the goods originally shipped. There is no dispute-about the value of the goods returned, and the trial judge, not having his attention called to them, inadvertently included this-value in the amount for which the verdict was directed. That could have been corrected by motion, and at any time can he deducted and no appeal was necessary for that purpose.

Having concluded that the plaintiffs were entitled to recover fertile reasons set forth, it will be seen that the excéptions taken- to the testimony of the plaintiffs’ 'witness as to the receipt handed him, are of no moment. We think, therefore, that the judgment was-right, except in the particular referred to as to the value of the-goods returned, which can be corrected, and should be affirmed,, with costs.

Patterson, Ingraham and Hatch, JJ., concurred.

Van Brunt, P. J.:

I concur in the result only. The defendant having undertaken to stop the -goods, was bound to use reasonable care to do so; and under the evidence this was a question for the jury. The, defendant-not having asked to go to the jury, cannot now claim error "because-the case was not sent to the jury.

Judgment affirmed, with costs.  